National Immigrant Justice Center
July 2018
14
“Particular social group” is a broad and evolving concept. Generally, it is understood as a group
of people who share or are defined by certain immutable characteristics such as age, class background,
ethnic background, family ties, gender, and sexual orientation.
The Board of Immigration Appeals has said that members of a particular social group must share
a “common immutable characteristic.” Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). That
characteristic should be something the group cannot or should not be required to change. Id. The Acosta
immutable characteristics test was the accepted definition of “membership in a particular social group”
for more than two decades, until the Board added the additional requirements of “social visibility” and
“particularity” to the particular social group definition in 2008. See Matter of S-E-G-, 24 I&N Dec. 579
(BIA 2008); Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008). The U.S. Court of Appeals for the Seventh
Circuit then issued several decisions that invalidated the social visibility requirement and broadened the
particular social group definition. See Escobar v. Holder, 657 F.3d 537 (7th Cir. 2011); Sarhan v.
Holder, 658 F.3d 649 (7th Cir. 2011); Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009); and Gatimi v.
Holder, 578 F.3d 611 (7th Cir. 2009).
In 2013, the Seventh Circuit issued a critical en banc decision regarding the particular social
group definition. In Cece v. Holder, 733 F.3d 662 (7th Cir. 2013), the Court explained that the immutable
characteristic forming the basis of a particular social group can include “a shared past experience or status
[that] has imparted some knowledge or labeling that cannot be undone.” Id. at 670. Cece also clarified
that the breadth of a group is irrelevant to whether the group is viable for asylum purposes, stating, “[i]t
would be antithetical to asylum law to deny refuge to a group of persecuted individuals who have valid
claims merely because too many have valid claims.” Id. at 673-75. Thus, a group “defined by gender
plus one or more narrowing characteristics” can constitute a particular social group. Id. at 676.
In 2014, the Board issued two precedential decisions clarifying and reaffirming the particularity
and social visibility (renamed as “social distinction”) requirements. 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). According to the Board, the
particularity requirement means that a group must be discrete and have definable boundaries; it cannot be
made up of broad and diverse members. M-E-V-G-, 26 I&N Dec. at 239. To prove social distinction, the
group need not be literally visible, but society must recognize the group as such. Id. at 240.
For several reasons, including the Seventh Circuit’s repeated assertions that a social group need
not be socially visible or narrowly defined, the BIA’s unreasonable interpretation of “membership in a
particular social group,” and the fact that the BIA in M-E-V-G- and W-G-R- did not explicitly assert an
intention to overrule prior circuit case law, NIJC strongly believes that M-E-V-G- and W-G-R- are not
binding in the Seventh Circuit. It appears the Seventh Circuit agrees. In numerous precedential decisions
issued after M-E-V-G- and W-G-R-, the Seventh Circuit did not reference the BIA’s social distinction or
particularity requirements or even mention the BIA’s two new decisions. Rather, the Seventh Circuit
continues to emphasize that additional requirements like narrowness and homogeneity are not part of its
particular social group test and that the Seventh Circuit follows a pure, Acosta-only interpretation of the
particular social group definition. See e.g., Salgado Gutierrez v. Lynch, 834 F.3d 800, 805 (7th Cir. 2016)
(rejecting breadth and homogeneity as requirements for establishing a particular social group); Lozano-
Zuniga v. Lynch, 832 F.3d 822, 827 (7th Cir. 2016) (“This circuit defines social group as a group “whose
membership is defined by a characteristic that is either immutable or is so fundamental to individual
identity or conscience that a person ought not be required to change.”); see also Sibanda v. Holder, 778
F.3d 676 (7th Cir. 2015); R.R.D. v. Holder, 746 F.3d 807 (7th Cir. 2014); N.L.A. v. Holder, 744 F.3d 425
(7th Cir. 2014). Thus, NIJC pro bono attorneys currently presenting particular social group-based
asylum claims before the Chicago Asylum Office and Immigration Court should follow Seventh