by Nathaniel Brod­sky*

Fed­er­al law defines a refugee, and by exten­sion some­one eli­gi­ble for asy­lum if they reach the Unit­ed States, as a per­son “who is per­se­cut­ed or who has a well-found­ed fear of per­se­cu­tion on account of race, reli­gion, nation­al­i­ty, mem­ber­ship in a par­tic­u­lar social group, or polit­i­cal opin­ion.”1 The fourth characteristic—membership in a par­tic­u­lar social group (“PSG”)—is the vaguest, and for good rea­son, as it exists to fill the gaps between the oth­er cat­e­gories2 to pro­tect those who are per­se­cut­ed for a fun­da­men­tal part of their iden­ti­ty that resists oth­er clas­si­fi­ca­tion.3 Each Unit­ed Nations member’s immi­gra­tion sys­tem inter­prets this cat­e­go­ry dif­fer­ent­ly, with the Unit­ed States using a three-part test to deter­mine whether a pro­posed PSG is (1) immutable, (2) par­tic­u­lar, and (3) social­ly dis­tinct in order to qual­i­fy for asy­lum.4

Since the ini­tial rejec­tion of career-based PSGs focused only on an asylum-seeker’s abil­i­ty to change jobs,5 that sup­posed lack of immutabil­i­ty erro­neous­ly became a bar­ri­er to asy­lum qual­i­fi­ca­tion in decades’ worth of cas­es. This Con­tri­bu­tion argues that pro­fes­sion­al groups can and do sat­is­fy the require­ments of PSGs and main­ly focus­es on the require­ment of immutabil­i­ty, as per­haps the one tru­ly debat­able cri­te­ri­on in this con­text.6

The immutabil­i­ty require­ment was first intro­duced by the Board of Immi­gra­tion Appeals (“BIA”) in In re Acos­ta, which held that a PSG, like a race, reli­gion, nation­al­i­ty, or polit­i­cal opin­ion, must be “beyond the pow­er of an indi­vid­ual to change or . . . so fun­da­men­tal to indi­vid­ual iden­ti­ty or con­science that it ought not be required to be changed.”7 In that case, Acos­ta was tar­get­ed as a mem­ber of a taxi dri­vers’ coop­er­a­tive who there­fore “could avoid the threats of the guer­ril­las either by chang­ing jobs or by coop­er­at­ing in work stop­pages.”8 While the BIA con­ced­ed that “[i]t may be unfor­tu­nate” that Acos­ta would have to give up his career, it took as a giv­en that nei­ther his work nor mem­ber­ship in an anti-guer­ril­la work­ers’ coop­er­a­tive was so fun­da­men­tal to his iden­ti­ty that it must remain unchanged.9

While Acos­ta appeared to have fore­closed employ­ment-based asy­lum claims, the Ninth Cir­cuit recent­ly iden­ti­fied a sig­nif­i­cant gap in its rea­son­ing in Plan­car­te Sauce­da v. Gar­land: name­ly, that pro­fes­sion­als with exten­sive train­ing and spe­cial­ized skills can­not change that iden­ti­ty sim­ply by leav­ing their jobs.10 Guer­ril­las tar­get­ed Acos­ta because he worked as a taxi dri­ver, not because he could dri­ve around his home city, but the car­tel extort­ed Plan­car­te because it want­ed her to treat its mem­bers, inde­pen­dent­ly of how she earned her liv­ing.11 This distinction—between a job that stops the moment some­one heads home and a pro­fes­sion whose “immutable nurs­ing char­ac­ter­is­tics” remain rel­e­vant no mat­ter someone’s employ­ment status—is cru­cial.12 Accord­ing­ly, our nation’s immi­gra­tion sys­tem should stop overex­tend­ing Acos­ta to reject all claims based on careers13 and instead fol­low the Ninth Circuit’s lead, acknowl­edg­ing that pro­fes­sions and sim­i­lar­ly spe­cial­ized careers can ful­fill a PSG’s requirements.

