Membership
in a Particular Social Group
Date of Information: 02/10/2025
Please check back soon as this page is actively under development.
Of the five protected grounds for asylum in the United States, asylum based on a particular social group (“PSG”) is arguably the most flexible. However, it is correspondingly more difficult to prove. Grounding asylum on a PSG requires significant work by a practitioner. But again, PSG might be the best or only option available for difficult cases.
What is a “Particular Social Group?”
The term “particular social group” comes from the definition of a “refugee” in Article 1 of the 1951 Refugee Convention Relating to the Status of Refugees. See the CIL Guide on International Standards underlying U.S. Asylum Law for more information on these essential treaties. The term was incorporated into the definition of “refugee” used in the Immigration and Nationality Act. See INA Section 101(a)(42)(A) (8 U.S.C. § 1101(a)(42)(A)); see also the CIL Guide on Legal Standards for Asylum in the United States.
In general, a PSG is a reasonably well-defined group of people who are persecuted because of some particular trait besides their nationality, race, or religion. PSG was never intended to be a “catch-all” category in U.S. or international asylum law. However, it is frequently argued in cases where persecution is based on a recognizable trait that does not fit neatly into any of the other five protected grounds.
The Elements for Proving a Cognizable PSG
The most straightforward way to prove an asylum-seeking is a member of a PSG is to cite cases that already recognize that PSG. As a practical matter, the immigration courts have taken to identifying PSGs by a concise description of the immutable quality at issue, plus the country where the persecution is taking place. The PSG label includes the nation-state at issue because the immutable quality might not be discriminated and persecuted the same way in different societies. The resulting label will identify the PSG for the case at bar and all subsequent, similar cases. Examples include: “homosexual men in Guatemala,” “Uyghur people in China,” and “members of the Moulamine caste in Mauritania.”
Database of PSGs Recognized by the Courts:
If an immigration court has yet to address or recognize a PSG—and perhaps even if they already have—it is incumbent upon an aslyum seeker or practitioner to argue the existence of the PSG by its elements and present compelling evidence to support that the PSG is cognizable. According to the Bureau of Immigration Appeals (“BIA”), an immigration court can recognize a proposed PSG if it is:
Composed of members who share a common immutable characteristic,
Socially distinct within the society in question, and
Defined with particularity.
See Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014); see also Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (applying the three-part test put forth in Matter of M-E-V-G- and Matter of W-G-R- to a domestic violence scenario).
Immutible Characteristics
The idea that a PSG had to share an immutable characteristic was first articulated in Matter of Acosta, 19 I&N Dec. 211, 232-33 (BIA 1985). Acosta involved an el Salvador native. Acosta sought asylum because he was a member of a taxi cooperative that was being targeted by insurgent guerrillas. The insurgents were targeting the taxi drivers because they refused to participate in a work stoppage supporting the insurgent cause. Thus, Acosta’s proposed PSG was “being a taxi driver in San Salvador and refusing to participate in guerrilla-sponsored work stoppages. Id., at 234.
The Bureau of Immigration Appeals (“BIA”) held that Acosta’s proposed PSG was not cognizable because its membership was not based on “immutable” characteristics. It held:
Neither of these characteristics is immutable because the members of the group could avoid the threats of the guerrillas either by changing jobs or by cooperating in work stoppages. It may be unfortunate that the respondent either would have had to change his means of earning a living or cooperate with the guerrillas in order to avoid their threats. However, the internationally accepted concept of a refugee simply does not guarantee an individual a right to work in the job of his choice.
Id. In arriving at that conclusion, BIA articulated the rationale for the “immutable" characteristic standard that still holds today:
Applying the doctrine of ejusdem generis, we interpret the phrase ‘persecution on account of membership in a particular social group’ to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. Only when this is the case does the mere fact of group membership become something comparable to the other four grounds of persecution under the Act, namely, something that either is beyond the power of an individual to change or that is so fundamental to his identity or conscience that it ought not be required to be changed. By construing ‘persecution on account of membership in a particular social group’ in this manner, we preserve the concept that refuge is restricted to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution.
Id., at 233–34 (emphasis added).
Social Distinction
The current standards for social distinction come from Matter of M-E-V-G-, 26 I. & N. Dec. 227, 240-41 (BIA 2014). In a previous case, BIA used the term “social visibility” to hold that in Somali society, membership in a certain clan was a cognizable PSG because clan membership is a highly recognizable trait inextricably linked to family ties. See Matter of H-, 21 I&N Dec. 337, 342 (BIA 1996). Unfortunately, subsequent immigration judges interpreted the word, “visibility” too literally, holding that a person could not claim a PSG if the immutable qualities were not visible to the naked eye.
