Stuck in Limbo: How a Circuit Split in Immigration Proceedings Creates Uncertainty Among Those Applying for Asylum

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Madeline Blesi, Associate Member, University of Cincinnati Law Review

I. Introduction

In fiscal year 2021, the number of people granted asylum in the United States increased dramatically.[1] An uptick in legal representation for asylum cases partly explains the increase in successful asylum applications.[2] However, COVID-19 continues to impact immigration courts, as many struggle with an always-increasing caseload.[3] As a result, many people wait years for their cases to be heard in court.

This article will explain the legal framework for refugees seeking asylum in the United States and relevant cases interpreting the legal standard. Next, this article will explain the circuit split on the issue of defining a particular social group for purposes of granting asylum.[4] Finally, this article will discuss the merits of the two approaches to evaluating asylum applications and any relevant policy discussions.

II. Background

Those seeking “protection from persecution” after arriving in the United States are ‘“asylum seekers’ or ‘asylum applicants.’”[5] Asylum seekers may either file an application with United States Citizen and Immigration Services (USCIS), or submit an application as a defense during removal proceedings.[6] An applicant must demonstrate they meet the definition of “refugee” as defined by Immigration and Nationality Act (INA) §101(a)(42) to be eligible for asylum.[7] The burden of proof rests with the applicant to establish they are eligible to apply for asylum, are a refugee, and merit a “favorable exercise of discretion.”[8] An applicant may qualify for asylum if they can “demonstrate a well-founded fear of persecution on account of her race, religion, nationality, membership in a particular social group, or political opinion.”[9] Proof of past persecution “may establish a well-founded fear of persecution.”[10] Proof of past persecution then shifts the burden “to the government to show by a preponderance of the evidence that conditions in the applicant’s country have changed to… an extent that the applicant no longer has a well-founded fear” of persecution if they returned.[11]

To be a particular social group for purposes of asylum, a particular social group must be (1) composed of members who share a common immutable characteristic; (2) defined with particularity; and (3) socially distinct within the society in question.[12] Whether a group is socially distinct relies on whether “a given society would perceive a proposed group as sufficiently separate or distinct.”[13] The Third Circuit elaborated and held a social group must “have discrete and … definable boundaries that are not… overbroad” to satisfy the particularity requirement.[14] Establishing a social group requires a two-part process on the part of the applicant to establish the existence of a social group and then prove membership within the proposed social group.[15]

The United Nations High Commissioner for Refugees (UNHCR) defines refugees as “people who cannot return to their country of origin because of a well-founded fear of persecution, conflict, violence, or other circumstances that have seriously disturbed public order, and who, as a result, require international protection.”[16] In the New York Declaration for Refugees and Migrants, the United Nations clarified the difference between refugees and migrants.[17] While often confused, the difference between refugees and migrants remains an important distinction, as refugees are a specially defined and protected group in international law.”[18]

III. Circuit Split

The circuits are split over which test defines a particular social group for purposes of seeking asylum. The Third Circuit takes the majority approach and applies the three-part test to determine whether a particular social group exists for purposes of granting asylum.[19] The Ninth Circuit applies a two-part test that recognizes a group “united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.”[20] The difference in tests applied by the circuits resulted in opposite results for the petitioners requesting review of a prior Board of Immigration Appeals (BIA) decision.

The Eighth Circuit applied a similar test to the one applied by the Ninth Circuit when granting asylum to Somali women. In Mohammed, the Eighth Circuit determined the practice of female genital mutilation in Somalia was widespread and created a well-founded fear among all Somali women.[21] Therefore, the Eighth Circuit granted asylum to the applicant based on her membership in the particular social group of Somali women.[22] The Eighth Circuit held Somali women constituted a social group because the social group “is one united by a voluntary association… or by an innate characteristic that is so fundamental to the identities or consciences of its members that members … cannot or should not be required to change it.”[23] The Third Circuit distinguished Chavez-Chilel from Mohammed and Hassan, arguing the applicant failed to present evidence of gender-based persecution in Guatemala.[24]

