Legal Evolution of 'membership in a Particular Social Group' in U.S. Asylum Law: Implications for Queer Asylum Seekers

Background/Rationale:

This study examines the evolution of the legal definition of “Membership in a Particular Social Group” (MPSG) within U.S. asylum law between 1993 and 2025, centering the experiences of LGBTQIA+ asylum seekers. Codified under the Refugee Act of 1980, which aligned U.S. policy with the U.N. refugee framework, MPSG has served as a critical yet contested category through which queer migrants seek protection from persecution based on sexual orientation or gender identity.

Grounded in queer legal theory (Spade, 2015), intersectionality (Crenshaw, 1989), and critical legal studies, this research interrogates how judicial interpretations and executive policymaking have alternately expanded and restricted protections for LGBTQIA+ asylum seekers.

Methods:

Using critical discourse analysis, this qualitative study examines 20 purposively selected legal texts, including key case law (e.g., Matter of Toboso-Alfonso, 1990; Matter of A-B-, 2018), policy memoranda, and executive orders spanning five U.S. presidential administrations. The analysis centers on shifts in the language, evidentiary standards, and legal logic used to define queerness, credibility, and risk. Special attention is given to executive actions such as the Trump administration’s “Third Country Transit Rule” (2019) and Biden’s Executive Order 14010 (2021), which directed the restoration of asylum protections for vulnerable populations, including LGBTQIA+ individuals.

Results:

Three key findings emerged. First, while early decisions like Toboso-Alfonso established sexual orientation as grounds for asylum, later rulings such as Matter of A-B- undermined those gains by casting doubt on the legitimacy of gender-based violence claims. Second, executive policymaking has significantly shaped asylum adjudications: Trump’s “Third Country Transit Rule” functionally barred many LGBTQIA+ asylum seekers by requiring them to seek protection elsewhere first, regardless of risk, while Biden’s reversal of this rule sought to reestablish access, albeit with ongoing implementation challenges. Third, intersectional analysis revealed that queer claimants from Central America face compounded barriers rooted in racialized credibility assessments and geopolitical bias. These dynamics reinforce the refugee tropes, pressuring LGBTQIA+ migrants to perform idealized narratives of victimhood and persecution to be deemed credible.

Conclusions and Implications:

The shifting legal terrain of MPSG reflects politically constructed boundaries of belonging, where race, sexuality, and nationality intersect to determine access to protection. This legal evolution has direct implications for social work practice, particularly in immigration advocacy, trauma-informed care, and legal-social partnerships. Findings underscore the importance of legal literacy among social workers supporting queer asylum seekers navigating complex and often hostile legal systems. By engaging with how law constructs social group categories and adjudicates credibility, social workers can better challenge systemic biases and promote equitable access to asylum. The study also highlights the need for interdisciplinary education in schools of social work to equip practitioners with the tools to navigate and contest exclusionary immigration frameworks.

References:

Crenshaw, K. (1989). Demarginalizing the intersection of race and sex. U. Chi. Legal Forum.

Spade, D. (2015). Normal life: administrative violence, critical trans politics, and the limits of law. Duke University Press.