Particular social group

• The PSG category is not meant to be used as a catch-all, and a PSG cannot be defined exclusively based on persecution. In other words, just the fact that a person is persecuted does not make the person a member of a PSG.
• There is no closed list of PSGs. Rather, membership in a PSG should evolve over time, based on the diverse and changing nature of different groups and evolving international human rights norms.
• The Convention grounds are not mutually exclusive. A person may claim refugee status based on membership in a PSG as well as the other grounds such as religion or political opinion, if they apply.

The UNHCR document identified two approaches have been used to determine membership in and legitimacy of PSGs:

1. The protected characteristics (or immutability) approach: This approach examines whether a group is united by one of these:
   • An innate immutable characteristic (such as sex or ethnicity)
   • An immutable characteristic that is not innate but is unalterable for other reasons (such as the historical fact of a past association, occupation, or status)
   • A characteristic that is so fundamental to human dignity that a person should not be required to change it.
2. The social perception approach: This approach examines whether or not the group shares a common characteristic which makes them a cognizable group or sets them apart from the society at large.

The UNHCR document provides the following guidance regarding the interpretation of the protected characteristic approach:

A particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.

The UNHCR document offered the following additional guidelines regarding PSG membership:

• Persecution cannot alone be used to define PSG status, but it can be part of the social perception case for PSG status, i.e., the fact that people having a characteristic are persecuted is evidence that that characteristic is socially perceived as making them a distinct group.
• The PSG need not be cohesive, i.e., the members may not know one another or be coordinating towards any common goal.
• Not all members of the PSG need be persecuted. The document notes that members of the group may not be at risk if, for example, they hide their shared characteristic, they are not known to the persecutors, or they cooperate with the persecutor.
• The size of a PSG should not be a relevant consideration. PSGs can range from small minorities to groups such as "women" (who constitute about half the population).
• Persecution by non-state actors is relevant if either the persecution itself is targeted based on membership in the PSG, or the state's unwillingness to help the victim of persecution is due to the victim's membership in the PSG.

In Matter of Acosta (1985), the Board of Immigration Appeals interpreted the 1951 Convention to come up with a rule of thumb for determining what constitutes a PSG for the purpose of the Convention. BIA compared it to the other four grounds for refugee status, and noted that two of them (race and nationality) were based on characteristics that one cannot change, whereas the other two (religion and political opinion) were based on characteristics one should not be required to change. Generalizing from this, they argued that for a group to qualify as a PSG for the purpose of refugee status, it must be either a characteristic one cannot change or a characteristic one should not be required to change.[6] This approach would be characterized by the UNHCR in 2002 as the "protected characteristics" approach.[1]

Drawing on the 2002 UNHCR guidelines, a series of decisions by BIA made 2008 onward gave importance to two additional criteria for defining a PSG: particularity and social visibility. However, unlike the UNHCR guidelines, which suggested social visibility as a way to identify PSGs that might get filtered out by the protected characteristics approach, the BIA decisions endorsed the logic that these criteria need to be met over and above the protected characteristic criterion.[6][7][8]

1. Particularity: The social group in question must be identified in the broader society as a discrete class of persons.
2. Social visibility: Membership in the social group should generally be recognizable by others in the community.

The BIA decisions received criticism from many angles. Some critics argued that the notions of particularity and social visibility had been conflated, and that the decision left unclear whether social visibility ought to be interpreted as literal or figurative visibility.[7]

In 1999, the House of Lords in the United Kingdom granted asylum to two Pakistani women based on severe violence they faced at their husbands' hands and their fears of false charges of adultery. The case established three necessary conditions for women to get asylum for domestic violence based on particular social group status:[14]

1. A failure of state protection
2. Women in her state are treated sufficiently poorly as to constitute a PSG
3. She lacks an internal flight alternative, i.e., she cannot realistically relocate elsewhere within the country and avoid persecution.