United States asylum law provides individuals who have been persecuted in their country of origin with residency in the United States. Membership in a “particular social group” (PSG) confers refugee status on individuals applying for asylum in the United States. The Board of Immigration Appeals (BIA) initially defined a PSG as a group composed of members who all share an immutable characteristic, that is, an unchangeable characteristic or one so fundamental to an individual’s identity that they should not be required to change it. This test functioned well for over a decade; however, the BIA added an additional requirement to the analysis: “social visibility.” “Social visibility” requires that members possess characteristics visible and recognizable by others in the native country. Today, all but two circuits require “social visibility.”

This note argues that this widespread acceptance of the “social visibility” requirement is problematic, particularly for victims of human trafficking. First, it is incredibly difficult to define public perception; therefore, it is impossible to identify when a society has confirmed the existence of a PSG. Second, “social visibility” operates to exclude deserving applicants because persecuted groups will take pains to avoid becoming socially visible. Part I presents an overview of international and domestic refugee law. Part II analyzes the current circuit split between immutable characteristic and social visibility. Part III details the problems with requiring “social visibility” and “particularity” generally and specifically for victims of human trafficking, and Part IV concludes that “immutable characteristic” strikes the proper balance between the interests of applicants and the United States legal system.