Immigration law has not caught up with today’s reality of why most asylum-seekers are fleeing persecution. To protect today’s asylum-seekers, U.S. asylum law must be modernized.
An Outdated Asylum Framework
At the 1951 Refugee Convention, the concept of a “refugee” was codified into international law as a response to the massive refugee crisis caused by the Holocaust. Twenty-nine years later, in 1980, the United States integrated international refugee law into U.S. domestic law.
This refugee law provides protection for people who are fleeing persecution, if that persecution is based on one (or more) of these fives grounds: the person’s race, their religion, their nationality, their political opinion, or their membership in a “particular social group” (PSG). (This requirement exists among others.) In 1951, these five grounds were comprehensive enough to encompass the majority of the refugees in question. Today, they are not.
Herein lies the problem: the definition of a “refugee” has barely evolved since 1951. We are stuck with the same five grounds created in an immediately post-World War II world.
Refugees and Their Claims Look Different Today
Today’s refugees come from different places than refugees did right after World War II, over 50 years ago. Today’s refugees experience persecution for different reasons.
CAIR Coalition’s clients face death threats, torture, and other forms of persecution for myriad reasons, including: surviving sever gender-based violence, being part of a family that is targeted by gangs, having a mental health issues, serving as a prosecutorial witness, speaking out against gang violence, or being part of the LGBTQIA community.
Under current outdated law, all of these peoples’ applications for asylum — no matter how complex, varied, and personal — must be shoehorned into just one of the five protected grounds: their membership in a PSG. Individuals applying for asylum, more often than not without any legal representation, must explain in what “particular social group” they belong, how it is a definite and reasonably sized group in society, and how their persecutor was acting with the layer of their identity in mind, among other things.
How the Particular Social Group Became the Only Path to Asylum: Susanna’s Story
Susanna suffered abuse her entire life — first at the hands of her three older brothers, then from her partners. (We changed her name for this story. Susanna is a pseudonym.) For much of her childhood, Susanna’s siblings would often tie her to a tree and beat her with a belt. When she was fifteen, she got pregnant, and her older siblings kicked out of the house to live with the father of the child. He, too, abused Susanna. She had two more children. The abuse was severe, and grew more and more over time. Eventually, her partner pulled out a gun and threatened to kill her. She narrowly escaped, and had no choice but to flee.
When she arrived in the United States, Susanna was young, alone, and scared. She was completely without a support system. She tried to make ends meet and survive, but ended up in ICE detention. Susanna met CAIR Coalition shortly after ICE detained her. CAIR Coalition offered to represent her and she accepted the help.
If she is deported, Susanna’s ex-partner will find her. He knows the entire country — his job forces him to travel — and the local police have never helped her before, and surely won’t start now. But Susanna’s ex-partner did not abuse her for years and eventually threaten to kill her because of her race, her religion, or her nationality. She does not fit into the post-World-War-II framework of what is a “refugee.” Once again, immigrants and immigration lawyers are forced to squeeze all asylum-seekers into a “particular social group,” and participate in legal gymnastics to get the life-saving protection asylum is meant to provide.
Susanna did win asylum. She is now safe, and free, and building her life. But the vast majority of asylum-seekers — especially those without legal help — do not have this outcome. The PSG ground for asylum is an outdated and complicated category with ever-changing requirements and legal tests that, despite legitimate fear and urgent need for protection, most asylum-seekers cannot navigate.
Particular Social Groups Narrowing; America Closing its Doors
Over the years, immigrants and their attorneys have brought cases arguing that they are part of a particular social group, and that their societal group deserves protection under law. If successful, these cases then set a precedent, so future immigrants in similar situations can apply under the same “particular social group” and gain protection. Some of these cases, like Susanna’s, have been successful, and there have been some developments in case law over time. However, the vast majority of the decisions interpreting and developing asylum law in the U.S. have only narrowed the archaic 1951 framework, closing the door to today’s refugees.
Immigration adjudicators have made the legal test for establishing a qualifying PSG more and more rigid, making it nearly impossible for the majority of asylum applicants to get protection. In 2014, the government set out a restrictive and complicated three-part test. And the whole process is even more difficult for the 80+% of detained immigrants who do not have attorneys to represent them or navigate these changes.
Rather than allowing us to become a more welcoming and modern nation, the law has increasingly ignored the reasons why most asylum-seekers are fleeing persecution today. And for asylum-seekers, not getting protection can often be a death sentence.
U.S. Asylum Law Must Be Modernized at the Congressional Level
Meaningful access to protection for today’s refugees requires legislative change.
CAIR Coalition has been a national leader in PSG litigation. We have identified and argued for the protection of new, national particular social groups, including those that expand protection for individuals with mental illnesses. We have challenged the Trump Administration’s efforts to curtail asylum for survivors of severe gender-based persecution, and fought alongside individuals facing persecution due to family ties in their asylum trials and appeals. We have continued to fight for PSGs to be considered as bases for asylum that reflect the realities of today’s refugees.
But our team and partners can only do so much under the existing law that has increasingly narrowed what qualifies as a PSG.
The PSG standard needs to be legislatively redeemed to return to its single, original requirement: whether the PSG is “immutable,” meaning whether it is based on something a person cannot change or should not have to change. No more three-part tests.
There is no single change that would make it easy — or even reasonable — for an immigrant without an attorney to argue for their own legal status. However, the simpler the standard, the more likely it will be for the majority of asylum-seekers, who do not have attorneys and must navigate this system alone before immigration officers and judges, to have a meaningful chance of receiving the protection they need.
Refugees have a legal right to enter the U.S. and apply for asylum under U.S. and international law. Yet every day, tens of thousands of asylum-seeker adults and children are forcibly detained and in the process of being deported to places where they will be persecuted and killed, all because our law is outdated. Legislatively mandating that PSGs are based only on immutability is the first step to bringing asylum law up-to-date with today’s reality of why most people are fleeing persecution and seeking protection.
 See Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014).
 This would return the PSG standard to how it had been for over 40 years under Matter of Acosta, 14 I&N Dec. 338 (B.I.A. 1973), rescinding the Board of Immigration Appeals’ more limited three-part PSG test outlined in Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014).