Recent Developments in Particular Social Group Analysis
By: Holly Klein
For an individual to gain asylum, he or she must prove that they have been previously persecuted or have a well-founded fear of persecution due to their race, religion, nationality, membership in a particular social group, or political opinion. Determinations on four of the protected grounds, race, religion, nationality, and political opinion, are fairly straightforward and well defined. However, the determination of membership in a particular social group is more problematic.
The phrase ‘particular social group’ was first codified in the Refugee Act of 1980. This Act brought U.S. immigration law into conformity with the 1967 United Nations Protocol Relating to the Status of Refugees. However, Congress did not reveal what specific meaning it intended to attach to the phrase ‘particular social group.’ With the lack of legislative intent, the definition of particular social group has primarily evolved through BIA interpretations in various cases. The BIA provided the seminal interpretation of particular social group in Matter of Acosta by using the doctrine of ejusdem generis. The doctrine of Ejusdem generis explains that when general and specific words are used in the same context, general words should be interpreted consistently with specific words. Therefore, since membership in a particular social group sits alongside race, religion, nationality and political opinion in the fact that they are all immutable characteristics beyond the power of an individual to change, the BIA ruled that a particular social group should also be understood as such. Thus, the BIA concluded that members of a particular social group must share a common, immutable characteristic that is so fundamental to an individual’s identity or conscience that it cannot, or should not be required to change.
As asylum claims based on membership in a particular social group became more and more frequent, the BIA felt it was necessary to further clarify what a particular social group entailed, and acknowledged in Matter of C-A- that an applicant could prove the existence of a particular social group if its members had both social visibility and particularity. The social visibility and particularity requirements were solidified by the BIA’s decisions in Matter of S-E-G- and Matter of E-A-G-, in which the Board held that in addition to the common immutable characteristic requirements established in Matter of Acosta, the previously introduced concepts of social visibility and particularity were distinct requirements for the determination of what constituted a particular social group. The BIA included these two requirements to provide greater specificity to the social group definition. Given Congress’ aforementioned silence regarding the meaning of a particular social group, the BIA, as an administrative body, is entitled to defer to its own interpretation of the term through case law so long as it is based on a permissible construction of the statute and is neither arbitrary nor capricious. The BIA also has the authority to change a previously defined term as long as it provides a reasonable explanation for doing so, and the new definition does not create irreconcilable conflicts with precedent. In the aforementioned cases, the BIA stated that it was justified in its decision to declare social visibility and particularity as strict requirements in the determination of a particular social group because it was consistent with its prior decisions and provided much needed clarification to the term’s meaning. While there has been some contention amongst the Federal courts of appeals as to whether or not these new requirements are a permissible construction of the statute, absent the Seventh and Third Circuits, the requirements have generally been met with approval.
The primary issues surrounding the two requirements mainly stem from the social visibility requirement in that some courts have interpreted it in terms of literal on-sight visibility, and argue that if group members are persecuted on account of their membership in a particular social group, they will attempt to hide characteristics associating them with the group in order to avoid persecution. Arguments have also been made that if the requirement calls for on-sight visibility, otherwise deserving applicants such as those based on sexual orientation and gender issues would be denied asylum. However, the BIA argues that this interpretation of the term is contrary to precedent in which it has held groups that are blatantly unrecognizable by on-sight visibility as adequately meeting the social visibility standard. For instance, in In re Kasinga, the BIA held that women of a tribe in Togo who were opposed to female genital mutilation and who had not yet been victims of the practice constituted a particular social group. It is obvious that a community cannot tell by looking at a female whether or not she has undergone female genital mutilation. Thus, the BIA emphasized that the social visibility requirement does not call for on-sight visibility but calls for recognition by society that these females constitute a group. As well in Matter of Toboso-Alfonoso the BIA held that homosexuals in Cuba constituted a particular social group. Again like Matter of Kasinga one cannot identify simply by looking at a person what their sexual orientation is, thus social visibility refers to whether the relevant society perceives these persons as a group.
Recently, in Matter of W-G-R- and Matter of M-E-V-G-, the BIA changed the social visibility requirement to social distinction in an attempt to alleviate the confusion surrounding the term ‘visibility.’ The BIA emphasized that it never intended the requirement to call for on-sight visibility but that based on precedent (i.e. Matter of Kasinga, Matter of Toboso-Alfonso, Matter of Fuentes), it is clear that its analysis has focused on the extent to which the group is understood to exist as a recognized component of the society in question. Social distinction calls for a showing that the relevant society in general considers or recognizes persons sharing the particular immutable characteristic to in fact be a group, and that the characteristic is one that defines that group. In each of these cases, the BIA explained that so long as the relevant society recognizes the group as a distinct social group, it does not matter whether or not the characteristics that define the group have on-sight visibility.
In Matter of W-G-R-, the BIA used the newly adapted requirement of social distinction to hold that the proposed group of former members of the Mara 18 gang in El Salvador, who had renounced their gang membership, did not constitute a particular social group because it lacked particularity by being too broad, too subjective, and lacking in social distinction. The BIA stated that it lacked social distinction because no documentation was submitted to establish that former gang members were viewed as a distinct group in Salvadoran society. In Matter of M-E-V-G, the BIA also held that Honduran youth who have been actively recruited by gangs, but who have refused to join because they oppose gangs, did not constitute a particular social group. The BIA stated that the proposed group was not sufficiently particular or socially distinct, rather widespread gang violence affects vast segments of the country’s population, and there is no documentation that the respondent had been targeted on account of a protected basis or that society perceived the proposed group as a distinct segment of the population.
The altering of the social visibility requirement to social distinctions will hopefully bring some clarification to the particular social group determination. As previously mentioned, one of the major reasons that several of the federal appellate courts have refused to accept the social visibility requirement was the perception that it was contrary to previous BIA precedent that called for on-sight visibility, and would fail to protect otherwise deserving applicants simply because their shared characteristics were not ocular. By changing the requirement to social distinction, the BIA reemphasized the notion that society can categorize individuals as occupying a group without necessarily being able to identify the members of the group on sight.