BIA Re-Visits “Social Visibility” in Published Decisions
By Bradley Jenkins
On February 7, 2014, the Board of Immigration Appeals published two companion cases clarifying its interpretation of the phrase “particular social group” in the definition of a refugee. Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), recast the Board’s “social visibility” test for a valid particular social group – renaming it “social distinction.” Further, the decisions emphasize that whether a social group exists is something that the applicant must prove with evidence.
The BIA had previously decided that when an asylum applicant asserts that he or she will be harmed on account of his or her membership in a particular social group, the group must be “socially visible.” In these new cases, the Board clarified that it had never intended the term social visibility to be understood as literal, on-sight visibility. People do not need to be able to identify a person as a member of the group just by looking at them. Because of confusion around the term “visibility,” the Board renamed the requirement as “social distinction.” The social distinction test asks whether the society in question considers people with the characteristics of the applicant to be a distinct group of people.
A major theme of both opinions was that the applicant must prove in every case both the existence of the group in society and that the persecutor is likely to target the applicant on account of his or her group membership. This can be a good thing. A characteristic, such as whether a person owns land, may be extremely important in one society, but irrelevant in another. Likewise, as time goes on, it is possible for a social perception to crystallize into a sense of “group” that was previously lacking. However, this evidence-based approach is a double-edged sword; it requires advocates to prove “social distinction” with evidence, or else the claim will fail. In fact, the Board ruled in W-G-R- that because the applicant did not include evidence about how society in El Salvador tells the difference between a gang member and a former gang member, the applicant had failed to prove that “former gang members” formed a distinct “group” in El Salvador.