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Abstract

For many noncitizens today, the law of asylum exists as the sole route to lawful residence in the United States. The safety and relief that the mere borderlines of our nation secure for some of the most desperate and oppressed are accessed only through this one body of law. Though it may not say so on the pedestal of the Statue of Liberty, passage through Emma Lazarus’s “golden door”1 (or, in other cases, permission to stay on this side of the door) for “the homeless, tempesttost” 2 requires, for many, navigation through the modern obstacles of asylum law. Needless to say, there is not merely one door to this country. Nor is there a single key that opens them all. Whether a claim of asylum is successful and, therefore, whether a noncitizen is able to enjoy the refuge that this country provides, depends very much on what part of the country the noncitizen inhabits. Those seeking asylum in the vast expanse of the American Midwest may notice that the door has recently gotten smaller. In Gaitan v. Holder,3 the Eighth Circuit Court of Appeals fundamentally changed the requirements of attaining asylee status by formally requiring that a particular social group (PSG), one of the protected asylum classes in the Immigration and Nationality Act4 (INA), possess the limiting characteristics of “social visibility” and “particularity.”5 At first glance, Gaitan does not appear to be the culprit in altering the asylum scheme in the Eighth Circuit, as the court merely purported to “follow” two of its own recent cases,6 Constanza v. Holder7 and Ortiz- Puentes v. Holder,8 which adopted the particularity and social visibility requirements established by the Board of Immigration Appeals9 (BIA). However, neither Constanza nor Ortiz-Puentes addressed the issue of whether the BIA acted “arbitrarily and capriciously in adding the requirements of ‘social visibility’ and ‘particularity’ to its definition of ‘particular social group.’”10 By answering no, the Gaitan majority unequivocally changed particularity and social visibility from being “some of the many factors in the holistic analysis of the issue to absolute prerequisites to establishing membership in a particular social group”11 and thus took sides in the split among the federal circuits.

The Eighth Circuit’s decision in Gaitan was a momentous development in federal immigration jurisprudence and will have dire effects on asylum seekers in the American Midwest. The decision illuminates a unique aspect of immigration law: one who seeks asylum on the basis of a PSG in Illinois (the Seventh Circuit) may be admitted,13 while the same noncitizen may be excluded in Nebraska (the Eighth Circuit) for not meeting the particularity and social visibility criteria now solidified by Gaitan. This characteristic is especially important as to asylum, where decisions can potentially mean the difference between life and death of the petitioner.14 In Part II, this Note traces the relatively recent history of asylum law, with a specific focus on the particularity and social visibility requirements, to understand the basis on which the Eighth Circuit took sides in this federal circuit split. Part III of this Note criticizes the prudence of Gaitan’s holding in casually accepting the BIA’s new PSG formulation and proposes the Eighth Circuit rely on the original PSG standard set out in In re Acosta in future cases.

Gaitan unjustifiably moved the Eighth Circuit to a stricter, more exclusive vision of asylum law and gave legal credence to an arbitrary and capricious PSG formulation created by the BIA. This Note proposes the Eighth Circuit overturn Gaitan insofar as it adopted the BIA’s new PSG formulation16 and revert back to the Acosta standard that most fairly governs federal asylum law.

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