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Understanding the Requirements of a Particular Social Group for Asylum

This article explores the criteria for qualifying for asylum based on membership in a particular social group, including immutable characteristics, social visibility, and definition with particularity. It also discusses recent developments and clarifications in gender-based violence PSGs and non-gender conforming PSGs. Additionally, it provides tips on crafting an effective PSG for asylum claims.

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Understanding the Requirements of a Particular Social Group for Asylum

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  1. PARTICULAR SOCIAL GROUP Scott Bratton, Esquire Nash Joseph Fayad, Esquire Jennifer I Peyton, Esquire American-Arab Anti-Discrimination CommitteeMarch 27, 2015

  2. To qualify for asylum --- • Individual must demonstrate a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion • INA 101(a)(42)(A)

  3. Matter of Acosta • 36 year old male from El Salvador Respondent was a taxi driver in San Salvador and refused to participate in guerrilla-sponsored work stoppages (Respondent not eligible for asylum because no nexus)

  4. Immutable characteristic? • Persecution on account of membership in a PSG is persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. Matter of Acosta 19 I & N Dec. 211, 233 (BIA 1985)

  5. Shared Characteristic examples in Acosta • Sex • Color • Kinship ties • Shared past experience such as former military leadership or land ownership

  6. Common Characteristic • Something the applicant cannot change, or something so fundamental to the applicant’s identity that the applicant ought not be required to change it. • Matter of Acosta 19 I & N Dec. 211 (BIA 1985)

  7. Muddying the waters - • A “former noncriminal drug informant working against the Cali drug cartel” is not a PSG because not socially visible (which begs the questions, why would an informant against a Colombian drug cartel want to be socially visible)? • Matter of C-A-, 23 I&N Dec. 951 (BIA 2006)

  8. Further confusing the PSG analysis-Gang Cases • Siblings who sought asylum based on their membership in the group of “Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal moral, and religious opposition to the gang’s values and activities, and their family members.” (not a PSG) • Matter of S-E-G-, 24 I & N Dec. 579 (BIA 2008)

  9. Young man seeking asylum based on his membership in the group of “young persons who are perceived to be affiliated with gangs”. (not a PSG) Matter of E-A-G-, 24 I & N Dec. 591 (BIA 2008)

  10. New Requirements • PSG must be based on immutable characteristic, be socially visible, and particularly defined. • “Particularity” means a group is defined in a manner sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons. • SEG, 25 I & N Dec. at 584.

  11. Clarifying the mess • Matter of MEVG, 26 I & N Dec. 227 (BIA 2014) • Matter of WGR, 26 I & N Dec. 20 (BIA 2014) • Clarified that social visibility isn’t literal visibility but whether PSG is recognized within a society as a distinct entity. Renamed the element as “social distinction”.

  12. Newest version of PSG • Applicant must demonstrate the PSG • Is composed of members who share a common immutable characteristic, • Defined with particularity, and • Socially distinct within the society in question • Matter of MEVG, 26 I & N Dec. 227 (BIA 2014)

  13. Gender Based Violence PSGs • Recognizing that the status of an uncircumcised woman as a characteristic one should not be required to change. Matter of Kasinga, 21 I & N Dec. 357 (BIA 1996) • Matter of RA, finally clarified by Matter of ARCG, 26 I & N Dec. 388 (BIA 2014) finding a social group for “married women in Guatemalan who are unable to leave their relationship”.

  14. Non Gender Conforming • Homosexuality as an immutable characteristic • Matter of Toboso-Alfonso, 20 I & N Dec. 819 (BIA 1990)

  15. Is age an immutable characteristic? • En Banc decision from Seventh Circuit finding a social group for “young Albanian woman living alone” Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) • Rreshpja v. Gonzales, 420 F.3d 551(6th Cir. 2005) young (or those who appear to be young), attractive Albanian women who are forced into prostitution is not a PSG

  16. Final Thoughts • Tie the PSG to another protected group if possible • Not too big, not too little, just right • Don’t define the group by the harm • Able to do alternate PSGs • As broad as the Board is making CIMT, as much they are limiting PSGs

  17. #EndFamilyDetention • Immigrationpeyton.blogspot.com

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