DIGITAL ASYLUM: WHAT CAN ONLINE SOCIAL GROUPS TELL US ABOUT THE CURRENT STATE OF U.S. ASYLUM LAW?

By: Cooper Christiancy, Volume 104 Staff Member

In William Gibson’s 1984 cyberpunk novel Neuromancer, a dystopian technological landscape bounds social identity around lines of class, legality, and cyber-implants.[1] Neuromancer follows the trail of a washed-up antihero whose identity is structured around his interactions with “the matrix,” the sum total of humanity’s digital experience.[2] Gibson’s society revolves around what we would now understand as online identity, i.e. the intersection between digital communication and social identity.[3] Essentially, the novel is a prescient look at the collapsing distinction between “offline” and “online” identity.[4]

While much of Gibson’s dystopian vision has yet to come true, this collapsing distinction between digital and analog identity is happening. Online social groups have changed the nature of existing identity categories or constitute their own unique identity groups. Now, people do not merely bring their offline identities with them into cyber-space, but they are engaged in affirmative identity creation in online communities.[5]

I.  ONLINE IDENTITY AND ASYLUM LAW

How should every aspect of the law react to our changing digital reality? One of the unexplored facets of this question relates to the responsibility of governments to protect those persecuted solely because of their online identity. In the United States, much of the adjudication over the federal government’s responsibility to protect the internationally persecuted occurs in asylum law proceedings. Under federal statute, asylum is granted to “any person who is outside any country of such person’s nationality . . . who is unable or unwilling to return to . . . that 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.”[6]

What happens when “particular social groups” (“PSGs”) exist through online identities? Put another way, does persecution based on a purely online social group make an individual eligible for asylum?

Consider a hypothetical.[7] Jean Doe, a citizen of Nationland, is a member of an online forum and social group called the “Digital Witnesses.”[8] The Witnesses are well known in Nationland for being ever-present and recognizable online presences. They have their own online dialect, prefer to interact online only with other Witnesses, use pseudonyms, and are characterized by their irreverent humor. The Witnesses do not consider themselves a religion and they do not espouse any overtly political beliefs. Importantly, the Witnesses do not engage in offline activities that could identify them as Witnesses. Their activities and identities stay entirely online.

The Nationland authorities and most of the country’s population do not like the Digital Witnesses. They accuse them of violating social norms, rejecting religious teachings on modesty and chastity, and forsaking their Nationlandish identity. Through their online surveillance techniques, the authorities discover that Jean Doe is a Digital Witness. Police arrest Jean, hold her indefinitely, and beat her. Jean escapes and flees to the United States. Is Jean eligible for asylum?[9] Does the United States asylum law protect individuals persecuted solely because of their online identity?[10]

II. WHY ASK?

There are two worthy benefits to asking whether online only social groups are PSGs.

First, this a novel question on the intersection between emerging identities and traditional legal standards.[11] Even though the Digital Witness hypothetical remains hypothetical, the trends identified above suggest that it could become realized in some form. Furthermore, because the Board of Immigration Appeals (BIA) requires that asylum seekers advance their specific PSG formulations before the immigration judge, practitioners have an interest in identifying any viable claims, no matter how unique.[12]

Second, PSG analysis is currently in a state of flux after the Attorney General’s precedent-defying decision in Matter of A-B-.[13] Working through the implications of this new PSG framework through a forward hypothetical has didactic benefits.

