Immigration Article of the Day: Protecting Youth: The Dismantling of Youth as a Particular Social Group in Contemporary Asylum Law by Kristina Campbell

Abstract

In its 1985 precedent decision Matter of Acosta, the Board of Immigration Appeals (BIA) defined “membership in a particular social group” for purposes of receiving protection under US asylum law (Matter of Acosta 1985). The right to asylum is codified in the Refugee Act of 1980, which is based on the 1951 Convention Relating to the Status of Refugees, provides protection to persons who have a well-founded fear of persecution on account of their race, religion, ethnicity, political opinion, or membership in a particular social group. In Acosta, the BIA defined “membership in a particular social group” as an individual having a well-founded fear of persecution on account of his or her membership in “a group of persons, all of whom share a common, immutable characteristic. i.e., a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Although it has long been argued by advocates that age can be considered a “common, immutable characteristic” sufficient to satisfy the Acosta test for establishing membership in a particular social group, subsequent revisions of the requirements for a cognizable particular social group by the BIA in the last dozen years have brought into question what, exactly, is required to sufficiently articulate “membership in a particular social group” for youth who are fleeing persecution in their homelands.

The construct developed by the BIA in recent years requires that an individual seeking asylum on account of their membership in a particular social group needs to prove not only that they are a member of a group that is immutable, but also that the group is also “particular” and “socially distinct.” Because many—if not most—of the youth currently seeking protection from persecution in the United States are fleeing gang violence and recruitment, as well as sexual violence and involuntary servitude, it has become increasingly difficult for young asylum seekers to prove that their persecution has occurred on account of a protected ground. In this chapter, I will discuss the consequences—both intended and unintended—of the deconstruction of the term “youth,” and how it is used as a qualifying or disqualifying element in the definition of what constitutes membership in a “particular social group” in light of contemporary BIA case law. I will also discuss how advocates can develop novel legal arguments and strategies going forward to develop precedents that protect vulnerable youth fleeing persecution from private actors in the future.

KJ