Deference Condoning Apathy: Social Visibility in the Eleventh Circuit

• Citation: Vol. 35 No. 3
• Publication year: 2019

Deference Condoning Apathy: Social Visibility in the Eleventh Circuit

Adriana C. Heffley
Georgia State University College of Law, adrianaclaireheffley@gmail.com

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DEFERENCE CONDONING APATHY: SOCIAL VISIBILITY IN THE ELEVENTH CIRCUIT

Adriana Heffley^*

INTRODUCTION

Lola Mendez De Vasquez, a Salvadoran single mother of two girls, realized that gang members (Maras) in El Salvador were attempting to recruit her daughters.¹ The Maras demanded that Lola allow her eldest daughter, Heidy, to join the gang. After Lola refused, the Maras threatened to kill her family."² One day, during Heidy's walk home from school, two Maras raped her.³ Knowing the Maras would kill her and her family if she said anything, Heidy did not report the rape."⁴ El Salvador, which has one of the highest homicide rates worldwide, has a highly evolved gang warfare system in which "rape is used as a weapon" to terrorize the community.⁵ Heidy's cousin,

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Yessenia, also endured threats from the Maras to join their gang on multiple occasions.⁶ Eventually, the Maras threatened Yessenia at knife-point, promising to rape her or kill her family if she did not join them.⁷ Yessenia explicitly rebuffed the Maras, countering that "they did bad things" and that "they were going to hell."⁸

Seeking refuge, the women entered the United States without inspection in 2005.⁹ After receiving notices to appear before a Florida immigration judge for removal proceedings, the women applied for asylum.¹⁰ To succeed in their claims, the women would have to prove that their experiences at the hands of the Maras amounted to persecution (or alternatively, that they possessed a well-founded fear of future persecution) on account of race, religion, nationality, political opinion, or membership in a particular social group ("Particular Social Group"), rendering them unable or

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unwilling to return to El Salvador.¹¹ As asylum seekers applying in the southeastern United States, the women faced odds of success varying wildly from approximately 2%-75%, depending on the immigration judge.¹² Had the women applied in Atlanta, Georgia, they would have faced a 98% chance of failure.¹³ Of the three women, only Heidy was found to have suffered persecution.¹⁴ However, the Eleventh Circuit affirmed that Heidy, who sought asylum under the proposed Particular Social Group of "young Salvadorian [sic] students who expressly oppose gang practices and values and . . . wish to protect their family members against such practices," failed to establish membership in a "cognizable" Particular Social Group.¹⁵ Approving the application of two relatively new criteria, "particularity" and "social visibility," the Eleventh Circuit found that Heidy was ineligible for asylum because no evidence indicated that the Maras "limited" their recruitment to

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students in Heidy's position and because students in Heidy's position were not "generally . . . recognizable by others in the community."¹⁶

The criteria used to deny Heidy's asylum application, particularity and social visibility, were not originally part of the Particular Social Group inquiry.¹⁷ Social visibility, which requires asylum-seekers to prove that they were perceived as part of a "group" by society at large in their countries of origin, was not referenced as a requirement to forming a Particular Social Group in the Eleventh Circuit until 2006.¹⁸ Before the early 2000s, the circuit courts generally agreed that establishing persecution on account of membership in a Particular Social Group mirrored the requirement for establishing persecution based on race, religion, nationality, or political opinion.¹⁹ This consensus recognized that each ground "describes persecution aimed at an immutable characteristic: a characteristic . . . either . . . beyond the power of an individual to change or . . . so fundamental to individual identity or conscience that it ought not be required to be changed."²⁰ The social-visibility requirement, which gained acceptance in the circuit courts beginning in 2006 to 2008, has been roundly criticized as irreconcilable with the pre-2000 line of accepted case law by commentators, international organizations, and some circuit courts.²¹ In their zeal to ensure that Particular Social Groups do not function as "catch-alls" for individuals who cannot neatly tie their persecution to their race,

