Jeffrey S. Chase | Opinions/Analysis on Immigration Law

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Gender is a Particular Social Group

Introduction

In a decision that came as no surprise to anyone, the Board of Immigration Appeals (minus several excellent judges who were removed from their jobs by the current administration without explanation) issued a precedent decision on July 18 holding that a particular social group defined solely by gender or gender and nationality “is overbroad and insufficiently particular to be cognizable.”1

For years, when deciding a case of such significance, the BIA (or for that matter, the Attorney General) has always issued an invitation to interested parties to file amicus briefs providing guidance on the subject. However, in its apparent haste to publish, the BIA skipped this important step for the first time in recent memory.

Not surprisingly, the combination of terminating its best appellate judges, foregoing input from leading asylum law experts, and rushing out its decision resulted in an opinion so flawed it is difficult to know where to begin discussing it.

However, I will start with something that, to me, demonstrates the result-oriented nature of the drafting process.

De Pena Paniagua: A significant decision (which the Board brushed aside)

In 2020, the U.S. Court of Appeals for the First Circuit issued an extremely important decision on this topic, De Pena-Paniagua v. Barr.2 In that case, the court was asked to consider the validity of a particular social group consisting of women of a specific nationality who were unable to leave their domestic relationship, at a time when such PSG constructions were under attack by the first Trump Administration. Part of that attack involved an erroneous claim that the “unable to leave” language somehow invalidated the group.

At oral argument, the First Circuit panel asked why the particular social group could not be gender alone?

In its published opinion that followed, the First CIrcuit expounded at great length on the issue of gender alone:

“Women,” or “women in a certain country,” are groups that are much more clearly defined, thus eliminating the problems presented by groups defined as “women who are unable to leave.” Precedent, though, encouraged the attempt at group definitions such as relied on here by De Pena. Some case law gave rise to a fear that “women,” or “women in country X,” or even “women in a domestic relationship,” might be too large or too indistinct a group to serve as a particular social group…At the same time, precedent -- most notably the BIA's own decision in A-R-C-G-, 26 I. & N. Dec. at 393 -- held out “unable to leave” as a supposedly smaller, better-suited safe harbor for women seeking asylum and withholding of removal.3

So the panel understood why attorneys were commonly including the narrowing “unable to leave” element in proposing social groups.

Importantly, the First Circuit addressed the cognizabiity of groups defined by gender alone:

But grasping for the larger group hardly strikes us as a fool's errand. In 1985, the BIA recognized that a particular social group is indeed a group of “persons all of whom share a common, immutable characteristic,” including “sex.” Acosta, 19 I. & N. Dec. at 233; see also M-E-V-G-, 26 I. & N. Dec. at 246 (observing that “[s]ocial groups based on innate characteristics such as sex ... are generally easily recognizable and understood by others to constitute social groups” (quoting Matter of C-A-, 23 I. & N. Dec. 951, 959 (BIA 2006))).4

After discussing the particular social group requirements (which since 2006 have come to include the need for particularity and social distinction), the First Circuit stated:

But it is not clear why a larger group defined as “women,” or “women in country X” -- without reference to additional limiting terms -- fails either the “particularity” or “social distinction” requirement. Certainly, it is difficult to think of a country in which women are not viewed as “distinct” from other members of society. In some countries, gender serves as a principal, basic differentiation for assigning social and political status and rights, with women sometimes being compelled to attire and conduct themselves in a manner that signifies and highlights their membership in their group. It is equally difficult to think of a country in which women do not form a “particular” and “well-defined” group of persons. While certain more narrowly-parsed groups might fail to exhibit societal salience, or internally coherent membership, the same does not follow for a group based on a gender.5

The court then invoked a canon of construction, ejusdem generis, that has been employed more than once by the BIA (and which will be discussed more fully  a little further below):