III.  THE PSG TEST

The particular social group nexus for asylum is notable because it lacks a clear statutory definition or indicia of Congressional intention.[14] The Board of Immigration Appeals has defined a PSG as “defined by common characteristics that members of the group either cannot change, or should not be required to change because such characteristics are fundamental to their individual identities.”[15] This is referred to as the common, immutable characteristic requirement.[16] Additionally, PSGs must be “particular” and “socially distinct.”[17] These standards were applied liberally until the Trump Administration stepped in to curtail their application to domestic violence and gang violence victims.[18] Importantly, the Administration’s decisions do not change the PSG test and instead, they assert the BIA has been applying it wrong.[19]

A. Common, immutable characteristic

Matter of Acosta[20] is the seminal examination of the PSG requirement. Acosta’s common, immutable characteristic requirement was based on the principle of esjudem generis—that is, the particular social group ground was interpreted in context of the other protected grounds. As such, particular social groups should be centered around characteristics that are as immutable as race, nationality, religion, or political opinion.[21]

Membership in an online social group probably is a common and immutable characteristic. In this case, the immutability comes from two sources: past membership and freedoms of association. First, once someone is a member of an online social group, that past membership is immutable.[22] Second, judges should consider chosen social groups and social identities as characteristics that people shouldn’t have to change.[23] Caselaw holds that even mutable characteristics are protected under PSG analyses if “the shared characteristic is so fundamental to identity or conscience that it should not be expected to be changed.”[24]

B. Particularity

The BIA is increasingly concerned with limiting the potential scope of particular social groups.[25] In Matter of A-M-E- & J-G-U-, the respondents claimed they were persecuted because they were upper class Guatemalans. In addition to finding that wealth was not an immutable characteristic, the BIA also found that the group was too amorphous.[26]

In the case of the Witnesses, the greatest argument against their status as a PSG is that their online group could be open, large, and amorphous­–– the principle concerns behind the particularity requirements. The best response to this argument is that each asylum case should be adjudicated individually. Practitioners and adjudicators looking at facts similar to the Witness hypothetical should focus on distinguishing the online PSG at hand from “internet-users” writ large. Group gatekeeping behavior like private forums and linguistic choices, as well as the actual size of the group, should guide this determination.

C. Social distinction

The socially distinct requirement was reformulated in Matter of M-E-V-G-[27]. It was formerly referred to as social visibility, but as the BIA made clear, this requirement was not about ocular visibility.[28] Instead, adjudicators looks at whether, in the society in question, the group with immutable characteristics are is “set apart, or distinct, from other persons within the society in some significant way.”[29]

Thus, online-only social groups could be socially distinct only if the society considers them socially distinct. It is difficult to see the current Administration opening this definition to online-only social groups because it has recently moved toward narrowing grounds for asylum.[30] However, under the hypothetical Witnesses scenario, the online-only group could be socially distinct because they are regarded by the society as immoral and socially distinct. In practice, indicators of group membership like pseudonyms or shared language choices could be reliable evidence of social distinction. But the Witnesses could not seek asylum under a PSG of “internet users targeted by the government” because an asylee’s protected ground must exist independently of the harm asserted. [31]

CONCLUSION

As humans live more of our lives in our “matrix,” our online activities may have outsized impacts on how we are treated by our government. In the asylum context, online-only social groups could pose viable particular social group formulations. Of course, challenges remain in properly considering social context, particularity in online culture, and considering freedom of association as a right of conscience. But our cyberpunk future, and maybe our cyber-rights future, is not too far removed from today.

[1] William Gibson, Neuromancer (1984).

[2] In the book, the matrix is “where data dance with human consciousness, where human memory is literalized and mechanized, where multi-national informations systems mutate and breed into startling new structures whose beauty and complexity are unimaginable, mystical, and above all nonhuman.” In other words, it’s the 1980s vision of the World Wide Web. Larry McCaffrey, An Interview with William Gibson, Cyberpunk Project, http://project.cyberpunk.ru/idb/gibson_interview.html.

[3] Internet Soc’y, Understanding Your Online Identity: An Overview of Identity 1 (2017), https://www.internetsociety.org/wp-content/uploads/2017/11/Understanding-your-Online-Identity-An-Overview-of-Identity.pdf (“[W]hen you are using the Internet, your online identity is the sum of your characteristics and interactions.”).

[4] Gibson, supra note 1.

