Are we all “members of a particular social group?”

A lot of people contact FAC confused about how persons forced to register as sex offenders can be treated in a way that no other group can be. Try to prevent members of a particular race from living within exclusion zones in a city and see how quickly the protests erupt. Ban a particular religious group from public venues and the civil rights lawsuits would be flying into courts. However come up with any weak excuse for discriminating against registrants and it’s allowed. How so?

The reason is because registrants are not part of a “protected class”. A Protected Class is a group sharing a common trait, such as race, religion, gender, age, disability, or sexual orientation. But protected class has never been expanded to include status as a “registered sex offender”. There are a number of laws that protect the rights of a “protected class”, such as the Civil Rights Act of 1964, Age Discrimination in Employment Act of 1975, Citizenship Immigration Reform and Control Act of 1986, and Americans with Disabilities Act of 1990, but no laws that protect the rights of the registrant class. To the contrary, there are laws that allow and encourage the express discrimination of the registrant class, such as the Adam Walsh Act. Here in Florida, by carving registrants out of Amendment 4, the state enshrined discrimination against registrants into its constitution.

However, there is another definition that has historically been used in different contexts, such as asylum, as a vehicle for potential claims, and that is “membership in a particular social group.” To be eligible for asylum, the applicant bears the burden of proving statutory “refugee” status. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(a). That is, the alien must, with specific and credible evidence, establish (1) past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion; or (2) a well-founded fear of future persecution on account of a statutorily-protected ground. See 8 C.F.R. § 208.13(b). Chen v. U.S. Attorney General, 463 F.3d 1228, 1231 (11th Cir. 2006).

We started thinking of this in the context of our international human rights petition to the United Nations and international human rights law, which among other things, protect refugees. Refugees are persons whose human rights have been violated and who merit international protection.

For someone who does not fit the traditional categories within a “protected class”, the broader definition of “particular social group” can offer protection in certain circumstances. A social group, in this context would not be defined by a personal trait or characteristic, but it could be a behavior. For example, women in Iran are currently being persecuted for taking off their headscarves. They are not being discriminated against because they are women, but because they have engaged in a behavior that transgressed the morals of the society in which they live. It could also be a class of people who are branded with a certain involuntary label.

In Matter of Acosta 19 I & N Dec. 211 (B.I.A. 1985), the US immigration tribunal defined “particular social group” as referring to “a group of persons all of whom share a common, immutable characteristic.” Immutable means unchangeable or permanent.  A social group has even been attributed to people who shared a common past experience. Matter of Fuentes, 19 I&N Dec. 658 (B.I.A. 1988) former national police.  I’m sure none of us voluntarily choose to be part of this group and all of us share a common past experience. Another factor of the “social group” definition in the international human rights context is, “the society in which the group exists distinguishes members of the group for different treatment of status than is accorded to other members of the society.”. Bingo!

When you consider the different groups of people in the United States it’s difficult to imagine a group that is treated more differently for it’s status than persons forced to register as sex offenders. And it is also difficult to to think of a group that has more rules and restrictions imposed on them, all under the threat of prosecution, than persons forced to register as sex offenders. Registrants are possibly the most persecuted group in the United States. Against whom else is it not only legal, but constitutional to exclude us from living in certain areas, from going certain places or even from voting in elections?

As we expand our advocacy into the international arena and turn to the rest of the world, it will be useful to point out that we are, in fact, members of a particular social group that is currently being persecuted by our Government.

So lets not hold back in our efforts! Please do your part in getting more signatures to our petition and reaching out to international human rights organizations for help. Keep fighting and remember the words of Tom Petty, “everybody’s had to fight to be free, you see you don’t have to live like a refugee.”