Immigration 101: Asylum: Statutorily Protected Groupsv

Showing that you were the victim of persecution, or that you would face a threat of persecution in the future, isn’t enough to establish eligibility for asylum. You must also show that your persecutors were or would be motivated to harm you on account of your race, religion, nationality, political opinion, or membership in a particular social group. These are called “protected grounds” in asylum cases. Usually, you can show this by presenting direct or circumstantial (indirect but suggestive of something) evidence showing that the protected ground was “at least one central reason” behind the persecution, although it doesn’t necessarily have to be the only reason. This means that being the victim of a random attack and mugging on the street isn’t persecution if there is no evidence that the people who mugged you were motivated by anything other than a desire to steal your money. However, if there is evidence that the muggers chose you as a target because of one of the protected grounds, you will have a solid basis for an asylum claim. For example, if the muggers were a different race than you, and they shouted racial slurs as they attacked you and stole your wallet, that would be strong evidence that your race was at least one central reason motivating the attack.

This “on account of” element is one of the most complicated aspects of asylum law. For example, many asylum claims are based on persecution on account of political opinion and social group membership. Determining whether the facts of your case meet the specific rules and requirements for these protected grounds is tricky, and the determination usually involves a careful reading of statutory law (laws put into place by the government) and case law (law developed through court cases). In many cases, deciding which of the five protected grounds will best fit the facts of your asylum claim will present very difficult legal questions that only an experienced immigration attorney can answer.

Political Persecution

           The statutory definition of “persecution on account of political opinion” includes being the victim of forcible abortion or sterilization, or being harmed for opposing a coercive population control program. Congress specifically added this provision to help refugees who fled China because of the country’s “one child” policy.

The courts have also recognized that someone can be targeted because of an imputed (implied, even if the implication is incorrect) political belief. This means that persecution can occur when the persecutor incorrectly believes that the victim has particular political opinions, and then persecutes the victim because of that mistaken belief. It doesn’t matter that the victim did not actually hold the political beliefs for which they were attacked, only that the persecutor believed they did. For example, if members of an ultra-conservative political party threatened to harm you because you were a member of a labor union, you could probably establish that their threat was based on an imputed political opinion, even if you did not personally agree with your union’s political position.

Social Group Persecution

            The courts have struggled to clearly define the phrase “particular social group.” Generally, the term refers to a group of people who share a characteristic that leads society to view them as a distinct group. For example, families and tribes or clans are often considered social groups, as are people who are gay, lesbian, or bisexual. Gender can sometimes be the basis for social group claims, particularly in cases of sexual violence, female genital mutilation, and the persecution of people who are transgender or gender-nonconforming. The courts have also recognized groups of individuals with the same occupations, associations, and shared experiences.

If you have suffered serious harm in your home country, or you face a threat of harm there for any reason, you should consult with an experienced immigration attorney to find out whether that harm meets the definition of persecution on account of your membership in a particular social group. This area of law is constantly changing, and an experienced immigration attorney can help you frame your asylum claim so that it fits within the “particular social group” category.

This article is part of our ongoing “Immigration 101” series, in which we break down topics in US immigration law. For more articles in this series, click here.

The content in this post was originally written by Stuart Nickum and adapted by Lena Barouh.


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