In the last fifteen years, the Board of Immigration Appeals has imposed a requirement that persons seeking asylum based on membership in a particular social group must establish that the social group is “socially visible” throughout society. This Comment argues that the social visibility requirement should be denied administrative deference on several grounds. The requirement should be denied Chevron deference because Congress’s intent behind the Refugee Act of 1980 is clear and unambiguous and, alternatively, the requirement is an impermissible interpretation of the statute. The requirement is also arbitrary and capricious under the Administrative Procedures Act. This Comment argues that courts should instead follow the United Nations High Commissioner for Refugees’ definition of a particular social group, in which social visibility is one of two methods to establish a particular social group. An adoption of this framework would serve Congress’s intent to adhere to the United States’ international obligations.
An Insurmountable Obstacle: Denying Deference to the Bia’s Social Visibility Requirement,
Mich. J. Race & L.
Available at: https://repository.law.umich.edu/mjrl/vol19/iss1/4