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religion, nationality, or political opinion, the courts have levied a requirement that results in vastly different outcomes for similar case facts and denials of claims that would have fulfilled the requirements for asylum before 2006.²² United States circuit courts' continued rubber-stamping of lower courts' applications of the social-visibility criterion has strangled asylum grant rates and emboldened callous treatment toward asylum-seekers in immigration courts like Atlanta, where immigration judges have been observed belittling applicants and conducting proceedings without interpreters.²³ Were Lola, Yessenia, and Heidy to apply for asylum in Atlanta today, not only would they face a one-in-fifty chance of success but they would relive their trauma before judges noted for "appearing wholly disinterested" in asylum applicants' testimonies and only becoming alert when "scold[ing] an attorney or a respondent."²⁴

This Note examines the history of the social-visibility requirement for Particular Social Groups in Eleventh Circuit asylum claims and the adjudication disparities that have resulted from its imposition in the southeastern United States. Part I of this Note introduces the asylum application process, examines the historical treatment of Particular Social Groups nationally, and traces the recent restrictions on Particular Social Groups within the Eleventh Circuit in particular.²⁵ Part II compares the Eleventh Circuit's treatment of Particular Social Groups to treatment in the Third and Seventh Circuits and considers how previously successful claims for asylum would fare under the current state of the law in the Eleventh

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Circuit.²⁶ Last, Part III proposes that the Eleventh Circuit adopt a standard suggested by a prominent source of United States asylum law to evaluate Particular Social Groups and weighs the effects of this standard.²⁷

I. Background

A. Origins of United States Asylum Law

The 1951 Convention Relating to the Status of Refugees ("1951 Convention")—the "only global legal instrument dealing with the status and rights of refugees"—originally set forth the modern definition of "refugee" and defined "the kind of legal protection, other assistance, and social rights " that governments should provide to refugees.²⁸ The United Nations High Commissioner for Refugees ("UNHCR") serves as the "guardian" of the 1951 Convention and subsequent 1967 Protocol.²⁹ In 1980, the United States codified its international treaty obligations with the Refugee Act of 1980, declaring, "[I]t is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands," and promising to "encourage all nations to provide assistance and resettlement opportunities to refugees to the fullest extent possible."³⁰

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B. Applying for Asylum

1. Elements of Successful Asylum Claims

To establish eligibility for asylum, applicants must prove that they are unable or unwilling to return to their country of origin because of past persecution (or a "well-founded fear" of future persecution) "on account of race, religion, nationality, political opinion, or membership in a Particular Social Group.³¹

The elements of an asylum case are not statutorily defined; they have evolved through case law over the last several decades.³² Persecution "requires more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty."³³ Applicants need to prove that one of the grounds was "at

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least one central reason" for the claimed persecution.³⁴ The phrase "on account of" requires that the persecution be "causally linked" to one of the statutory grounds.³⁵ Among the five grounds (race, religion, nationality, political opinion, or membership in a Particular Social Group), Particular Social Groups—the most amorphous, politically vulnerable ground—generates the most confusion and debate.³⁶

2. Procedure

Applicants can seek asylum affirmatively within one year of arrival in the United States (subject to certain exceptions) or defensively after being placed in removal (deportation) proceedings.³⁷ Affirmative asylum seekers attend nonadversarial

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interviews with asylum officers.³⁸ Defensive asylum seekers and affirmative asylum seekers whose applications were denied by an asylum officer (and are not present in the country under another legal status like a work visa) are issued a notice to appear for a hearing in front of an immigration judge.³⁹

During this adversarial process, the immigration judge hears arguments from the applicant and from the United States government (represented by an attorney from Immigration and Customs Enforcement (ICE)).⁴⁰ Approximately 91% of asylum seekers who face this hearing without an attorney are denied asylum.⁴¹ If the immigration judges exercise their discretion to deny the application, the decision can be appealed to the Board of Immigration Appeals ("BIA"), the United States's "highest administrative body for interpreting and applying immigration laws."⁴² Faced with another

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denial, asylum seekers may seek federal review by a court of appeals. These appeals rarely succeed. The Courts of Appeals usually defer to the BIA under the doctrine of Chevron deference, which means, that the BIA's conclusions can only be overturned if "any reasonable adjudicator would be compelled to conclude to the contrary."⁴³ Considering the "extreme hardships and difficulties that result" from deportation, some commentators have...