A. Third Circuit Three-Part Test

The Third Circuit denied a petition for review of a BIA decision because “‘Guatemalan women’ was not a particular social group for asylum or withholding-of-removal purposes.”[25] Martha Elena Chavez-Chilel came to the United States without official admission after fleeing Guatemala where she was threatened by the man who sexually assaulted her as a teenager.[26] According to Chavez-Chilel, the police did not take action when she reported her assault.[27] After beginning immigration proceedings, Chavez-Chilel filed applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT).[28] Chavez-Chilel asserted she should be granted asylum as she is part of a particular social group of Guatemalan women. The Immigration Judge and the BIA denied her application on the grounds that “Guatemalan Women” was not a particular social group for purposes of asylum or withholding of removal.[29] The IJ and BIA agreed “Guatemalan Women” was not “sufficiently particular” to show a “unifying characteristic” that would present a “unified target” for persecution.[30] Chavez-Chilel appealed the decision to the third circuit, who denied her petition for review.[31] The third circuit cited the three-part test in its decision to deny a petition for review.[32] The test looks to whether a particular social group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.”[33] The third circuit held the particular social group was overbroad “because no factfinder could reasonably conclude that all … women had a well-founded fear of persecution based solely on their gender.”[34]

B. Ninth Circuit’s Approach

Contrary to the decision in Chavez-Chilel, the Court of Appeals for the Ninth Circuit remanded a petition requesting asylum that was based on a similar set of facts.[35] In Diaz-Reynoso, Sontos MaudiliaDiaz-Reynoso appealed her removal order.[36] Petitioner fled to the United States after being abused by her partner.[37] She was then apprehended and sent back to Guatemala where she moved in with family and briefly went into hiding.[38] After facing additional threats from her former partner, Diaz-Reynoso fled to the United States.[39] She was apprehended and sentenced to 30 days imprisonment for illegal entry into the United States.[40] During her removal proceedings, Diaz-Reynoso filed for asylum, naming her social group as “Guatemalan Indigenous women who are unable to leave their relationship.”[41] The IJ did not rule on whether a cognizable social group existed, but said Diaz-Reynoso did not establish her membership in the group, nor show she would more likely than not suffer persecution.[42] The IJ also held Diaz-Reynoso failed to “demonstrate that the Guatemalan government would be unable or unwilling to protect her.”[43] The BIA dismissed Diaz-Reynoso’s appeal.[44] The Ninth Circuit remanded the case to determine whether the social group Diaz-Reynoso named is cognizable as a matter of law.[45]  

In another decision from the Ninth Circuit, the court remanded an asylum applicant’s case because the BIA erred in dismissing an appeal on the basis that “all women in Guatemala” did not constitute a cognizable social group.[46] Lesly Yajayra Perdomo came to the United States in 1991, eventually graduating high school in the United States.[47] Perdomo eventually received a Notice to Appear, where she requested asylum.[48] Perdomo feared persecution as a member of a social group of women between the ages of fourteen and forty based on the high incidence of murder of women in Guatemala and her own status as a Guatemalan woman.[49] While Perdomo did not experience past persecution, “she expressed a fear of future persecution if she were returned to Guatemala.”[50]  The BIA concluded the social group Perdomo proposed was a demographic and not “a cognizable social group under the INA.”[51] Due to conflicting precedent from prior BIA decisions, the Ninth Circuit remanded the case.[52] The Ninth Circuit applied a two-part test to determine whether to recognize a particular social group. The two-part test defines a particular social group as “one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.”[53]

IV. Discussion

The majority approach adopted by the Third Circuit provides a robust framework to analyze whether a particular social group exists for the purpose of granting asylum. However, the approach prevents women like Chavez-Chilel from seeking asylum from societal-level persecution such as violence against women. In Chavez-Chilel, Diaz-Reynoso, and Perdomo, the applicants were all fleeing some abuse or persecution in Guatemala that was unique to women.[54] In Perdomo, the applicant provided evidence that she would struggle to provide for herself due to existing stigmas in Guatemala.[55] Despite increasing evidence of crime targeted toward women, the Third Circuit held that a reasonable factfinder would be unable to conclude “all women [in a country] had a well-founded fear of persecution based solely on their gender.”[56] While it may be difficult to determine whether all women truly had a fear of persecution based on their gender, a reasonable majority of women who believe such persecution exists is enough to establish evidence of a common experience of fear. Further, the Eighth Circuit recognized all Somali women as a particular social group “given the prevalence of female genital mutilation.”[57]

The UNHCR offered a guideline for distinguishing asylum-seekers.[58] The guideline provides a counterfactual examining the immutable characteristic possessed by left-handed people.[59] If left-handed people were persecuted for being left-handed, then “their immutable characteristic could become recognizable and distinct.”[60] Further, the persecution means the group has a narrowing characteristic that makes it cognizable since the group members are identifiable for reasons other than persecution, i.e. being left-handed.[61] The Ninth Circuit used this example to show why the social group of Guatemalan women exists on its own outside of any persecution.[62]

