Third Circuit cases

Some recent not precedential decisions from the Third Circuit are good starting points for understanding your claim to asylum or cancellation of removal for non-permanent residents.

In Zhu v. Att'y Gen., the Court reviewed the petition for review and upheld the BIA's and Immigration Judge Mary C. Lee's decisions. The Court's reasoning was that none of the claimed hardship rose to the level of "exceptional and extremely unusual." This decision is typical of petitions of review concerning cancellation of removal (EOIR-42B) claims. If you have such a case, reading decisions like this will help you better understand what your lawyer is talking about and how your judge will rule.

In Carneiro et al. v. Att'y Gen., the Court reviewed an asylum claim premised on the particular social group (PSG) category. Ultimately, the Court determined that none of the animus from the Petitioner's alleged persecutor was a result of the Petitioner's membership in a PSG. Rather, the alleged persecutor just wanted to get his money back. "Fernando’s [the alleged persecutor] 'bare desire for money,' without more, does not reflect 'hostility' against Carneiro [the Petitioner] or his family on account of their membership in a protected group." When going over your asylum case with your attorney, ask them if the theory of your case relies on PSG or not as this type of claim is often the hardest kind to win on.

The interesting part of the Carneiro decision is Judge Matey's concurrence. He states: "But a deeper analysis, enabled by the increasing digital availability of primary sources, reveals that the 'particular social group' category was originally understood to protect postwar victims of persecution by totalitarian governments. Our cases have diverged sharply from this meaning and should be reconsidered."

Judge Matey laments that as a result from the diverging: "where things stand [now] for the Executive":

“a cognizable particular social group must be ‘(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.’” Matter of K-E-S-G-, 29 I. & N. Dec. 145, 147 (BIA 2025) (citing Matter of M-E-V-G-, 26 I. & N. Dec. at 237). A test that largely flows from judicial edits to the Executive’s drafting, leading to an endlessly expanding circle of groupings around a hopelessly indeterminate definition that excludes almost no imaginable applicant.

He concludes that "[t]here is no way to fit all these unbounded classifications into the original understanding of a 'particular social group.'" Judge Matey recommends 1) not looking to "evolving guidelines from the United Nations to update the statute and 2) reconsidering "our adoption of Acosta's premise that a 'shared past experience may be enough to link members' sufficient to form a particular social group. See Lukwago v. Ashcroft, 329 F.3d 157, 178 (3d Cir. 2003) (citing Acosta, 19 I. & N. Dec. at 233)."

The Judge suggests that "a straightforward interpretation emerges: a 'particular social group' refers to persecution by a foreign sovereign against a political minority based on political disagreements."

Interesting interpretation but one that the Judge fails to justify in light of the existing 'political opinion' ground. Perhaps the concurring opinion might have dealt with the judicial canon of surplusage in concluding that PSGs are essentially political opinion claims. The takeaway is that PSG-based asylum claims are increasingly difficult to advance and will likely face enhanced review at the circuit court level along the lines that Judge Matey espouses.