Women as a Particular Social Group for Asylum Purposes

A while ago in one episode of "Law and Order: Special Victim Unit", ADA Alex Cabot and Detective Olivia Benson had a discussion on how gender is not a basis for political asylum.  Well, this may no longer be the case in states under the jurisdiction of the 9th Circuit, at least for now.  On July 12, 2010, the 9th Circuit of ruled in a case named Perdomo v. Holder that being a woman could fall under the definition of "membership in a particular social group" and be eligible to claim political asylum.

Generally, under current law, an asylum applicant has the responsibility to show that the applicant either had suffered past persecution or will face future persecution if the applicant returns to his/her home country.  Moreover, the persecution must be based on race, nationality, religion, political opinion, or membership in a social group. 

In Perdomo, the petitioner is a female from Guatemala.  Ms. Perdomo applied for political asylum and her primary argument was that because of the high murder rate for women in Guatemala, she had established well-founded fear of future persecution.  Both the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") denied her asylum application because they did not agree that being a woman from Guatemala was a sufficient to prove fear of future persecution based on membership of a social group.  Specifically, the BIA agreed with the IJ that gender alone was "too broad to qualify as a protected social group".

The 9th Circuit used a two-prong approach it had developed in a 2000 case to decide whether being a woman alone can fall under membership in a particular social group for asylum purpose.  The first prong is to decide whether members of the "group" are united by "a voluntary association" or "innate characteristics."  The 9th Circuit further explained that "innate characteristics"  is a fundamental and common traits among the members that they either cannot or should not be asked to changed.  The second prong is that the group has to be persecuted because of the innate characteristics.  Based on this two-prong test and some precedents from the 9th circuit, the court reached the conclusion that females in a particular country could form a particular social group.  Furthermore, the court ruled that the size and breadth of a group alone are not determinative. 

This is certainly an interesting case and could possible open the door for many asylum applicants who cannot establish fear of persecution based on the other 4 grounds.  We will see the implication of the ruling in the future.

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