Another Group Bites the Dust: The Fourth Circuit's Rigid Determination of Particular Social Groups

In 2022, in Herrera-Martinez v. Garland, the U.S. Court of Appeals for the Fourth Circuit held that “prosecution witnesses” are not a sufficiently particular social group (PSG) to warrant protection from deportation under the Immigration and Nationality Act. The Fourth Circuit’s decision added to varying interpretations of the requirements for establishing a PSG among other circuits and immigration courts. To qualify as a PSG in the Fourth Circuit, members of the group must share an immutable characteristic and the group must be defined with particularity and be socially distinct. The Seventh Circuit had previously refused to adopt all three requirements in its analysis of PSGs, and consequently, resisted deference to decisions issued by the Board of Immigration Appeals (BIA). This Comment argues that, although the Fourth Circuit accurately applied the three requirements for qualifying as a PSG, some requirements should be optional to provide more flexibility for noncitizen applicants, presiding agencies, and courts in applying the requirements.