Although this would be a remark­able shift in the judi­cial treat­ment of these claims, it would be con­sis­tent with sev­er­al strands of PSG-relat­ed caselaw. Because past expe­ri­ences are def­i­n­i­tion­al­ly immutable, for­mer mem­ber­ship in a giv­en career is already a well-estab­lished asy­lum ground. The BIA’s own rul­ing in In re Fuentes acknowl­edged that “for­mer member[s] of the national0 [sic] police” could be per­se­cut­ed for an iden­ti­ty that they can no longer change.14 While the board was quick to clar­i­fy that, even with­out Acos­ta, a cur­rent police offi­cer would still be inel­i­gi­ble because their work nat­u­ral­ly attracts vio­lent reprisal,15 an exclu­sion that could extend to many oth­er dan­ger­ous or politi­cized pro­fes­sions, the BIA laid the foun­da­tion for rec­og­niz­ing at least some career-relat­ed PSGs.

Cir­cuit courts have enthu­si­as­ti­cal­ly adopt­ed this dis­tinc­tion. The Sec­ond Cir­cuit reversed the BIA’s rejec­tion of “defect­ed KGB agents” as a PSG,16 albeit with the addi­tion­al require­ment that the feared per­se­cu­tion affect every mem­ber of the group.17 When grant­i­ng asy­lum to a for­mer staffer in the Colom­bian Attor­ney General’s office, the Sev­enth Cir­cuit dis­tin­guished the appli­cant from cur­rent employ­ees and sharply rebuked an immi­gra­tion judge who had neglect­ed that dif­fer­ence.18 Like Koudri­a­chov, who had already repu­di­at­ed the KGB, and Sepul­ve­da, who had already learned the iden­ti­ties of col­leagues whom the car­tels want­ed dead, Plan­car­te had already acquired skills that would make her a unique­ly help­ful med­ical care­giv­er for gang­sters.19 Fuentes’s allowance for past work neat­ly segues into past train­ing that informs pro­fes­sion­al work, and it is there­fore a nat­ur­al pro­gres­sion for courts to adopt Plan­car­te’s rea­son­ing and open asy­lum to any­one tar­get­ed for immutable pro­fes­sion­al skills.

An addi­tion­al two strands of caselaw from the Sev­enth Cir­cuit also rec­og­nize what might be termed “career-plus” PSGs, fur­ther link­ing Plan­car­te with pre­ex­ist­ing immi­gra­tion jurisprudence.

First, in Tapiero de Ore­juela v. Gon­za­les, a series of Colom­bian asy­lum seek­ers suc­cess­ful­ly com­bined their careers with oth­er aspects of their iden­ti­ty that sim­i­lar­ly invit­ed threats from the Rev­o­lu­tion­ary Armed Forces of Colom­bia (“FARC”) to com­prise a PSG, despite work­ing in non-pro­fes­sion­al­ized fields.20 One can eas­i­ly stop being a ranch­er, but the fam­i­ly argued that they were “the edu­cat­ed, landown­ing class of cat­tle farm­ers tar­get­ed by FARC,” com­bin­ing career, edu­ca­tion, and income, all of which might not suf­fice on their own, to show that this over­lap­ping group was unique­ly endan­gered.21 The Tapieros also high­light­ed FARC’s fre­quent tar­get­ing of well-off farm­ers as class ene­mies, cre­at­ing a kind of mir­ror to Plan­car­te in which their inabil­i­ty to shed their atten­dant social sta­tus sim­ply by quit­ting a job func­tioned much like pro­fes­sion­al skills and licens­ing that would exist in per­pe­tu­ity.22 As Tapiero demon­strates, work that is tied to oth­er immutable expe­ri­ences becomes immutable as well, show­ing the need to rec­og­nize careers based on dis­tinct edu­ca­tions or train­ing as valid PSGs.23

