The Board of Immigration Appeals, or BIA, recently issued a decision, Matter of W-Y-C- & H-O-B, 27 I&N Dec. 189 (BIA 2018), that requires asylum applicants in removal proceedings to clearly delineate on the record before the immigration judge, or IJ, the “particular social group” in which they claim membership. The BIA further held that it would not consider newly proposed particular social groups on appeal that were not presented before the immigration judge.
In order to obtain asylum, an applicant must establish that he or she has suffered persecution or has a well-founded fear of persecution on account of race, religion, nationality, political opinion and/or a particular social group. One of the most challenging areas of asylum law lays in the determination of a particular social group. The particular social group definition is interpreted in federal and BIA case law, and these interpretations have had a long and windy road over the years.
The first case to interpret the meaning of “particular social group” was Matter of Acosta, where the BIA held that persons forming a particular social group must share common immutable and/or fundamental traits such as sex, color, kinship ties, or shared past experience such as former military leadership or land ownership. 19 I&N Dec. 211, 233 (BIA 1985). Applying this reasoning, the BIA concluded that members of taxi collective did not share either immutable or fundamental traits and thus did not form a particular social group.
For decades, this was the only test used by the BIA to determine a particular social group. In the past several years, however, the BIA has narrowed the definition of particular social group, see Matter of C-A- 23 I&N Dec. 951 (BIA 2006), until it finally came up with a very narrow three-part test. Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014). The three parts are whether the group (1) shares immutable and/or fundamental traits, (2) is “socially distinct,” and (3) is “particular.”
Both the social distinction and particularity prongs sometimes require a factual analysis of background country conditions, as well as factual elements of the asylum claim. The BIA held that the determination of particular social group would have be based on case-by-case analysis; one social group could be viable if from country X, but not if from country Y. In order to formulate a cognizable social group the asylum applicant, or his/her attorney, would have to research whether in the country of alleged persecution, the particular social group formulation meets both the social distinction and particularity prong. Thus, in a nutshell, determining a particular social can be quite complicated, given that the case law is evolving both in the BIA and the federal courts.
Asylum adjudicators have the affirmative duty to elicit testimony when evaluating claims for asylum, including factors not elicited by the asylum applicant. Both the UNHCR Refugee Handbook and the USCIS RAIO Combined Training Course, Interviewing, Eliciting Testimony, require asylum adjudicators to elicit testimony and fully explore all asylum bases, even if the asylum applicant is unaware of them or did not advance them originally. Thus, asylum officers are required to determine if a claim fits with the required social group formulation.
Matter of W-Y-C & H-O-B
In Matter of W-Y-C & H-O-B, the respondent, through counsel, articulated the particular social group of “[s]ingle Honduran women age 14 to 30 who are victims of sexual abuse within the family and who cannot turn to the government,” and the IJ concluded that this group was not cognizable. 27 I&N 189, 189-190 (BIA 2018). On appeal to the BIA, the respondent advanced the particular social group of “Honduran women and girls who cannot sever family ties.” The BIA, citing to, Matter of A-T-, 25 I&N Dec. 4, 10 (BIA 2009), concluded it could not review this different social group formulation because it was not advanced before the IJ. The BIA reasoned that it is the asylum applicant’s burden to clearly articulate all potential particular social groups so that the IJ can analyze them and include the analysis in the decision. The BIA would then be able to review this analysis. The BIA in this case did not analyze whether the record would have supported the social group advanced by the respondent on appeal. While the BIA’s decision may seem straightforward on its face, it is problematic for two reasons.
First, this decision could be subjected to varied interpretations depending on the IJ adjudicating the case. The BIA did not specifically indicate at what time during the proceedings the delineation of a particular social group must be offered: at the initial master calendar, at the last submission date, before testimony, or after testimony and during closing argument. Previously, the BIA held in, Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), that IJs must allow a full hearing on the merits of any application, without the respondent first having to establish prima facie eligibility for the requested relief. Despite the BIA’s intention of requiring a developed record for appeal, there is definitely the danger of some IJs interpreting this decision to mean that all proposed particular social groups be offered at the initial master calendar, before setting an individual hearing. This would conflict with Matter of E-F-H-L-. Such requirements could preclude valid asylum claims that could have been further developed over time with more research and factual inquiry or as country conditions or personal circumstances change.
Second, the BIA did not consider whether pro se litigants (including many unaccompanied minors) could ever be able to construct a cognizable particular social group given the complexities of the law. While asylum officers have the affirmative duty to elicit testimony and consider all claims – even those not advanced by the applicant – IJs are only required to inform pro se litigants of potential forms of relief, not how to develop their claims. A victim of domestic violence or someone who has been persecuted because they cooperated with law enforcement may never know they may fall within a cognizable social group. Even if they did, they certainly may not know how to adequately identify such a social group. Requiring pro se litigants to establish a cognizable social group, at any stage of the proceedings, puts them at a serious disadvantage.
Given the evolution of the case law on particular social group before the BIA and circuit courts, it would be important to present all proposed social groups as soon as the facts that support them come to light. Sometimes this means briefing any and all proposed social groups, or presenting them on the record at every hearing. However, this may not be possible for a pro se litigant given the sophisticated nature of delineating a particular social group.