Asylum based on affiliation with a “Particular Social Group”

Am I eligible to seek asylum because of harm committed against me, or feared future harm, because of my affiliation with a “Particular Social Group?” If you haven’t yet read our article, Who is eligible for Asylum?, you should definitely do so, before reading this one. If you have already read that article and believe you may be a candidate for asylum based on Particular Social Group affiliation, then this article is intended for you.

As you may already know,  one of the fundamental requirements to be eligible for asylum, is that you have either been harmed in some way or you fear future harm in your home country (or country where you last lived–if you do not have a home country). AND,  that this harm is because of something that is impossible for you to change about yourself, or because of something that you shouldn’t have to change about yourself.

A category of eligibility is if the harm you faced, or the feared future harm is based on your membership or affiliation in a “Particular Social Group.” This is a legal term that is very confusing for people to understand, judges and lawyers included. The term can be quite subjective, and it can be confusing and even inconsistent as to who can qualify for asylum under this label. The aim of this article is to outline generally, what this term has been interpreted by the courts to mean in a straightforward and easy to understand way.

The term Particular Social Group means  “persons of similar background, habits, or social status, and also may overlap with race, religion, etc” (Definition obtained from Richard Boswell’s Essentials of Immigration Law (3rd Edition), pg.91.). What this really means is that if you’re a member of a group of people with sufficient visibility as a group, meaning you’re identifiable  because of a characteristic that everyone in that group shares, you may be able to base your asylum petition on harm (persecution) you faced from being in that group.

What groups constitute a Particular Social Group for purposes of asylum law can be very far removed from race or religion. For purposes of United States asylum law, you can even create your own social group that hasn’t previously been recognized by the authorities when applying for asylum; based on persecution you have faced from being a member of the group that you define.

Some examples that people have applied under (although not all were accepted asylum petitions), legal scholar Maryellen Fullerton identifies in her article, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group. The examples she cites (again not all successful) are:  “taxi drivers in El Salvador, the military in Guatemala, the educated elite in Ghana, hereditary chiefs of the Esubete people in Nigeria, young working class males of military age in El Salvador, the social circle of Imelda Marcos in the Philippines, large landowners in the Philippines, cheesemakers in El Salvador, families, women previously raped and beaten by guerrilla forces, and homosexual men.”

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Thus, as you can see, the Particular Social Group category does not have be based around race, gender can be a component of a social group, and the groups can be quite flexible. So what then, is important when determining if you faced persecution based on your membership in your social group? It first needs to be acknowledged that there has been a lot of inconsistency as to what courts accept as a real “Particular Social Group” for legal purposes. However, the Board of Immigration Appeals has determined that:

1. That the persons in the group must share a common characteristic, and this common characteristic “must be one that members of the group either cannot change, or should not be required to change.”

In the “taxi drivers in El Salvador” example that Maryellen Fullerton references in her article above, which is from a famous asylum Board of Immigration Appeals (BIA) case, Matter of Acosta, this social group was denied as a viable social group for asylum purposes. The reason being, was that the claim was premised on the fact that the applicant feared persecution because of his and his taxi collective’s (a labor organization) failure to comply with work stoppages forced upon public transportation by guerilla forces. Taxi drivers had already been killed for failing to comply with the work stoppages, but the court found that although the social group shared a common characteristic–they were all taxi drivers–this characteristic was not thought of something they “should not be required to change.” The court basically reasoned that they could change jobs to avoid being harmed, or that they could comply with the guerrillas and cease work.

In contrast to this example, “gay men with female sexual identities in Mexico,” was found to qualify in a case, because these characteristics: being gay and having a female sexual identity, were considered characteristics of a group that the people in the group should not have to change (See, Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), at 233.). Also, groups based on gender and blood relationships have been found to qualify as these aren’t able to be changed (Immigration Law and Procedure, § [sec. 3304]).

