In two new companion cases (Matter of M-E-V-G- and Matter of W-G-R-) about asylum for individuals afraid of persecution “on account of” their membership in a particular social group, the BIA has done away with the term “social visibility” and replaced it with “social distinction.”
But beyond this most obvious (and perhaps trivial) change, whether these two new decision will make an actual difference in the way courts adjudicate asylum claims remains to be seen, as the Board has apparently signaled that it has a long way to go before it will align its policy with prevailing international law.
Both decisions clarify the largest question in the “social visibility” area of law, which is whether social visibility is even an absolute requirement.
“Social visibility” was an outgrowth of the Acosta immutability standard but was only one of many ways a person could demonstrate that their group was particular.
The Board had never previously been found it to be an absolute requirement.
The new standard, announced in these new decisions is as follows:
“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.”
Thus, for the first time the BIA has said “yes”; whether you call it “social visibility” or “social distinction,” it is now mandatory and is separate from the requirement of immutability. The Board’s change in terminology does little to help us to understand what social distinction actually means or how it should be applied.