Per­haps no rul­ing has bet­ter illus­trat­ed the impor­tance of con­sid­er­ing amal­ga­mat­ed iden­ti­ties, or the atten­dant ben­e­fits for those who have been per­se­cut­ed due to their work, than Esco­bar v. Hold­er.24 Esco­bar was a Colom­bian truck dri­ver who faced cred­i­ble death threats and whose prop­er­ty was destroyed because he resist­ed mak­ing deliv­er­ies for FARC while also giv­ing rides to anti-FARC polit­i­cal events.25 His assert­ed PSG was “truck­ers who, because of their anti-FARC views and actions, have col­lab­o­rat­ed with law enforce­ment and refused to coop­er­ate with FARC.”26 The BIA, as in so many oth­er cas­es, fol­lowed Acos­ta and dis­missed this argu­ment, because he could quit his job.27 The Sev­enth Cir­cuit coun­tered that “Esco­bar, how­ev­er, can­not split him­self into two peo­ple: he is a for­mer truck­er who is anti-FARC, and for this he has faced and will face per­se­cu­tion.”28 The court rec­og­nized that his career, his polit­i­cal beliefs, his pub­lic expres­sion of them, his defi­ance of vio­lent rebels he opposed, and his coop­er­a­tion with local law enforce­ment were all com­po­nents of a com­plex iden­ti­ty that qual­i­fied as a PSG, and his career was as inte­gral to this as any of the oth­ers. The court also sug­gest­ed that, giv­en its unique licens­ing require­ments, it is pos­si­ble that long-haul truck­ing could in itself be a pro­tect­ed pro­fes­sion like nurs­ing.29 Even if his career were not immutable on its own, though, Esco­bar is yet anoth­er exam­ple of why a more nuanced approach that focus­es on past expe­ri­ences can and should enable wide recog­ni­tion of employ­ment-based PSG classification.

The Sev­enth Circuit’s deci­sion in Ahmed v. Ashcroft fur­ther laid the ground­work for rec­og­niz­ing pro­fes­sion­al asy­lum cat­e­gories by indi­cat­ing that, if a sol­dier enlist­ed because of “a belief in law and order, in demo­c­ra­t­ic gov­ern­ment, or in ser­vice and duty to coun­try,” his pro­fes­sion­al affil­i­a­tion would rely enough on immutable beliefs to become immutable itself.30 This recog­ni­tion could allow a lawyer who rep­re­sents labor unions, an edi­tor who pub­lish­es con­tro­ver­sial arti­cles, or an artist who depicts reli­gious­ly for­bid­den imagery to side­step a dif­fi­cult evi­den­tiary show­ing by argu­ing that there is a link between their work and their ideals. Ahmed demon­strates yet anoth­er exam­ple of how careers, par­tic­u­lar­ly those that “come home” with their employ­ees because of emo­tion­al stakes as well as required train­ing, nat­u­ral­ly fit into asy­lum law, mak­ing Plan­car­te a log­i­cal exten­sion of exist­ing prin­ci­ples rather than an outlier.

Crit­i­cal­ly, while Plan­car­te offers an encour­ag­ing path for­ward for high­ly-skilled asy­lum seek­ers in its own right and as a nov­el gloss on the Tapiero, Fuentes, and Mya Lwin line of cas­es, it also avoids dis­rupt­ing much of asy­lum law’s bedrock. For exam­ple, the analy­sis in one notable and oft-cit­ed case, Mwem­bie v. Gon­za­les,31 where the Fifth Cir­cuit reject­ed a PSG of “gov­ern­ment employ­ees,”32 would like­ly remain the same even under the broad­est appli­ca­tion of Plan­car­te. There is no evi­dence that Mwembie’s com­mu­ni­ca­tions job required Plan­car­te’s pro­fes­sion­al train­ing,33 nor did she link it to oth­er aspects of her iden­ti­ty, as in Tapiero,34 or past expe­ri­ences, as in Fuentes.35 While Ahmed’s links to polit­i­cal beliefs would nor­mal­ly be very rel­e­vant for a mem­ber of a deceased president’s staff, it would not have changed Mwem­bie’s out­come since the peti­tion­er was mis­treat­ed not as a loy­al employ­ee stick­ing to her beliefs, but as a sus­pect in the president’s assas­si­na­tion.36 Nor does Mwem­bie’s rejec­tion of a PSG that might nonethe­less suc­ceed under Plan­car­te bar Plan­car­te’s adop­tion in cir­cuits that fol­low Mwem­bie, giv­en that PSG deter­mi­na­tions require a fact-spe­cif­ic inquiry that would allow a court to dis­tin­guish based on a giv­en case’s unique facts.37