[5] See Karlee J. Pegg. et al, The Role of Online Social Identity in the Relationship Between Alcohol-Related Content on Social Networking Sites and Adolescent Alcohol Use, 21 Cyberpsychology, Behav. & Soc. Networking 50 (2018).

[6] INA § 101(a)(42)(A) (emphasis added); see also INA § 208.

[7] Persecution of online groups as “particular social groups” is a novel legal formulation, so for now, the facts need to be purely hypothetical. Note that online evidence is admissible in asylum proceedings and is often offered to support claims based on other protected grounds, notably, political opinion. See Jim Clarke, The Potential Value of Social Media in Asylum Cases, N.C. J. Int’l L. Blog (Feb. 10, 2019), https://ncilj.org/blog_posts/the-potential-value-of-social-media-in-asylum-law-cases.

[8] Jean and the Witnesses are also presumably big fans of singer-songwriter Annie Clark, known by her stage name as St. Vincent. See St. Vincent, Digital Witness, on St. Vincent (Loma Vista 2014).

[9] For the purposes of this limited exploration of asylum law, let’s assume that all the other requirements of asylum (level of harm, future fear, etc.) are fulfilled.

[10] In current practice, most members of online social groups may be persecuted because the explicit or imputed political implications of online activity. See Matter of S-P-, 21 I&N Dec. 486 (BIA 1996) (“[P]ersecution for ‘imputed’ reasons can satisfy that definition.”).

[11] Because of its ambiguity, the particular social group asylum claim has also been the avenue for progressive developing the scope of international protections. See, e.g., Diana Saso, The Development of Gender-Based Asylum Law: A Critique of the 1995 INS Guidelines, 8 Hastings Women’s L. J. 263 (1997).

[12] Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 191 (BIA 2018) (holding “it is an applicant’s burden to specifically delineate her proposed social group”); see also Matter of A-B- A-B-, 27 I&N Dec. 316, 344 (A.G. 2018).

[13] 27 I&N Dec. 316 (A.G. 2018).

[14] Matter of Acosta, 19 I&N Dec. 211, 232 (BIA 1985).

[15] Matter of Kasinga, 21 I&N Dec. 357, 366 (BIA 1996); see also Acosta, 19 I&N Dec. at 233 (“The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership.”).

[16] Matter of H-, 21 I&N Dec. 337, 342 (BIA 1996) (affirming clan membership as a PSG).

[17] Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) (replacing the “visibility” standard of earlier cases with social distinction).

[18] See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018); Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019).

[19] Nat’l Immigrant Ctr., Asylum Practice Advisory: Apply for Asylum After Matter of A-B- 12 (June 2018),https://www.immigrantjustice.org/sites/default/files/content-type/resource/documents/2018-06/Matter%20of%20A-B-%20Practice%20Advisory%20-%20Final%20-%206.21.18.pdf (“The Attorney General [demonstrates] that he has not created a new PSG test.”).

[20] 19 I&N Dec. 211 (BIA 1985).

[21] Id. at 233.

[22] See, e.g., Cruz–Navarro v. INS, 232 F.3d 1024, 1029 (9th Cir.2000) (“Persons who are persecuted because of their status as a former police or military officer, for example, may constitute a cognizable social group under the INA.”).

[23] For example, freedom of association is enshrined in Art. 20(1) of the UN Declaration of Human Rights.

[24] Matter of A-M-E- & J-G-U, 24 I&N Dec. 69, 73 (BIA 2007).

[25] See Matter of A-M-E-, 24 I&N Dec. at 69; see also Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (fixating on the broad scope of respondent’s proffered PSG).

[26] Matter of A-M-E-, 24 I&N Dec. at 76 (“The respondents’ proposed social group is indeterminate, and not just at the margins . . . .”).

[27] Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014).

[28] Id. at 236.

[29] Id. at 238.

[30] See Nat’l Immigrant Ctr., supra note 18 at 18.

[31] Matter of A-B-, 27 I&N Dec. 316, 334 (A.G. 2018)