BIA MOVES TO “SOCIAL DISTINCTION” TEST IN SOME ASYLUM CASES

Immigration Blog

BIA MOVES TO “SOCIAL DISTINCTION” TEST IN SOME ASYLUM CASES

To be granted asylum, an applicant must show that he fears persecution because of his race, religion, nationality, membership in a particular social group, or political opinion. For almost 30 years now, immigration officials have struggled to define the characteristics and boundaries of what it means to belong to a particular social group. In a series of decisions, immigration officials have laid out tests, such as social visibility and particularity, to determine whether a proposed group will pass muster. Under prior case law, the social visibility test meant that the shared characteristic of the group should generally be recognizable by others in the community. In finding that noncriminal drug informants working against the Cali drug cartel in Colombia did not to comprise a cognizable social group, immigration officials highlighted the relative ocular invisibility of confidential informants. A federal circuit court of appeals heavily criticized the social visibility test, explaining that it makes no sense because persons targeted for persecution will take pains to avoid being socially visible (for example, a homosexual in a homophobic society will pass as heterosexual). Years later and in response to federal litigation, immigration officials just recently declared that

Contrary to our intent, the term social visibility has led some to believe that literal, that is, ocular or on-sight, visibility is required to make a particular social group cognizable under the Act. Because of that misconception, we now rename the social visibility requirement as social distinction. This new name more accurately describes the function of the requirement.

Matter of M-E-V-G-, 26 I&N Dec. 227, 236 (BIA 2014). Some advocates are rightfully concerned that simply renaming the test will not provide a meaningful change in the way this type of asylum case is adjudicated. To address this concern, immigration officials claim to have incrementally shifted the perspective of the requirement from being seen to being perceived by society (not by the persecutor) while quickly noting that society can consider persons to comprise a group without being able to identify the group™s members on sight. Id. at 240.

So what does a cognizable social group look like under this new social distinction test? Immigration officials may respond that decisions will continue to be made on a circumstantial, case-by-case basis. For example, landowners may pass the social distinction test if the society in question views them as a discrete group; such may be true in an underdeveloped, oligarchical society but perhaps not in a developed, democratic society.

How does one prove that they belong to a socially distinct group? The same day they announced the social distinction test, immigration officials denied asylum to a former Mara 18 (18th Street Gang) member due in part to the scant evidence of record that Salvadoran society considers former gang members a distinct social group. Evidence such as country conditions reports, expert witness testimony, and press accounts of discriminatory laws and policies, historical animosities, and the like may establish that a group exists and is perceived as distinct in a particular society.

Any person that fears returning or being deported to their native country should consult with an immigration attorney to see what options may be available to him or her. DMCA has a team of experienced attorneys to assist individuals in preparing and litigating their request for asylum.

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