Contributions

A Catch-22? The Social Distinction Requirement for Asylum

by Clay Venetis 1

Indi­vid­u­als seek­ing asy­lum in the Unit­ed States based on their mem­ber­ship in a par­tic­u­lar social group face a poten­tial catch-22 in try­ing to meet require­ments set by the Board of Immi­gra­tion Appeals (“BIA”). Any­one seek­ing pro­tec­tion from per­se­cu­tion on account of their mem­ber­ship in a group oth­er than those spec­i­fied in the Immi­gra­tion and Nation­al­i­ty Act (“INA”)—i.e., race, reli­gion, nation­al­i­ty, polit­i­cal opinion—must prove mem­ber­ship in the gen­er­al cat­e­go­ry of a “par­tic­u­lar social group.” 2 Accord­ing to the BIA, a “par­tic­u­lar social group” must have: (1) a com­mon, immutable char­ac­ter­is­tic, (2) par­tic­u­lar def­i­n­i­tion­al bound­aries, and (3) social dis­tinc­tion. 3To meet the last require­ment, an asy­lum-seek­er must show that her home coun­try rec­og­nizes her par­tic­u­lar social group as dis­tinct and mean­ing­ful. Fed­er­al courts and the BIA vary on what per­cent­age of the pop­u­la­tion or what sec­tor of a country’s soci­ety—i.e., gen­er­al pub­lic v. the state/government—must rec­og­nize the group as such. 4 The BIA is reluc­tant to accept the pos­si­bil­i­ty that only the asylum-seeker’s per­se­cu­tors may rec­og­nize the group as dis­tinct. In oth­er words, the BIA does not believe a group can be defined mere­ly by the fact of per­se­cu­tion by a for­eign country’s gov­ern­ment. The BIA requires recog­ni­tion not just from one’s attack­ers, but also from “soci­ety in gen­er­al.”

This cre­ates an odd state of affairs. If a nefar­i­ous gov­ern­ment attacks a group because it views it as “unde­sir­able,” yet no one else in that coun­try rec­og­nizes it as such, the group may lack social dis­tinc­tion for asy­lum pur­pos­es. A poten­tial catch-22 emerges: many indi­vid­u­als seek asy­lum pro­tec­tion, because their gov­ern­ment is sin­gling them out based on its own ille­git­i­mate or arbi­trary dis­tinc­tions, which are not drawn by mem­bers of the pub­lic. Yet the fact that mem­bers of this “group” are sin­gled out sole­ly by the gov­ern­ment means they can­not meet the social dis­tinc­tion require­ment, and are there­fore denied asy­lum in the Unit­ed States.  The Supreme Court should weigh in on this catch-22 and ulti­mate­ly reject any strict def­i­n­i­tion of social dis­tinc­tion that unfair­ly denies asy­lum to those who deserve it.

*****

The INA gives the Attor­ney Gen­er­al dis­cre­tion to grant asy­lum to those who qual­i­fy as refugees. 5 A refugee is an appli­cant unable or unwill­ing to return to their home coun­try “because of per­se­cu­tion or a well-found­ed fear of per­se­cu­tion on account of race, reli­gion, nation­al­i­ty, mem­ber­ship in a par­tic­u­lar social group, or polit­i­cal opin­ion.” 6 The INA does not define “par­tic­u­lar social group.” The BIA’s elab­o­ra­tion of the term requires that mem­bers share a com­mon, immutable char­ac­ter­is­tic. 7 This fol­lows from the BIA’s appli­ca­tion of the ejus­dem gener­is rule of statu­to­ry inter­pre­ta­tion, by which courts restrict the def­i­n­i­tion of gen­er­al or ambigu­ous terms to a mean­ing “of the same kind” as oth­er, more spe­cif­ic terms on that list. 8 Because the oth­er list­ed grounds for pro­tec­tion involve per­se­cu­tion based on a “char­ac­ter­is­tic that is either beyond the pow­er of an indi­vid­ual to change or is so fun­da­men­tal to indi­vid­ual iden­ti­ty or con­science that it ought not be required to be changed,” mem­ber­ship in “a par­tic­u­lar social group” also requires that the mem­bers share a com­mon, immutable char­ac­ter­is­tic. 9

In recent years, the BIA has added two addi­tion­al require­ments: “par­tic­u­lar­i­ty,” or clear out­er lim­its on the def­i­n­i­tion of group mem­ber­ship, and “social dis­tinc­tion,” or mean­ing­ful recog­ni­tion of the group by soci­ety. 10 Only three fed­er­al Courts of Appeals—the Third, Sev­enth, and Ninth Circuits—have refused to accept these addi­tion­al require­ments out­right. 11

With regard to social dis­tinc­tion, the BIA stat­ed that rely­ing on the per­cep­tion of a for­eign gov­ern­ment alone is prob­lem­at­ic for two relat­ed rea­sons. 12 First, this may con­fuse two sep­a­rate inquiries in decid­ing whether an indi­vid­ual qual­i­fies for asy­lum based on mem­ber­ship in a par­tic­u­lar social group. 13 In addi­tion to show­ing mem­ber­ship in a par­tic­u­lar social group, asy­lum-seek­ers must show that they were per­se­cut­ed “on account of” that mem­ber­ship. 14 The BIA has found that defin­ing a group based on the government’s per­se­cu­tion alone will con­fuse these inquiries. (It is unclear why some over­lap is nec­es­sar­i­ly prob­lem­at­ic, and the BIA has failed to elab­o­rate). Sec­ond, the BIA has found that prece­dent bars defin­ing a group “exclu­sive­ly by the fact that its mem­bers have been sub­ject to harm.” 15 Rather, the BIA has required that the group be “mean­ing­ful­ly dis­tinct with­in soci­ety in gen­er­al.” 16.

