The Emerging Importance of

Part I of this Article sets forth the "protected characteristic" and "social perception" approaches, showing how the former has a foundation in law while the latter does not. I then discuss the BIA's new "social visibility" test against this background, explaining how it diverges from domestic and international decisions. In Part II, I argue that adjudicators in the United States should not give deference to the BIA's decisions in C-A- and A-M-E- because they do not provide a permissible interpretation of the Convention and represent a sudden, unexplained change in the way the BIA defines "membership of a particular social group." In Part III, I turn from the legal reasons for rejecting the "social visibility" test to the practical challenges involved in applying this approach, drawing on studies in the fields of cognitive science and psychology to show that public perception is highly context-dependent and inherently difficult to pin down. This Part also discusses the difficult evidentiary issues that will confront adjudicators when determining the perceptions of a foreign society. Part IV highlights how the "social visibility" test may have a profound, negative impact on asylum cases related to sexual orientation and gender, where not only the harm is hidden in the private sphere, but the group members themselves may be veiled from sight. With respect to sexual orientation, the United States and international authorities have rejected the notion that gays and lesbians who remain "discreet"--and therefore "invisible"--are not protected by the refugee definition." Under the "social visibility" test, however, their claims may well be denied. Indeed, even claims brought by "out" gays and lesbians may be rejected if they come from societies that do not recognize homosexuals as a group or homosexuality as a social identity. In addition, the "social visibility" test poses a new twist in the public/private distinction that has long pervaded the debate around gender-based asylum. Initially, gender-related forms of harm, such as sexual violence, domestic abuse, female genital cutting, and honor killings were dismissed as "private matters" that did not constitute persecution. In the same way that "private" harm was discounted, so, too, was harm perpetuated by private individuals (i.e., non-state actors), such as family members. While most countries now recognize that "private" harm can constitute persecution and that nonstate actors can perpetrate harm where the state fails to provide protection, asylum cases brought by women still raise complex questions. The new "social visibility" requirement raises the specter of the private/public distinction by requiring members of a particular social group to have a public face. Thus, it may well result in the denial of asylum claims brought by some of the most vulnerable individuals, notwithstanding the existence of a "protected characteristic." Finally, I conclude that adjudicators should reject the "social visibility" approach because it destroys Acosta's principled framework, represents an abdication of U.S. obligations under the 1967 Protocol, cannot be applied in a consistent way, and ignores the complex relationship between visibility and power.