Fur­ther­more, the white-col­lar work­er fac­ing per­son­al­ized threats in Mwem­bie dif­fers dra­mat­i­cal­ly from the vast major­i­ty of reject­ed employ­ment-based PSGs, which often involve finan­cial extor­tion of par­tic­u­lar­ly vul­ner­a­ble work­ers with­out spe­cial­ized skills and are there­fore con­sis­tent with Plan­car­te. In one fre­quent­ly recur­ring instance, appli­ca­tions con­tin­ue to pro­pose trans­porta­tion work­ers as PSGs with­out Esco­bar’s art­ful empha­sis on com­pos­ite iden­ti­ties.38 Like trans­porta­tion work­ers, mer­chants and oth­er small busi­ness own­ers require no for­mal train­ing or licens­ing and dis­pro­por­tion­ate­ly face threats from gangs; they too have faced a result­ing­ly high rate of asy­lum rejec­tion.39 Although one can and should acknowl­edge the cal­lous­ness of cat­e­gor­i­cal­ly deny­ing asy­lum to some­one who has faced iden­ti­ty-based per­se­cu­tion, par­tic­u­lar­ly when peer nations would grant it,40 even this long-stand­ing rejec­tion of such employ­ment-based claims does not bar adop­tion of Plan­car­te.41 Reliance ques­tions and flood­gates con­cerns there­fore can­not sup­port objec­tions to this framework.

One final point bears not­ing in sit­u­a­tions where pro­fes­sion-based PSG claims arise not from a gang threat­en­ing those with need­ed skills, as in Plan­car­te,42 but, say, from reac­tionar­ies per­se­cut­ing those who work in elite careers. Any argu­ment that, in that case, being a pro­fes­sion­al would not be immutable because work­ers could quit or go into hid­ing does not sur­vive Stser­ba v. Hold­er, which found that a “sweep­ing lim­i­ta­tion” on a professional’s work oppor­tu­ni­ties amount­ed to eco­nom­ic per­se­cu­tion.43 If the only way to avoid per­se­cu­tion is sub­mis­sion to dif­fer­ent per­se­cu­tion, then Acos­ta’s call to quit one’s job car­ries no weight for edu­cat­ed pro­fes­sion­als, deny­ing a final coun­ter­ar­gu­ment to Plan­car­te’s wide­spread adoption.

Plan­car­te’s acknowl­edge­ment that work based on spe­cial­ized train­ing and skills is immutable is a wel­come addi­tion to exist­ing case law on career his­to­ry as a basis for asy­lum claims, whether on its own or in con­junc­tion with a broad­er iden­ti­ty or belief sys­tem. It is also a log­i­cal recog­ni­tion that, for many peo­ple, the way they spend half of their wak­ing hours is fun­da­men­tal to who they are and can be a major source of threats, vio­lence, and extor­tion. To ensure that our coun­try fol­lows its treaty oblig­a­tions by pro­tect­ing every qual­i­fied refugee who arrives at its bor­ders,44 the BIA and remain­ing cir­cuits should adopt Plan­car­te’s rule and rec­og­nize pro­fes­sions as a PSG.


* Nathaniel Brod­sky is a J.D. Can­di­date (2023) at New York Uni­ver­si­ty School of Law. This Con­tri­bu­tion arose from the prob­lem pre­sent­ed at the 2022 Asy­lum & Refugee Law Nation­al Moot Court Com­pe­ti­tion host­ed by the UC Davis School of Law. The ques­tion pre­sent­ed was whether “artists sub­ject to vio­lence for their art” was a cog­niz­able par­tic­u­lar social group under asy­lum law. This Con­tri­bu­tion presents a dis­til­la­tion of argu­ments from the com­pe­ti­tion and does not nec­es­sar­i­ly rep­re­sent the views of the author.

1. 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158(b)(1)(A) (requir­ing demon­stra­tion of refugee sta­tus to receive asy­lum); see also 8 U.S.C. § 1231(b)(3)(A) (for­bid­ding depor­ta­tion of a nonci­t­i­zen if their life would be threat­ened based on mem­ber­ship in one of the above groups).

2. See In re Acos­ta, 19 I. & N. Dec. 211, 232 (B.I.A. 1985), over­ruled on oth­er grounds by In re Mogharra­bi, 19 I. & N. Dec. 439 (B.I.A. 1987) (par­tic­u­lar social groups are “an after­thought . . . meant to stop a gap” between the oth­er rec­og­nized cat­e­gories (cit­ing 1 Atle Grahl-Mad­sen, Refugee Char­ac­ter 219 (1966)).

