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On May 24, 2011, the National Immigrant Justice Center (NIJC) filed an amicus brief with the Board of Immigration Appeals (BIA) in the case of a young woman from Guatemala who fears persecution there because she is a woman and there is an extremely high incidence of killing and torture of women in Guatemala.  The case is on remand from the U.S. Court of Appeals for the Ninth Circuit, which issued a precedential decision in the case: Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010).  The BIA has accepted the brief and placed it in the record of proceedings.

Many of NIJC’s asylum clients fear gender-based persecution, such as domestic violence, rape, female genital mutilation, forced marriage or honor killing, in their home countries precisely because they are women from that particular country.  Of the five protected grounds for asylum (race, religion, nationality, membership in a particular social group, and political opinion), these asylum claims are generally based on the client’s membership in a particular social group related to her gender.

In Matter of Acosta, the seminal case regarding membership in a particular social group, the BIA defined the term “particular social group” as a group of members that share a characteristic that the members cannot change or should not be required to change.  The BIA also listed gender as an example of an immutable characteristic that can form the basis of a particular social group.  Nevertheless, immigration judges, the BIA, and some circuit courts have historically rejected social groups defined solely by gender and nationality as “too broad” or “too diverse” to constitute a particular social group under asylum law.  Adjudicators have also held that gender and nationality cannot form the basis of a particular social group because the asylum applicant cannot show that all women from that country are targeted for persecution.  As a result, advocates representing women with gender-based claims often create complex and elaborate social groups for their clients to avoid the perception that the group is overly broad.

In its amicus brief, NIJC argues that under Matter of Acosta, “women in Guatemala” is a particular social group because gender is an immutable characteristic.  In rejecting “women in Guatemala” as a particular social group, the Board contravened its own precedential decision.  NIJC further argues that there is no requirement that particular social groups be narrowly defined.  Moreover, rejecting a particular social group as “too broad” is inconsistent with the other protected grounds for asylum (race, religion, nationality, and political opinion), which are determined by the shared immutable trait and not limited by number.

NIJC encourages pro bono attorneys and other advocates to review its amicus brief and use the arguments within the brief as a template for other particular social group cases.  NIJC hopes that as advocates make particular social group arguments based on a pure reading of Acosta, adjudicators will begin to accept them as viable and move away from the current scheme of overly narrow and often convoluted particular social group construction.