On first reading, the U.S. 9th Circuit Court of Appeals ruling issued earlier this month seemed absurd: Immigration judges should reconsider whether women from Guatemala constituted a "particular social group" whose members could face persecution simply for being female, in which case they would be eligible for political asylum in the United States.
Wait just a minute, we thought. Sure, Guatemala is a horribly violent country, and sure, we believe in providing sanctuary to the truly persecuted whose governments do not protect them. But could all female Guatemalans really be eligible for asylum as this would suggest? What about Guatemalan men, who are killed at six times the rate of women? Are Guatemalan women really more persecuted than the women of Juarez, Mexico, where about 400 have been killed over 15 years, or those of the Democratic Republic of Congo, where rape routinely has been used as a weapon of war? And how could the United States be expected to absorb millions of women — half the nation of Guatemala — and, by extension, other vulnerable women from all across the globe?
As with so many things, however, this ruling was not quite what it seemed to be. On closer examination, it turned out to be less revolutionary and less sweeping than it had appeared. Though this one is unusually and perhaps impractically broad, it would not be the first time a court considered gender-based asylum claims; judges already had granted this status to women in Africa who fear genital mutilation and those in China who face forced abortions, and even to Guatemalan women who have suffered spousal abuse. More important, even if Guatemalan women were to be deemed a particular social group by the courts, their petitions still would have to be decided on a case-by-case basis. People are not granted asylum just because they belong to a group; they must prove a personal, well-founded fear of persecution and lack of government protection. In short, it was unlikely to open the door to a tsunami of new Guatemalan immigrants.
In 2009, the U.S. granted asylum to 22,119 people. About 25% of them came from China, followed by Ethiopia and Haiti with 5% and 4.5%, respectively, and Guatemala in eighth place with 2.3%, or 513 people. The government tracks applications and adjudication by country, not by reason, and therefore does not have the information necessary to evaluate whether previous designations of a social group have led to significant increases in asylum applications, officials say. Some asylum advocates and former immigration judges say that based on anecdotal evidence — and the experiences of other countries — they don't think it has.
In most cases, a person seeking asylum in the United States must be in the country already or at a U.S. port of entry to make the request. The president reserves the right to make exceptions, as in the case of Cuba or Iraq. Under international conventions and U.S. law, an asylum applicant must have a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group. While the first four groups are relatively easy to identify, courts have struggled to define what constitutes a particular social group. Asylum attorneys have sought to include various threatened groups that don't neatly fit into the other categories — homosexuals, Romas (or Gypsies, as the courts have called them) and women who may be subjected to violence directed at them solely because of their gender, such as genital cutting. Membership in such a group, assuming the courts accept it, is necessary but not sufficient grounds for gaining asylum.
In this case Lesly Yajayra Perdomo, who came to the United States illegally at the age of 15 to join her mother and was issued a deportation notice 12 years later, argued that she faced persecution if returned to Guatemala, where women are killed at a high rate with impunity. An immigration judge declined to find that she belonged to a particular social group, and the Board of Immigration Appeals rejected her claim that "all women in Guatemala" should be considered a protected social group. The federal appeals court, however, said that was inconsistent with previous opinions by both the immigration board itself and the appeals court, and sent the case back to the lower court to review whether Guatemalan women could indeed be considered "a cognizable social group" and, if so, whether Perdomo could demonstrate fear of persecution "on account of" her membership.
