Revisiting Immutability: Competing Frameworks for Adjudicating Asylum Claims Based on Membership in a Particular Social Group

The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and courts are split over the correct definition of the term. According to one approach, the focus should be on which immutable characteristics should be protected from systemic discrimination. According to a second approach, the focus should rather be on how members of a given society define the boundaries of the proposed group. Each framework centers the analysis on a fundamentally distinct set of questions and concerns. This Article outlines the development and conceptual basis of each framework, to show that an immutability-centered approach to defining particular social group generates more consistency in asylum decisions and broadens the scope of asylum to include women and victims of harm traditionally categorized as falling within the category of “private criminal activity.” This Article contributes to debates on asylum policy by shedding new light on how to define the contours of asylum status and proposing concrete means by which to accomplish change.