Quick Reference

Asylum Quick Reference Outline

I. Definition of a Refugee

• Must meet the definition of a "refugee" as defined in the Immigration and Nationality Act (INA).
• Definition: A person who is outside their country of nationality (or last habitual residence if stateless) and is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.  
• Relevant Law: INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).

II. Persecution or Well-Founded Fear of Persecution

• Past Persecution: The applicant must show they suffered persecution in the past on account of a protected ground.
  • If past persecution is established, there is a presumption of a well-founded fear of future persecution, unless the government demonstrates by a preponderance of the evidence that conditions have fundamentally changed or the applicant can reasonably relocate within the country.
  • Relevant Regulation: 8 CFR § 208.13(b)(1).
• Well-Founded Fear of Future Persecution: If past persecution is not established, the applicant must show a well-founded fear of future persecution on account of a protected ground.
  • This involves both a subjective component (the applicant's genuine fear) and an objective component (a reasonable possibility of future persecution).
  • Relevant Regulation: 8 CFR § 208.13(b)(2).
  • Relevant Case Law (establishing objective component): Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).

III. On Account of a Protected Ground

• The persecution or fear of persecution must be on account of one of the five protected grounds: R
  • Race, religion, Nationality, or membership in particular social group.
  • Membership in a Particular Social Group (PSG) 
    • Case law has defined and continues to shape what constitutes a PSG. Elements often considered include: immutability, social visibility, and particularity.
    • Relevant Case Law Examples (PSG): Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) (establishing framework); Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990) (persecution based on sexual orientation).
  • Political Opinion
    • Includes actual political opinion and imputed political opinion (where the persecutor believes the applicant holds a certain political opinion).
    • Relevant Case Law Examples (Political Opinion): INS v. Maldonado-Cruz, 489 U.S. 296 (1989); Matter of A-G, 19 I&N Dec. 9 (BIA 1984).

IV. Nexus

• The applicant must establish a causal connection between the persecution or fear of persecution and the protected ground. The protected ground must be at least one central reason for the persecution.
• Relevant Law: INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i).

V. Applicant's Burden of Proof and Credibility

• The burden of proof is on the applicant to establish eligibility for asylum.
• Relevant Law: INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i).
• Credible Testimony: The applicant's testimony alone may be sufficient if it is credible, persuasive, and refers to specific facts. Corroborating evidence is required where readily available and obtainable.
• Relevant Law: INA § 208(b)(1)(B)(ii), 8 U.S.C. § 1158(b)(1)(B)(ii).
• Credibility Determination: Adjudicators consider the totality of the circumstances and all relevant factors.
• Relevant Law: INA § 208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii).

VI. Statutory Bars to Asylum

• Certain conditions can bar an applicant from receiving asylum, even if they meet the definition of a refugee. These include:
  • Filing deadline: Failure to file within one year of arrival in the U.S. (with exceptions for changed circumstances or extraordinary circumstances).
    • Relevant Law: INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B).
  • Firm Resettlement in another country.
    • Relevant Regulation: 8 CFR § 208.15.
  • Having ordered, incited, assisted, or otherwise participated in the persecution of any person on account of a protected ground.
    • Relevant Law: INA § 208(b)(2)(A)(i), 8 U.S.C. § 1158(b)(2)(A)(i).
  • Having been convicted of a particularly serious crime (including aggravated felonies), constituting a danger to the community.
    • Relevant Law: INA § 208(b)(2)(A)(ii), 8 U.S.C. § 1158(b)(2)(A)(ii).
  • Having committed a serious nonpolitical crime outside the United States.
    • Relevant Law: INA § 208(b)(2)(A)(iii), 8 U.S.C. § 1158(b)(2)(A)(iii).
  • Being a danger to the security of the United States.
    • Relevant Law: INA § 208(b)(2)(A)(iv), 8 U.S.C. § 1158(b)(2)(A)(iv).
  • Applicability of certain provisions relating to terrorist activity.
    • Relevant Law: INA § 208(b)(2)(A)(v), 8 U.S.C. § 1158(b)(2)(A)(v).
  • Having been removed to a safe third country under a bilateral or multilateral agreement.
    • Relevant Law: INA § 208(a)(2)(A), 8 U.S.C. § 1158(a)(2)(A).

VII. Discretion

• Even if an applicant meets the statutory definition of a refugee and is not subject to a mandatory bar, asylum is a discretionary form of relief. Adjudicators can deny asylum based on negative factors.
• Relevant Law: INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A).
• Relevant Case Law: Matter of Pula, 19 I&N Dec. 467 (BIA 1987) (outlining discretionary factors).

