A more just social group test for the US

This article proposes a doctrinal reorientation in US asylum law concerning the definition of ‘particular social group’, grounded in recent developments in US administrative law. Since the advent of the immutability test articulated in the foundational decision Matter of Acosta (1985) by the Board of Immigration Appeals—the chief administrative appellate body that issues precedential decisions related to refugee status determinations in the United States—the US legal standard has shifted toward a far more restrictive framework. Beginning in 2006, the Board began layering additional requirements—social distinction and particularity—onto the social group analysis. These developments have sharply narrowed access to asylum protection, particularly for forcibly displaced Latin Americans fleeing gender-based harm, gang violence, and persecution by transnational criminal organizations. This restrictive trend has reached its apogee in the second Trump administration, where now there is not a single remaining example of a social group that satisfies the three-part test in Board precedent. However, the recent US Supreme Court decision in Loper Bright Enterprises v Raimondo—which overturned the longstanding Chevron doctrine of administrative deference—may present an opportunity for reform. Specifically, that shift in law has created an opening for US courts to reassess the meaning of ‘particular social group’ without deferring to restrictive agency interpretations. In response to that opening, this article argues that by returning to the immutability test established in Matter of Acosta—or adopting a framework that allows for either immutability or social distinction—courts can align US refugee law more closely with United Nations High Commissioner for Refugees guidance, even at a time when the Trump administration is taking every possible measure to dramatically reduce who may seek asylum in the United States. In the present moment of rising displacement and increasing need for refuge, US law can and must recover a normative commitment to protection.