3. See, e.g., U.N. High Comm’r for Refugees, Guide­lines on Inter­na­tion­al Pro­tec­tion No. 2: “Mem­ber­ship of a Par­tic­u­lar Social Group” With­in the Con­text of Arti­cle 1A(2) of the 1951 Con­ven­tion and/or its 1967 Pro­to­col Relat­ing to the Sta­tus of Refugees, ¶¶ 11–13, U.N. Doc. HCR/GIP/02/02 (May 7, 2002) (defin­ing a PSG as “a group of per­sons shar­ing a com­mon char­ac­ter­is­tic . . . which is innate, unchange­able, or which is oth­er­wise fun­da­men­tal to iden­ti­ty . . . .”); see also U.N. High Comm’r for Refugees, Hand­book on Pro­ce­dures and Cri­te­ria for Deter­min­ing Refugee Sta­tus Under the 1951 Con­ven­tion and the 1967 Pro­to­col Relat­ing to the Sta­tus of Refugees, ¶ 77, U.N. Doc. HCR/IP/4/Eng/REV.1 (Jan. 1992) (not­ing that a PSG will nor­mal­ly share a “back­ground, habits, or social sta­tus” that may or may not over­lap with mem­ber­ship in anoth­er pro­tect­ed category).

4. In re M‑E-V-G‑, 26 I. & N. Dec. 227, 227 (B.I.A. 2014).

5. See Acos­ta, 19 I. & N. Dec. at 234.

6. Pro­fes­sion­al or career-based groups gen­er­al­ly eas­i­ly sat­is­fy the par­tic­u­lar­i­ty and social­ly dis­tinct require­ments. Cf. In re A‑M-E‑, 24 I. & N. Dec. 69, 76 (B.I.A. 2007) (dis­miss­ing wealth as a basis for PSGs because it can range from encom­pass­ing “the very top ech­e­lon” to any­one “liv­ing a rel­a­tive­ly com­fort­able exis­tence in a gen­er­al­ly impov­er­ished coun­try[,]” where­as cre­den­tials pro­vide a nat­ur­al and clear line between pro­fes­sion­als and those out­side the PSG); M‑E-V-G-, 26 I. & N. Dec. at 241 (explain­ing that land own­er­ship is social­ly dis­tinct “in an under­de­vel­oped, oli­garchi­cal soci­ety,” but not in rich­er or more equal coun­tries; some­thing like med­ical train­ing, mean­while, will always be dis­tinct based on the small num­ber of peo­ple who receive such an edu­ca­tion). Indeed, the Ninth Circuit’s analy­sis of a career-based PSG in Plan­car­te only dis­cussed immutabil­i­ty. See Plan­car­te Sauce­da v. Gar­land, 9 F.4th 1146, 1154–55 (9th Cir. 2021) (“We hold that the BIA’s con­clu­sion that the pro­posed par­tic­u­lar social group of ‘female nurs­es’ lacks an immutable char­ac­ter­is­tic was unrea­son­able. We there­fore grant the peti­tion . . . .”), amend­ed by Plan­car­te Sauce­da v. Gar­land, 23 F.4th 824 (9th Cir. 2022).

7. Acos­ta, 19 I. & N. Dec. at 233.

8. Id. at 234.

9. Id. Notably, how­ev­er, Acos­ta’s find­ing regard­ing work­ers’ coop­er­a­tive mem­ber­ship has not been wide­ly accept­ed. See, e.g., Mon­tene­gro v. Ashcroft, 68 F. App’x 290, 296 (3d Cir. 2003) (grant­i­ng asy­lum based on par­tic­i­pa­tion in union activ­i­ties); Oso­rio v. INS, 18 F.3d 1017, 1032 (2d Cir. 1994) (grant­i­ng asy­lum based on mem­ber­ship in work­ers’ groups).

10. Plan­car­te, 9 F.4th at 1154 (find­ing that car­tels tar­get­ed Plan­car­te due to her “spe­cial­ized nurs­ing skills,” not her job as a nurse, mean­ing that she would still be sub­ject to per­se­cu­tion if she changed careers).

