Gay immigrants aren't alone in fighting the "social visibility" criterion in pleas for asylum

What does a gay man look like? Or a whistleblower? Or a woman who, were she to return to her home country, would be targeted for female genital mutilation? Those are the questions raised by "social visibility," a criterion adopted by the Virginia-based Board of Immigration Appeals that some lawyers, legal scholars, and even circuit courts say is dangerous for immigrants applying for asylum.

As explained in this week's cover story, "Coming Out To America," immigrants can seek asylum in the U.S. if they fear persecution in their native country based on their race, religion, nationality, political opinion or membership in a particular social group. Social visibility applies to that last category.

In 2006, the BIA, which hears every immigration appeal case in the country, found that asylum-seekers must possess characteristics that are both "highly visible and recognizable by others in the country." The case in question involved a Colombian man who was afraid to return to his country because he'd told the government inside information about a powerful drug cartel. The BIA ruled that non-criminal informants are not "a particular social group," in part because their conduct is secret and "out of the public view."

Since then, the BIA has used that reasoning to deny asylum to a slew of immigrants, including Francis Gatimi, his wife and daughter. Gatimi is Kenyan. In 1995, according to court documents, he joined a Kikuyu tribal group called the Mungiki. The Mungiki, documents say, have "obscure political aims" and are prone to violence. They also require the wives of members to undergo female genital cutting to remove the clitoris.

In 1999, Gatimi defected from the Mungiki, and they came after him. The first time, they broke into Gatimi's house when he wasn't home and killed a servant. A month later, they returned, looking for his wife in order to circumcise her. Frightened, she fled to the United States with their newborn daughter.

The Mungiki didn't let up. On their third visit to Gatimi's house, they killed the family pets, burned two vehicles and threatened to gouge out Gatimi's eyes. Gatimi called the police, who promised to protect him. Reassured, his wife came back to Kenya -- only to flee to America once again after the Mungiki threatened to kill Gatimi if he didn't produce her for circumcision. This time, Gatimi went with her.

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Gatimi applied for asylum in the United States. But an immigration judge denied his application. The judge said the Mungiki's acts were not persecution but "mistreatment." He also ruled that Gatimi's wife's fear of genital mutilation was baseless. Further, he found that defectors from the Mungiki group do not constitute "a particular social group."

The BIA agreed. According to court documents, it said that Gatimi does not "posses any characteristics that would cause others in Kenyan society to recognize him as a former member of Mungiki."

Gatimi appealed his case to the Seventh Circuit Court of Appeals in Chicago, which didn't mince words in its ruling. It said the BIA's decision "makes no sense."

...nor has the Board attempted, in this case or any other case, to explain the reasoning behind the criterion of social visibility. 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.

The circuit court continued:

The only way, on the Board's view, that the Mungiki defectors can qualify as members of a particular social group is by pinning a target on their backs with the legend "I am a Mungiki defector." ... The defectors from the Mungiki constitute a group with as much coherence as children of the bourgeoisie, or of the aristocracy, had in the Soviet Union: breakaway factions that were relentlessly persecuted.

The circuit court overturned the decision to deny asylum and sent the case back to the BIA "for further proceedings consistent with this opinion."

More from our Immigration archives: "Denver Police Dept. immigration memo doesn't mean this is a sanctuary city, spokesman says."

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