Gender as Particular Social Group, 9th Circuit

Perdomo v. Holder, __F.3d__, 2010 WL 2721524 (9th Cir. July 12, 2010): The court granted the petition for review of a Guatemalan woman whose application for asylum had been denied by the Immigration Judge. The petitioner claimed to fear persecution as a member of a particular social group (“PSG”) consisting of Guatemalan women who, she argued, ran a greater risk of being murdered. The Immigration Judge rejected the proposed PSG and the Board affirmed, finding the proposed group to be overly broad. On appeal, the Ninth Circuit noted that although it had not previously held that females alone constitute a PSG, it had found in Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005), that female members of a particular clan met this definition and, in so doing, held gender to be an innate characteristic fundamental to one’s identity. The court also recognized in a footnote that the Third Circuit in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), held that gender constitutes a PSG and that Australia, Canada, and the U.K. had done likewise. The court found that the Board erred in its analysis, noting that it had found innate characteristics to be sufficient for PSG status in cases involving homosexuals and Gypsies. The court also stated that it had rejected proposed groups as overly broad in the absence of a unifying relationship or characteristic to narrow an otherwise diverse and disconnected group. The court pointed out that it had previously rejected the proposition that a group could not be a PSG solely because it constitutes too large a segment of society. Therefore the court remanded for the Board to consider in the first instance whether Guatemalan women constitute a PSG and, if so, whether the petitioner had established a well-founded fear on account of that characteristic.