In Acosta, the Board applied the doctrine of ejusdem generis when interpreting the meaning of the term “refugee,” which, pursuant to statute, requires that an applicant demonstrate “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). This doctrine, as explained by the Board, “holds that general words used in an enumeration with specific words should be construed in a manner consistent with the specific words.” Acosta, 19 I. & N. Dec. at 233. Reading the statute in this light, the Board reasoned that each term -- “race, religion, nationality, membership in a particular social group, or political opinion” -- “describes persecution aimed at an immutable characteristic.” Id. “The shared characteristic” underlying a particular social group, therefore, “might be an innate one such as sex, color, or kinship ties,” which would make the fact of membership “something comparable to the other four grounds of persecution under the Act.” Id. It is unsurprising, then, that if race, religion, and nationality typically refer to large classes of persons, particular social groups -- which are equally based on innate characteristics -- may sometimes do so as well. See Perdomo v. Holder, 611 F.3d 662, 669 (9th Cir. 2010) (explaining in the context of a claimed gender-based particular social group that the “size and breadth of a group alone does not preclude a group from qualifying as ... a social group”); see also N.L.A. v. Holder, 744 F.3d 425, 438 (7th Cir. 2014) (noting that the court "does not determine the legitimacy of social groups by the narrowness of the category"); Cece v. Holder, 733 F.3d 662, 674-75 (7th Cir. 2013) (en banc) (rejecting "breadth of category" as grounds for denying a social group, citing to examples of large social groups, such as Jews in Nazi Germany and ethnic Tutsis during the Rwandan genocide).6

The First Circuit actually goes on at greater length on the topic. I urge those representing asylum seekers in the First Circuit, and Immigration Judges and Asylum Officers deciding claims arising within its jurisdiction, to read the entire decision carefully. There is much there to support the continued recognition of gender per se as a particular social group.

So how did the BIA address all that the First Circuit had to say on the topic?  In K-E-S-G-, the Board’s entire discussion of this case consisted of the following:

see also De Pena-Paniagua v. Barr, 957 F.3d 88, 97 (1st Cir. 2020) (noting that the First Circuit has “never held . . . that ‘women’ as a descriptor of a group lack[s] particularity”).7

Seriously? That’s all the Board got out of the above? Or perhaps the current BIA was set on reaching a certain conclusion, and looking to make short shrift of Circuit Court decisions that would complicate its mission?

In what follows, I focus on (1) the current requirements for determining the validity of PSGs, (2) why gender alone satisfies all of those requirements, (3) how the Board went wrong in K-E-S-G-, and (4) strategies for continuing to argue and decide these cases.

Particular social groups: the legal requirements

Pursuant to the BIA’s own precedent, in order for a PSG to be valid, it must (1) be defined by an immutable characteristic (2) that is sufficiently particular, and (3) is socially distinct.8  A group can also not be impermissibly “circular,” but as that isn’t an issue in groups defined by gender or gender and nationality alone, we’ll omit circularity from the present discussion.

I will add some historical background. “Particular social group” was a late addition to the refugee definition when the 1951 Refugee Convention was drafted. There is a strong argument that the ground was intended as a “catch-all” safety net for those who did not fall under the other four grounds (race, religion, nationality, and political opinion), but who were clearly deserving of refugee protection.

In 1985, the BIA addressed the meaning of “particular social group” for the first time in a precedent decision, Matter of Acosta. In its discussion, the Board stated the following:

It has been suggested that the notion of a “social group” was considered to be of broader application than the combined notions of racial, ethnic, and religious groups and that in order to stop a possible gap in the coverage of the U.N. Convention, this ground was added to the definition of a refugee.9

Despite recognizing the argument for a broad interpretation, the Board chose instead to apply the doctrine of ejusdem generis, a canon of statutory construction requiring that in interpreting general words or phrases in a statute that are surrounded by more specific terms, the term in question should be read consistently with the words that surround it.10  It’s essentially judging a term by the company that it keeps.

For example, if a statute says “x, y, z, and other tangible items,” the idea of what might constitute a tangible item would seem limitless when looking at the term alone. But under the doctrine of ejusdem generis, the meaning of “tangible item” would be one thing if x, y, and z were oats, barley and wheat, and quite another thing if the surrounding terms were different types of war planes, and something else altogether if those terms denoted three types of legal documents.11

So looking to the surrounding terms of race, religion, nationality, and political opinion, the BIA decided that what all of those terms had in common was that they constituted immutable characteristics, and that particular social group should be interpreted consistently with those terms, and not more broadly.

Let’s keep that history in mind as we continue our analysis.

Gender is an immutable characteristic. 

The BIA has defined immutability as either something that one cannot change (such as one’s race), or something that is so deeply ingrained as a part of one’s identity that they should not be forced to change it (such as one’s religion).12

Gender obviously meets this criterion. I don’t know that more needs to be said regarding this element. “Sex” was the very first example of an immutable characteristic offered by the BIA in its Acosta decision back in 1985, and forty years later, even the current Board members who issued K-E-S-G- acknowledged in that decision that sex is an immutable characteristic.13

Gender satisfies the particularity requirement.

