By Ashley Huebner and Lisa Koop
On Friday, February 7, 2014, the Board of Immigration Appeals issued two precedential decisions that undermine several years of positive developments in asylum law: Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) and Matter of W-G-R-, 26 I&N Dec. 20 (BIA 2014). These decisions put at risk the ability of men, women, and children to seek asylum when their fear of persecution is based on their gender; sexual orientation; resistance to recruitment and extortion by criminal organizations; status as former child soldiers or trafficking victims; and many other common and well-established reasons that individuals seek protection in the United States.
The asylum seekers who seek protection under these circumstances base their claims on their fear of persecution on account of their membership in a particular social group, one of the five protected grounds (in addition to race, religion, nationality, and political opinion) on which asylum claims can be based. The definition of particular social group cannot be found in the immigration statute or regulations; rather, the Board developed a definition in Matter of Acosta in 1985. In Acosta, the Board looked at the other protected grounds and determined they all reflected characteristics that people either could not change (race and nationality) or should not be required to change (religion and political opinion). Thus, the Board found that a particular social group must be based on a characteristic that group members cannot change or should not be required to change. Acosta remained the test for establishing membership in a particular social group until 2008, when the Board issued Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008) and Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008). Through these decisions, the Board introduced two additional requirements for establishing a particular social group: social visibility (a group must be recognizable) and particularity (a group must be defined in a discrete and non-amorphous way).
S-E-G- and E-A-G-: Confusing the Asylum Analysis
The immigration legal community harshly criticized these two decisions. The Board’s reasoning in S-E-G- and E-A-G- was often circular and frequently conflated social visibility and particularity with nexus (the “on account of” requirement), which is separate question from whether the particular social group is viable in the first place. For example, in analyzing the S-E-G- respondents’ proposed group of “Salvadoran youth who have resisted gang recruitment, or family members of such Salvadoran youth,” the Board held that the group (1) failed the particularity test because the gang could have had many different motives for targeting Salvadoran youth, and (2) failed the social visibility test because members of the group weren’t targeted for harm more frequently than the rest of the population. These justifications for denying asylum rest on a finding that the asylum seekers were not harmed because of their status as gang resisters – which is a nexus issue – and not because the particular social group suffers from legal infirmity.
In addition, the Board’s decisions left unclear whether “particularity” only required that a group be defined with clear, objective words, or if a group must also be narrow and homogenous. The Board also created confusion as to whether social visibility meant literal or figurative visibility. In a subsequent asylum case before the U.S. Court of Appeals for the Seventh Circuit, Judge Posner queried whether an asylum seeker needed to put a sign on his back announcing his social group in order to qualify for asylum. Finally, the decisions completely ignored the fact that particular social groups the Board had previously accepted, such as young women of a particular tribe who oppose the practice of female genital mutilation, or gay men from a particular country, no longer appeared viable under this new test.
Federal Courts Respond to Restore Clarity
Faced with these issues, some U.S. Courts of Appeals rejected social visibility and particularity. The Third Circuit rejected the social visibility and particularity requirements entirely, the Seventh Circuit rejected social visibility and issued an en banc decision stating that the breadth of a group was irrelevant to the social group analysis, and the Ninth Circuit issued an en banc decision stating that a social group need not be homogenous to be viable under asylum law.
These decisions were important steps toward bringing U.S. asylum law back in line with international refugee law. They also helped to clarify that a woman who had been subjected to domestic violence in a country that refused to protect her or a boy who was shot because he refused to join a gang in a country where gang violence is widespread may both merit asylum in the same way a political opposition member merits asylum if he is targeted by a dictatorial government for refusing to join the ruling party.
M-E-V-G- and W-G-R-: Rolling Back Courts’ Progress
With the Board’s latest rulings, however, U.S. asylum law took a gigantic step backward. The two decisions, Matter of M-E-V-G- and Matter of W-G-R-, restated and emphasized the Board’s decision in S-E-G-, making it clear the Board rejected the criticisms levied by the Courts of Appeals. In these decisions, the Board clarified that social visibility does not mean literal visibility, but instead refers to whether a group is recognized in society as a distinct entity. The Board therefore renamed the requirement “social distinction.” The decisions do not provide any new interpretation or clarification of the flawed “particularity” requirement. Significantly, in W-G-R-, the Board questioned the viability of social groups based on “former” membership—a type of social group that has generally been well-accepted in part because one’s former affiliation or status is inarguably immutable. In this case, the Board found that the proposed group of “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” was too diffuse and broad because “the group could include persons of any age, sex, or background.” To meet the particularity requirement, the Board stated that the group would need to be defined with additional specificity, such as defining the group by “the duration or strength of the members’ active participation in the activity and the recency of their active participation.” Adding such specificity not only potentially compels asylum seekers to draw artificial lines around a proposed group, but also risks causing the group to fail the social distinction prong of the test because asylum seekers will have difficulties establishing that societies view these contrived groups as distinct entities. For example, most societies don’t view “former gang members who are between 25 and 30 years old” as a group that is distinct from a group comprised of “former gang members who are between 30 and 35 years old.” Taken together, the Board’s concepts of particularity and social visibility amount to a Scylla and Charybdis scenario. Attempting to avoid the pitfalls of one will only result in death by the other.
These decisions compound the confusion caused by the Board’s decisions in S-E-G- and E-A-G- - and dramatically increase the evidentiary burden on asylum seekers striving to establish eligibility for protection. Because social group-based claims must now be supported by evidence that society in the country of origin recognizes the group as distinct, a sociologist or country condition expert will inevitably be needed in most cases in order to establish that a social group is viable. How else will a woman who fears being forced into a marriage be able to establish that unmarried women in her country are considered a recognizable group? This is dramatically different from the position of asylum applicants who seek protection based on their religion or political opinion and can demonstrate through reports and news articles that their religion or political party exists. The added expense will be the demise of many asylum claims presented by low-income or pro se applicants.
Moreover, because the Board believes a social group based on former membership needs to be limited by the “duration or strength of the members’ active participation,” it is unclear how a pro se asylum applicant can be expected to formulate a social group with the specificity necessary to meet the Board’s approval. A former child soldier who fears being persecuted in her home country because of that former affiliation will not know the duration of membership necessary to formulate a social group—she just knows that people in her country wish to harm her for something she cannot change.
Our country’s domestic and international obligations require us to provide protection to individuals who face persecution in their home countries based on characteristics they cannot or should not be required to change. The Board’s decisions erect unreasonable obstacles for those seeking that protection.
Please click here for NIJC's practice advisory for attorneys representing clients with particular social group-based asylum claims after Matter of M-E-V-G- and Matter of W-G-R- (updated April 2015).