The invisible refugee: examining the Board of Immigration Appeals' "social visibility" doctrine.

• Author: Pimentel, Melissa J. Hernandez
• Position: LAW SUMMARY

1. INTRODUCTION

   In 2009, over 39,000 people filed asylum claims with the United States immigration court system, seeking refuge from persecution in their native countries. (1) Of those claims, immigration courts alone granted asylum to over 10,000 applicants, granted withholding of removal to 1,959 applicants, and denied both forms of relief to another 9,620 applicants. (2) Overall, fifty-six percent of asylum or withholding of removal applications adjudicated by immigration judges were granted, (3) though the grant rate varied significantly in individual immigration courts. (4) According to U.S. Department of Justice statistics, New York, Los Angeles, san Francisco, Miami, and Atlanta received fifty-four percent of all asylum and withholding of removal applications filed with the courts. (5) While New York's immigration court granted seventy-three percent of asylum and withholding of removal applications, Atlanta's immigration court granted only twenty-five percent. (6) And while Miami's immigration court granted only twenty-six percent of its applications, San Francisco's court granted forty-seven percent. (7) Although there are numerous factors that contribute to this broad range of results, the conflicting interpretations of the phrase "membership in a particular social group" (8) utilized by the Board of Immigration Appeals (BIA) and the circuit courts of appeals likely have an effect as well.

   To qualify for asylum or withholding of removal, an applicant must qualify as a refugee as defined by the U.S. Immigration and Nationality Act (INA). (9) Under the INA, a refugee is a "person who ... is unable or unwilling to avail himself or herself of the protection of[] [his or her native country] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." (10) Of the five bases of persecution, membership in a particular social group is the second most frequently invoked in the United States, and yet it remains one of the least understood. (11) The term is subject to various interpretations and U.S. courts have struggled to apply it with any homogeneity. (12)

   The BIA's "social visibility" doctrine is arguably the most controversial interpretation of the term particular social group. Although the social visibility doctrine is not precisely defined, it essentially requires that individual members of a particular social group have characteristics that are recognizable by others in the members' native country. (13) The doctrine has been criticized by commentators as being inconsistent with past jurisprudential interpretations of particular social group. (14) In Gatimi v. Holder, the U.S. Court of Appeals for the Seventh Circuit became the first circuit to soundly reject the BIA's social visibility doctrine, criticizing its inconsistent application within the BIA. (15)

   This Law Summary first focuses on the development of the various approaches by the U.S. immigration court system in defining the term particular social group. (16) Second, it discusses the cryptic evolution of the social visibility doctrine. (17) Finally, it will explore how the conflicting applications of the social visibility doctrine among the U.S. courts of appeals have resulted in potentially unpredictable outcomes for those seeking protection in the United States, (18) and it will suggest that a clarification of the social visibility doctrine by either the BIA or Supreme Court would alleviate the conflict. (19)

2. LEGAL BACKGROUND

   1. Asylum and Withholding of Removal Procedures and Standards

      A noncitizen present in the U.S. may request relief from being returned to his or her native country in three ways. The noncitizen may apply for (1) asylum, (20) (2) withholding of removal, (21) or (3) protection under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, or Punishment (CAT). (22) In order for an applicant to qualify for asylum or withholding of removal, the noncitizen must show that he or she is a "refugee" as defined by the INA. (23)

      Although asylum claims and withholding (24) of removal claims are closely related, they involve different forms of relief, (24) procedures, (25) and burdens of proof placed on the applicant. (26) The federal government has discretion to grant or deny asylum and may deny an applicant asylum even if the applicant has satisfactorily shown that he or she is a refugee. (27) It may also deny asylum if there has been a change in the circumstances such that the applicant no longer has a reason to fear persecution if removed from the U.S. (28)

      Whereas the grant of asylum is discretionary, withholding of removal is mandated under the INA if the applicant meets all the statutory requirements to qualify as a refugee. (29) However, unlike an asylum applicant who needs only to show a "well-founded fear of persecution," withholding of removal is granted only if there is a "clear probability of persecution" if the applicant returned to his or her native country. (30) Because the "clear probability" standard is more difficult for an applicant to meet than the standard for asylum, those who are denied asylum ordinarily do not qualify for withholding of removal unless asylum is barred on discretionary, procedural, or technical grounds. (31)

      The Executive Office for Immigration Review (EOIR) adjudicates immigration cases. (32) In 1983, the Attorney General established the EOIR as part of the U.S. Department of Justice (DOJ). (33) The EOIR is headed by a director and is responsible for supervising immigration judges and the Board of Immigration Appeals (BIA). (34) The DOJ and EOIR are completely separate from the Department of Homeland Security; the Department of Homeland Security appears on behalf of the government before the immigration courts. (35)

      An asylum applicant may request relief "affirmatively" by submitting an asylum application to the United States Citizenship & Immigration Services (USCIS), usually upon entering the country. (36) In the alternative, an applicant may request asylum from an immigration judge "defensively," in response to expedited or regular removal proceedings. (37) When a noncitizen applies for asylum as a defensive claim, the adjudicator will also automatically consider the application as also seeking withholding of removal. (38)

      Asylum and withholding of removal claims are considered by an immigration judge in the first instance. (39) An immigration judge's final decision on the asylum application may be appealed to the BIA. (40) The BIA may reverse the immigration judge's factual findings only if they are clearly erroneous but "may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo." (41) An adverse BIA decision may be challenged by judicial review in the U.S. courts of appeals. (42)

      The courts of appeals may reverse the BIA's or immigration judge's factual findings only if "any reasonable adjudicator would be compelled to conclude to the contrary." (43) As a result of the U.S. Supreme Court decision of INS v. Aguirre-Aguirre in 1999, questions of law are reviewed de novo, but the court is required to apply "Chevron deference" to the BIA's interpretation of statutes. (44) In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court developed a two-step test to determine whether a reviewing court should give deference to an agency's interpretation of a statute under its administration. (45) First, if the reviewing court finds that "Congress has directly spoken to the precise question at issue," then no deference is given to the agency's interpretation of the statute, and the court "employ[s] traditional tools of statutory construction." (46) However, if the court finds that the "statute is silent or ambiguous with respect to the specific issue," then the court must defer to any "permissible construction" made by the agency. (47)

      Finally, if the BIA or immigration judge exercised discretion in denying an asylum application, then the court may only reverse the decision by finding an abuse of discretion. (48)

   2. Defining "Refugee" and "Particular Social Group"

      In the wake of World War II, the United Nations (UN) found an increasing need to revise and consolidate previous international agreements regarding refugee matters and to develop a "general definition of who was to be considered a refugee." (49) In 1951, a conference of United Nations representatives adopted the "Convention and Protocol Relating to the Status of Refugees" (UN Convention). (50) The UN Convention defines a "refugee" as any person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." (51)

      "Membership in a particular social group" is not defined by the UN Convention, (52) though it has been suggested that the term was added in order to create a broader application of refugee status and to prevent "a possible gap in the coverage of the U.N. Convention." (53) Nonetheless, the Office of the UN High Commissioner for Refugees (UNHCR) (54) cautions that the term should not serve as a "'catch-all' that applies to all persons fearing persecution." (55)

      In 1967, due to "the passage of time and the emergence of new refugee situations," the UN adopted the "Protocol Relating to the Status of Refugees" (Protocol). (56) The Protocol also calls for nations "to apply the substantive provisions of the 1951 [UN] Convention to refugees as defined in the Convention." (57) As a result of the U.S. accession to the Protocol, Congress adopted the Refugee Act of 1980 (Refugee Act), (58) which implemented an organized procedure for the admission of...