This post is by Jim Feroli, an attorney with Immigration Legal Services (ILS) of Catholic Charities, Washington, DC. He has worked with ILS since 2014 and helps to manage the pro bono program. He focuses on asylum, U Visa and VAWA cases, and removal defense generally. He has also represented immigration clients before the Board of Immigration Appeals and U.S. Courts of Appeals.

I’m a movie fan. If you haven’t seen it, I recommend the film Gladiator. Russell Crowe stars as Maximus, a Roman general who is betrayed, sold into slavery, and forced to fight in gladiator matches. The movie has some good action scenes and strong acting by Crowe and Joaquin Phoenix, who plays the demented and cruel heir to the throne. It’s about persistence, redemption, and the human spirit and is worth a watch on Netflix.

As an immigration lawyer, I wondered would Maximus, as a slave in ancient Rome, qualify for membership in a particular social group? I’m sure most people watching the film had the same concern. My answer is yes. Maximus’s status is immutable. Slavery in this context is both a status and a condition. As much as Maximus may want to change his status, it is beyond his control. By chance he could be emancipated, but more likely, he will die a slave. Being a member of the group of slaves is also particular. It is distinct and the borders of the group are clear. There is a strong contrast between persons who are slaves—and thus private property—and those who are not. Generally, people should understand if they fit within the group of slaves or free persons, in this case Roman citizens. Lastly, the group is socially distinct. Legally and economically, society recognizes slaves as different. They are deprived the rights to participate in civic life and may be bought and sold by others. Certainly, a runaway slave should qualify for refugee status and not be returned to face additional persecution.

While the case for slavery as a particular social group for Maximus seems clear, the grouping suffers the fatal flaw of circularity. The BIA and courts of appeals have held that a particular social group cannot be defined by the harm feared. As stated by the BIA in a footnote, “the social group must exist independently of the fact of persecution.” Matter of M-E-V-G-, 26 I&N Dec. 227, 236 n.11 (BIA 2014). The Fifth Circuit has relied on this principle to reject the reasoning of Matter of A-R-C-G-. The court held that the group “Honduran women unable to leave their relationship” was impermissibly defined in a circular manner. “The group is defined by and does not exist independently of the harm – i.e., the inability to leave.” Jaco v. Garland, 16 F.4th 1169, 1178 (5th Cir. 2021). The “decision hinged on the inherent circularity involved in defining a particular social group by reference to the very persecution which it flees.” Id.

Where would that leave Maximus? If his group is defined as slaves in ancient Rome, isn’t it defined by reference to slavery, the same persecution that he is fleeing? Perhaps the problem is rhetorical and you can reconfigure the group as persons in Rome treated as private property. The Fifth Circuit rejected similar reasoning, noting that “because the inability ‘to leave’ was created by harm or threatened harm” the group was impermissibly circular. Gonzales-Veliz v. Barr, 938 F.3d 219, 230 (5th Cir. 2019). In Maximus’s case, either slavery or the status of private property are enforced by violence or the threat of violence and thus, according to the court, circular. And yet the notion that a country would deny refuge to a person fleeing slavery seems inherently wrong.

Circularity in this context fails to distinguish past and future persecution, a distinction central to U.S. asylum law. Maximus is a slave who escaped slavery and if returned would face punishment as a runaway. The statement and circumstance are not circular. Past persecution is distinct from future persecution. Courts should not rely on notions of circularity that collapse the distinction between past and future persecution. The Attorney General has stated that if “a group is defined by the persecution of its members then the definition of the group moots the need to establish actual persecution.” Matter of A-B-, 27 I&N Dec. 316, 335 (A.G. 2018). But that is not true in the case of a well-founded fear of future persecution. The applicant would still need to establish a likelihood of future persecution independent of any reference to past persecution in a particular social group definition. It may be circular to say that I suffered past persecution because I am part of a group defined by the persecution it suffered in the past. But the same cannot be said of future persecution. Another example is the case of a woman who suffered rape in a society that blames the victims of rape and where honor killings are prevalent. It is not circular to say that as the victim of rape, the woman faces some likelihood of future harm. The example presents a linear cause and result. Past harm is distinguishable from future harm.

The idea that a particular social group can be defined in part by past harm is unremarkable. The Fifth Circuit relied on a footnote for the proposition that a social group must exist independently of the fact of persecution. The BIA, however, has never applied an absolute prohibition. To the contrary, the BIA holds that past harm can be an important part of determining social distinction. “The perception of the applicant’s persecutors may be relevant, because it can be indicative of whether society views the group as distinct.” Matter of M-E-V-G-, 26 I&N Dec. at 242. Thus, the group of former employees of the attorney general’s office, “may not be considered a group by themselves or by society unless and until the government begins persecuting them.” Id. at 242-243. The risk in using persecution to describe the particular social group is that it may be conflated with nexus. “Because the persecution of members of a particular social group can be a factor (but not the sole consideration) in determining whether the group is recognized as a distinct group within the relevant society, the question whether a cognizable social group exists may improperly be conflated with” nexus. Matter of W-G-R-, 26 I&N Dec. 208, 223 (BIA 2014). For this reason, persecution may be one factor but not the only factor. The “persecutor’s perception is not itself enough to make a group socially distinct, and persecutory conduct alone cannot define the group.” Matter of M-E-V-G-, 26 I&N Dec. at 242.

The group of married women in Guatemala who are unable to leave their relationship is not defined exclusively by persecution suffered in the past. It is also defined by gender, nationality, and familial status. Guatemala, married, and women are important characteristics of the group. To date, the Fifth Circuit has specifically declined to consider the group of Honduran women viewed as property because of their position in a familial relationship. Jaco v. Garland, 16 F.4th 1169, 1175 (5th Cir. 2021). In Matter of A-B-, Attorney General Sessions asked for evidence “that her ex-husband attacked her because he was aware of and hostile to married women in Guatemala who are unable to leave their relationship.” Matter of A-B-, 27 I&N Dec. at 339. Attorney General Barr asked “whether there was any evidence that the respondent’s parents bore animosity toward other Salvadoran females….” Matter of A-C-A-A-, 28 I&N Dec. 84, 94 (A.G. 2020). These questions don’t recognize the nature of private property. It’s okay to destroy your own property but a different thing to destroy someone else’s property. Thus, it is not surprising that the persecutor’s animus in each case is directed only at his own “property” and not against any other women.

Does any of this help Maximus? As a slave in Rome, his group is still largely defined by his experience of past persecution. In Matter of Toboso-Alfonso, the BIA distinguished between status and acts or conduct. In 1990, at the time of the decision, some states had laws criminalizing gay relationships. Four years earlier, the United States Supreme Court had found these laws constitutional. Considering the case of a gay man from Cuba, the Board was faced with the dilemma of basing a particular social group on “criminal” conduct. The majority decision distinguishes between status and acts: “The applicant’s testimony and evidence, however, do not reflect that it was specific activity that resulted in the governmental actions against him in Cuba, it was his having the status of being a homosexual.” Matter of Toboso-Alfonso, 20 I&N Dec. 819, 822 (BIA 1990). Maximus can benefit from similar reasoning. His status as private property is distinguishable from the harm inherent in slavery. Ultimately, it’s his status as a slave that makes him vulnerable to future harm and eligible for relief.

Originally posted on the Asylumist: