Abstract
Thousands of individuals flee gang-related violence and seek asylum in the United States every year. Many of these asylum seekers claim they suffer persecution because of their membership in a “particular social group” targeted by the gang’s brutality. Left undefined in the 1951 Refugee Convention, “social group” is interpreted by U.S. immigration agencies in an increasingly restrictive manner. Over the years, the Board of Immigration Appeals has adopted a three-part test for social group membership, and using these criteria, immigration courts often deny social groups based on opposition to gang recruitment. Thus, the United States is at odds with prevailing international standards, which generally recognize victims of gang violence as refugees.
Viewing the current test as a permissible interpretation of the ambiguous social group provision, federal courts have largely upheld the criteria through Chevron deference. While other scholars have criticized the application of Chevron to asylum determinations and credited the constriction of social group protection to its deferential mandate, this Comment concludes that Chevron accounts for only half the reality of judicial deference. Rather, this Comment untangles the muddled sources of deference in asylum cases, suggesting courts have relied both explicitly on Chevron deference and secondarily on traditional principles of plenary power to uphold agency interpretations of “social group.”
This recognition comes at a pivotal moment, as the Supreme Court’s decision in Loper Bright overrules reflexive deference to agency interpretations and directs courts to exercise independent judgment in determining the “best meaning” of statutory schemes. In this vein, this Comment ultimately suggests that Loper Bright opens the door for the Court’s independent reconsideration of the meaning of “social group.” However, with plenary power underscoring judicial deference in asylum cases, it concurrently addresses the inherent risk the Court will simply shift its rationale for deference to plenary power principles and, thus, circumvent judicial review altogether. Despite the lurking presence of plenary power, this Comment presents a path forward for the Court to sidestep special deference to immigration agencies and independently interpret the meaning of “social group” consistent with international standards.
Recommended Citation
Claire E. Pellegrin,
Ditching Deference: Redefining Particular Social Groups in the Wake of Loper Bright,
75
Emory L. J.
233
(2025).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol75/iss1/5