Let’s next look at particularity. A whole blog post could be written on why particularity has no place in asylum law (in fact, proposed regulations drafted during the Biden Administration would have removed it as a requirement, but the White House indefinitely postponed their publication for purely political reasons). Regardless, we are stuck with the requirement for now. But what exactly does particularity require?

The Board has always explained particularity as the need for the group to “be discrete and have definable boundaries” providing a clear benchmark for determining who falls within the group.14. So what does “definable boundaries” mean in practice?

Now, I’m certainly in no way endorsing what follows, but regarding gender, the current administration is adamant about how clearly defined it believes the boundary to be. On the first day of his second term in office, President Trump signed a rambling “proclamation” regarding women. Let’s recognize it for what it is: part of this Administration’s cruel, senseless, and completely unwarranted attack on members of our community, our family, friends, neighbors, coworkers, and colleagues, who are transgender, gender-fluid, or nonbinary.

Yet as despicable as its purpose is, the document exclaims in the strongest possible terms that gender-based groups, including women and girls, are defined by the clearest boundaries imaginable, and are thus particular beyond question under the Board’s stated criteria. Again, I strongly disagree with this Administration’s views on gender, but I am pointing out the hypocrisy in its proclaiming the particularity of women when the purpose is to hurt our trans neighbors and friends, but then backtracking from that view when it would require granting protection to victims of gender-based persecution.

Putting the hateful proclamation aside, in creating the particularity requirement (which does not exist in international law) out of thin air, the Board has justified it as being “consistent with the specificity by which race, religion, nationality, and political opinion are commonly defined.15 This is obviously an uncredited reference to ejusdem generis, discussed above.

This is important, because none of those surrounding categories provide a perfectly clear, airtight benchmark for membership.  There are plenty of people of mixed race and nationality; there are those who were raised following more than one religion, or who convert from one religion to another. And yet no decision has suggested that a race, religion, or nationality was too amorphous to qualify as a protected ground for asylum purposes. So applying the same level of particularity as is found in those other grounds means the group definition provides a functional understanding of who is in or out of the group.

So then how do we understand particularity in a way that’s consistent with its imperfectly defined neighboring terms?  The way I’ve explained the concept when lecturing is that if I were to ask the audience “everyone who is X, stand up, and those who aren’t X, remain seated,” would people generally know what to do, or would confusion ensue? This is consistent with the BIA’s statement in Matter of W-G-R- that “[t]he boundaries of a group are not sufficiently definable unless the members of society generally agree on who is included in the group…” (emphasis added).16

For example, if I were to say “everyone who is young, stand up,” most people would want to know what I meant by “young.” What is the cut off age? Is it 22? 34? 42? And if I were to say yes to any of those options, the follow-up question would be “why?” Why 34, but not 35?” That is why the Board has rejected the term “young” as lacking particularity. The same can be said for “wealthy” (in fact, the meaning of that term has become an issue in the current New York City mayoral elections).

As to gender, society is put to the above test every day. When we are faced with choosing a gender-specific public restroom or locker room, when we register or try out for gender-specific sports teams or tournaments, when we debate who should win the best actor or actress category of the Oscars, we are not paralyzed with confusion. When we hear Beyonce sing “All the single ladies,” we do not scratch our heads and ask “What in the world could that refer to?”

We also have clothing brands and stores (and clothing sizes, for that matter) that are designated as “women’s wear” or “men’s wear.” Buttons and zippers are on different sides of men’s and women’s coats. Even fragrances - perfumes vs. colognes - are gender specific.

The fact that societies have songs, teams, tournaments, rest rooms and locker rooms, clothing lines, and fragrances devoted to women and/or girls means that a group defined solely by gender has a commonly accepted definition in a society. The BIA has also mentioned “discrete” (which the Cambridge online dictionary defines as “clearly separate or different in shape or form.”). Hence, the separate and different sports teams, locker rooms, Oscar categories, clothing lines, etc.

Women are socially distinct.

