SOCIAL VISIBILITY AND PARTICULARITY IN ASYLUM: GAITAN V. HOLDER AND THE IRONIC REQUIREMENT OF SOCIAL PERCEPTION TO AVOID PERSECUTION

Abstract: On March 1, 2012, in Gaitan v. Holder, the U.S. Court of Appeals for the Eighth Circuit held that Oscar Gaitan, a citizen of El Salvador who was seeking asylum based on membership in a particular social group, did not belong to a group that was sufficiently particular. The court reasoned that young El Salvadoran males previously recruited to the MS-13 gang, but who were opposed to the nature of gangs, were not visible or particular enough such that the group could be perceived by society. The Eighth Circuit adopted the Board of Immigration Appeals' new standard for the definition of a particular social group, implementing a social visibility and particularity requirement. This requirement burdens potential refugees by requiring them to be part of a recognizable social group while they are simultaneously trying to avoid ill-treatment by the group's persecutors.IntroductionBy the time Oscar Gaitan turned twelve, he had been recruited by members of MS-13, a notorious Salvadoran gang, several times.1 Gaitan rebuffed each recruitment attempt, endangering his life and the lives of his family in his native El Salvador.2 In 2002, Gaitan sought refuge in the United States to avoid what would surely become a life of crime and violence in his home country.3 Nevertheless, in 2007, the Department of Homeland Security commenced removal proceedings against Gaitan under 8 U.S.C. § 1182(a)(6)(A)(i) for being "present in the United States without being admitted or paroled."4 Gaitan appeared in Immigration Court and conceded removability, but sought to avoid deportation by claiming asylum.5 In order to claim asylum in the United States, a potential refugee must be persecuted as a result of his "race, religion, nationality, membership in a particular social group, or political opinion." 6 Gaitan argued that his social group consisted of those "young males that have been previously recruited by MS-13 and are opposed to the nature of gangs."7 The immigration judge (IJ) denied Gaitan's request on the grounds that his testimony was not consistent and interconnected enough to be deemed credible.8 Though the Board of Immigration Appeals (BIA) ultimately overturned the IJ's ruling on that account, the BIA agreed with the second part of the IJ's ruling: regardless of whether Gaitan could prove the credibility of his testimony, he failed to fall into a particular social group for purposes of granting asylum. 9Gaitan appealed to the U.S. Court of Appeals for the Eighth Circuit, and was ultimately denied review.10 The Eighth Circuit agreed with the BIA and the IJ in finding that the social group to which Gaitan claimed membership was not an acceptable social group to satisfy the terms for asylum.11 In agreeing with the BIA, the Eighth Circuit has implemented a new standard for qualification to a particular social group, effectively limiting the persons who will qualify for asylum.12I. The Journey, The Social Group, and the RejectionIn 2002, Oscar Gaitan entered the United States to escape recruitment into a gang in his native country of El Salvador.13 Though the MS-13 gang members never physically harmed Gaitan in their multiple recruitment attempts, the members threatened harm to both Gaitan and his family if he continued to refuse to join the gang.14 As a result, Gaitan fled El Salvador and entered the United States without inspection or the paperwork necessary to grant him citizenship or asylum. 15In 2007, the U.S. Department of Homeland Security commenced removal proceedings against Gaitan by filing a "Notice to Appear" in Immigration Court.16 The government claimed that Gaitan was "removable" from this country under 8 U.S.C. § 1182(a)(6)(A)(i) because he was "present in the United States without being admitted or paroled." 17 In Immigration Court, Gaitan conceded that he was, in fact, present in the United States without being admitted or paroled, but requested asylum.18 To prove that he should be deemed a refugee, and therefore granted asylum, Gaitan needed to demonstrate that he was "unable or unwilling to return to, and is unable or unwilling to avail himself . …