Moving Beyond Reflexive Chevron Deference: A Way Forward for Asylum Seekers Basing Claims on Membership in a Particular Social Group

By Seiko Shastri. Full Text.

Asylum applicants face a mounting number of barriers to being granted refuge in the United States. This is especially true for individuals applying for asylum based on their membership in a “particular social group,” one of the few protected grounds for asylum. In recent years, the Board of Immigration Appeals (BIA)—the highest administrative forum for immigration decisions—has added two new requirements that narrow the long-established and widely-accepted immutable characteristic standard for determining asylum eligibility of individuals with particular social group claims. While the circuit courts of appeals have split on their acceptance of these new requirements, several have been quick to defer to the BIA’s new requirements.

The erection of new barriers to asylum eligibility for claims based on membership in a particular social group has been made possible by the wide degree of deference circuit courts give BIA decisions under the two-step Chevron framework. However, Justices on the Supreme Court have increasingly shown a willingness to question Chevron and other types of judicial deference to agency decision-making. In particular, Justice Kennedy’s concurrence in Pereira v. Sessions and the interrelated analysis of judicial deference to agency interpretations of regulations in Kisor v. Wilkie suggest that the Supreme Court will no longer tolerate circuit courts employing reflexive deference to agency decisions. In light of the Supreme Court’s recent jurisprudence, the time is now ripe for the circuit split on the additions to the particular social group standard to be resolved. This Note argues that most circuits were too reflexive in their deference to the BIA’s new requirements and that the Supreme Court should overturn those decisions. This Note concludes that the Supreme Court should favor the Seventh Circuit’s case law, which employed the proper judicial rigor when it reviewed and rejected the BIA’s additions to the particular social group standard.