Particular Social Group: Errors in the BIA's Post-Acosta Analysis
In 2006, the Board of Immigration Appeals published its decision in Matter of C-A-, the first in a line of cases creating significant restrictions on what constitutes a cognizable particular social group in claims for asylum. It is worth noting that three years earlier, then Attorney General John Ashcroft purged the BIA of its five most liberal members; two other Board members who clearly would have been removed as well left just prior to the purge. Therefore, the ensuing line of BIA precedents addressing particular social group issues were something of a one-sided affair, with no liberal voices to temper or dissent from the majority.
Back in 1985, the Board decided Matter of Acosta, in which it set forth the applicable standard for particular social group determinations. Not surprisingly, particular social group has proven more difficult for courts to interpret than the other four grounds of race, religion, nationality, and political opinion. This is because one doesn’t start out asking the question “what is a race?” or “what is a religion?” Those terms are generally understood. Not so with particular social group, which as I learned it, was a last-minute creation designed to cover those clearly in need of refugee protection who aren’t covered by the other four grounds. In Acosta, the Board had to decide how broadly the “PSG” category should be interpreted. In response to evidence that the drafters of the 1951 Convention considered the ground of particular social group “to be of broader application than the combined notions of racial, ethnic, and religious group,” the Board applied the doctrine of ejusdem generis to conclude that a particular social group, like the four other categories it is grouped with, should be defined by characteristics that are immutable either because its members are unable to change them (like race and nationality), or because they should not, as a matter of conscience, be required to change them (like religion or political opinion).
The Acosta formulation was fair, and worked perfectly well for 21 years. It was consistent with the way particular social group was being interpreted and applied internationally, and was in no need of modification. Yet, the post-purge Board added two additional hurdles to particular social group determination: social distinction (previously called social visibility) and particularity. As discussed below, the result-oriented line of decisions are legally flawed.
Matter of C-A-’s “social visibility” analysis contains at least three errors. First, as Prof. Karen Musalo, Director of the Center for Gender and Refugee Studies (CGRS) at the University of California - Hastings Law School in San Francisco has pointed out, although the Board in Matter of C-A- cited to the 2002 UNHCR Guidelines on Particular Social Groups as a basis for adding the social distinction requirement, there is a significant difference between the Board’s holding and the UNHCR Guidelines. The Guidelines at para. 11 define particular social group as "a group of persons who share a common characteristic other than their risk of being persecuted OR who are perceived as a group by society." Note the use of "or." "Or" was intended to expand the group of those who satisfy for PSG status, by including both those who share a common characteristic OR possess what the Board now calls social distinction. However, the Board changed the "or" to an "and," which has the opposite effect of significantly narrowing those who can establish a cognizable PSG by requiring both a shared characteristic and social distinction.
Secondly, the Board found that the proposed group of confidential informants lacked social “visibility” (as it then called social distinction) because informants, by the nature of their conduct, are “generally out of the public view,” and “in the normal course of events...remain unknown and undiscovered.” However, this is irrelevant to whether the group itself is perceived by society to be distinct. For example, “Russian spies” by the nature of their conduct, seek to remain unknown, undiscovered, and out of the public eye. However, the group is often in the news, and is the subject of a popular TV show. It has served as the basis for characters in countless novels and films for decades, and has inspired the passage of anti-espionage laws. The Board thus erred in apparently confusing the “singled out” requirement of the individual asylum applicant with the “social distinction” requirement of the proposed group.
Thirdly, the Board in C-A- stated that visibility of a group of confidential informants “is limited to those informants who are discovered because they appear as witnesses or otherwise come to the attention of cartel members.” In that case, the cartel members were the persecutors. However, the Board has claimed that it is the perception of society, and not the persecutors, that determines social distinction.
The particularity requirement is also problematic. The element requires the social group to be defined by characteristics that provide a clear benchmark for determining inclusion. The Board requires the terms used to define the group to have “commonly accepted definitions in the society in which the group is a part;” and “[t]he group must also be discrete, and have definable boundaries--it must not be amorphous, overbroad, diffuse, or subjective.” See Matter of W-G-R-, 26 I&N Dec. 208, 214 (BIA 2014); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 76 (BIA 2007) (rejecting the proposed group as “too amorphous...to provide an adequate benchmark for determining group membership”).
However, in applying the new requirement of particularity to particular social group determinations only, the Board violated the doctrine of ejusdem generis that it had invoked in Acosta. This is significant, as determinations under the other four protected categories would not necessarily stand up to the particularity determination. In finding the proposed group of “former members of the MS-13 gang in El Salvador who have renounced their gang membership” to lack particularity, the Board stated that the proposed group “could include persons of any age, sex, or background.” Matter of W-G-R-, 26 I&N Dec. 208, 221 (BIA 2014). Of course, race, religion, and nationality will always include persons of any age, sex, or background; and political opinion could also draw from as wide a range of the population.
In a claim of persecution on account of religion, would the Jewish religion, for example, withstand the particularity requirement? There is a strong chance that such group would be found too amorphous to provide an adequate benchmark for inclusion. For example, a 2013 study by the Pew Research Center found that 14 percent of American Jews stated that they were raising their children “partially Jewish.” Do “partially Jewish” claimants merit inclusion in the group? What about those who only attend synagogue once a year, on Yom Kippur? Or those who consider themselves culturally Jewish, but don’t observe the religion? Or those with only a Jewish father (who would therefore not be considered Jewish under traditional Jewish law, but would be considered Jewish in the more liberal Reform branch of the religion)? Where is the benchmark for inclusion?
Looking to the other asylum categories, is one said to possess a political opinion because she votes once every four years for candidates of a particular party, or because she has canvassed for a party’s candidates, given speeches at rallies, or run for office herself? In this time of multiculturalism, where individuals of mixed race or ethnicity may choose to identify with a particular race or nationality from among two or more choices, would those categories also be found too amorphous?
In addition to the above shortcomings, attorneys have pointed out that particularity and social distinction often work at odds with each other. Groups that rank high on society’s radar are usually not defined with the type of specific parameters for inclusion, and would therefore be dismissed as too “amorphous.” Conversely, groups defined with the exacting precision demanded of the particularity requirement tend to be too cumbersome to register in the zeitgeist. As an example, the term “soccer moms” became popular in American society several presidential elections ago, when “winning the soccer mom vote” was deemed a significant goal. So while the term “soccer moms” clearly possessed social distinction, it would undoubtedly be found too amorphous to satisfy the particularity requirement. However, “married middle-class suburban women between the ages of 32 and 47, who spend a significant amount of time driving their school-aged children to multiple after-school activities, which may or may not include soccer” might be particular enough, but will not grab public attention to the degree required to qualify as social distinction.
In spite of the above shortcomings, the federal circuit courts have largely accorded deference to the Board’s flawed interpretation. Although immigration judges are bound by the Board’s holdings, practitioners may raise the above issues in order to create a record for eventual review by the circuit courts. The Seventh and Third Circuits have rejected the particularity requirement for different reasons than those stated above. As I am not aware of any circuit court addressing the issue of whether religion or any other protected ground would stand up to the particularity requirement, I present it as an argument worth pursuing.
Copyright 2017 Jeffrey S. Chase. All rights reserved.