Defining a Core Zone of Protection in Asylum Law: Refocusing the Analysis of Membership in a Particular Social Group to Utilize Both the Social Visibility and Group Immutability Component Approaches.

Stanley Dale Radtke, University of San Francisco

Abstract

The current analytical approach employed in assessing the merits of a new and novel claim for asylum, based upon “membership in a particular social group,” looks to define an outer boundary, or attempts to draw a bright-line rule where relief is granted or denied. This line drawing approach has proven to be exceedingly difficult in practice, as there currently is no agreed upon definition of what constitutes membership in a particular social group, let alone an agreed upon test for evaluating such a claim. By establishing such a core zone of protection, decision makers can feel secure in deciding the cases that then fall squarely within this zone, and alternatively, offer a touchstone, or threshold, as a point of comparison in deciding the more difficult outlying penumbral cases. However, this Comment makes no suggestions, nor attempts to argue for any limitation to the protection afforded individual asylees under a social group claim. This Comment is not suggesting nor advocating a downward spiral of protection towards the lowest common denominator. Rather, this Comment attempts to reinvigorate the protection for bona fide refugees as originally intended under international law and to differentiate these asylees from ordinary immigrants.

This Comment suggests an alternative approach to analyzing new and novel claims for membership in a particular social group by calling for defining a core area of protection that can be supported and delineated within the current refugee definition. The current approach in adjudicating any social group claims derives from seminal decision by the Board of Immigration Appeals in Matter of Acosta. This approach is essentially a line drawing attempt to create an outermost limit as to which claims establish a social group for the purposes of refugee protection. This approach only looks at one side of the coin, it looks only to the inherently internal component of any social group claim, the group’s unifying foundational characteristic, i.e., on what basis the group is formed and is differentiate from others in society. This Comment suggests an alternative approach that looks not only to the internal unifying characteristic of the “particular social group,” but also to the flip side of the coin, which is the external cognizability of the proposed social group. Through this integrated analysis of looking for both the “social” or externally visible component and the “group” or inner component, a core zone of protection can be identified. It is this eternally visible component of social cognizability or social perception, in conjunction with the internal innate or immutable characteristic that can establish the validity of a new and novel social group claim by showing whether the novel claim falls squarely within the core zone of intended protection.