New BIA Precedents Modify the Law on "Particular Social Groups" in Asylum Cases

The BIA issued two new decisions on February 7, 2014 which may have a profound effect on asylum claims.

An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question. (3) An applicant has the burden of demonstrating not only the existence of a cognizable particular social group and his membership in that particular social group, but also a risk of persecution “on account of” his membership in that group.

The new wording requires a showing that the individual's membership in that particular social group makes him or her "socially distinct" within the society in question. The previous requirement was "social visibility" which was being applied by many immigration judges to require the group to be noticeably visible in society -- what the BIA has now termed "ocular visibility" (ocular being that which is connected to the eyes or vision).

The new precedent decisions from the BIA are beneficial as they clarify that groups which may not be visible out on the streets - such as closeted gay men - can be considered members of particular social groups for asylum purposes. Under the new precedents, whether a social group is recognized for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor.

The cases are Matter of W-G-R- and  Matter of M-E-V-G-.