Recent BIA Decision Provides More Clarity on “PSG” Claims, But at What Cost?

by: Juanita Solis

In Matter of W-Y-C-& H-O-B-,[1] decided January 2018, the Board of Immigration Appeals held that an applicant seeking asylum based on membership in a particular social group must first establish the exact delineation of a proposed particular social group before an Immigration Judge.

Even for experienced immigration attorneys, however, delineating what it means to belong to a particular social group can be extremely complicated. The implications of requiring asylum applicants to clearly delineate such a complex term of art are significant.

To qualify for asylum, an applicant must establish that the harm he or she has suffered or fears is on account of a characteristic. The applicant must then demonstrate that the characteristic qualifies as religion, race, nationality, political opinion or membership in a particular social group.[2] Of the five grounds, membership in a particular social group is the most challenging to understand. In Matter of Acosta, the Board first formulated that an asylum applicant has demonstrated membership in a particular social group when he or she has shown persecution based on membership in a group of persons all of whom share a common, immutable characteristic.[3] This involves a characteristic that members of the group cannot be required to – or should not have to – change because it is so fundamental to their identity or conscience.[4]

Since then, the Board has outlined two additional requirements for individuals to establish membership in a particular social group: social visibility (which later evolved to social distinction), and particularity. The BIA went on to hold that the social group must be recognizable and perceived as a group in society.[5] Moreover, in Matter of S-E-G-, the Board addressed the “particularity” requirement, holding that it encompasses a group that is defined in a manner sufficiently distinct to be recognized, in the society in question, as a discrete class of persons.[6] While many agree that the BIA’s three-part test creates a formidable obstacle for individuals petitioning for asylum,[7] several circuit courts[8] – including the Eleventh Circuit[9] – have adopted the social visibility and particularity requirements. As of 2006, the Board of Immigration Appeals has issued eight precedent decisions defining the requirements of membership in a particular social group. Two of the decisions[10] were decided for the sole purpose of clearing up the confusion caused by the language of the previous decisions[11] on the topic.

Although the refusal to address a newly articulated particular social group that is not first advanced before an immigration judge is not a departure from the Board’s prior disposition on the issue, the instant decision is unfavorable to asylum and withholding of removal applicants seeking relief because such critical determinations are essentially being left to semantics. For instance, in the present case, a Honduran mother and her minor son were denied asylum following an Immigration Judge’s determination that a social group comprised of “[s]ingle Honduran women age 14 to 30 who are victims of sexual abuse within the family and who cannot turn to the government” did not constitute a valid particular social group based.[12] On appeal, the respondent conceded that the prior group she had articulated did not constitute a valid group and instead asserted that she was eligible for asylum and withholding of removal based on her membership in a group comprised of “Honduran women and girls who cannot sever family ties.”[13] Despite her eligibility for asylum under the differently worded particular social group, the Board declined to consider her claim due to the fact that she had articulated the group in this manner for the first time on appeal.[14]

As exhibited in Matter of W-Y-C-& H-O-B-, an asylum applicant may satisfy all of the refugee requirements (including establishing a well-founded fear of suffering persecution if returned to their country of nationality[15]), and be denied relief and the opportunity to appeal a denial simply because their initial phrasing is inadequately crafted to meet the obscure legal requirements of a particular social group, rather than on the facts of their case. While this decision is likely to help speed adjudication of cases where social groups are not clearly delineated by allowing immigration judges and the BIA to issue boilerplate denials, it will undoubtedly hurt asylum and withholding of removal applicants that cannot obtain counsel.

Most pressing is the fact that the present decision will have a devastating effect on asylum applicants fleeing violence in Central America, the majority of which rely on claims involving membership in a particular social group.[16] Although these individuals often meet the requirements to establish membership as set out by the BIA, most lack both the legal sophistication needed to adequately convey this before an immigration judge and the funds to secure legal representation. Furthermore, although the adversarial nature of removal proceedings places the burden on applicants to establish their claims for relief or protection,[17] the severity of this decision is most evident when viewed in consideration of the thousands of unaccompanied minors that come to the United States from all over the world fleeing poverty, hardship, or persecution, and lack the resources to obtain legal representation.[18] While the decision highlights the importance of raising all claims of relief before the immigration judge, it also serves as a reminder of the growing significance of seeking the counsel of an experienced immigration attorney when one is in removal proceedings.


[1] Matter of W-Y-C-& H-O-B, 27 I&N Dec. 189 (BIA Jan. 19, 2018).

[2] INA § 101(a)(42)(A).

[3] 19 I&N Dec. 211, 233 (BIA 1985).

[4] Id.

[5] In Re C-A-, 23 I&N Dec. 951, 959-960 (BIA 2006).

[6] 24 I&N Dec. 579, 584 (BIA 2008).

[7] See NAT’L IMMIGRANT JUSTICE CTR., Particular Social Group Practice Advisory: Applying for Asylum After Matter of M-E-V-G- and Matter of W-G-R- 12 (Jan. 2016), [].

[8] See Mendez-Barrera v. Holder, 602 F.3d 21, 26 (1st Cir. 2010); but see Rojas-Perez v. Holder, 699 F.3d 74 (1st Cir. 2012) (questioning rationality of Board’s application of new rule); see also Ucelo–Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007); Orellana-Monson v. Holder, 685 F.3d 511, 520 (5th Cir. 2012); Al–Ghorbani v. Holder, 585 F.3d 980, 991, 994 (6th Cir. 2009); Davila–Mejia v. Mukasey, 531 F.3d 624, 629 (8th Cir. 2008); Gaitan v. Holder, 671 F.3d 678, 681 (8th Cir. 2012); Arteaga v. Mukasey, 511 F.3d 940, 945 (9th Cir. 2007); Ramos–Lopez v. Holder, 563 F.3d 855, 858–62 (9th Cir. 2009); Henriquez-Rivas v. Holder, 707 F.3d 1081, 1089 (9th Cir. 2013); Rivera-Barrientos v. Holder, 666 F.3d 641, 652-53 (10th Cir. 2012).

[9] See Castillo-Arias v. U.S. Atty Gen., 446 F.3d 1190 (11th Cir. 2006).

[10] Matter of M-E-V-G, 26 I&N Dec. 227, 242 (BIA 2014); see also Matter of W-G-R-, 26 I&N Dec. 208, 211-12, (BIA 2014).

[11] In Re C-A-, 23 I&N Dec. 951 (BIA 2006); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); see also Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008).

[12] Supra note 1.

[13] Id. at 190.

[14] Id.

[15] Supra note 3.

[16] See Rachel Gonzalez Settlage, Rejecting the Children of Violence: Why U.S. Asylum Law Should Return to The Acosta Definition of “A Particular Social Group,” 30 Geo. Immigration. L.J. 287 (2016).

[17] See Matter of L-A-C-, 26 I&N Dec. 516, 521-24 (BIA 2015).

[18] Associated Press, Agents Stop Semitrailer with 76 Immigrants Inside Texas, WASH. POST., (January 29, 2018),; see also Azan Ahmed, Flow of Central American Children Headed to U.S. Shifts but Doesn’t Slow, N.Y TIMES (October 6, 2015),; Jerry Markon and Joshua Partlow, Unaccompanied Children Crossing Southern Boarder in Greater Numbers Again, Raising Freas of New Migrant Crisis, WASH. POST., (December 16, 2015),

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