A person seeking asylum is required to show that they are unwilling or unable to return to their country of origin because of persecution or a well founded fear of persecution due to race, religion, nationality, membership in a particular group or political opinion, thus meeting the definition of a refugee.
Fear of persecution must be demonstrated by subjectively genuine and objectively reasonable beliefs.
The asylum applicant has the burden of proof to show the objective requirement by credible, direct and specific evidence on the record of facts that show a reasonable fear of persecution.
In recent years, dramatic numbers of asylum seekers from Central America have entered the United States illegally and sought asylum, alleging required and well founded fears that their lives and the lives of their families have been placed in great danger by street gang violence, primarily in El Salvador, Guatemala and Honduras.
More recently, Mexican asylum seekers allege violence or the threat of imminent violence from drug traffickers.
All must show that law enforcement, the judiciary and the government of their home country are unwilling or unable to help them.
They must also satisfactorily show that they cannot safely internally relocate in their country of origin.
Most assert membership in a particular social group as giving them the refugee status necessary to be granted asylum as membership in a particular group is widely open to interpretation.
What constitutes membership in a particular social group is determined by the Refugee Protection Act which states: "For purposes of determinations under the Act, any group whose members share a characteristic that is either immutable or fundamental to identify, conscience or the exercise of a person's human rights, such that the person should not be required to change it, shall be deemed a particular social group without any additional requirement".
Examples of a common immutable characteristic are sex, color, kinship or voluntary association based on a common characteristic(s) that are fundamental to the members' identities.
One court noted that such a voluntary association social group should have some outward manifestation from which members can be outwardly identified.
Gang tatoos would support such an outward manifestation however, being a young male without gang afilliations while being threatened with bodily harm or death for refusal to join a gang has been held as being a member of a particular social group but their family has been held to be a particular social group as well as a political group when threatened with rape or murder.
A current gang member would not appear to be immutable as in a theoretical and perfect world, he could renunciate his gang membership while a former gang member could be held to be in a particular social group as he could be murdered for renouncing the gang.
To further cloud this issue, the court held that that a person who has attempted to leave a gang and remove gang tattoos is a refugee but because he committed various serious crimes as a gang member, asylum would not be granted as past gang membership can operate as an adverse discretionary factor.
Other less protected relief however, is available under such circumstances that might permit that foreign national to remain in the United States.
Given the broad nature and interpretation of a "particular social group", decisions on inclusion must be made on a case by case basis.