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).
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.
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  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”).