Perdomo v. Holder (9th Cir. 2010)

In the immigration field, asylum is one of the most hotly litigated areas.  Over half of all immigration cases which are appealed relate to asylum claims.  This is because the terms and definitions used in the asylum statutes are so broad that more often than not, court intervention is required to determine whether an applicant is eligible for asylum under one of its statutory categories: race, religion, nationality, political opinion, or membership in a particular social group.  Of these categories, “membership in particular social group” has seen more than its fair share of litigation because the category itself is not easy to define and not easily understood.  Neither is it self-explanatory.  The appellate courts have offered various definitions and descriptions of what constitutes a particular social group, but none of them have been very satisfying or easy to apply.  The difficulty has been striking the balance between making a group to small or too big as to become meaningless.

In this case, the 9th Circuit again tackles the never ending question of what constitutes a particular social group.  The respondent was a young woman from Guatemala.  She came to the U.S. without authorization in 1991.  She lived here continuously before being discovered by ICE, which initiated removal proceedings against her.  In her defense, she applied for relief under asylum and the Convention Against Torture.  She alleged that she feared persecution as a member of a particular social group consisting of women between the ages of fourteen and forty in Guatemala.  Her fear was based upon the high incidence of murder of women in Guatemala and her status as a Guatemalan woman.  She provided evidence from various human rights groups showing the prevalence of the torture and killing of women, the non-responsiveness of the Guatemalan government, and the lack of explanation for the killings.  The respondent’s claim was not based upon any past persecution, but rather, her fear of future persecution if she were returned to Guatemala.  Essentially, her argument was that she would likely be persecuted in Guatemala simply because she was female. [I’m not sure I would ever make such a broad argument but I’m still glad it worked out for her]

The immigration judge denied her asylum claim, and the BIA affirmed, finding that the respondent’s characterization of a particular social group as all women in Guatemala was too broad to qualify as a protected social group.  The BIA concluded her characterization was more a demographic group rather than a protected social group as contemplated by the asylum statutes. 

On appeal, the respondent found a more sympathetic forum in the 9th Circuit.  The court discussed at length the prior cases which discussed the meaning of social group.  Notably, the court found that the caselaw contemplates that gender may form a basis for a protected social group because it is an innate characteristic that a person cannot and should not be changed to avoid persecution.  In past cases, however, gender and another characteristic was used in conjunction to establish a particular social group.  In this case, gender itself demarcated the social group.  Nonetheless, the court agreed with the respondent.  The court stated that in keeping with international standards for asylum, the size and breadth of a group alone does not preclude a group from qualifying as protected social group.  For this reason, the respondent should not be denied protected group status merely because her characterization of a social group was broad.  No doubt this case will be further appealed.  For now, it has definitely raised the ceiling for asylum applicants who fear persecution on account of membership in a particular social group.  This is the first loosening of the definition of this category that I’ve noticed in a long time.