The common characteristic could also be something from the past that everyone in the group holds in common that they cannot change. A made up example of this could be, “Canadians of Quebec who protested for independence from Canada in the 1990s.” A person cannot change what they did in the nineties years later, and every Canadian from Quebec who protested in the 1990s for an Independent Quebec would share this common characteristic. This is a made up example but it is intended to show you that Particular Social Groups can overlap with Political Opinion often, and there may be more than one basis for claiming asylum. It is unclear if that example we made up would qualify however, because some courts consider it important that the past experience is “fundamental to members’ identities” (Immigration Law and Procedure, § [sec. 3304]). Whether protesting in the nineties for an independent Quebec is fundamental to one’s identity (especially since many years have gone by), would be a tough call for a court to make. Again, it is important to emphasize that there is much inconsistency between the cases and the courts that have decided asylum issues on appeal. Thus, that group might be accepted by one court, but rejected by another. It it is very important and highly advisable that a person looking to petition for asylum on the grounds of particular social group should seek the help of an experienced immigration lawyer. This article is simply intended to provide basic information about Particular Social Groups and to get you thinking and informed; it is not intended as legal advice.

2. Another factor that the Board of Immigration Appeals has found important is that the group must be sufficiently, “socially distinct.” What this really means to quote the Board of Immigration Appeals is that: “a group need not be seen by society; it must instead be perceived as a group by society” (See, Matter of W-G-R-, 26 I. & N. at 216 ).  This has two components: 1. “Whether the group self-identifies as a group,” AND, 2. “Whether society as a whole recognizes the group” (Immigration Law and Procedure, § [sec. 3304]). This is a subjective criteria much like the requirement that the group share a common characteristic. Thus, meeting this requirement is a case by case determination and it can be tricky. Again, there is no substitute for the advice of an experienced immigration attorney.

So assuming that you are a member of a Particular Social Group that you believe meets these requirements: 1. Everyone in the group shares a common characteristic; and, 2. The Social Group you are claiming is socially distinct; you appear to be in pretty good shape. There are however, a couple other things an asylum applicant will have to establish:

3. The applicant must establish that they are part of the Particular Social Group. This may seem like an obvious requirement, but proving membership in the group will be on the applicant to prove when applying. AND,

4. The members of the Particular Social Group were “targeted for persecution on account of its members’ characteristics” (Immigration Law and Procedure, § [sec. 3304]).

This can be tricky to understand. Let’s use an example obtained from the principle source for this article, Immigration Law and Procedure * . If a person was a police officer and they disrupted a band of criminals with their criminal enterprise, and then the criminals targeted him because he messed up their operations. And then, being scared for his life, the former police officer fled to the United States and petitioned for asylum on the basis of fearing harm from the criminals for being in the social group of former police officers, this would not qualify. Why? Because the criminals wouldn’t be targeting him because he was a former police officer. Rather, they would be targeting him because he interrupted their criminal operations.

Now to expand on this example, if the criminals of a country just got together and decided that they were going to kill all former police officers because they don’t like police officers, then this might qualify. This can be a subtle difference, but an important one.

* Charles Gordon, Stanley Mailman, Stephen Yale-Loehr, and Ronald Y. Wada, Immigration Law and Procedure, § [sec. 3304] (Matthew Bender, Rev. Ed.).

With that, you have the basics of who is eligible for asylum based on Particular Social Groups. However, it is important to emphasize that this area of the law is incredibly nuanced, complex, and there is simply no substitute for the assistance and help of an experienced Immigration Attorney when making an asylum claim based on Particular Social Groups. Finally, there are a few additional considerations to keep in mind about Particular Social Groups that may be applicable to your specific case.

Particularized Social Groups can overlap with Political Opinion:

Under United States law, Particular Social Group and Political Opinion are separate grounds for achieving asylum eligibility. However, they can be related and depending on the facts, you may have both grounds available as a viable claim for asylum. For more information on Political Opinion –based asylum, please read our article.

The Grounds for General Asylum Ineligibility could still make you ineligible

Despite the fact that you may have a viable asylum claim based on persecution on being a member in a Particular Social Group, unfortunately it is possible that you could still be ineligible for asylum due to one of the many ineligibility grounds. Our article, Who is Eligible for Asylum? outlines some of the common grounds for ineligibility.

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