11. Com­pare Acos­ta, 19 I. & N. Dec. at 216 (describ­ing guer­ril­las’ plans to exe­cute Acos­ta for not par­tic­i­pat­ing in work stop­pages), with Plan­car­te, 9 F.4th at 1154 (not­ing that “[e]ven if she changed her pro­fes­sion, she would still remain valu­able to the car­tel because she would retain her med­ical knowl­edge and nurs­ing skills”).

12. Plan­car­te, 9 F.4th at 1154.

13. See, e.g., Areva­lo v. INS, No. 98–2254, 1999 U.S. App. LEXIS 6024, at *7 (4th Cir. Apr. 2, 1999) (declin­ing to find that chefs con­sti­tute a PSG, despite threats based on their skills and inde­pen­dent­ly of their busi­ness, with an unan­a­lyzed cita­tion to Acos­ta); see also Plan­car­te, 9 F.4th at 1154 (“[R]ather than pro­vide any mean­ing­ful analy­sis about the immutabil­i­ty of ‘female nurs­es,’ the BIA sim­ply cit­ed Mat­ter of Acos­ta . . . . This alone was error.”).

14. In re Fuentes, 19 I. & N. Dec. 658, 662 (B.I.A. 1988).

15. Id. at 661 (dis­miss­ing rebel vio­lence against “insti­tu­tions that . . . sup­port domes­tic sta­bil­i­ty and the strength of the exist­ing gov­ern­ment” as the equiv­a­lent of sol­diers fac­ing ene­my combatants).

16. Koudri­a­cho­va v. Gon­za­les, 490 F.3d 255, 264 (2d Cir. 2007) (where petitioner’s wife filed the asy­lum appli­ca­tion on petitioner’s behalf and the case was there­fore brought in her name).

17. Id. at 261–62 (“In the sec­ond sce­nario [of a hypo­thet­i­cal indi­vid­ual reprisal], the per­se­cu­tion the appli­cant fears is . . . a result occa­sioned by oth­er fac­tors more spe­cif­ic to the par­tic­u­lar applicant.”).

18. Sepul­ve­da v. Gon­za­les, 464 F.3d 770, 772 (7th Cir. 2006) (“The social group to which Sepul­ve­da belongs con­sists of for­mer, not present, employ­ees of the Attor­ney General’s Office. From that group he can­not resign.”).

19. Koudri­a­cho­va, 490 F.3d at 259 (report­ing that Koudri­a­chov com­mit­ted to leav­ing the KGB before emi­grat­ing); Sepul­ve­da, 464 F.3d at 771 (not­ing that Sepul­ve­da knew the names and alias­es of fel­low inves­ti­ga­tors and the names and address­es of pro­tect­ed wit­ness­es); Plan­car­te, 9 F.4th at 1154 (“Plan­car­te has received spe­cial­ized med­ical train­ing and has a pro­fes­sion­al license as a nurse.”).

20. Tapiero De Ore­juela v. Gon­za­les, 423 F.3d 666, 672 (7th Cir. 2005).

21. Id.

22. See id. at 673 (recount­ing how FARC con­tin­ues extort­ing for­mer landown­ers even after they leave their farms); Plan­car­te, 9 F.4th at 1154.

23. See Tapiero, 423 F.3d at 672.

24. Esco­bar v. Hold­er, 657 F.3d 537 (7th Cir. 2011).

25. Id. at 540–41.

26. Id. at 545.

27. Id.

28. Id. at 548.

29. See id. at 546 (not­ing that FARC sought to pre­vent Esco­bar from using his “spe­cial skill” on its ene­mies’ behalf).

30. Ahmed v. Ashcroft, 348 F.3d 611, 617 (7th Cir. 2003); see also Mya Lwin v. INS, 144 F.3d 505, 512 (7th Cir. 1998) (find­ing that the PSG of “par­ents of Burmese stu­dent dis­si­dents” was immutable, even if mem­bers’ chil­dren might die, grad­u­ate, or cease being dis­si­dents, because it implied polit­i­cal oppo­si­tion to Myanmar’s mil­i­tary dictatorship).

31. Mwem­bie v. Gon­za­les, 443 F.3d 405, 415 (5th Cir. 2006); Mwem­bie v. Gon­za­les, 443 F.3d 405 (5th Cir. 2006), LEXIS Shepard’s Report Cit­ing Deci­sions (last vis­it­ed Oct. 22, 2022) (report­ing that the case has been cit­ed more than 100 times by oth­er cir­cuits and the BIA).