In Diaz-Reynoso, the Ninth Circuit cited the petitioner’s evidence of economic, societal, and cultural factors that led to her persecution in Guatemala.[63] The cultural, economic, and societal factors keeping the petitioner from leaving her relationship are factors that would impact other women in similar situations.[64] While petitioner’s former partner is the source of abuse, societal factors made it impossible for the petitioner for avoid her partner’s abuse. Based on the discussion of the UNHCR guidelines above, the societal pressures would be a narrowing characteristic that makes the group of “indigenous women in Guatemala who are unable to leave their relationship” a distinct enough group to reach even the standard set by the Third Circuit.

V. Conclusion

“The Purpose of asylum and withholding is to provide relief to people who have been persecuted in foreign lands because of their race, religion, nationality, membership in a particular social group, or political opinion.”[65] The outcomes of the Mohammed, Chavez-Chilel, Perdamo, and Diaz-Reynoso highlight the disparity in how the courts define particular social groups that affect applicants’ ability to seek asylum in the United States. While the Eighth Circuit and Ninth Circuit recognized gender-based violence, the Third Circuit failed to recognize sexual assault as gender-based violence.[66]

The United Nations defines gender-based violence as “any harmful act directed against individuals or groups of individuals on the basis of their gender.”[67] Globally, sexual assault, among other acts, is recognized as gender-based violence.[68] While men and boys are also victims of gender-based violence, women and girls are disproportionately targeted.[69] The Third Circuit failed to recognize gender-based violence in Guatemala as persecution of a particular social group of Guatemalan women.[70]

Given the high stakes of an asylum claim, and the wide-ranging outcomes in the courts, there needs to be some predictability. While the Third Circuit provides a robust framework for analyzing asylum claims based on persecution of a particular social group, the Ninth Circuit provides an alternative framework for the same asylum claims.[71] The Third Circuit’s application of the three-part test may lead to more consistent results when compared to the Ninth Circuit, but the test also leads to confusing results, such as the result in Chavez-Chilel. The Third Circuit recognized an exception made by the Eighth Circuit for gender-based violence but failed to elaborate on a standard for defining a particular social group based on gender-based violence.[72] Whereas the standard applied by the Ninth and Eighth Circuit’s recognized gender-based violence in a country as a legitimate reason for an asylum applicant to develop a well-founded fear of persecution based on their membership in the particular social group of their gender.[73] The outcomes in the Third and Ninth Circuits are concerning as similar asylum applications had very different outcomes in each Circuit. However, the inconsistencies in defining a particular social group may best be addressed by Congress to create a unified national standard for asylum applications. Congress may be better equipped to redefine asylum-seekers to better protect those seeking to avail themselves of the protections afforded refugees and successful asylum applicants in the United States.

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[1] Jasmine Aguilera, The Rate of Successful Asylum Cases Shot up This Year. But That’s Probably Not Due to Biden, Time (Nov. 10, 2021) (discussing the increase in 40% of asylum applications granted compared to 32% on average during the Trump Administration), https://time.com/6116199/asylum-immigrants-biden/.

[2] Id.

[3] Id. Judges were able to decide on 10,000 asylum cases per month pre pandemic, but are now deciding 2,000 cases per month.

[4] Chavez-Chilel v. Atty. Gen. U.S., 20 F.4th 138 (3d Cir. 2021); See also, Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010).

[5] Dree K. Collopy, AILA’s Asylum Primer, 52 (8th ed. 2019).

[6] Id; See also, United States Citizen and Immigration Services, USCIS.gov (last visited Feb. 16, 2022). USCIS is part of the Department of Homeland Security and is responsible for overseeing immigration in the United States.

[7] Id. at 53. The INA defines a refugee as “Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who 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.”

[8] Id. at 53. “Under INA §208(b), the Attorney General may, in his or her discretion, grant asylum to an individual who meets the definition of ‘refugee’ within the meaning of INA §101(a)(42) this discretion to grant asylum extends to the DHS Secretary and other DHS officials” under the Homeland Security Act of 2002.

[9] Hassan v. Gonzales, 484 F.3d 513, 516 (8th Cir. 2007).

[10] Id.

[11] Id. at 517.

