The Board of Immigration Appeals issued a precedential decision in Matter of K-E-S-G- that, if upheld, would seriously undermine protection for women fleeing violations of their most fundamental human rights. The case involves a Salvadoran woman, Ms. S.G., who fled to the United States after being stalked and threatened by powerful gang members, from whom the police refused to protect her. The decision narrows how asylum practitioners must present gender-based persecution claims and creates new barriers for applicants seeking protection on account of gender.
What changed
The BIA found 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. The BIA added that a social group defined by sex and nationality also fails to meet the PSG definition.
The BIA reversed a grant of asylum to a Guatemalan woman fleeing domestic violence, ruling that Acosta’s immutable/fundamental test was only a threshold, and that applicants must also show the proposed social group “was recognized and understood to be a societal faction,” which the BIA ruled, the applicant had failed to do.
Beginning in 2006, the BIA formally ruled that a PSG could no longer be defined solely by immutable/fundamental characteristics. In a series of decisions, it added two additional requirements – particularity and social distinction. The K-E-S-G- decision applies these heightened requirements to gender-based groups.
Why it matters
In contrast to the BIA, a number of circuit courts have repeatedly recognized social groups based on gender, including groups defined solely by gender and nationality. In a series of decisions as early as 2005 and continuing to the present, courts have accepted gender plus nationality groups across a range of claims involving domestic violence, femicide, sexual assault, ritual harm inflicted on widows, and female genital cutting.
The K-E-S-G- decision creates a circuit split. The BIA’s decision in Matter of K-E-S-G- gives asylum seekers persecuted on account of their gender an uphill climb, and their advocates now have a great deal of work cut out for them in an environment where more is demanded of them. Practitioners must now draft gender-based PSG claims with greater specificity and documentary evidence that the group is “recognized and understood” in the applicant’s country of origin, not merely immutable.
The K-E-S-G- case was sent back to the immigration court for consideration of another form of relief, however its flawed reasoning will be challenged on appeal as it begins to be applied in other cases.
Way forward
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Strengthen particularity and social distinction. When drafting PSG definitions in gender-based asylum cases, add limiting factors beyond gender alone—combine gender with geographic, occupational, or relational characteristics (e.g., “Salvadoran women in relationships they are unable to leave” rather than “women”).
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Document social recognition. Include country-condition evidence, expert declarations, and news reporting showing that the proposed group is socially recognized and understood as a cohesive faction in the applicant’s country.
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Preserve circuit-court arguments. Brief appellate petitions to leverage circuit decisions that have accepted broader gender-based PSGs. Cite circuit authority that either rejects the “social faction” test or applies a less restrictive particularity standard.
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Explore alternative grounds. For applicants whose gender-based claims are rejected under K-E-S-G-, investigate whether political opinion, religion, or other protected grounds apply. The immigration court may also award relief on alternative bases (protection under the Convention Against Torture, cancellation of removal, etc.).
Disclaimer
This article is not legal advice and does not constitute the official position of any U.S. government agency. Fola is a software company, not a law firm. Immigration law is complex and changes frequently. Always consult a licensed immigration attorney to evaluate your specific case and verify current law against the primary sources linked above. Policy can change without notice, and this article reflects the law as of its publication date.