Asylum: Should They Stay or Should They Go?

Katharine Smith

A recent Seventh Circuit holding has resurrected and called into question a 2005 Sixth Circuit decision regarding immigration law and asylum eligibility. Processes for refugee and asylum admissions are varied and complicated. Not surprisingly, then, there is a circuit split regarding one of these asylum admissions processes – asylum granted to prevent an alien’s forced removal from the country.

Before you get bogged down in background explanations and immigration legalese, stick with me. This is interesting stuff! Think about it – despite the myriad of problems we born-and-raised U.S. citizens are quick to point out with our nation, thousands of people around the world petition the U.S. government to move here or remain here every year. In 2012, 58,179 people were admitted to the States as refugees and 29,484 were granted asylum.[i] We see government shutdowns and Obamacare drama; they see a land of liberty. Many both want and need to call this place their home.

So how do we decide who gets to come and stay? This is where the recently sharpening circuit split comes in. One potential asylum-obtaining process, more or less, goes like this: Alien comes to the United States. For whatever reason, immigration enforcement officials attempt to remove alien from the United States. Alien files for asylum to prevent returning to her home country and explains why she should be able to stay.[ii] Asylum can be granted, not to all aliens who face persecution upon removal from the States, but to those who face persecution specifically because of their “race, religion, nationality, membership in a particular social group, or political opinion.”[iii] But this is where it gets tricky. Everyone who’s made it through the first week and a half of a law school class knows that those straightforward-looking lists of elements or rules are never quite as straightforward as they seem.

In 2005, the Sixth Circuit found that young, attractive Albanian women forced into prostitution did not meet the “membership in a particular social group” element and would not be able to stay in the States.[iv] This potential social group was too broad and based only on the fact that persecution was a possibility. The Seventh Circuit, however, found this August that young Albanian women who live alone and are targeted for prostitution could constitute “membership in a particular social group” and granted the Albanian asylum-seeker’s petition for review.[v] The Seventh Circuit en banc panel explicitly disagreed with the Sixth Circuit’s 2005 decision, noting it undermines the purpose of asylum law to deny asylum to those with valid claims merely because a group is broad and many might end up bringing valid claims.

What do you think? Recognizing that there are many nuances to this “membership in a particular social group” element that cannot be discussed on this blog, do you think the Sixth Circuit or the Seventh Circuit got it right? If a similar case comes back to the Sixth, should we stick to our precedent or take into account the Seventh’s Cece v. Holder changes in interpretation? Do we want inclusionary or exclusionary asylum law? How much should a petitioner have to prove before we welcome them to the Land of the Free and Home of the Brave? This circuit split hones in on interesting questions that have troubled immigration judges and lawyers for years. And now as a result of this August Seventh Circuit opinion, it looks like these questions could continue to cause trouble for days to come.

[i] Daniel C. Martin & James E. Yankay, Office of Immigr. Stat., Refugees and Asylees: 2012, 1 (2012), available at

[ii] Id. at 5.

[iii] INA § 208(b)(1)(B) notes that asylum seekers must meet the definition of refugees set forth in INA § 101(a)(42)(A). For a quick, helpful overview of asylum and removal law, see Kevin R. Johnson et al., Understanding Immigration Law 325 (2009).

[iv] Rreshpja v. Gonzales, 420 F.3d 551 (6th Cir. 2005).

[v] Cece v. Holder, 7th Cir. (en banc), No. 11-1989, 8.09.13