The Immigration and Nationality Act (INA) offers asylum to qualifying foreign refugees who have fled to the U.S. to escape persecution in their home country. To qualify, however, the refugee must be a member of a narrow class. Refugees who belong to a “particular social group” who have a well-founded fear of persecution in their home country comprise one such class. See 8 U.S.C. § 1101(a)(42)(A).
But what exactly qualifies as a “particular social group”? This question is the focus of today’s circuit split. Last Thursday Judge Bye of the Eighth Circuit called attention to a wide circuit split over this issue. The decision, Gaitan v. Holder, reaffirmed a prior decision by the Eighth Circuit in which the court emphasized the importance of "social visibility" and "particularity" as critical components of a “social group” whose members may avoid deportation by qualifying for asylum. No. 10-1724 (8th Cir. Mar. 1, 2012). For example, the Board of Immigration Appeals (BIA) relied on these two elements in refusing to recognize a “‘group of ‘affluent Guatemalans’ targeted for ransom” as a protected social group because the group's members were not perceived as distinct, nor were they visible as a group. Id. (citing Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69 (B.I.A. 2007) (finding that the general societal perception of wealthy people did not satisfy the “visibility” prong and that the group failed the “particularity” prong because they were “too amorphous”)).
In Gaitan, the Eighth Circuit similarly found that young adult males who flee to the U.S. to avoid gang violence in El Salvador fail to qualify as a “particular social group” whose members may obtain asylum in the U.S. In concurring with his colleagues, Judge Bye expressed concern that “[i]n essence, the decisions elevated the requirements of ‘social visibility’ and ‘particularity’ from merely some of the many factors in the holistic analysis of the issue to absolute prerequisites to establishing membership in a particular social group.” Gaitan, No. 10-1724 (Bye, J., concurring).
“This new approach to defining ‘particular social group,’” Judge Bye lamented, has “split the circuits as to the validity and permissible extent of the BIA's reliance on ‘social visibility’ and ‘particularity.’” So where do the other circuits stand on the matter? Judge Bye offered the following summary:
Compare Valdiviezo-Galdamez v. Holder, 663 F.3d 582, 603-09 (3d Cir. 2011) (concluding the BIA's "social visibility" and "particularity" requirements are inconsistent with prior BIA decisions and rejecting the government's attempt to graft these additional requirements onto petitioner's social group claims); Gatimi v. Holder, 578 F.3d 611, 615-16 (7th Cir. 2009) (criticizing the BIA's decisions in S-E-G- and E-A-G- for being "inconsistent" with the BIA's precedents in Acosta and Kasinga and for failing to explain the reasons for adopting the "social visibility" criterion); Benitez Ramos v. Holder, 589 F.3d 426, 430-31 (7th Cir. 2009) (denouncing the BIA's insistence on "social visibility," sometimes in its literal form, and charging the BIA might not understand the difference between visibility in a social sense and the external criterion sense); Urbina-Mejia v. Holder, 597 F.3d 360, 365-67 (6th Cir. 2010) (noting being a former gang member is an immutable characteristic and defining former members of the 18th Street gang as a "particular social group" based on their inability to change their past and the ability of their persecutors to recognize them as former gang members), with Lizama v. Holder, 629 F.3d 440, 447 (4th Cir. 2011) (upholding the BIA's definition of a particular social group as requiring that "(1) its members share common immutable characteristics, (2) these common characteristics give members 'social visibility, and (3) the group is defined with "sufficient particularity to delimit its membership"); Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009) (upholding the BIA's adoption of the "social visibility" requirement); Scatambuli v. Holder, 558 F.3d 53, 60 (1st Cir. 2009) (rejecting petitioners' claims the BIA is precluded from considering the visibility of a group); and Fuentes-Hernandez v. Holder, 411 F. App'x 438, 438-39 (2d Cir. 2011) (stating individuals who resisted gang recruitment in El Salvador do not constitute a "particular social group" because their proposed group lacked "social visibility" and "particularity" and because the alleged persecution "did not bear the requisite nexus to a protected ground").