According to the BIA, “the ‘social distinction’ requirement considers whether those with a common immutable characteristic are set apart, or distinct, from other persons within the society in some significant way.” And: “[a] viable particular social group should be perceived within the given society as a sufficiently distinct group. The members of a particular social group will generally understand their own affiliation with the grouping, as will other people in the particular society.”17

The same factors that were more than sufficient to satisfy the particularity requirement also serve as strong proof of social distinction. To use our society once again to illustrate, the existence of rest rooms and locker rooms, schools, sports teams, Oscar and Tony award categories, clothing lines, fragrances, etc. that are specific to women and girls, serve as proof that women and girls are understood to be distinct from others in society in a significant way. 

And it’s worth repeating the First Circuit’s view in De Pena Paniagua quoted above:

In some countries, gender serves as a principal, basic differentiation for assigning social and political status and rights, with women sometimes being compelled to attire and conduct themselves in a manner that signifies and highlights their membership in their group. It is equally difficult to think of a country in which women do not form a “particular” and “well-defined” group of persons. While certain more narrowly-parsed groups might fail to exhibit societal salience, or internally coherent membership, the same does not  follow for a group based on a gender.

To my knowledge, the U.S. is the only country that requires all of these three elements to be met in order to recognize a particular social group as valid. And yet gender easily satisfies all three requirements.

The BIA’s claim that recognizing gender would amount to rewriting the statute is absurd.

In their classic treatise on international refugee law, James C. Hathaway and Michelle Foster state “the recognition that a particular social group can be defined simply on the basis of gender or sex, is, in the words of Lord Steyn, ‘neither novel nor heterodox’; rather, it is ‘simply a logical application of the seminal reason in Acosta - in other words, the ejusdem generis approach.”18 

Decades of case law has established the requirements for qualifying as a cognizable particular social group. The BIA itself is the source of these requirements, which because of the addition of a particularity element, are more challenging than the standard under international law, which is the standard Congress intended to be applied.

Nevertheless, a finding that gender clearly satisfies the legal requirements for a particular social group is in no way a rewriting of the statute; to the contrary, it is a proper application of the statute.

Furthermore, leading scholars of asylum law reject the concept of creating an additional ground of gender, for the reasons explained in this blog post by Prof. Karen Musalo.19

The U.S. is an outlier in refusing to recognize gender as a social group.

The rest of the world seems to understand this. As Hathaway and Foster wrote back in 2014, “Widespread state practice - across both common law and civil law states - now reflects the notion that women, sex, or gender may constitute a particular social group for the purposes of refugee law.”20 They reported “widespread recognition in Europe that women constitute a social group for Convention purposes,” and added that in the Western Hemisphere, “many Latin American states, including Costa Rica, El Salvador, Guatemala, Mexico, Nicaragua, Paraguay, Uruguay, and Venezuela, make clear in domestic codification of the Refugee Convention that gender-based claims are within the ambit of Convention protection.” 21

And under international law, UNHCR has recognized gender: 

It follows that sex can properly be within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men. Their characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries.22

Practice considerations in light of K-E-S-G-.

So where does this leave us? In the long term, the facts that (1) Chevron deference is no longer due to agency decisions following the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 639 (2024); and (2) that the Board’s decision in K-E-S-G- is just so bad might result in the case being rejected by circuit courts at some point down the road.

But practitioners must argue these cases in the meantime, and adjudicators must decide them under this precedent for the time being. What follows offers some food for thought on the issue, divided by circuit.

In the First CIrcuit:

As stated above, the Board’s view is in direct conflict with the First Circuit’s published decision in De Pena Paniagua, and should therefore not be applied in cases falling under the court’s jurisdiction.

In the Fourth Circuit:

The Fourth Circuit has accorded deference to the Board’s particularity requirement, but only to the degree that particularity requires a proposed PSG to have clearly defined boundaries. In its decision in Amaya v. Rosen, the Fourth Circuit rejected the description of the particularity requirement stated by the Board in Matter of W-G-R-, which muddied the distinction between particularity’s “clear boundaries” determination, and social distinction’s “in the view of society” test.23

In Amaya, the Fourth Circuit stated that “[c]ritically, the requirements [of particularity and social distinction] serve distinct purposes, and it is important to consider them separately and with integrity to their purposes.” But the court continued that “[t]he BIA's articulation of particularity in W-G-R-, however, fails to do this.”24

However, in K-E-S-G-, the Board states that “[a]s part of the particularity requirement, societal considerations will necessarily play a factor in determining whether the group is discrete or amorphous. Matter of M-E-V-G-, 26 I&N Dec. at 241; Matter of W-G-R-, 26 I&N Dec. at 214.”25

It should therefore be argued in cases arising with the Fourth CIrcuit that the Board rejected the proposed PSG of gender plus nationality solely on the basis that it lacked particularity, but the standard it applied for determining particularity (as stated above) is one that has been rejected by the court in Amaya.

