Bresnahan, ‘The Board of Immigration Appeals’ New Social Visibility Test for Determining Membership of a Particular Social Group in Asylum Claims and Its Legal and Policy Implications’, 2011
Kristin Bresnahan, ‘The Board of Immigration Appeals’ New Social Visibility Test for Determining Membership of a Particular Social Group in Asylum Claims and Its Legal and Policy Implications’, Berkeley Journal of International Law 29 (2), pp 649-679, 2011
Within the area of asylum law, there has been a great deal of confusion and debate over the past several years surrounding the meaning of one of the five protected grounds for receiving asylum: membership of a particular social group. The debate focuses on how that vague phrase can and should be interpreted in order to stay true to the 1951 Refugee Convention. Little to no analytical clarity on the meaning of membership of a particular social group existed upon the adoption of the phrasing in the Refugee Convention. None truly came until the United States Board of Immigration Appeals’ (“BIA”) decision in Matter of Acosta in 1985 and the Australian High Court’s decision in Applicant A. v. Ministerfor Immigration and Ethnic Affairs in 1997. Although they came to two very different conclusions, the BIA and the Australian High Court provided the only two frames of reference in this confusing area of law.
These two tests dominated the determination of membership of a particular social group in asylum proceedings after they were formulated. In the United States, for the two decades after Acosta was decided, the BIA applied a singular test in order to determine whether or not an asylum applicant qualified as a member of a particular social group. In Acosta, the BIA set forth a test that granted protection based on the existence of an immutable characteristic, an approach now known as the “protected characteristic” approach. On the other hand, since 1997, the Australian High Court has applied a test based on the “social perception” of the purported social group in order to determine whether the group qualifies for asylum under the Refugee Convention. This inquiry focuses on the external factors of the purported group, such as whether the group is identified as distinct in society’.