In M-E-V-G-, BIA changed the term to “social distinction” and clarified:
Our definition of “social visibility” has emphasized the importance of perception or recognition in the concept of “particular social group.” The term was never meant to be read literally. The renamed requirement “social distinction” clarifies that social visibility does not mean ocular visibility—either of the group as a whole or of individuals within the group—any more than a person holding a protected religious or political belief must be ocularly visible to others in society. Social distinction refers to social recognition, taking as its basis the plain language of the Act—in this case, the word “social.” To be socially distinct, a group need not be seen by society; rather, it must be perceived as a group by society. Matter of C-A-, 23 I&N Dec. at 956-57 (citing UNHCR Guidelines, supra). Society can consider persons to comprise a group without being able to identify the group's members on sight.
The examples in Matter of Kasinga, Matter of Toboso-Alfonso, and Matter of Fuentes, illustrate this point. It may not be easy or possible to identify who is opposed to FGM, who is homosexual, or who is a former member of the national police. These immutable characteristics are certainly not ocularly visible. Nonetheless, a society could still perceive young women who oppose the practice of FGM, homosexuals, or former members of the national police to comprise a particular social group for a host of reasons, such as sociopolitical or cultural conditions in the country. For this reason, the fact that members of a particular social group may make efforts to hide their membership in the group to avoid persecution does not deprive the group of its protected status as a particular social group. See Rivera-Barrientos v. Holder, 666 F.3d at 652 (stating that the social distinction requirement “does not exclude groups whose members might have some measure of success in hiding their status in an attempt to escape persecution”).
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 240 (BIA 2014) (some internal punctuation and citations omitted).
Particularity
That a “particular social group” be “particular” is tautological. It is better to think of particularity as a spectrum rather than a binary condition. In that way, there is a degree of particularity that is necessary for the PSG as a whole to be cognizable under U.S. asylum law. Exactly what the minimum standard of particularity is vague and fact-specific. Nevertheless, BIA articulated a couple helpful standards in M-E-V-G-:
A particular social group must be defined by characteristics that provide a clear benchmark for determining who falls within the group. It is critical that the terms used to describe the group have commonly accepted definitions in the society of which the group is a part. Id. (observing that the concept of wealth is too subjective to provide an adequate benchmark for defining a particular social group).
The group must also be discrete and have definable boundaries--it must not be amorphous, overbroad, diffuse, or subjective. The particularity requirement clarifies the point, at least implicit in earlier case law, that not every immutable characteristic is sufficiently precise to define a particular social group.
Id., at 239 (internal citations omitted).
What’s Difference between “Particularity” and “Social Distinction?”
BIA itself has recognized that there is a potential for confusion between “particularity” and “social distinction.” Unfortunately, its attempts to distinguish between the concepts in M-E-V-G- were in no way illuminating. See id., at 241-42. What BIA does make clear is that what is “particular” and “socially distinct” has to be judge from the perspective of society as a whole, and not necessarily from the perspective of the persecutor. See id., at 241-42. Based on that clarification, CIL assesses that “social distinction” roughly equates to how well know a group is within society, and “particularly” is how readily members of the society can describe who is and is not a member of the group.
Procedures for Invoking a Particular Social Group
Claiming asylum based on membership in a particular social group generally requires more work than cases involving other protected characteristics. If you are an asylee or a practitioner who intends to base an asylum claim on membership in a PSG, please heed the following practice tips:
Establishing the elements of a cognizable PSG will generally require expert knowledge. This is especially true if you intend to use a PSG that the immigration courts have not yet recognized. Prepare to call an expert witness at the merits hearing to explain the social distinction and particularity of the proposed PSG. Alternatively, include sufficient documentary evidence showing the elements of the PSG designation in your legal briefings. The documentary evidence should come from respected sources like academic journals. Most reputable law libraries will have subscriptions to commercial databases to access scholarly journals. That failing, JSTOR offers online access to various journals at reasonable rates.
In a defensive asylum claim, the Executive Office of Immigration Review (the agency of the Justice Department responsible for the immigration courts) generally requires practitioners to submit a Prehearing Brief analyzing elements of the PSG in advance of an individual hearing. Unless directed otherwise, submit the briefing at least 15 days before the merits hearing. Beware that most immigration courts hold practitioners to strict standards on formatting and content for briefs due to the docket load in the immigration courts. See the Immigration Court Practice Manual, Chapter 4.19, for advice on the brief's contents and Chapter 3.3 for general advice on formatting.
In an affirmative asylum claim, it is also a good idea to submit a legal briefing to USCIS outlining the elements of the PSG, especially if the elements are not already clear from the evidence submitted with the original I-589. It is probably unnecessary to delay submitting the legal briefing to prepare a detailed legal briefing because doing so will delay your client getting work authorization. However, it is a good practice to submit a legal briefing as soon as possible thereafter. If you submit the original I-589 using USCIS Online, you can submit your briefing after the initial submission by using the “unsolicited evidence” feature.