The Ninth Cir­cuit has not­ed the poten­tial catch-22 inher­ent in requir­ing more than the per­cep­tion of the per­se­cu­tors. In Hen­riquez-Rivas v. Hold­er, the court explained that there are sit­u­a­tions in which the per­spec­tive of the per­se­cu­tor “mat­ters the most.” 17 For exam­ple, if a group is being tar­get­ed by an oppres­sive regime in a remote region of the coun­try, soci­ety may not know about the per­se­cu­tion, let alone rec­og­nize the group in a mean­ing­ful way. 18

The BIA addressed this con­cern direct­ly in Mat­ter of M-E-V-G-, stat­ing “[p]ersecution lim­it­ed to a remote region of a coun­try may invite an inquiry into a more lim­it­ed sub­set of the country’s soci­ety.” 19The BIA also not­ed that recog­ni­tion by per­se­cu­tors may be a rel­e­vant fac­tor when it leads to or cat­alyzes recog­ni­tion by soci­ety. 20 But in both sit­u­a­tions, the BIA still requires that indi­vid­u­als oth­er than the per­se­cu­tors rec­og­nize the per­se­cut­ed, leav­ing the poten­tial catch-22 in place.

Addi­tion­al­ly, there is a legit­i­mate problem—hinted at by the BIA—with allow­ing the per­se­cu­tor to define the group. 21 The instant a for­eign gov­ern­ment per­se­cutes an indi­vid­ual, one could argue that they are part the a par­tic­u­lar social group, name­ly “Vic­tims of State X’s Per­se­cu­tion.” 22 Thus, any asy­lum-seek­er that has been per­se­cut­ed would meet the require­ments for being in a par­tic­u­lar social group, mak­ing the inquiry unnec­es­sary. In order to avoid this prob­lem, the BIA requires recog­ni­tion of group sta­tus from mem­bers of soci­ety beyond the per­se­cu­tors.

*****

But this “solu­tion” cre­ates an even more prob­lem­at­ic out­come. As men­tioned, defin­ing social dis­tinc­tion in this way may exclude vic­tims of a regime that is dis­tin­guish­ing cer­tain groups ille­git­i­mate­ly, and mem­bers of the pub­lic may be unwill­ing to rec­og­nize the vic­tims as dis­tinct because doing so would be illog­i­cal. For exam­ple, if French soci­ety does not find that indi­vid­u­als with large ears are a mean­ing­ful group because doing so feels irrel­e­vant, but the French gov­ern­ment begins attack­ing indi­vid­u­als with large ears, a large-eared asy­lum-seek­er might not meet the BIA’s social dis­tinc­tion require­ment.

The Supreme Court has not addressed the BIA’s added require­ments of par­tic­u­lar­i­ty and social dis­tinc­tion. Because the Court’s lack of guid­ance allows for poten­tial harm­ful con­se­quences, it should accept a case and clar­i­fy the test. While defin­ing a group sole­ly by way of gov­ern­ment per­se­cu­tion is prob­lem­at­ic, the Court should find a dif­fer­ent solu­tion. For exam­ple, the Court could reject the BIA’s strict require­ment that social dis­tinc­tion be based on the per­spec­tive of the gen­er­al pub­lic. Deter­mi­na­tions by the BIA are high­ly fact-inten­sive, and our gov­ern­ment should not deny asy­lum-seek­ers who would have strong cas­es oth­er­wise. 23 The Court could also reject the BIA’s added require­ments of social dis­tinc­tion and par­tic­u­lar­i­ty in favor of a less rigid, case-by-case inquiry. It is per­haps impos­si­ble to apply a con­sis­tent test for social dis­tinc­tion as is, giv­en the ever-chang­ing nature of any society’s gen­er­al pub­lic views. But should we deter­mine the fate of asy­lum-seek­ers based on cur­rent soci­etal trends of per­se­cu­tion and hatred?

We face a dif­fi­cult task in main­tain­ing a coher­ent, non-arbi­trary test for what con­sti­tutes a par­tic­u­lar social group while also keep­ing refugee sta­tus open to deserv­ing asy­lum-seek­ers. Because the BIA’s cur­rent method of strik­ing this bal­ance unfair­ly rejects some indi­vid­u­als sim­ply because only their gov­ern­ments tar­get them—while broad­er soci­ety fails to rec­og­nize them as distinct—the Court should reject this approach. In its stead, the Court should apply a flex­i­ble, case-by-case approach that is mind­ful of the lim­its of a test that may deny pro­tec­tion to peo­ple based sole­ly on cur­rent trends in their coun­try of ori­gin.

