The Board of Immigration Appeals (BIA) has issued a decision that makes it significantly harder for people fleeing gender-based violence to gain asylum. On July 18, the BIA published its decision in Matter of K-E-S-G-, finding that people persecuted solely on account of their sex are unlikely to qualify for asylum because sex alone does not meet the definition of a particular social group (PSG), one of the five categories protected from persecution under U.S. asylum law.
What changed
The BIA ruled that a particular social group defined by sex alone is not sufficiently cognizable under the asylum statute. The BIA added that a social group defined by sex and nationality also fails to meet the PSG definition.
The case involved Ms. S.G., a woman who fled El Salvador for the United States after she was stalked and threatened by gang members in her community. Like many women who flee gender-based violence, she feared returning to El Salvador because of the persecution she suffered, and because her government would not protect her. The immigration court initially denied her claim, and the BIA upheld that denial by ruling her proposed social groups did not qualify.
Since 2014, the BIA has defined a PSG as a group of people who share a common characteristic they cannot, or should not, have to change (an immutable trait). The group must have defined boundaries (particularity), and others in the same society must view the group as set apart from the rest of the population (social distinction). In Matter of K-E-S-G-, the BIA decided that sex fails this three-part test. Even though it found that sex is an immutable trait, the BIA ruled that the PSGs comprised of “women” or “Salvadoran women” lack particularity because these groups are too diverse and have no unifying characteristic that unites their experiences.
Why it matters
Victims of gendered violence will now have to prove a more specific reason for their suffering. A Salvadoran woman fleeing an abusive partner will no longer be granted asylum at this level based on her status as a Salvadoran woman, despite El Salvador’s status as the country with the world’s highest rate of intentional female homicides.
However, if she can show she’s being targeted as a single mother, and that single mothers are a distinct group in Salvadoran society, her asylum claim still has a chance. As a result, people fleeing gender-based violence are placed in a precarious position where they have to explain why they were targeted for persecution in more detail than their neighbor’s fleeing on account of other protected grounds.
The decision reflects a narrower reading of what constitutes a “particular social group.” Some circuit courts have previously expressed skepticism about prior BIA decisions finding that PSGs defined by sex and nationality are too broad and thus lack particularity. Under the Supreme Court’s recent decision in Loper Light, courts need not defer to the BIA’s interpretations of the asylum statute.
Way forward
If you represent asylum seekers with gender-based violence claims:
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Reframe your social group definitions immediately. Avoid broad categories like “women” or “Salvadoran women.” Instead, identify narrower sub-groups with specific characteristics: “single mothers unable to leave abusive relationships,” “women who refused gang recruitment,” or “women who oppose female genital cutting in their community.”
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Document particularity and social distinction. Gather country conditions evidence showing that your proposed group is viewed as distinct in the home country. Declarations and expert testimony must establish both that the group has defined boundaries and that society recognizes it as set apart.
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Consider alternative protected grounds. Where gender-based persecution is alleged, explore whether political opinion, membership in a family unit, or other grounds might apply. Asylum relief on any single ground is sufficient.
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Preserve circuit court arguments. If your client is denied based on K-E-S-G-, document the decision carefully and research your circuit’s stance on PSG doctrine. Under Loper Light, courts are no longer required to defer to BIA interpretations, creating litigation opportunities at the federal circuit level.
Disclaimer
This article is for informational purposes only and does not constitute legal advice. The content is based on publicly available materials and the primary source linked above. Immigration policy and case law can change without notice, and each client’s situation is unique. Consult a licensed immigration attorney to discuss your specific circumstances, and verify all information against the primary source and current legal developments before relying on it for case strategy or client advice.