32. Mwem­bie, 443 F.3d at 415 (dis­miss­ing the pro­posed PSG with a one-sen­tence ref­er­ence to Acos­ta).

33. See id. at 407–09 (not­ing that Mwem­bie wrote press releas­es about gov­ern­ment meet­ings with­out dis­cussing whether this work might require spe­cial­ized skills).

34. Tapiero, 423 F.3d at 672.

35. Fuentes, 19 I. & N. Dec. at 662.

36. See Mwem­bie 443 F.3d at 415 (“[S]he was not impris­oned ‘because’ she belonged in the group of gov­ern­ment employ­ees work­ing at the Mar­ble Palace, but ‘because’ she was a crim­i­nal sus­pect.”); see also Bas­ta­nipour v. INS, 980 F.2d 1129, 1132 (7th Cir. 1992) (rul­ing that crim­i­nal sus­pects are not a PSG and that exces­sive­ly harsh pun­ish­ments for actions that the Unit­ed States also crim­i­nal­izes do not con­sti­tute persecution).

37. See, e.g., In re L‑E-A‑, 27 I. & N. Dec. 40, 42 (B.I.A 2019) (empha­siz­ing that all PSG deter­mi­na­tions require “a fact-based inquiry made on a case-by-case basis”), vacat­ed on oth­er grounds by In re L‑E-A‑, 28 I. & N. Dec. 304 (A.G. 2019).

38. See, e.g., Melo Gutier­rez v. Att’y Gen. U.S., No. 20–1692, 2021 U.S. App. LEXIS 33601, at *6–7 (3d Cir. Nov. 12, 2021) (ref­er­enc­ing the wide­spread rejec­tion of PSGs “defined by an occu­pa­tion that does not require spe­cial­ized skills,” like appellant’s fel­low trans­porta­tion work­ers); Gon­za­lez-De Leon v. Barr, 932 F.3d 489, 492–93 (6th Cir. 2019) (not­ing that peti­tion­er taxi driver’s knowl­edge of his city became irrel­e­vant after he left his job); Miran­da v. Ses­sions, 892 F.3d 940, 943 (8th Cir. 2018) (reject­ing for­mer taxi dri­vers as a PSG).

39. See, e.g., Canales-Rivera v. Barr, 948 F.3d 649, 657–58 (4th Cir. 2020) (not­ing the fre­quent rejec­tion of mer­chants’ asy­lum appli­ca­tions and reject­ing the claim that their “self-deter­mi­na­tion and self-suf­fi­cien­cy” are immutable or are unique to their industry).

40. See, e.g., Appli­cant A v Min­is­ter for Immi­gr & Eth­nic Affs [1997] 190 CLR 225 (Austl.) (cre­at­ing Australia’s “social per­cep­tion” test, in which “a cer­tain char­ac­ter­is­tic or ele­ment which unites [the PSG] and enables them to be set apart from soci­ety at large,” much like any pub­licly vis­i­ble career, is the sole require­ment for PSG classification).

41. See Melo, 2021 U.S. App. LEXIS 33601, at *7 n.3 (favor­ably con­trast­ing Plan­car­te with applicant’s non-pro­fes­sion­al career).

42. Plan­car­te, 9 F.4th at 1154.

43. Stser­ba v. Hold­er, 646 F.3d 964, 977 (6th Cir. 2011) (rul­ing that forc­ing a pedi­a­tri­cian from an eth­nic minor­i­ty to work as a school nurse con­sti­tut­ed per­se­cu­tion since she “invest­ed edu­ca­tion or training”).

44. See U.N. Con­ven­tion Relat­ing to the Sta­tus of Refugees art. 33, ¶ 1, July 28, 1951, 189 U.N.T.S. 150 (“No Con­tract­ing State shall expel or return . . . a refugee . . . to the fron­tiers of ter­ri­to­ries where his life or free­dom would be threat­ened on account of his . . . mem­ber­ship in a par­tic­u­lar social group[.]”); Exec. Order 14010, 86 Fed. Reg. 8267, 8269 (Feb. 2, 2021) (sug­gest­ing that present Unit­ed States asy­lum law and par­tic­u­lar social group deter­mi­na­tions are not “con­sis­tent with inter­na­tion­al standards”).