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"Social Visibility" in Defining a Particular Social Group and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender

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Scholarly Commons @ UNLV Boyd Law Scholarly Works Faculty Scholarship 2008 The Emerging Importance of "Social Visibility" in Defining a Particular Social Group and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender Fatma E. Marouf University of Nevada, Las Vegas -- William S. Boyd School of Law, [email protected] Follow this and additional works at: https://scholars.law.unlv.edu/facpub Part of the Immigration Law Commons Recommended Citation Marouf, Fatma E., "The Emerging Importance of "Social Visibility" in Defining a Particular Social Group and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender" (2008). Scholarly Works. 419. https://scholars.law.unlv.edu/facpub/419 This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository administered by the Wiener-Rogers Law Library at the William S. Boyd School of Law. For more information, please contact [email protected]. YALE LAW & POLICY REVIEW The Emerging Importance of "Social Visibility" in Defining a "Particular Social Group" and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender Fatma E. Maroufl INTROD UCTION ........................................................................................................... 48 1. FOUR APPROACHES TO DEFINING MEMBERSHIP OF A PARTICULAR SOCIAL G RO U P ................................................................................................................ 51 A. The "Protected Characteristic"Approach .............................................. 51 B. The "Social Perception"Approach .......................................................... 58 C. The UNHCR Guidelines on Membership of a ParticularSocial Group ..... 60 D. The BIA's New "Social Visibility" Test ................................................... 63 1. The C -A - C ase ................................................................................ 63 2. The A-M -E- & J-G- U- Case .......................................................... 65 II. "SOCIAL VISIBILITY" AND FEDERAL JUDICIAL DEFERENCE TO THE BIA's INTERPRETATION OF A "PARTICULAR SOCIAL GROUP" ................................. 68 III. THE PRACTICAL CHALLENGES OF THE "SOCIAL VISIBILITY" APPROACH ........... 71 A. The Inherent Difficulty in Assessing Public Perceptions......................... 71 B. The Difficulty of Deriving "Social Perception" or "Social Visibility" from Traditional Types of Documentary Evidence .......................................... 75 IV. THE POSSIBLE NEGATIVE IMPACT OF THE BIA's NEW "SOCIAL VISIBILITY" TEST ON ASYLUM CLAIMS BASED ON SEXUAL ORIENTATION AND GENDER ..... 78 A. The Potential Impact of the "Social Visibility" Test on Asylum Claims Based on Sexual Orientation................................................................. 79 B. The Potential Impact of the "Social Visibility" Test on Other Types of Gender-RelatedAsylum Claims ............................................................. 88 1. Claims Based on Family Membership .......................................... 91 2. Claims Based on Domestic Violence .......................................... 94 3. Claims Based on Human Trafficking .......................................... 98 C ON CLU SION ................................................................................................................ 103 Marouf Law Group, PLC, Los Angeles, CA. B.A., Yale University, J.D., Harvard University. My deepest thanks to Deborah Anker for her mentorship, inspiration, and thoughtful comments on drafts of this piece. I would also like to thank my family and Yasemin Elmas for their invaluable support. HeinOnline -- 27 Yale L. & Pol'y Rev. 47 2008-2009 YALE LAW & POLICY REVIEW 27:47 2008 INTRODUCTION An emerging issue in U.S. asylum claims based on "membership in a par- ticular social group" is the relevance of social visibility in determining whether such a group exists.' Of the five protected grounds for asylum, "membership in a particular social group" has always generated the most debate.' Until recently, however, neither the Board of Immigration Appeals (BIA) nor the federal courts focused on "social visibility" in defining this term. The dominant view of the international community, rooted in the BIA's seminal decision in Acosta, defines a "particular social group" based solely on the existence of an "immuta- ble" characteristic," one that an individual either cannot change or should not be required to change because it is fundamental to identity of conscience.' Ex- ternal perceptions are irrelevant to the Acosta standard. Among the major common law countries, the United States, Canada, New Zealand, and the 4 United Kingdom follow the principled "protected characteristic" approach. 