Eighth Circuit Judge Kermit Bye recently criticized a revised definition used in some asylum cases, highlighting a circuit split and stating plainly that he thinks the revised definition is arbitrary and capricious. But to understand all of that, first some background about how the definition came to be, and why many people think it’s flawed.
In order to qualify for asylum in the United States, a person must generally meet the legal definition of “refugee,” meaning that the person has to be “outside any country of such person’s nationality […] and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of 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.” Immigration and Nationality Act § 101 (a)(42)(A).
The “membership in a particular social group” ground is the subject of a great deal of controversy, particularly because in recent years the Board of Immigration Appeals, the administrative body in the Justice Department that hears appeals of immigration court decisions, has added additional requirements to the social group ground. The BIA now generally requires that a person’s claimed social group must have sufficient “social visibility” and “particularity,” as described in its Matter of C-A- decision from 2006.
Besides serious criticism by scholars and other commentators, the social visibility requirement came in for some serious criticism by Judge Richard Posner of the Seventh Circuit in a 2009 decision, Gatimi v. Holder, where he wrote that “it makes no sense.” He pointed out that “If you are a member of a group that has been targeted for assassination or torture or some other mode of persecution, you will take pains to avoid being socially visible[.]” In a case later in 2009, Benitez Ramos v. Holder, he criticized the requirement again, saying an asylum seeker can prevail on a social group claim “only if a complete stranger could identify you as a member [of a particular social group] if he encountered you in the street, because of your appearance, gait, speech pattern, behavior or other discernible characteristic.”
The Third Circuit also recently rejected the social visibility and particularity requirements. In Valdiviezo-Galdamez v. Holder, 663 F.3d 582 (3d Cir. 2011), the Third Circuit held that these two requirements grafted onto the social group definition by the BIA were not entitled to Chevron deference. A group of immigration judges and attorneys recently published an article [PDF] in the March 2012 edition of Federal Lawyer that analyzes the Valdiviezo-Galdamez decision in depth.
Even though the Third and Seventh Circuits have turned against these requirements, many circuits still use them in analyzing social group asylum claims. The Eighth Circuit is one of them. In a March 1, 2012 decision, Gaitan v. Holder, an Eighth Circuit panel relied on its own recent precedents in applying the requirements. Concurring only in the result, due to those precedents, Circuit Judge Kermit Bye signaled that he disagreed with “our circuit’s as-a-matter-of-course adoption of “social visibility” and “particularity” as requirements for establishing “membership in a particular social group.” Discussing the Eighth Circuit’s recent adoption of the social visibility and particularity requirements, he wrote:
While both Constanza and Ortiz-Puentes grafted the requirements of “social visibility” and “particularity” to petitioners’ social groups claims, neither panel offered any explanation as to why the addition of these new requirements—which are very clearly inconsistent with the BIA’s prior decisions—should not be deemed arbitrary and capricious. Neither panel inquired as to whether the BIA had provided a good reason, or any reason at all, for departing from established precedent. Neither asked if the BIA’s new approach to defining “particular social group” amounted to an arbitrary and capricious change from agency practice. Instead, we simply adopted the new approach, as a matter of course, offering no substantial reason ourselves for this shift in direction. As a result, I fear we have chosen the wrong direction.
I agree with the circuits which hold the BIA’s addition of the “social visibility” and “particularity” requirements to the definition of “particular social group” is arbitrary and capricious. First, as discussed above, these newly added requirements are inconsistent with prior BIA decisions. Specifically, they are in direct conflict with the definition of “particular social group” announced in Acosta. By stating this, I am in no way suggesting the BIA must continue to adhere to the Acosta definition. I am of course cognizant the BIA may “add new requirements to, or even change, its definition of `particular social group’” over time. [...] The BIA, however, must explain its choice for doing so because an unexplained departure from established precedent is generally “a reason for holding [the departure] to be an arbitrary and capricious change from agency practice[.]” [citations omitted]
As the Federal Lawyer article makes clear, there is now “a sharp split among the circuits and could increase the viability of any new certiorari petitions before the U.S. Supreme Court, where the issue may ultimately have to be decided.” The interaction between the federal appeals courts and the BIA leads to different applications of immigration law depending on where you are in the U.S., but the difference discussed above is a stark one, so it wouldn’t be surprising if this was eventually settled by the Supreme Court.