PSG Quick Reference Outline

I. Foundational Principles and Definitions

• Matter of Acosta, 19 I&N Dec. 211 (BIA 1985): This is the foundational Board of Immigration Appeals (BIA) decision defining a PSG. It established that members of a PSG must share a common, immutable characteristic. This characteristic is one that members either cannot change or should not be required to change because it is fundamental to their individual identities or consciences. Examples provided include sex, color, kinship ties, or shared past experience (like former military leadership or land ownership).
• Subsequent BIA and Circuit Court Cases: Building on Acosta, further case law has refined the definition, introducing additional requirements.

II. Evolution of the PSG Framework (Three-Part Test)

• Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014): These BIA decisions introduced a three-part test for determining whether a proposed group is a cognizable PSG:
  1. Common Immutable Characteristic: (Reaffirms Acosta) The group members share a characteristic they cannot or should not be required to change.
  2. Social Distinction: The group's shared characteristic is perceived as distinct by the relevant society. This replaced the earlier concept of "social visibility" to clarify that the characteristic doesn't need to be readily visible, but the group must be recognized as a discrete class by the society.
  3. Particularity: The group is defined with sufficient clarity to have discernible boundaries, allowing decision-makers to determine who is and is not a member. The group must not be "too amorphous."

III. Significant PSG Categories and Related Case Law

• Family-Based Groups:
  • Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), reversed in part by 27 I&N Dec. 581 (A.G. 2019), vacated by 28 I&N Dec. 304 (A.G. 2021), reaffirmed by Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023): This line of cases has addressed whether membership in one's own family can constitute a PSG. The BIA has recognized that immediate family members can form a PSG, depending on the specific facts. The focus has often been on whether the persecution is on account of family membership itself, rather than for other reasons (e.g., criminal or pecuniary motives). Matter of M-R-M-S- emphasized that family membership must be at least one central reason for the harm, not merely incidental or subordinate to another goal of the persecutor. Circuit courts may interpret the nexus requirement differently in family-based claims (see Result [2] of search).
• Gender-Based Groups:
  • Case law has evolved to recognize that women fleeing harm particular to their gender (such as severe domestic violence or female genital mutilation) can form PSGs. While not explicitly listed in the INA, gender has been recognized under the "particular social group" category.
  • Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), vacated by Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), vacated by Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021), vacated by 28 I&N Dec. 304 (A.G. 2021), reaffirmed by Attorney General Garland decisions in 2021: This case, although vacated and later restored through subsequent decisions, is significant for recognizing married women in Guatemala who are unable to leave their relationship as a potential PSG in the context of domestic violence. The vacating and subsequent vacating of the Attorney General decisions highlight the fluctuating nature of this area of law.
• Sexual Orientation and Gender Identity/Expression (SOGI) Based Groups:
  • Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990): This landmark BIA decision recognized "homosexuals" in Cuba as a particular social group, paving the way for asylum claims based on sexual orientation.
  • Hernandez-Montiel v. INS, 225 F.3d 1082 (9th Cir. 2000): The Ninth Circuit recognized that a "gay man with a female sexual identity" could constitute a PSG and found persecution based on sexual orientation and perceived gender identity.
  • Circuit court decisions have consistently affirmed that LGBTQ+ individuals can constitute a PSG (see Result [4] of search for examples from various circuits).
• Other Recognized and Litigated Groups:
  • Former military members (Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988)).
  • Individuals resisting gang recruitment or defying gang demands (subject to ongoing litigation and varying interpretations across circuits and at the BIA, particularly concerning the nexus requirement and whether the harm is on account of group membership versus criminal motivation). Case law in this area is highly fact-dependent and circuit-specific (see Result [1] of search for Fourth Circuit examples).
  • Individuals with specific health conditions (e.g., HIV status), which may be considered as an immutable characteristic, with the claim's success depending on whether the persecution is on account of that status (see Result [5] of search discussing severe discrimination based on HIV).

IV. Nexus Requirement in PSG Claims

• As with all asylum claims, a crucial element is establishing that the persecution or fear is on account of (the nexus to) membership in the PSG.
• The protected ground (PSG membership) must be at least one central reason for the persecution.
• Relevant Law: INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i).
• Case law, particularly concerning gang and family-based claims, often focuses on whether the persecutor's motive is genuinely tied to the applicant's group membership or primarily driven by other factors like financial gain or control of territory.

V. Procedural Considerations

• Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018): This decision requires asylum applicants in removal proceedings to clearly identify their proposed PSG on the record before the Immigration Judge. The BIA may not consider newly proposed PSGs raised for the first time on appeal.

VI. Circuit Splits and Evolving Law

• It is critical to note that interpretation and application of PSG standards, particularly concerning nexus and specific types of groups (like gang and family-based claims), can vary among the different U.S. Circuit Courts of Appeals and between the Circuits and the BIA. This means the case law in a specific circuit may differ from the BIA's precedent. (See Result [7] and Result [8] of search regarding variations and the impact of changing administrations on PSG interpretation).