Have you ever had the feeling that when someone is talking about one thing, in reality he is talking about something else? For example, a political leader may talk about some important principle that his country will never compromise about, which is a veiled warning to some other country, unnamed, that if it does not knock something off, it will pay a heavy price. Such is my feeling about two related Board of Immigration Appeals (BIA) cases that came out this week, Matter of W-G-R- and Matter of M-E-V-G-. Both address the issue of what is a “particular social group” in asylum law. The cases are both gang-related “particular social group” cases, but I get the feeling that the BIA is really bracing us for an upcoming decision on domestic violence “particular social group” cases.
I discussed the definition of “particular social group” issue a year ago here. I discussed that an asylum seeker must show he has a well-founded fear of persecution based on his race, religion, political opinion, nationality, or particular social group. Being afraid for your life is not enough – the fear must be “on account” of one of these five bases. A knotty issue is what a “particular social group” is – a phrase that is ambiguous and difficult to define. In that blog post, I discussed a Ninth Circuit case, Henriquez-Rivas v. Holder where the court rejected holdings of the BIA that on-sight recognition is necessary to constitute the social visibility aspect of particular social group. Further, the court faulted the BIA’s social visibility formulation for being unclear as to whether social visibility is to the petitioner, the petitioner’s social circle, the country as a whole, the United States, or the global community. The Henriquez-Rivas court suggested that the perception of the persecutors is what should matter most. The Henriquez-Rivas court was dealing with the BIA’s definition of particular social group that required that a social group be defined by “particularity” and “social visibility.”
In its two new cases, the BIA addressed the criticisms of Henriquez-Rivas and cases from other circuits critical of the definition. One major criticism was over the meaning of “social visibility.” In the new decisions the BIA said it was clarifying the definition of social visibility so that no one would think the term meant that one actually had to be able to see with one eyes a distinct social group, but rather that society as a whole must perceive or recognize the social group as distinct. In fact, to avoid any confusion, the BIA renamed this second element, “social distinction.” The BIA wrote in Matter of W-G-R-:
Our definition of “social visibility” clarified the importance of “perception” or “recognition” in the concept of the particular social group. The term was never meant to be read literally, but our use of the word “visibility” unintentionally promoted confusion. We now rename that requirement “social distinction” to clarify that social visibility does not mean “ocular” visibility either of the group as a whole or of individuals within the group any more than a person holding a protected religious or political belief must be “ocularly” visible to others in society. Henriquez-Rivas v. Holder,  (recognizing that social visibility means that members of the group would be perceived as a group by society).
Besides changing the phrase “social visibility” to “social distinction,” the BIA also gave lengthy explanations of the definition so everyone will be on the same page. It also stressed repeatedly in the decisions that this formulation as well as all previous iterations of the definition of “particular social group” are part of a natural refinement process occurring through case-by-case adjudication of “particular social group” cases and that there have never been radical departures from prior definitions of “particular social group.” The BIA writes in Matter of W-R-G-, “As numerous and varied persecution claims were later asserted, we continued to refine the definition of a particular social group, including the concepts of particularity and social visibility.” In Matter of M-E-V-G- the BIA writes:
The criteria of particularity and social distinction are consistent with both the language of the Act and our earlier precedents. By defining these concepts in Matter of C-A- and the cases that followed it, we did not depart from or abrogate the definition of a particular social group that was set forth in Matter of Acosta; nor did we adopt a new approach to defining particular social groups under the Act. See Henriquez-Rivas v. Holder, 707 F.3d at 1084 (describing our refinement of the definition of a particular social group). Instead, we clarified the definition of the term to give it more “concrete meaning through a process of case-by-case adjudication.
As is evident from this quotation, the BIA decisions give the impression that the court in Henriquez-Rivas saw no problem with how the BIA defined particular social group, when in fact the court rejected aspects of the social visibility (admittedly, based on the belief that it believed the BIA meant ocular visibility) and particularity formulations. The BIA also kept stressing over and over in both cases ad nauseum the evolutionary, case-by-case nature of its decisions which was the theme of Chief Judge Kozinski’s dissent in Henriquez-Rivas. If the BIA is going to cheese up to someone, it may as well be the Ninth’s Circuit’s Chief Judge Kozinski.
The two cases both deal with gang membership. Matter of W-G-R- deals with a former members of the Mara 18 gang in El Salvador who have renounced their gang membership. Matter of M-E-V-G- deals with Honduran youth asserting persecution because they have been actively recruited by gangs but who have refused to join because they oppose the gangs. Essentially, both are gang cases. The BIA has always been hostile to gang cases as have most circuit courts. In general, I think it is fair to say that jurists, lawmakers, and social and immigration activists are not by-and-large as concerned about the fate of gang members or potential gang members as they are with the fate of battered women. While addressing the issue of gangs, these cases are in fact addressing battered women cases. The handwriting is on the wall. In this case, the words, Mene, Mene, Tekel, Upharsin mean that the BIA is going to reject formulations of particular social group that include women who are the victims of domestic violence. Based on excerpts from Matter of M-E-V-G- here’s why I think the case is a preview for a battered spouse asylum case to come which I believe will be very bad for battered spouse asylum claims:
1. In Matter of M-E-V-G-, the BIA cites a prior quote, “the social group concept would virtually swallow the entire refugee definition if common characteristics, coupled with a meaningful level of harm, were all that need be shown.” The sentence is a flag that a common characteristic like being a battered woman and the fact of being battered will not suffice to be a social group. The kicker is the quote is from its decision in Matter of R-A-, a case from 1999 where the BIA found battered spouses do not constitute a particular social group. The Attorney General withdrew the decision two years later. Immigration law has been wanting since for a resolution of the issue of whether battered spouses constitute a particular social group.
