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
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An emerging issue in U.S. asylum claims based on "membership in a particular 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 "immutable" characteristic," one that an individual either cannot change or should not be required to change because it is fundamental to identity of conscience. External perceptions are irrelevant to the Acosta standard. Among the major common law countries, the United States, Canada, New Zealand, and the United Kingdom follow the principled "protected characteristic" approach. Australia, on the other hand, has emphasized social perceptions, while also taking immutable characteristics into account. In 2002, the United Nations High Commissioner for Refugees (UNHCR) issued guidelines that present the "protected characteristic" and "social perception" 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 characteristic exists, to determine whether the group is recognized by society. 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. Furthermore, in AM-E-, the BIA failed to follow the sequential steps set forth by the UNHCR, suggesting in an ambiguous and internally inconsistent decision that the "protected characteristic" and "social visibility" tests may now represent dual requirements in all social group cases. Read together, these cases represent a significant departure from precedent. The BIA's new emphasis on "social visibility" 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 this background, explaining how it diverges from domestic and international decisions. In Part II, I argue that adjudicators in the United States should not give deference to the BIA's decisions in C-A- and A-M-E- because they do not provide a permissible interpretation of the Convention and represent a sudden, unexplained change in the way the BIA defines "membership of a particular social group." In Part III, I turn from the legal reasons for rejecting the "social visibility" test to the practical challenges involved in applying this approach, drawing on studies in the fields of cognitive science and psychology to show that public perception is highly context-dependent and inherently difficult to pin down. This Part also discusses the difficult evidentiary issues that will confront adjudicators when determining the perceptions of a foreign society. Part IV highlights how the "social visibility" test may have a profound, negative impact on asylum cases related to sexual orientation and gender, where not only the harm is hidden in the private sphere, but the group members themselves may be veiled from sight. With respect to sexual orientation, the United States and international authorities have rejected the notion that gays and lesbians who remain "discreet"--and therefore "invisible"--are not protected by the refugee definition." Under the "social visibility" test, however, their claims may well be denied. Indeed, even claims brought by "out" gays and lesbians may be rejected if they come from societies that do not recognize homosexuals as a group or homosexuality as a social identity. In addition, the "social visibility" test poses a new twist in the public/private distinction that has long pervaded the debate around gender-based asylum. Initially, gender-related forms of harm, such as sexual violence, domestic abuse, female genital cutting, and honor killings were dismissed as "private matters" that did not constitute persecution. In the same way that "private" harm was discounted, so, too, was harm perpetuated by private individuals (i.e., non-state actors), such as family members. While most countries now recognize that "private" harm can constitute persecution and that nonstate actors can perpetrate harm where the state fails to provide protection, asylum cases brought by women still raise complex questions. The new "social visibility" requirement raises the specter of the private/public distinction by requiring members of a particular social group to have a public face. Thus, it may well result in the denial of asylum claims brought by some of the most vulnerable individuals, notwithstanding the existence of a "protected characteristic." Finally, I conclude that adjudicators should reject the "social visibility" approach because it destroys Acosta's principled framework, represents an abdication of U.S. obligations under the 1967 Protocol, cannot be applied in a consistent way, and ignores the complex relationship between visibility and power.