Notes:

  1. The fol­low­ing arti­cle is based on my expe­ri­ence in the 2016 Asy­lum and Refugee Law Nation­al Moot Court Com­pe­ti­tion, spon­sored by the Uni­ver­si­ty of Cal­i­for­nia Davis School of Law. I argued the issue of whether indi­vid­u­als per­se­cut­ed on account of their blood type can be con­sid­ered a “par­tic­u­lar social group” under the Immi­gra­tion and Nation­al­i­ty Act.
  2. 8 U.S.C. § 1101(a)(42)(A).
  3. See Mat­ter of M-E-V-G-, 26 I. & N. Dec. 227, 239–40 (B.I.A. 2014).
  4. Com­pare M-E-V-G-, 26 I. & N. Dec. at 242 (requir­ing recog­ni­tion from “soci­ety in gen­er­al”), with Hen­riquez-Rivas v. Hold­er, 707 F.3d 1081, 1089 (9th Cir. 2013) (find­ing the persecutor’s per­spec­tive alone may “mat­ter the most” for social dis­tinc­tion).
  5. 8 U.S.C. § 1158(b)(1)(A).
  6. Id. § 1101(a)(42)(A) (empha­sis added).
  7. See Mat­ter of Acos­ta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985), over­ruled in part on oth­er grounds by Mat­ter of Mogharra­bi, 19 I. & N. Dec. 439 (B.I.A. 1987).
  8. Id. at 233.
  9. Id.
  10. See M-E-V-G-, 26 I. & N. Dec. at 239–40; Mat­ter of S-E-G-, 24 I. & N. Dec. 579, 584 (B.I.A. 2008); Mat­ter of C-A-, 23 I. & N. Dec. 951, 959–60 (B.I.A. 2006), aff’d sub nom. Castil­lo-Aria v. U.S. Att’y Gen., 446 F.3d 1190 (11th Cir. 2006), cert. denied, 549 U.S. 1115 (2007). The B.I.A. pre­vi­ous­ly referred to “social dis­tinc­tion” as “social vis­i­bil­i­ty.” This caused con­fu­sion, in that some courts read it to require ocu­lar vis­i­bil­i­ty. Rather, the B.I.A. requires soci­etal recog­ni­tion of the group and changed the name accord­ing­ly. See Mat­ter of W-G-R-, 26 I. & N. Dec. 208, 216 (B.I.A. 2014).
  11. See Pirir-Boc v. Hold­er, 750 F.3d 1077, 1085 (9th Cir. 2014) (“In remand­ing this case to the BIA, we do not decide whether the BIA’s require­ments of ‘social dis­tinc­tion’ and ‘par­tic­u­lar­i­ty’ con­sti­tute a rea­son­able inter­pre­ta­tion of ‘par­tic­u­lar social group.’ We owe def­er­ence to the agency’s con­struc­tion of an ambigu­ous term, but only if the inter­pre­ta­tion is rea­son­able.”); Val­diviezo-Gal­damez v. Att’y Gen., 663 F.3d 582, 608 (3d Cir. 2011); Gati­mi v. Hold­er, 578 F.3d 611, 615 (7th Cir. 2009).
  12. See M-E-V-G-, 26 I. & N. Dec. at 242.
  13. Id.
  14. Id.
  15. Id. (quot­ing Mat­ter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 74 (BIA 2007)).
  16. Id. at 242.
  17. See Hen­riquez-Rivas, 707 F.3d at 1089.
  18. See id.
  19. See M-E-V-G-, 26 I. & N. Dec. at 243.
  20. Id.
  21. Id. at 242.
  22. The BIA hint­ed at this prob­lem in stat­ing its first rea­son why defin­ing social recog­ni­tion by the persecutor’s per­cep­tion alone is prob­lem­at­ic in M-E-V-G-: if the court were to allow a group to be defined mere­ly by virtue of a regime tar­get­ing them, then the inquiry into whether that group was tar­get­ed “on account of” their membership—the “nexus” prong—would become an illog­i­cal or super­flu­ous step in the test for grant­i­ng refugee sta­tus. See id. (“The struc­ture of the Act sup­ports pre­serv­ing this dis­tinc­tion, which should not be blurred by defin­ing a social group based sole­ly on the per­cep­tion of the per­se­cu­tor.”).
  23. See Mem­ber­ship in a Par­tic­u­lar Group, 65 Fed. Reg. 76,588 (pro­posed Dec. 7, 2000) (to be cod­i­fied at 8 C.F.R. pt. 208) (“Asy­lum and with­hold­ing cas­es are typ­i­cal­ly high­ly fact spe­cif­ic.”), https://www.uscis.gov/ilink/docView/FR/HTML/FR/0–0-0–1/0–0-0–62325/0–0-0–64099/0–0-0–64242/0–0-0–64298.html.