Many factors must be present in order for a refugee to be
given asylum in the United States.
The US allows refugees who have been persecuted in their
home country to gain a legal status in the US which could lead to a green card
and citizenship. Asylum seekers must meet the definition of refugee outlined in
the Immigration and Nationality Act (INA) in order to qualify for asylum. A
refugee is someone who is outside their country of origin who is unwilling or
unable to return because of persecution or who has a well-founded fear of
persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.
This post will focus on what ‘particular social group’ means
in the legal sense. The code does not define what a particular social group is or
what kind of groups are protected by the statute and allowed refugee status in
the United States. A particular social group means a group of people who share
some characteristics that distinguishes them from society as a whole.[1]
So what qualifies as a particular social group? I will attempt to provide
further guidance, however, as with all immigration matters, the judge has wide
discretion in determining what does and does not qualify as a particular social
group and cases will be looked at individually and determined on a case-by-case
basis. The INA does not give a specific definition because it will change over
time; what qualifies as a particular social group today might not in one year
from now as regional matters and threats arise and fade out. The Board of
Immigration Appeals stated in Matter of
Acosta that characteristics as innate as “sex, color, or kinship ties” may
qualify as a particular social group for purposes of refugee status and asylum
but will be reviewed on a case by case basis.[2]
The standard for a particular social group also includes an “individual who is
a member of a group of persons, all of whom share a common, immutable
characteristic, i.e., a characteristic that either is beyond the power of the
individual members of the group to change or is so fundamental to their
identities or consciences that it ought not be required to be changed.[3]”
The 9th circuit, which sets the governing precedent in Arizona, as
well as California, Oregon, Washington, Nevada, Alaska, Idaho, Montana and
Hawaii, decided in Sanchez-Trujillo v.
INS that a particular social group needed to be a cohesive, homogenous
group, which contrasts with the BIA decision.[4]
In an effort to reconcile the precedents, recent 9th circuit cases
have added to the Sanchez-Trujillo
precedent and included innate characteristics such as sex, color, and sexual
orientation as characteristics that would qualify as a particular social group even
though these groups may not be cohesive or homogenous.[5]
The 9th circuit has the two part test because they did not want
groups that were too broad to be recognized as a particular social group.[6]
The definition is constantly evolving as new categories
arise and new threats to human rights arise. If you want to apply for asylum,
call an attorney who will assist you as you apply for asylum.
[1]T. Alexander Aleinikoff, “Membership in a Particular Social Group”:
Analysis and Proposed Conclusions, p. 6,
2001 (draft), http://www.unhcr.org/3b83b1c54.pdf.
[2] Matter of Acosta, 19 I&N Dec. 211, 234 (I&N, 1985).
[3] Id. at 212.
[4] Sanchez-Trujillo v. INS, 801 F. 2d 1571 (C.A. 9. 1986).
[5] Perdomo v. Holder, 611 F. 3d 662, (9th Cir. 2010).
[6] Id.
