Escobar: Honduran street children not a group eligible for asylum

Filed 07/29/05, No. 04-2999
Escobar v. Atty Gen USA

To win an asylum case, you must prove that the person has a well-founded “fear of persecution
on account of race, religion, nationality, membership in a particular social group, or political opinion.” (For example, if you are persecuted just because people want to steal money from everyone, you usually won't win asylum because the bad guys are robbing everyone regardless of their race, religion, or membership in any social group.)

What constitutes a "particular social group"? In the Escobar case, the Third Circuit ruled that Honduran street children do not qualify as a particular social group. In 1985, the BIA reasoned that a particular social group refers to “a group of persons all of whom share a common, immutable characteristic.”

The Third Circuit's summary is that

membership in a “particular social group” can be attributed to
either: (1) those who possess immutable characteristics such as race,
gender or a prior position, status or condition; or (2) those who
possess a characteristic that is capable of being changed but is of
such fundamental importance that individuals should not be
required to modify it, e.g., religion.

So, these have been ruled as particular social groups: Iranian women who found their country’s gender-specific laws offensive and [did] not wish to comply with them; former child soldiers who have escaped LRA captivity (in Uganda); a family targeted for harassment and violence because they were related to an allegedly racist boss in South Africa; children with “disabilities that are serious and long-lasting or permanent in nature and parents who care for them”; Somali women under threat of genital mutilation; a familial sub-clan in Somalia; and former members of El Salvador’s national police.

These have been ruled are not particular social groups: young, urban El Salvadoran males of military age who had not served in the military; youths with gang identification tattoos; voluntary members in a taxi cab cooperative that refused to yield to guerrillas; adult women raped and brutalized as children in El Salvador.

In the Escobar case, the Third Circuit said the three factors were poverty, homelessness, and youth. But because these conditions in Honduras are no worse than conditions in other countries, the Third Circuit ruled it was not a particular social group. Ah, if only they could improve the plight of homeless youth outside of Honduras, they could have won the case.