Seeing Through a Glass, Darkly: The Social Context of "Particular Social Groups" in Lwin v. INS

I. INTRODUCTION The world and its courts are in turmoil. Crime, civil and political violence, persecution, and war affect untold millions, as "`social suffering' [has become] a hallmark of our `chaotic and cruel century.1 As those fleeing hardship within their countries seek refuge in the safe and relatively affluent United States, federal administrative and appellate courts struggle to apply the Refugee Act of 1980 (Refugee Act).2 Passed almost twenty years ago, the Refugee Act provides a safe haven for "refugees"-those who are unable or unwilling to return to their country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."3 The Refugee Act also allows refugees who have either entered or stayed in the United States illegally to remain in the United States.4 Congress passed the Refugee Act declaring "that it is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homeland."5 Fear of persecution provoked by "membership in a particular social group" is a unique basis for granting refugee status to those seeking asylum. Although for the past forty years this criterion has been included in international refugee law, courts still struggle to find a workable and consistent way to define a "particular social group." There is little international and domestic legislative history on the meaning of "particular social group," and courts have been forced to interpret its meaning without a significant amount of meaningful guidance. Because defining social groups is essential to refugee law, and because the interpretation of the definition of "particular social group" has significant impact on people inside and outside of the United States, a workable definition must be developed, allowing courts to apply refugee law consistently and in accord with stated congressional and international humanitarian policies. Lwin u. INS6 is a recent example of the Seventh Circuit's attempt to sort through the various definitions developed throughout the other circuits.7 The definition applied by the Seventh Circuit in Lwin, which defines "particular social groups" by their "immutable characteristics," although fundamentally sound, is incomplete. The term "immutable" is misleading in that it includes not only characteristics that cannot be changed, but also characteristics that a person should not have to change. Thus, the most difficult cases to decide are those in which a person seeks asylum based on voluntary actions or conduct that the person can change but feels he or she should not have to change. If courts are to decide whether those changeable characteristics are "immutable," and thereby define a valid particular social group, they must consider the significance of a person's conduct in the economic, social, and political context of the person's own country. Part II of this note provides the historical and legislative background of modern refugee law and introduces Lwin v. INS. Part III identifies the humanitarian purposes of refugee law and concludes that the test applied in Lwin accurately reflects those purposes but ultimately fails to provide a means of achieving them. This note concludes that in order to meaningfully and consistently apply refugee law, courts should make factual inquiries to determine the social significance of the person's actions as perceived in their own country. II. BACKGROUND A. International History of Refugee Law In 1951, the United Nations convened a conference of plenipotentiaries in Geneva with the purpose of making laws to protect refugees. The result of this conference was the 1951 Geneva Convention Relating to Status of Refugees.8 This was the "first international compact to adopt a universal refugee definition, rather than one tied to a particular national or ethnic group."9 Under this definition, a "refugee" is any person who . …