By Nicholas R. Bednar. Full text here.
The Board of Immigration Appeals (BIA) has turned the particular social group standard into a game of semantics. This Note argues that this game’s evidentiary requirements disfavor pro se asylum applicants by requiring sociological evidence—primarily in the form of expert testimony.
An applicant applying for asylum on the basis of membership in a particular social group must produce evidence showing that her particular social group (1) shares an immutable characteristic; (2) is defined with particularity; and (3) is socially distinct. The BIA’s recent decision in Matter of M-E-V-G- sought to “clarify” the elements of particularity and social distinction. Following this decision, an applicant cannot easily define a particular social group that satisfies both particularity and social distinction. If the applicant defines her group too discretely, the group may fail to satisfy the element of social distinction. But, an amorphous particular social group is certain to fail the requirement of particularity. This resulting game of social group semantics forces the applicant to define their particular social group with calculated wording in an effort to satisfy the element of particularity, while submitting sociological evidence to prove that this highly particularized group is socially distinct. This requisite sociological evidence is unobtainable by most applicants.
Unfortunately, the BIA and circuit courts show no signs of abrogating this reformulated standard. As an alternative, this Note proposes a precedential fact-finding system to alleviate the evidentiary burden on applicants. Drawing from the experience of the United Kingdom’s Country Guidance system, this proposed system would permit the BIA to publish decisions that establish precedential findings of country conditions and recognize the existence and validity of proposed particular social groups. This system would protect large groups of pro se applicants with similar claims from the evidentiary requirements that result from the interplay of particularity and social distinction.