US Asylum Law: What Does Membership In A Particular Social Group Really Mean?
Author: Asylum lawyer Alena Shautsova
US Asylum laws are extremely complicated: we have regulations, international law asylum norms, decisions by the Board of Immigration appeals, US Federal court decision, and US Supreme Court decision. At the law office of Alena Shautsova, NYC Immigration lawyers are working hard to stay abreast of the recent asylum law developments and help their clients to win their asylum cases.
US Asylum laws protect individuals who are being persecuted based on a set of specific inalienable characteristics. US Asylum law is at the forefront of human rights activism in the United States. It allows these individuals who would be persecuted in their home countries for inherent characteristics to be safe from harm. The characteristics a person possesses and is likely to experience persecution in the future that allow the person to claim asylum in the US are (1) race, (2) religion, (3), nationality, (4) membership in a particular social group, and (5) political opinion. Sometimes these categories overlap, especially when a person is persecuted for being a super minority. However, the amount of cases that fall into the asylum category of membership in a particular social group is growing compared to the other categories.
It is not surprising that membership in social groups is a growing cause of persecution when you look at different state actors. Anti-discrimination laws and compliance are on the rise in many countries, which make it less likely to be persecuted solely based on race, religion, or nationality. Nevertheless, when a person of a minority religion or race decides to open a business in some countries, they are severely persecuted. Whether the persecution is done complicity with their government's approval or obliquely by failing to protect the minority business owner's rights, persecution persists. Many people will claim asylum based on their race or religion under these circumstances, and that is the correct choice. However, a person can claim multiple categories of persecution, and choosing to make a claim in the example above under both their minority affiliation and membership of a particular social group is a better choice.
Why? Sometimes it will be difficult to operate within the confines of the US Asylum laws if a person only elects one of the options and to prove that a country is persecuting a whole race or religion is rare. However, we do see cases of this with Jehovah's Witnesses in Russia or Rohingya in Myanmar. It is far more likely that we see racial or religious oppression when a person of any type of minority is trying to make money from a business or gain political influence in today's world. The example of the minority business owner is a classic example of fitting into membership in a particular social group, but what exactly is a particular social group, and how does the US define membership?
The UNHCR states that a particular social group "normally comprises persons of similar background, habits, or social status." (UNHCR, 24). That is a pretty broad statement allowing virtually any group of persons that are physically or virtually social. Unfortunately, this is the statement that helps with customary international law but not domestic law, a/k/a US asylum law. In the US, there is a system for identifying a particular social group which developed from two cases, Sanchez -Trujillo v. INS in 1986 and Lwin v. INS in 1998. In 2008, the BIA created two additional factors that they consider when determining if a social group, in particular, in the Matter of S-E-G and Matter of E-A-G cases. The current standard process for identifying a particular social group now has five parts:
- Clearly Identifying the Group and **Special Circumstances**
- Proof of Membership (or perceived membership***)
- Demonstrating that the Group Membership Creates a Future Fear of Persecution
- Social visibility **not required in the third and seventh circuits but required in the ninth circuit (California)
Clearly Identifying your Social Group
When clearly identifying the social group, it is important to understand that a social group usually cannot stem from the persecution; the group must exist regardless of whether the persecuting action occurred or not. For example, the LGBT community is often persecuted, but regardless of persecution, the group exists. Victims of general gang violence, even if it is horrific, would not exist without first becoming victims of gang violence. If the victims are shunned and experience different forms of persecution after the initial act of gang violence, they may satisfy this criterion, but systemic non-targeted violence would not qualify. An example of this would be a gang violence victim who was cut or branded on their faces to notify other members of the community that contacting or communicating with the person will cause trouble. A victim that has been essentially excommunicated after the violence may satisfy the identification of a social group category as well as the past or future persecution criteria.
The 1986 case of Sanchez-Trujillo v INS created fourth criteria for identifying particular social groups, which are more or less an addendum to the first criteria. In 2014, the cases Matter of M-E-V-G BIA and Matter of W-G-R BIA created specific guidelines for these special circumstances. Fundamentally, it clarifies that it cannot be any social group, but a "particular" one. While the UNHCR's definition is extremely broad and all-encompassing, the BIA takes a more limited approach in the context of asylum eligibility. The BIA requires that particular social groups must show that (1) a common characteristic unites them, (2) the group is easily identified within the society they live in, and (3) the group is sufficiently particular.
