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Abstract

The Refugee Act of 1980 was a significant piece of legislation for the development of asylum law, and the United States’ commitment to human rights and humanitarian concern for the struggles of refugees worldwide. The Act recognized the urgent needs of persons fleeing persecution in their homelands, asylees, and their need for protection and resettlement. The protections afforded in the Act extended to asylum seekers that were persecuted on the basis of (1) race, (2) religion, (3) nationality, (4) membership in a particular social group, or (5) political opinion. However, Congress did not define “membership in a particular social group” in the Refugee Act of 1980 or otherwise, and have left it to the Board of Immigration Appeals to interpret the term “membership in particular social group.” As such, the Board of Immigration Appeals has developed, through case law, an arbitrary and loose definition for “membership in a particular social group.” With such arbitrariness, as discussed in this Article, any group, including former gang members fleeing their country and seeking asylum could make a cognizable claim that they are a “member of a particular social group,” and therefore ought to be afforded protections under the Refugee Act of 1980. This Article examines the history of asylum law that developed after the passing of the Refugee Act of 1980, specifically the “particular social group” standard as it was developed through Board of Immigration Appeals decisions, and a brief history of the development of the MS-13 and 18th Street gangs in the Northern Triangle of Central America. Ultimately, this Article examines a circuit court split on whether former gang members constitute a “particular social group.” This Article takes the position that former gang members do constitute a “particular social group,” and thus should be afforded asylum protections.

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