Former Gang Members and the Particular Social Group Standard: Why America's Highest Court Should Green Light the Killing of the BIA's Three-Prong Test

Authors

Téa Antonino

Library of Congress Authority File

http://id.loc.gov/authorities/names/n79122466.html

Document Type

Comments

Abstract

This Comment establishes why the Supreme Court should clarify the elusive definition of “[m]embership in a particular social group” to resolve confusion amongst the circuit courts. Part II provides an overview of the historical context and legal basis for former gang members seeking asylum and withholding of removal. Part III explores the circuit courts’ disagreement behind the reasonableness of the BIA’s three-prong test for establishing a PSG claim: immutability, particularity, and social distinction. Part IV explains why the current three-prong PSG test is not entitled to Chevron deference, while Part V proposes the Supreme Court reimplement the Acosta factors—based on proposed regulations created by the Department of Justice (DOJ) and Immigration and Naturalization Service (INS). Part VI rebuts misconceptions about granting immigration protections to former gang members. Ultimately, the Supreme Court should resolve the circuit split by replacing the BIA’s three-prong test with the Acosta immutability standard and guiding factors; as a result, former gang members would satisfy the PSG requirements for purposes of asylum and withholding of removal.

DOI

2023

Recommended Citation

Téa Antonino, Former Gang Members and the Particular Social Group Standard: Why America's Highest Court Should Green Light the Killing of the BIA's Three-Prong Test, 60 San Diego L. Rev. 167 (2023).
Available at: https://digital.sandiego.edu/sdlr/vol60/iss1/5