The Emerging Importance of "Social Visibility" in Defining a "Particular Social Group" and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender

An emerging issue in U.S. asylum claims based on "membership in a particular social group" is the relevance of social visibility in determining whether such a group exists. Of the five protected grounds for asylum, "membership in a particular social group" has always generated the most debate. Until recently, however, neither the Board of Immigration Appeals (BIA) nor the federal courts focused on "social visibility" in defining this term. The dominant view of the international community, rooted in the BIA's seminal decision in Acosta, defines a "particular social group" based solely on the existence of an "immutable" characteristic," one that an individual either cannot change or should not be required to change because it is fundamental to identity of conscience.

External perceptions are irrelevant to the Acosta standard. Among the major common law countries, the United States, Canada, New Zealand, and the United Kingdom follow the principled "protected characteristic" approach. Australia, on the other hand, has emphaszied social perceptions, while also taking immutable characteristics into account.