Academic journal article Missouri Law Review

The Invisible Refugee: Examining the Board of Immigration Appeals' "Social Visibility" Doctrine

Academic journal article Missouri Law Review

The Invisible Refugee: Examining the Board of Immigration Appeals' "Social Visibility" Doctrine

Article excerpt

I. 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)

II. LEGAL BACKGROUND

A. 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). …

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