Proving membership or perceived membership of a Social Group
Proof of membership in a particular group can be something that is intrinsically evident by a person's physical characteristics, documented, or rely on a person's testimony. Physical characteristics are usually easy enough to document and present to the court. If a person is persecuted because of a physical disability, the color of their skin or a scar, marking, or tattoo on their skin, they can take pictures to demonstrate their membership in the social group. Proof of business, religious organizations, or political dissidents can typically show through formal documentation that they are members of the group. For example, articles of incorporation or financial records for a business, certificates of completing religious ceremonies, or signatures on petitions or arrest records for protesting. Perceived membership of a particular social group can sometimes solely be testimony because the person may not actually be part of the social group at all. A common example of this is someone who is perceived to be a member of the LGBT community in a country that is known for persecuting members of the LGBT community. Even if the person is heterosexual but is seen associating with a member of the LGBT community or "looks like a member of the LGBT community" and is persecuted for these reasons, this criterion is fulfilled. Another typical example of perceived membership of social groups is successful business owners who are deemed threats to the political regime of their country. The business owner may want nothing to do with politics, but their government believes that they are becoming too powerful politically and want to eliminate any potential adversaries.
Demonstrating that the Group Membership Creates a Future Fear of Persecution
When you have demonstrated past persecution, there is a presumption of future persecution. However, sometimes the presumption of future persecution is rebutted by the government. Essentially the government agrees that you were persecuted in the past, but that you are unlikely to experience persecution in the future. Usually, the government rebuts the presumption of future persecution when the persecutor, whether an individual, group, or regime, falls out of power and is unlikely to have the power to persecute the individual again. In these cases, a person may still be able to show a fear of future persecution, and if not, they can apply for humanitarian asylum.
For some, it may seem blatantly obvious that an individual has a future fear of persecution. The government, however, follows a strict pattern for demonstrating a fear of future persecution. The criteria to establish a fear of future persecution includes: (1) the persecution must be connected to a person's protected ground, i.e., the membership of a social group, (2) a reasonable possibility that the person will be persecuted, and (3) that the person is unable or unwilling to return to the country.
A reasonable possibility that a person will be persecuted seems like a very subjective statement. Luckily, there has been ample case law to determine what exactly is reasonable: a 10% chance of persecution. The words unable or unwilling in the third criteria also apply to the government's ability to protect the person from persecution. If the government is unable or unwilling to protect the person from persecution, the third criterion may be satisfied.
When evaluating a person's fear, there is a subjective fear and an objective fear. Subjective fear is based on a person's perception of how they can be harmed. Objective fear is fact-based fear. Each type of fear has a type of supporting evidence that accompanies it. If the fear is based on objective threats and objective realities it is very helpful to demonstrate objective fear with supporting documents such as copies of the threats if made in writing or caught on videotape and country conditions reports to shed light on the situation for a particular social group's welfare within the country they are claiming asylum from. Objective supporting evidence should include fact-based evidence of fear that supports a "3 R's analysis:"
- Remaining in the country
- Returning to the country
- Relocating within the country
If a person remained in the country for a long time after threats were made, or after the persecution happened, there will be a negative effect on the objective-based evidence that a person has a future fear of persecution. If a person was unable to leave for a long time due to some extenuating circumstances, this might help to mitigate the damage on the 3 R's analysis. Moreover, returning to their country after persecution will be another negative factor to consider from the objective fear category. Relocation safely to another part of the country is also a mitigating factor when analyzing fear objectively. If a person can effectively live without fear of persecution in a neighboring city or even on the opposite side of the country, it is reasonable to conclude that a person will be less fearful of future persecution. Objective fear is something that can usually be established by expert reports or country conditions reports. If a person was physically harmed, they could produce medical records or pictures of the physical harm to establish the fact of physical harm. Once the objective fear of persecution can be established, it is time to move to establish subjective fear.
