Social Group Asylum Claims: A Second Look at the New Visibility Requirement

Abstract

The “social visibility” now required of members of “particular social groups” seeking asylum has led to a deepening circuit split, en banc consideration by the Ninth Circuit, and proposed legislation in Congress. This Comment identifies the root of the controversy: slippage in administrative and appellate opinions between the cognitive and sensory meanings of terms used to define social visibility — words like “recognize,” “see,” identify,” and “perceive.” Understood properly — which is to say, cognitively — social visibility refers to the way a society thinks of itself as being carved up into certain groups. The social visibility requirement, thus understood, becomes a check on ad hoc or invented group definitions, not a requirement that group members look a certain way. Those working to overturn the new social visibility requirement in asylum law would do better to help courts properly understand it.