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.