1. In order to qualify for asylum, an individual must establish "persecution or a well- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Immigration and Nationality Act § lOl(a)(42)(A), 8 U.S.C. § lol(a)(42)(A) (2000). This definition of a refugee adopts the definition set forth in the 1967 Protocol Relating to the Status of Refu- gees (the "Protocol"), which incorporates Articles 2 through 34 of the 1951 Con- vention Relating to the Status of Refugees. 1967 Protocol Relating to the Status of Refugees, art. i, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 [hereinafter 1967 Protocol]; Convention Relating to the Status of Refugees, art. 1,opened for signa- ture July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 [hereinafter 1951 Convention]. 2. See generally Summary Conclusions: Membership of a ParticularSocial Group, Ex- pert Roundtable, San Remo, September 2001, in REFUGEE PROTECTION IN INTER- NATIONAL LAW: UNHCR's GLOBAL CONSULTATIONS ON INTERNATIONAL PRO- TECTION 312 (Erika Feller, Volker Tiirk & Frances Nicholson eds., 2003) [hereinafter UNHCR's GLOBAL CONSULTATIONS]; James C. Hathaway & Michelle Foster, Development, Membership of a ParticularSocial Group, 15 INT'L J. REFU- GEE L. 477 (2003) (noting the lack of clarity in defining a "particular social group," discussing the points of consensus that have emerged, and setting forth the two major approaches to defining this term). 3. See Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985), overruled on other grounds, Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987); Ward v. Att'y Gen. of Can., [1993] 2 S.C.R. 689, 736-39; G.J., No. 1312/93, (Refugee Status App. Auth. Aug. 30, 1995) (N.Z.); Islam v. Sec'y of State for the Home Dep't, [1999] 2 A.C. 629 (H.L.) (ap- peal taken from Eng.) (U.K.); see also MICHELLE FOSTER, INTERNATIONAL REFU- GEE LAW AND SocIo-ECONOMIC RIGHTS 300 (2007); T. Alexander Aleinikoff, Pro- tected Characteristics and Social Perceptions: An Analysis of the Meaning of "Membership of a Particular Social Group," in UNHCR's GLOBAL CONSULTA- TIONS, supra note 2, at 294; Hathaway & Foster, supra note 2. 4. See supra note 3. Most civil law jurisdictions have not developed the "particular social group" ground at all. See FOSTER, supra note 3, at 295 n.17. HeinOnline -- 27 Yale L. & Pol'y Rev. 48 2008-2009 THE EMERGING IMPORTANCE OF "SOCIAL VISIBILITY" IN DEFINING A "PARTICULAR SOCIAL GROUP" Australia, on the other hand, has emphaszied social perceptions, while also tak- ing immutable characteristics into account.' In 2002, the United Nations High Commissioner for Refugees (UNHCR) issued guidelines that present the "protected characteristic" and "social percep- tion" approaches as alternative ways of establishing a particular social group, instructing States Parties to the 1951 Refugee Convention (the "Convention") to determine first if there is a protected characteristic and, only if no such charac- teristic exists, to determine whether the group is recognized by society.6 Two recent decisions by the BIA, C-A- and A-M-E-, purported to rely on the UNHCR guidelines when emphasizing the importance of "social visibility" in defining a particular social group! The BIA's interpretation of "social visibility" in C-A-, however, diverged from the international community's understanding of the "social perception" approach, as it focused on the visibility of group members rather than whether the group as a whole was recognized by society, and stressed a subjective rather than an objective standard.8 Furthermore, in A- M-E-, the BIA failed to follow the sequential steps set forth by the UNHCR, suggesting in an ambiguous and internally inconsistent decision that the "pro- tected characteristic" and "social visibility" tests may now represent dual re- quirements in all social group cases. 9 Read together, these cases represent a sig- nificant departure from precedent. The BIA's new emphasis on "social visi- bility" undermines the principled framework for analyzing social group claims set forth in Acosta and will lead to incoherent, inconsistent decisions that have no basis in the 1951 Refugee Convention and its 1967 Protocol (the "Protocol"). Part I of this Article sets forth the "protected characteristic" and "social perception" approaches, showing how the former has a foundation in law while the latter does not. I then discuss the BIA's new "social visibility" test against 5. See, e.g., Applicant A v. Minister for Immigration & Ethnic Affairs (1997) 190 C.L.R. 225 (Austl.). Chief Judge Gleeson's opinion in Minister for Immigration & Multicultural Affairs v. Khawar, (2002) 210 C.L.R. 1, 14 (Austl.), which reasoned that "women in any society" comprise a particular social group, comports
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