Examining the Board of Immigration Appeals\u27 Social Visibility Requirement for Victims of Gang Violence Seeking Asylum

Since the late 1990s, Latin America has been plagued by gang violence. The increasingly organized and progressively larger gangs are known as the Mara Salvatrucha 13 (MS-13) and the 18th Street Gang (collectively referred to as the “Mara” in this Comment). These gangs are ubiquitous within certain Latin American countries and pose a serious threat to the economic and social stability of the region. The targets of the Mara are mostly youth between the ages of fifteen and eighteen (but as young as eight), women, and those who decry the gang\u27s violence. Resistance to the Mara has resulted in death for many. The substantial disruption to the peace and safety of society and the states\u27 current inability to control the gangs has forced many individuals who have been targeted by the gangs\u27 violence to flee their home countries of El Salvador, Guatemala, and Honduras to seek asylum in the United States. Very few people trying to escape gang violence are granted asylum and the denial has serious consequences for many of them. Asylum is awarded only to “refugees”-a relatively small category of people that can prove they were persecuted because of race, religion, nationality, political opinion, or membership in a particular social group. The particular social group category has been used increasingly in the past years by victims of gang violence, and also by others seeking asylum based on their sexual orientation, gender, domestic violence, and victims or potential victims of female genital mutilation. The social group category has been described as “pushing the boundaries” of refugee law because of the variety of groups who bring claims under the statute, paired with the fact that the category itself was never well defined. Generally, victims of gang violence bring claims for asylum under the social group category because the absence of a highly-particularized definition allows for claims to be more individualized. The ability to have particularized claims means immigration judges are often confronted with social groups that are a matter of first impression. This means the judges have wide latitude in defining what constitutes a “particular social group.” While case law continues to define what groups are a cognizable particular social group, many individuals have asserted membership in a group that the immigration court, BIA, or court of appeals has not yet recognized-making it difficult for petitioners with the same or similar social groups to be granted asylum. However, this problem is not limited to gang related claims. Victims of the Mara\u27s violence have recently been unsuccessful in obtaining asylum because the BIA, the branch of the Department of Justice responsible for identifying standards and uniform definitions of immigration law, has defined “particular social group” more narrowly. The BIA now requires that asylum applicants who frame claims under the “particular social group” category demonstrate that their social group be “socially visible,” meaning objectively recognized in society. Taking this lead from the BIA, some circuit courts have also imposed a social visibility requirement. However, as will be discussed, the social visibility requirement is ambiguous, leaving practitioners without appropriate guidance for how to bring future asylum claims under the particular social group category. Further, the addition of social visibility also contravenes what the United Nations (UN) has set as the definition for a particular social group. Lastly, this new requirement creates evidentiary proof problems that nearly no victim of gang violence can meet