Tuesday, June 14, 2005

Asylum can be based on membership to a social group

Kanchaveli v. Atty Gen USA, Filed 06/10/05, No. 04-1134 (non-precedential): the Third Circuit overturned the BIA and IJ because they failed to consider whether the immigrant qualified for asylum because he was persecuted on account of being a member of a social group. There are many requirements to getting asylum -- one requirement is that the reason that an immigrant has a well-founded fear of returning to his country is due to persecution that is connected to one of the grounds protected in the asylum law. All the immigrant needs to show is "that the persecutor's actions were motivated in part by an actual or imputed ground" -- he does not need to try to show that the sole motive was the protected ground.

Being the member of a social group is a protected ground. A social group means "a group of persons all of whom share a common, immutable characteristic" such as sex, color, or kinship ties. It must be a characteristic that the members cannot or should not have to chance because it is fundamental to their identity.

The Ninth Circuit has held that an immediate family is "perhaps a prototypical example of a 'particular social group.'" Other circuits have also recognized that family can be a social group.

Because others targeted the immigrant because he was the son of a political dissident, if his allegations are proven, he qualifies for asylum as the member of a social group that is persecuted. This theory suggests that if persecutors attack someone who is the brother of someone they are hunting for, that can qualify for asylum.


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