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Asylum and Particular Social Group Membership: Challenges to the BIA’s Definition

By Debbie Smith

Asylum may be available to individuals who have a well-founded fear of persecution in their home country based on one of five grounds: race, religion, nationality, political opinion, or membership in a particular social group.  The most difficult of the five grounds to interpret and the one that remains the most contentious more than 30 years after the enactment of the Refugee Act of 1980 is “membership in a particular social group.”  In the case Henriquez-Rivas v. Holder, No. 09-71571, Order (January 31, 2012), the Ninth Circuit Court of Appeals recently decided to reconsider its previous decisions on social group membership.  Similarly, other courts of appeals have wrestled with the BIA decisions on membership in a particular social group deciding that the Board’s requirements were contradictory and incorrect.  The facts of the Henriquez-Rivas case reveal the problems with the BIA’s unreasonable requirements. 

Why the BIA Decisions on Membership in a Particular Social Group Are Confusing.  The BIA first interpreted the term membership in a particular social group in the case, Matter of Acosta, 19 I.&N. Dec. 211 (BIA 1985).  In Acosta, the BIA held that persecution on account of membership in a particular social group meant that “persecution is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic.” Using the analysis of Acosta, the BIA found that Filipinos of mixed Filipino-Chinese ancestry, familial sub-clan in Somalia, young women from a specific tribe who had not been subjected to FGM and who oppose the practice, were members of a particular social group.  Individuals in these groups had a fundamental characteristic that could not nor should not be required to change. However, in 2006, the BIA added factors to the evaluation of membership in a social group. 

In In re CA, 23 I.& N. Dec. 951 (BIA 2006), the BIA required that an individual seeking asylum as a member of a social group demonstrate  the “social visibility” and “particularity” of the social group.  In C-A, the asylum applicant’s group consisted of noncriminal drug informants working against the Cali drug cartel.  The BIA held that confidential informants could not meet the “visibility” prong of the test for social group because they were by nature out of public view. The new requirements of “social visibility” and “particularity” became the new criteria by which the BIA determined whether an individual established membership in a particular social group.

Facts of Henriquez-Rivas.  The case of Henriquez-Rivas illustrates the strange consequences that result from an application of the BIA’s “social visibility” and “particularity” criteria.  At age 12, Ms. Henriquez-Rivas witnessed her father’s murder by the Mara Salvatrucha (MS) gang.  She testified in open court against the three MS members, two of whom were convicted of her father’s murder.  Suspected MS gang members visited Ms. Henriquez-Rivas’s home and school after the trial.  In fear for her life, Ms. Henriquez-Rivas fled El Salvador and sought asylum in the United States.  She claimed that she would be persecuted by MS gang members because of her membership in the particular social group composed of individuals who testified against gang members in open court.  The immigration judge granted her application for asylum but the BIA held the Ms. Henriquez-Rivas’ social group lacked “social visibility” and “particularity” and reversed the immigration judge’s decision.