In the 7th Circuit:

The Seventh Circuit, having rejected social visibility (the predecessor term for social distinction), continues to apply the immutable characteristic test of Matter of Acosta, which does not contain a requirement of either particularity or social distinction.26 As Matter of K-E-S-G- bases its denial of gender alone as a PSG on the particularity test, it should be argued in cases arising within the Seventh CIrcuit that K-E-S-G- conflicts with circuit law, and should therefore not apply.

In the Eighth Circuit 

The Board in K-E-S-G-  took a baffling approach to the position of the U.S. Court of Appeals for the Eighth Circuit. The Board first referenced a decision of that court from 1994, Safaie v. INS.27 Relying today on a 1994 decision rejecting a gender-based PSG strikes me as similar to currently quoting the common view from the 1940s that it is simply physically impossible for a human being to run a mile in under 4 minutes; developments over the subsequent decades have proven both of these viewpoints to be completely wrong.

So back in 1994, addressing what was then a rarely invoked basis for asylum, the Eighth Circuit demonstrated significant confusion in a case involving the PSG of “Iranian women.”. In concluding that “[w]e believe this category is overbroad, because no factfinder could reasonably conclude that all Iranian women had a well-founded fear of persecution based solely on their gender,” (Safaie at 640),  the court mixed into its analysis factors that relate to nexus (i.e. whether or not the fear was based on their gender), and the likelihood of fear, without really addressing whether the PSG itself was validly constructed. Furthermore, the court erred in its view that the harm must be solely due to the PSG membership (in fact, the protected ground can be one of multiple reasons for the harm). The court also erred in thinking that every member of the group must be at risk. The BIA’s failure to point out any of these flaws in Safaie further point to its desire to reach a predetermined outcome.

Fortunately, Safaie was not the Eighth Circuit’s final word on the topic. In Hassan v. Gonzales, decided in 2007, that court did recognize a particular social group consisting of “Somali females,” and further found a nexus between membership in that group and a well-founded fear of persecution in the form of female genital mutilation (“FGM”). Specifically, after quoting the Ninth Circuit’s view that “there is little question that genital mutilation occurs to a particular individual because she is a female. That is, possession of the immutable trait of being female is a motivating factor—if not a but-for cause-of the persecution,” the Eighth Circuit held: “We, therefore, conclude that Hassan was persecuted on account of her membership in a particular social group, Somali females.”28

Of course, the above holding requires a finding that “Somali females” constitutes a cognizable PSG. And although neither Board decision was mentioned in the court’s opinion, it bears noting that Hassan was issued after the BIA had spoken to “social visibility” (as it then referred to social distinction) and particularity in Matter of C-A- and Matter of A-M-E- & J-G-U-.29

So having favorably cited the Eighth Circuit’s misguided decision in Safaie, how did the BIA address that court’s later decision in Hassan? Well, it acknowledged the court’s recognition of a gender plus nationality-based PSG in a footnote.  But it then added this puzzling statement in the following footnote: “The present case does not involve a claim of female genital mutilation and our holding in this case does not affect the viability of such claims in the future.”30

I’ve spoken with four leading asylum law scholars about the meaning of that last footnote. No one seems to know. The Eighth Circuit never said that gender can only constitute a cognizable PSG when the harm in question is female genital mutilation. And the Board does not explain how the court’s view that Somali females is a cognizable PSG can remain viable to the Board at the same time as it is denying the cognizability of that same group.

In the Ninth Circuit:

The Ninth Circuit’s decision in Perdomo v. Holder, 611 F.3d 662, 667 (9th Cir. 2010) (stating “we clearly acknowledged that women in a particular country, regardless of ethnicity or clan membership, could form a particular social group” and noting “[t]he Eighth Circuit has followed our reasoning… holding that ‘Somali females’ constitute a particular social group” (citing that court’s Hassan decision, discussed above) directly conflicts with K-E-S-G-. The Board’s attempt to spin this may be easily disposed of.

