Forgotten Social Groups: Whether Former Members of a Particular Social Group Who Are Persecuted for Their Former Membership May Obtain Refugee Status as a Member of a Particular Social Group

When an alien seeks refugee status in the United States, one permissible ground for such protection is a claim, based on her membership in a particular social group, that she would face persecution if returned to her country of nationality. The Immigration and Nationality Act (INA) provides guidance for the adjudication of such a claim. A more complicated case emerges when the alien fears future persecution on account of her former membership in a particular social group. Neither the INA nor the line of cases that have addressed this issue offer much precision. This is, in part, because of the limited number of courts to have addressed the question. Following the Board of Immigration Appeals' (BIA) 1998 decision in Matter of Fuentes, a majority of Circuit Courts have concluded that persecution on account of one's former membership in a particular social group will generally establish eligibility for asylum. However, this rule has been inconsistently applied. Where the asylum applicant's former social group is one that is socially undesirable, for example former membership in a street gang or former employment as a drug informant, there appears a pattern whereby courts reject otherwise legitimate claims of persecution on account of the applicant's former membership. While there are several compelling arguments for this exception, the courts so far have provided little basis, offering instead inconsistent and ramshackle justifications for such denials. This article will analyze the case law governing the question of social groups comprised of former members of particular social groups and the legal implications for what seems a disparate application of the law based on the type of social group involved.