Subjective fear of future persecution is about the individual's perception of fear. Are you afraid of returning to your country? If the answer is yes, this is a subjective fear. However, the fear, even subjectively, must be based on the protected grounds. For example, a person who can show an objective fear of future persecution based on their membership of a particular group but later testifies that they are afraid because of general civil unrest in their community will lose their subjective fear of future persecution claim. Now, it is possible to be afraid of widespread violence, and be afraid that you are more likely to be targeted for such violence because of your membership in a particular social group. Still, in this case, it is imperative to clarify that your membership in the particular social group exacerbates your fear. Evidence to help prove subjective fear of future persecution can include:
- Declaration from yourself stating your fear
- Psychologist evaluations
- Letters from friends and family if possible
Previously considered a factor in considering an asylum application, social visibility is now a stringent criterion. The concept is simple to understand: your persecutors must easily be able to identify you. However, when it comes to asylum cases and people who fear persecution, this concept presents a massive problem because most members of particular social groups try to make themselves less visible to avoid unwanted persecution. No one wants to be persecuted for their innate characteristics, and like many things in life, people tend to try and avoid situations that cause them pain, physically and mentally. Therefore, an LGBT group will likely not identify themselves as such to the general public or a group of people hostile to LGBT people. In many countries, this particular social group is persecuted on every possible level. So, if you are a member of a particular social group, and you do not want to be socially visible to attract your persecutors to come after you, how can you satisfy this arbitrary criterion?
A case from 2012, Gaitan v. Holder, 671 F.3d 678, 679 (8th Cir. 2012) argued that an El Salvadoran boy at the age of 12 could not establish that he was socially visible when refusing to join the MS-13 gang because the actions he took did not distinguish him from the rest of the population experiencing gang violence. In other words, he lost his case because he could not show that the gangs were more likely to target him after refusing to join because of his social group of conscientious objectors. He received threats and was approached multiple times by the gang for recruitment. The gangs were able to identify him. However, Gaitan still did not establish the social visibility criterion. He was unable to establish the criterion because the social visibility criterion is not meant to establish that the persecutor or, in this case, the gang can identify him. Social visibility is established when society can clearly identify a particular social group. Therefore, if the rest of the members of El Salvador could not easily identify him, he would not meet this criterion.
Similar to the relocation criterion for establishing objective fear, if Gaitan could not be easily identified, it is possible that he could relocate to a different part of El Salvador and live a life free from persecution. If he was able to demonstrate that the MS-13 gang controls a majority of the territory in El Salvador and that they could identify him because they had a centralized list with pictures of the conscientious objectors, he might have met the criterion for social visibility. There is likely a similar system like the one described above. Still, without alleging and offering some sort of proof to its existence, the only way Gaitan could win his case is if there was some sort of physical marking to signal and identify him as a person who refused the gang.
Particularity refers to the boundaries a person sets for their particular social group. In the instance, as mentioned above, the boundaries of the social group were (1) males, (2) refusal to participate in gang-related activities, and possibly (3) that they received threats. The argument of the BIA and the immigration judge in the case was that the social group was too broad to be considered "particular." Here is where the criteria for Social Visibility and Particularity becomes inversely correlated in many cases. If a person defines their group too narrowly, they may no longer be socially visible, but if they define their group too broadly, they are not "particular" enough.
Moreover, what makes a case particular is mostly subjective to the immigration judge and the BIA. It is almost as if a person is searching for the Pareto optimality without a clear answer as to how much of their goods can be traded for another person's goods. The difference, however, is that they only have one chance to get it right. Imagine for a moment; you are selling oranges, and your friend is selling apples. You ask your friend if you would like to trade a few of your oranges for a few of his apples. You say to your friend, "How much would you give me for 2 of my oranges?" And your friend replies, "I don't know, take a guess, but if you offer too much or too little, I'm going to take offense, and I won't trade you any of my apples." That is what you have to decide when choosing how to define your particular social group. Should you give up a little bit of your particularity in favor of satisfying the social visibility criterion? Or, should you sacrifice some of your social visibility arguments in favor of becoming more defined and "particular."
For Gaitan's case, he could have specified the town he lived in as a defining characteristic and gave evidence to how many people from the town who refused to participate in the gang were persecuted, rather than to state the social group consists of everyone in El Salvador who refused to participate in the gang. Most people who are aware of the situation in El Salvador understand the power these gangs have over the people of the country and specific communities. It is well known in the field of immigration that refusal of gang-related requests or participation never has a happy ending for the people living in El Salvador. However, for the purposes of US asylum law, if it is happening to everyone in your country, it is not a particular social group. What sets the individual apart from the rest of the people in the country is what makes them particular. Why that person is more likely to be persecuted than anyone else makes them particular. Evidence to help establish particularity can include:
- Country Conditions Reports
- Evidence of Discriminatory Laws or Policies
- News articles that describe the persecution of the social group
- Expert Witness Testimony
- Historical animosities
If you have questions or need help due to seeking asylum in the United States, please reserve a confidential consultation with our New York Immigration lawyers by calling 917-885-2261 or following this link.