First, the Board wrongly asserted that the Ninth Circuit decided Perdomo “based on a prior definition of particular social group,” claiming that subsequent BIA precedent clarified the three requirements of immutability, particularity, and social distinction. In reality, the Board had established those three requirements by 2007, with its decisions in Matter of C-A- (2006) and Matter of A-M-E- & J-G-U- (2007). The Ninth Circuit decided Perdomo in 2010, and, early in its decision, stated that in addition to the immutability requirement of Acosta, “The BIA also has clarified that a group must have “social visibility” and adequate “particularity” to constitute a protected social group. In re A–M–E & J–G–U–, 24 I. & N. Dec. 69, 75–76 (BIA 2007).” Perdomo at 666. The Ninth Circuit therefore applied the same three-part standard as the Board currently applies.

Perdomo was also decided two years after the Board had held that ‘[w]hile the size of the proposed group may be an important factor in determining whether the group can be so recognized, the key question is whether the proposed description is sufficiently ‘particular,” or is “too amorphous . . . to create a benchmark for determining group membership.’” Matter of S-E-G-, 24 I&N Dec. 579, 584 (BIA 2008) (quoting Davila-Mejia v. Mukasey, 531 F.3d 624, 628-29 (8th Cir. 2008) (in turn citing Matter of A-M-E- & J-G-U-, supra, at 76.)). Nothing in any subsequent Board precedent discussing particularity is at odds with the Ninth Circuit’s reasoning in Perdomo. 

Lastly, the Board’s attempt to characterize later decisions of the Ninth Circuit, rejecting entirely different PSGs, as somehow changing its view in light of later Board precedent is highly disingenuous. The two examples referenced by the Board were Macedo Templos v. WIlkinson, 987 F.3d 877 (9th CIr. 2021) (involving a proposed PSG of “Mexican wealthy business owners who did not comply with extortion attempts), and Mendoza Alvarez v. Holder, 714 F.3d 1161 (9th Cir. 2013) (in which the proposed PSGs involved various combinations of people with disabilities, mental illnesses, and insulin-dependent diabetics). These groups were rejected by the court because they were too amorphous. In neither case did the Ninth Circuit reject a group it deemed to be as clearly demarcated and recognized by society as “women” simply because of the group’s size.

In the Tenth CIrcuit:

Let’s finally look at the Tenth Circuit. In 2005, in  Niang v. Gonzales, that court considered gender with greater clarity than its sister circuit had done in Safaie:

There may be understandable concern in using gender as a group-defining characteristic. One may be reluctant to permit, for example, half a nation's residents to obtain asylum on the ground that women are persecuted there. See Safaie, 25 F.3d at 640 (rejecting claim that “Iranian women, by virtue of their innate characteristic (their sex) and the harsh restrictions placed upon them, are a particular social group”)...But the focus with respect to such claims should be not on whether either gender constitutes a social group (which both certainly do) but on whether the members of that group are sufficiently likely to be persecuted that one could say that they are persecuted “on account of” their membership.31

It should be argued that K-E-S-G- conflicts with circuit case law, citing the above language from Niang.

In other circuits:

In circuits with either negative case law or no case law on the topic, counsel should brief the topic in detail, explaining the three legal requirements for PSGs, and explaining how each requirement is satisfied by a group defined by gender plus nationality.

It is further recommended that country condition information be provided to establish how society views gender in the country in question.

UNHCR materials, including its 2002 Gender Guidelines, should also be submitted, while emphasizing that, in the view of the Supreme Court, “[i]f one thing is clear from the legislative history of the new definition of "refugee," and indeed the entire 1980 Act, it is that one of Congress' primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees…to which the United States acceded in 1968.”32

In all circuits:

It is always advisable for representatives to present, and adjudicators to consider, all protected grounds that might constitute a reason for persecution, including political opinions imputed to women who assert their rights in patriarchal societies. See, e.g., Rodriguez Tornes v. Barr, 993 F.3d 743 (9th Cir. 2021); Hernandez-Chacon v. Barr, 948 F.3d 94 (2d Cir. 2020); Alvarez Lagos v. Barr, 927 F.3d 236, 254 (4th Cir. 2019).

