Under the Immigration and Nationality Act, as amended, a person can be granted asylum only if he or she established a well-founded fear of persecution on account of one of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion. Some people charged that the United States constantly changed its definition of what constituted "membership in a particular social group" to accommodate the growing number of asylum-seekers. The Refugee Act of 1980 defined a social group as comprised of persons "all of whom share a common characteristic that is either immutable [not susceptible to change], or should not be required to change because it is fundamental to their individual identities and consciences."

For example, Somali clan membership has been defined as social group membership, although the INS noted that "mere membership in a clan will not be sufficient to establish refugee status unless the applicant can establish special circumstances that would justify the conclusion that all members of the clan are threatened with persecution."

Those who believed the term should be interpreted broadly argued that the intent of the law was to provide a catch-all to include all the types of persecution that can occur. Those with a narrow view saw the law as a means of identifying and protecting individuals from known forms of harm, not in anticipation of future types of abuse.

As the United States and the world became more aware of persecution based on gender and sexual orientation, victims came to be considered members of a "social group." The UNHCR issued a formal statement that declared states "are free to adopt the interpretation that women asylum-seekers who face harsh or inhumane treatment due to their having transgressed the social mores of the society in which they live may be considered as a 'particular social group"' (Guidelines on International Protection: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, Washington, DC: United Nations High Commissioner for Refugees, May 7, 2002). For example, the Presidential Advisory Council on HIV/AIDS (PACHA) recommended that the INS should "grant stays of deportation … and asylum based on the social group of HIV-positive individuals" (PACHA Recommendation II.D.4, http://www.pacha.gov/actions/recommendations/Discrimination/IID4/iid4.html, December 8, 1995).

On August 24, 2000, the U.S. Court of Appeals for the Ninth Circuit, in Hernandez-Montiel v. INS (No. 98-70582), ruled that "gay men with female sexual identities" constituted a "particular social group" eligible for asylum and withholding of deportation.

In 1994, nineteen-year-old Fauziya Kasinga fled her native Togo to escape genital mutilation. When she arrived in the United States, she asked for asylum and was held in a detention center for sixteen months waiting for her case to be heard by the Board of Immigration Appeals. In June 1996 (In re Fauziya Kasinga, A 73 479 695), she became the first individual granted asylum on the basis of gender persecution.