by Clay Venetis*

Is the Board of Immigration Appeals’ (“BIA”) test for determining whether an asylum-seeker qualifies as a refugee too restrictive? Clay Venetis (’17) addresses this question based on his experience at the Asylum and Refugee Law National Moot Court Competition, held at the University of California Davis School of Law in March 2016. In order to obtain protection from persecution on the basis of their membership in a group not specified in the Immigration and Nationality Act (“INA”), asylum-seekers must show that their particular social group possesses “societal distinction” — recognition by society in general, and not just the alleged government persecutors — in their country of origin. This Contribution argues that the “societal distinction” requirement creates a “catch-22” that unfairly denies asylum to those who deserve it, and urges courts to adopt a more flexible, case-by-case approach to determining whether an individual qualifies for asylum.

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.3 To 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.

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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.”19 The 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.

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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.

* 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.