Basis For Asylum: Membership In A Particular Social Group
22 December 2012Author: US Asylum Lawyer Alena Shautsova
United States asylum seekers may qualify for asylum on five grounds: race, nationality, religion, political opinion, and membership in a particular social group. Refugees or asylum seekers are aliens who are unable or unwilling to return to their native country “because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).
Membership In A Social Group
What constitutes a particular social group? How definite it should be? How many members should it have? Should it be an official organization? The criteria for the social group basis for asylum seekers is developed though the International law norms, as well as through the decisions of the local, United States courts. It must be noted that it is the burden of the asylum seekers to identify a particular social group. Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010), (quoting REAL ID Act of 2005 § 101(a)(3), 8 U.S.C. § 1158(b)(1)(B)(i)).
The BIA has ruled that the members of a group must share a common characteristic that is either "beyond the power of the individual to change" or "so fundamental to individual identity or conscience that it ought not be required to be changed." Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985), overruled in part on other grounds, Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987). (An example of a characteristic that cannot be changed is one that was acquired based on the past events. Namely, being a witness of crimes of others. See Gashi v. Holder, Docket No. 10-2584-ag (2d Cir, 2012).
This common characteristic, furthermore, must have enough “social visibility” that it identifies members of the group to others in the community, particularly to potential persecutors. See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007); In re C-A-, 23 I. & N. Dec. 951, 959-60 (B.I.A. 2006); Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991) (“A particular social group is comprised of individuals who possess some fundamental characteristic in common which serves to distinguish them in the eyes of a persecutor—or in the eyes of the outside world in general.”). Finally, the proposed group must have “particular and well-defined boundaries.” Ucelo-Gomez, 509 F.3d at 73. It means that the group must have some definite number of members. Previously, the courts have rejected a proposed social group whose members could not have been reasonably counted. See Cf. In re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 76 (B.I.A. 2007), aff’d sub nom. Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007), (rejecting a proposed group defined as “affluent Guatemalans” because “the concept of wealth is s indeterminate, the proposed group could vary from as little as 1 percent to as much as 20 percent of the population, or more.”
Quite often, an IJ would not agree with the proposed social group, and it might not until the Circuit Court petition, that the social group be recognized. That is why it is very important for asylum seekers to prepare the application thoroughly and submit a detailed brief arguing that an applicant belongs to a social group recognizable under the US laws.