Who doesn't enjoy a little rabble-rousing among federal appellate judges? Recently, the U.S. Court of Appeals for the Ninth Circuit issued an en banc decision on the meaning of "social group" in the context of asylum and refugee claims. A person fearing persecution can be eligible for asylum relief as long as the person's fear of persecution is on account of one of five protected grounds (and some other requirements). One of those grounds is "social group" and its meaning has confounded the immigration agencies (primarily the Board of Immigration Appeals) and federal courts for decades.
For purposes of setting up the Ninth Circuit's case, here's a quick overview of the test to determine if someone is a member of a particular social group. Originally you needed to show that you are a member of a group whose members are linked by an immutable characteristic (like a family) or an aspect of yourself that is so fundamental to your identity that you should not be made to change it (such as sexuality, to the extent it's not immutable). Years later, the Board of Immigration Appeals added two more requirements, one being that the group you belong to must have "social visibility." So what exactly does that mean? The general consensus is that it refers to some level of social recognition that the claimed group does exist. The more literal interpretation would be that you literally must see the group with your eyes and be able to recognize it.
The Ninth Circuit's opinion is interesting for a number of reason, but one of the most entertaining pieces of the case was written in the dissent by Chief Judge Alex Kozinski. He was upset that the majority opinion did not sufficiently defer to the Board of Immigration Appeals (BIA) and he noted that most of the other circuits did defer to the BIA. He also explained why the only two circuits to not defer to the BIA were wrong. So here's what Chief Judge Kozinski said about the Seventh Circuit's decision to not defer to the BIA:
In an opinion that pays lip service to Thomas but, in fact, usurps the role of the BIA, the Seventh Circuit rejected the Board’s social visibility requirement. Gatimi v. Holder, 578 F.3d 611, 615–16 (7th Cir. 2009). The court’s reasons for doing so are obscure but, best I can tell, the Seventh Circuit confused social visibility with on-sight visibility, and criticized the BIA for requiring that social groups be identifiable on sight:
"Women who have not yet undergone female genital mutilation in tribes that practice it do not look different from anyone else. A homosexual in a homophobic society will pass as heterosexual. If you are a member of a group that has been targeted for assassination or torture or some other mode of persecution, you will take pains to avoid being socially visible; and to the extent that the members of
the target group are successful in remaining invisible, they will not be 'seen' by other people in the society 'as a segment of the population.'"
This criticism is unfounded. As even the majority here recognizes, the BIA’s social visibility requirement doesn’t mean that the characteristics defining the group must be recognizable on sight. Maj. op. at 13–18. The BIA has made it perfectly clear that the social visibility test is designed to determine whether the proposed group of which petitioner claims to be a member is perceived as a group by the society in question, not whether individual members of the group can be identified on sight. See C-A-, 23 I. & N. Dec. at 959–61. That’s why it’s called social visibility rather than just visibility. . . . [I]t’s hard to understand what the Seventh Circuit was so grumpy about.
In the world of judicial formality, this is often the extent you will see one judge or court call out another. But there is more going on here. The Seventh Circuit opinion was written by Judge Richard Posner, and those familiar with immigration and federal appellate practice probably could have identified the authoring judge if asked to guess which Seventh Circuit judge wrote the opinion. The language is particularly critical of the BIA but goes too far by misrepresenting the Board's case law to make a bigger point. Thus, its effect is to confuse the law in this area.
But, in its unpublished cases, the BIA has sometimes written or affirmed social group opinions that may give the impression that visual recognition is being taken into consideration. And the appellate courts see some of these cases on appeal. So even if the BIA's seminal cases clearly state that on-sight visibility is not required, sometimes such considerations bleed into agency decisions. And sometimes the appellate courts get frustrated. And in recent years Judge Posner has grown increasingly frustrated. Combining his general opinion-writing style with this growing frustration leads to commentary seen in cases like Gatimi. It's comparable to a couple married for a considerable amount of time getting into a heated fight about some small event - the event is relevant but it is also serving as a proxy for bigger issues.
There are other big areas where the BIA has issued (or affirmed) inconsistent opinions or simply failed to provide needed guidance. One of those areas is the meaning of "persecution." Seems kind of important. When I was doing research for an article I wrote on the meaning of persecution, I consistently found opinions from Judge Posner calling out the BIA for failing to explain how to define persecution. I didn't see any other courts (let alone judges) so consistently urging the Board to take action. After calling out the BIA, Judge Posner went on to provide some general observations about how he thought persecution should be defined (I agree with some of his points but not others). Technically the appellate court is not supposed to do this (especially since such commentary will be used in subsequent Seventh Circuit opinions), but can you blame a court that has been waiting for years to get more guidance from the BIA?
A unified definition of persecution is important since the definition can impact the lives of tens of thousands of applicants, so I understand what Judge Posner has been "so grumpy about." But still, the role of the appellate courts is supposed to be a limited one.