2. Next, in Matter of M-E-V-G-, the BIA cites a case where it wrote, that a “particular social group” cannot be defined exclusively by the claimed persecution, that it must be “recognizable” as a discrete group by others in the society, and that it must have well-defined boundaries. Here, the BIA is telling us that battered spouses cannot be defined by being battered – a social group defined as women who have been battered by their spouses – is a no go. Further, what distinguishes battered spouses from other spouses except for the battering, the BIA is asking.
3. The BIA then noted that asylum protection does not attach to any suffering, but only suffering based on race, religion, nationality, membership in a particular social group, or political opinion. The BIA then states that “[T]he limited nature of the protection offered by refugee law is highlighted by the fact that it does not cover those fleeing from natural or economic disaster, civil strife, or war.” And is not spousal battery civil strife at its most basic? The BIA also noted that “the particular social group category was not meant to be ‘a “catch all” that applies to all persons fearing persecution.’”
4. Addressing particularity, the BIA states, quoting court decisions with which it agrees, “The group must also be discrete and have definable boundaries—it must not be amorphous, over-broad, diffuse, or subjective….. [a] particular social group must be narrowly defined and that major segments of the population will rarely, if ever, constitute a distinct social group). The particularity requirement clarifies the point, at least implicit in earlier case law, that not every ‘immutable characteristic’ is sufficiently precise to define a particular social group.” As the argument is that major segments of many countries’ populations are subject to domestic violence, this social group is not discrete and defined enough to qualify.
5. Next the BIA addresses “social distinction.” It writes, “the ‘social distinction’ requirement considers whether those with a common immutable characteristic are set apart, or distinct, from other persons within the society in some significant way. In other words, if the common immutable characteristic were known, those with the characteristic in the society in question would be meaningfully distinguished from those who do not have it. A viable particular social group should be perceived within the given society as a sufficiently distinct group. The members of a particular social group will generally understand their own affiliation with the grouping, as will other people in the particular society.” Are battered women specially identified in a society? Do battered spouses believe themselves belonging to a sisterhood with other battered spouses?
6. Next, the BIA writes, “that a group’s recognition for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor.” Then the Board continues, “… the persecutors’ perception is not itself enough to make a group socially distinct, and persecutory conduct alone cannot define the group.” Here again, the BIA separates the persecutor and persecution from the social group. Is a battered spouse recognized as a unique group, someone susceptible to being battered, by society at large rather than simply the battering spouse? Just what kind of formulations could one create to define battered women as a particular social group that could satisfy the elements of particularity and social distinctiveness. In later briefing in Matter of R-A-, the battered spouse case, the government suggested two definitions:
1. Women of a certain country who resist subordination by their intimate partners/ex-intimate partners and who try but cannot leave their relationships with their intimate partners constitute a particular social group.
2. Women of a certain country women who are viewed as property by virtue of their positions within a domestic relationship.
In light of the points raised in Matter of M-E-V-G-, will a battered woman be able to show and prove (remember, the applicant has the burden of proof) that she belongs to a distinct group recognized by society in general and to the woman herself as unique?
If one were to posit that subordinated women who cannot leave their husbands are a particular social group, would the society in question really recognize these subordinated women as a unique group or is it more likely all women that all women are distributed in an array from most subordinated to not subordinated at all, and the battered ones are not perceived as a socially distinguishable group? Further, do these women consider themselves members of some unique sisterhood? And if the existence of battered women is widespread and exists all across society, is the group’s limits delineable and defined, i.e., particular?
If one were to posit that all wives in some countries are viewed as property, would all wives satisfy the particularity prong? Does the society really view all married women that way or are some segments of society exempt from this opinion? Certainly everyone in a society cannot be that beastly. And if so, can the social distinctiveness prong be met?
Without a whole lot of difficult-to-produce evidence of societal opinion, under this formulation it could be very difficult to prove that a battered spouse belongs to a particular social group. The BIA likely is going to come out with a new battered spouse asylum decision and it is going to be bad if you are a battered spouse seeking asylum or an advocate of battered women. There are other ways of defining and analyzing ”particular social group” that could result in granting asylum based on “particular social group” for many battered spouses. The government brief in Matter of R-A- explores these definitions and analyses. The 9th Circuit’s expressed preference for defining “particular social group” in the eyes of the abuser expressed in Henriquez-Rivas would also favor at least some battered women as a particular social group. If including at least some battered spouses as a “particular social group” is what the Attorney General wants, he better get busy writing a decision to reverse the BIA or the efforts to protect battered spouses through the “particular social group” basis for asylum will end in failure. Posted February 10, 2014.