[12] Chavez-Chilel, 20 F.4th at 146 (quoting S.E.R.L., 894 F.3d at 540).

[13] Id. (quoting S.E.R.L., 894 F.3d at 540).

[14] Id. (quoting S.E.R.L., 894 F.3d at 533).

[15] Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020).

[16] United Nations High Commissioner for Refugees, Asylum and Migration, UNHCR.org (last visited Feb. 9, 2022), https://www.unhcr.org/en-us/asylum-and-migration.html.

[17] Collopy, AILA’s Asylum Primer at 46.

[18] Id.

[19] Chavez-Chilel, 20 F.4th. at 146. The three prongs of the particular social group test are: the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.”

[20] Perdomo, 611 F.3d at 666.

[21] Mohammed v. Gonzales, 400 F.3d 785, 797 (9th Cir. 2005); accord, Hassan, 484 F.3d 513.

[22] Id.

[23] Id. (emphasis omitted) (quoting Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000)).

[24] Chavez-Chilel, 20 F.4th at 146; see Mohammed, 400 F. 3d at 797-98; see also, Hassan, 484 F.3d at 518.

[25] Chavez-Chilel, 20 F.4th at 138.

[26] Id. at 142.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id. at 147.

[32] Id. at 146.

[33] Id. (holding that particularity “addresses the outer limits of a group’s boundaries and is definitional in nature, whereas social distinction focuses on whether the people of a given society would perceive a proposed group as sufficiently separate or distinct.”).

[34] Id.

[35] Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020).

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id. at 1075.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Perdomo, 611 F.3d at 662.

[47] Id. at 664.

[48] Id.

[49] Id.

[50] Id.

[51] Id. at 665.

[52] Id.

[53] Id. at 666.

[54] See Chavez-Chilel, 20 F.4th. at 141; Diaz-Reynoso, 968 F.3d at 1074-75; Perdomo, 611 F.3d at 664.

[55] Perdomo, 611 F.3d at 664.

[56] Chavez-Chilel, 20 F.4th. at 146 (discussing a report showing “one-third more Guatemalan women experience sexual or domestic violence against them than women in Paraguay”).

[57] Id. (quoting Hassan v. Gonzalez, 484 F.3d 513, 518 (8^th Cir. 2007)) (internal quotations omitted).

[58] Diaz-Reynoso, 968 F.3d at 1083 (quoting, UNHCR Guidelines ¶ 14).

[59] Id.

[60] Id.

[61] Id.

[62] Diaz-Reynoso, 968 F.3d at 1083.

[63] Id.  at 1087.

[64] Id.

[65] 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231 (b)(3)(A); Diaz-Reynoso, 968 F.3d at 1084-85.

[66] See, Chavez-Chilel, 20 F.4th. at 146; Diaz-Reynoso, 968 F.3d at 1084-85.

[67] United Nations Human Rights Office of the High Commissioner, Sexual and Gender-Based Violence in the Context of Transitional Justice, United Nations (Oct. 2014), https://www.ohchr.org/documents/issues/women/wrgs/onepagers/sexual_and_gender-based_violence.pdf.

[68] United Nations Human Rights Office of the High Commissioner, Sexual and Gender-Based Violence in the Context of Transitional Justice, United Nations(Oct. 2014); European Commission, What Is Gender-Based Violence?, ec.Europa.edu (last visited Feb. 16, 2022), https://ec.europa.eu/info/policies/justice-and-fundamental-rights/gender-equality/gender-based-violence/what-gender-based-violence_en; UN Women, Facts and Figures: Ending Violence Against Women, United Nations (last visited Feb. 16, 2022), https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures.

[69] United Nations Human Rights Office of the High Commissioner, Sexual and Gender-Based Violence in the Context of Transitional Justice (Oct. 2014); European Commission, What Is Gender-Based Violence?, ec.Europa.edu (last visited Feb. 16, 2022); UN Women, Facts and Figures: Ending Violence Against Women, United Nations (last visited Feb. 16, 2022) (noting a sharp increase in violence against women after the onset of COVID-19).

[70] See Chavez-Chilel, 20 F.4th. at 146.

[71] Diaz-Reynoso, 968 F.3d 1070; Chavez-Chilel, 20 F.4th 138.

[72] Chavez-Chilel v. Atty. Gen. U.S., 20 F.4th at 146.

[73] Perdomo, 611 F.3d at 669; see also, Hassan, 484 F.3d at 517; see generally, Diaz-Reynoso, 968 F.3d at 1075.