Particular Social Group by Circuit

Circuit Approaches to Family- and Gender-Based Particular Social Groups

The statutory framework is the same in every circuit. The refugee definition requires persecution or a well-founded fear of persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion," and the REAL ID Act of 2005 supplies the governing nexus standard: the applicant "must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant" 8 U.S.C. § 1158. The statute does not define "particular social group," and the courts of appeals apply the Board’s three-part construction, which requires immutability, particularity, and social distinction. The recent published decisions concern two recurring formulations — the nuclear family, and gender-defined groups of women fleeing violence in domestic relationships — and the disagreement among the circuits concerns not the framework itself but what it means for persecution to be "on account of" membership in the group.

For family-based groups, the circuits differ over how to assess the persecutor’s motive when a family member is targeted as leverage against another. Perez Vasquez v. Garland, 4 F.4th 213 (4th Cir. 2021) held that "identifying why [the] [p]etitioner’s family was targeted is not the relevant question"; the "operative question" is "whether [the petitioner’s] membership [in their family] is ‘a central reason why [they], and not some other person’ [were] targeted." On that reasoning, a persecutor’s financial motive does not defeat the claim, because "it is enough that the protected ground be at least one central reason for the persecution—that is, one central reason, perhaps intertwined with others, why the applicant, and not another person was threatened." The Ninth Circuit, by contrast, treats the persecutor’s underlying objective as controlling. Rodriguez-Zuniga v. Garland, 69 F.4th 1012 (9th Cir. 2023) held that "[w]here the record indicates that the persecutor’s actual motivation for threatening a person is to extort money from a third person, the record does not compel finding that the persecutor threatened the target because of a protected characteristic such as family relation." The court explained that "the extorted person may be motivated to give the money because they care for their family member, but that doesn’t transform the persecutor’s motivation from money to actual animus against a protected characteristic." The Tenth Circuit reached the same conclusion by adopting the Board’s analysis. In Orellana-Recinos v. Barr, 993 F.3d 851 (10th Cir. 2021), the court accepted the Board’s rule that nexus "is not established simply because a particular social group of family members exists and the family members experience harm" and that "the fact that a persecutor targets a family member simply as a means to an end is not, by itself, sufficient to establish a claim, especially if the end is not connected to another protected ground." Addressing the Fourth Circuit’s decision in Hernandez-Avalos, the court stated: "[t]o the extent that the Fourth Circuit’s opinion holds that a gang’s threats to persuade a mother to encourage, or at least allow, a son to join the gang is necessarily persecution on account of the mother’s membership in the son’s nuclear family, we are unpersuaded."

For gender-based groups, the principal disagreement concerns whether a group defined in part by a woman’s inability to leave a domestic relationship is impermissibly circular. De Pena-Paniagua v. Barr, 957 F.3d 88 (1st Cir. 2020) declined to adopt a categorical bar, holding that "there is no such categorical rule precluding any and all applicants from successfully relying upon" a group defined by women "unable to leave" a domestic relationship. The court reasoned that "a woman’s inability to leave a relationship may be the product of forces other than physical abuse," including "the combination of several cultural, societal, religious, economic, or other factors," and it found "no logic or reason behind the assertion that abuse cannot do double duty, both helping to define the group, and providing the basis for a finding of persecution." The Fifth Circuit reached the contrary conclusion. Jaco v. Garland, 24 F.4th 395 (5th Cir. 2021) held that the proposed group of "Honduran women who are unable to leave their domestic relationships" was "impermissibly defined in a circular manner" because "[t]he group is defined by, and does not exist independently of, the harm—i.e., the inability to leave," observing that "[r]elying on circular reasoning is a logical fallacy." The court further concluded that the Attorney General’s vacatur of Matter of A-B- did not alter that holding, because "[f]ollowing pre-A-B-I precedent, as A-B-III instructs, would not change the result." The Third Circuit, for its part, has required the agency to perform the full analysis that the restored Matter of A-R-C-G- framework prescribes. Avila v. Attorney General, 82 F.4th 250 (3d Cir. 2023) vacated a Board decision that "did not adhere to Matter of A-R-C-G-’s requirement to examine Avila’s PSG within the context of the specific country conditions in Honduras" and that rejected the proposed group "for lack of particularity without considering evidence in the record about ‘widespread and systemic violence’ against Honduran women." At the same time, the court reaffirmed that a group "must exist independently of the persecution suffered by the applicant for asylum," a requirement assessed against both "past persecution" and a "well-founded fear of persecution."

Because the circuits proceed from different interpretive premises, similar records produce materially different outcomes depending on the forum. In the Fourth Circuit, a family-based claim can succeed on proof that the applicant was selected because of her relationship to the persecutor’s ultimate target, even where money or recruitment supplied the underlying objective; in the Ninth and Tenth Circuits, the same record fails unless it demonstrates animus toward the family itself, which ordinarily requires evidence beyond the extortion scheme — threats that continued after payment, harm to relatives who had no access to funds, or statements identifying the family as such. For gender-based groups, the viability of a formulation defined by an inability to leave a domestic relationship depends on the circuit: the First Circuit permits it in principle, the Fifth Circuit treats it as circular regardless of how the record is developed, and the Third Circuit requires the agency to evaluate any proposed group against the country-conditions evidence that Matter of A-R-C-G- makes relevant — so country-conditions proof on rates of violence, impunity, and police response carries correspondingly greater weight where the group definition itself is secure. The vacatur of Matter of A-B- restored the pre-2018 Board precedent, but it did not resolve the disagreements among the circuits, and until the Board or the Supreme Court does so, the governing circuit law will remain outcome-determinative for many of these claims.