A refugee may flee his/her country for any number of reasons in order to seek protection from the United States, one of the last bastions of freedom and liberty in the world. However, in order to warrant legal protection and the ability to stay here under our immigration laws, the individual must ordinarily meet the legal definition of refugee as found in the Immigration and Nationality Act (INA) Section §101(a)(42). An applicant will be eligible and qualify for asylum from their native country if he/she can demonstrate past or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Of these different categories, membership in a particular social group is one of the more complex ones, subject to much interpretation, as obviously borne out by much of the asylum-based litigation.
While the INA has no formal definition of a “social group”, the BIA has interpreted a social group as requiring “a common, immutable characteristic” (Matter of Acosta, 19 I&N Dec. 211, 232 (BIA 1985)). Innate distinctiveness, such as one’s sex, skin color, blood-ties, and/or place of birth, for example, are characteristics that a member of a group cannot simply change or alter, thus exposing members of that group to danger if the social group is targeted. The BIA has gone even further to examine the group’s “social visibility” and “particularity”-that is, whether the group is distinct enough to be recognized and distinguished from others in the community.
There is a wide survey of cases involving social groups with widely disparate findings. Social Groups have been found to, in some cases, encompass victims of Gender Based violence. Many women, for instance, flee their countries to escape rape occurring in their forced marriages (usually countries that commonly practice arranged marriages, such as India). Alternatively, many women seek asylum to escape the atrocity of honor killings, which target “defiant” women that have gone against a traditional practice in their society or village, such as refusing to engage in arranged marriages, or eloping. Another interesting category of women who have successfully warranted asylum are married women from India who have contracted HIV, who then fear the repercussions from their families.
On the other hand, there are equally if not more, of course, cases where individuals claiming to belong to certain groups have not been found to warrant asylum because the groups did not meet the definition of a particular social group. The cases range from women from El Salvador raped and beaten by guerrillas to street children from Honduras.
Needless to say, it is an extraordinarily difficult burden for individuals who seek to apply for asylum based on this ground. Besides being able to demonstrate that the group they claim to be members of, is a particular social group, they bear the burden of proof of showing that they belong to that group and that their fears of persecution are reasonable for a person in their situation. Such victims will need to corroborate their claims by furnishing as much credible evidence as possible. Evidence including, but not limited to, chronological and coherent declarations, testimonies from others, expert affidavits from psychiatrists, counselors, country experts, medical reports, and country condition reports are ordinarily some of the resources that will need to be considered.
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