It is further recommended that, in addition to gender plus nationality, representatives offer alternative PSGs containing additional narrowing grounds. The Attorney General’s recent decision reinstituting Matter of A-B-, and vacating the BIA’s decision in Matter of A-R-C-G-, does not constitute a prohibition on asylum grants based on “women of a particular nationality who are in a domestic relationship, and are unable to leave that relationship;” it merely requires additional work in presenting and deciding such cases. Many Immigration Judges continued to grant domestic violence based asylum claims in well-reasoned written decisions while Matter of A-B- was in force during the first Trump Administration.33  And Department of Justice attorneys at the time argued in litigation that the only binding impact of Matter of A-B- was vacating Matter of A-R-C-G-; the rest of the Attorney General’s decision was merely dicta.34 

Conclusion

While we have reason to anticipate future corrections from circuit courts of this misguided precedent, it is hoped that the above provides useful guidance at present for both practitioner and adjudicators.

Copyright Jeffrey S. Chase, 2025. All rights reserved.

(The author would like to thank Deborah E. Anker, Blaine Bookley, Shane Ellison, and Kate Jastram for offering their wise insights on points discussed in this article.)

Notes:

  1. Matter of K-E-S-G-, 29 I&N Dec. 145 (BIA 2025).

  2. De Pena-Paniagua v. Barr, 957 F.3d 88 (1st Cir. 2020)

  3. Id. at 95.

  4. Id.

  5. Id. at 96.

  6. Id. at 96-97.

  7. Matter of K-E-S-G-, supra at 148.

  8. Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA 2014).

  9. Matter of Acosta, 19 I&N Dec. 211, 232 (BIA 1985) (citing Atle Grahl-Madsen, The Status of Refugees in International Law (1966)).

  10. Id. at 233.

  11. See, e.g., Yates v. U.S., 574 U.S. 528 (2015) (holding that where the term “tangible object” was surrounded in the statute by terms such as “record” and “document,” then a fish would not constitute a tangible object under that statute).

  12. Matter of Acosta, supra at 233.

  13. K-E-S-G-, supra at 148.

  14. See Matter of M-E-V-G-, supra at 239.

  15. Id.

  16. Matter of W-G-R-, 26 I&N Dec. 208, 221 (BIA 2014).

  17.  Matter of M-E-V-G-, supra at 238.

  18. Hathaway and Foster, The Law of Refugee Status (2nd Ed.) (Cambridge Univ. Press, 2014) at 442 (quoting Ex parte Shah (1999)).

  19. Karen Musalo, “The Wrong Answer to the RIght Question: How to Address the Failure of Protection for Gender-Based Claims?” Immigration Professor Blog, March 9, 2021.

  20. Hathaway and Foster at 437.

  21. Id. at 437-38.

  22. UNHCR, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (7 May 2002), at ❡ 30,  available at https://www.unhcr.org/sites/default/files/legacy-pdf/3d58ddef4.pdf,

  23. Amaya v. Rosen, 986 F.3d 42, 432-33 (4th Cir. 2021).  Other decisions in which the Fourth Circuit has applied a strictly “clear boundary” test for particularity include Crespin-Valladares v. Holder, 632 F.3d 117, 125 (4th Cir. 2011); and Lizama v. Holder, 629 F.3d 440, 447 (4th Cir. 2011).

  24. Amaya v. Rosen, supra at 433.

  25. K-E-S-G- supra at 147.

  26. See Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) (applying the immutability test of Acosta alone to recognize "young women who are targeted for prostitution by traffickers in Albania," as a cognizable PSG; Gatimi v. Holder, 578 F.3d 611, 616 (7th Cir. 2009) (rejecting the related social visibility requirement for being inconsistent with other agency decisions).

  27. Safaie v. INS, 25 F.3d 636 (8th Cir. 1994).

  28. Hassan v. Gonzales, 484 F.3d 513, 518 (8th Cir. 2007).

  29. The BIA issued Matter of C-A-, 23 I&N Dec. 951 (BIA 2006) (creating the “social visibility” requirement) on  June 15 , 2006; and it issued Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007) (creating the particularity requirement) on January 31, 2007. The Eighth Circuit issued Hassan on May 7, 2007.

  30. K-E-S-G-, supra at fn. 8.

  31. Niang v. Gonzales, 422 F.3d 1187, 1199–200 (10th Cir. 2005).

  32. INS v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987).

  33. The author has a number of these IJ written decisions in his possession.

  34. See Grace v. Whitaker, 344 F. Supp. 3d 96, 138 (D.D.C. 2018), aff'd in part, rev'd in part and remanded sub nom. Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020) ("According to the government, the only legal effect of Matter of A-B- is to overrule Matter of A-R-C-G-. Any other self-described dicta would not be entitled to deference under Chevron and therefore Brand X could not apply.”).

JEFF CHASE