Immigration Blog Essay

Re-setting Gender-Based Asylum Law

The United States has long recognized the duty to protect refugees and prevent their return to persecution or torture. Indeed, the United States is a signatory to the Protocol to the Refugee Convention and the Convention Against Torture and has incorporated both treaties directly into domestic law and regulations. The Biden administration has, however, continued to implement two Trump-era policies that present often-insurmountable barriers to accessing asylum in the United States. The first, a policy known as Remain in Mexico, forces certain asylum seekers to wait outside the United States in life-threatening conditions while their cases are processed. The second, Title 42, is an arcane public health law used to summarily expel thousands of asylum seekers without due process under the false pretext of the pandemic.

Notwithstanding these problematic developments, the Biden administration has nonetheless made critical headway in protecting certain asylum seekers, particularly those who fear gender-based violence. The executive, Congress, and the judiciary must now solidify protections for these asylum seekers instead of allowing confusion to erode their rights.

Last June, Attorney General Merrick Garland vacated a Trump-era decision known as Matter of A-B- that attempted to eviscerate asylum protection for people fleeing domestic violence and gang-based violence. That effort to reset the law—to make clear that people can qualify for asylum if they fear violence based on their gender—is a major step forward.

But some recent federal court decisions reveal ongoing confusion about the state of asylum law when it comes to people seeking protection based on their gender. Take, for example, the case of Gleidy Yessenia Jaco, a Honduran asylum seeker who suffered repeated rape and threats of death at the hands of her partner and who was provided no meaningful protection by the state. The Fifth Circuit rejected her pro se appeal, and in so doing, both blatantly ignored long-standing precedent and flouted Attorney General Garland’s recent decision. And, this month, the Third Circuit denied a petition for review filed by a Guatemalan woman, Martha Chavez-Chilel, who similarly fled rape and threats of assault and death and received no state protection, deferring to tenuous conclusions by the immigration judge and Board of Immigration Appeals.

The Biden administration is poised to weigh in soon. In an Executive Order issued last February, President Biden announced that the Attorney General and Secretary of Homeland Security would “evaluate whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards” and promulgate regulations in response. According to the Executive Order, the forthcoming regulations would clarify the “circumstances in which a person should be considered a member of ‘a particular social group.’”

Confusion over the meaning of “particular social group” has contributed significantly to adjudicators’ continued misunderstanding of asylum law and the protections it affords women. Membership in a particular social group is one of the five grounds for seeking asylum (along with race, religion, nationality, and political opinion) that provides avenues to protection for women, LGBTQ+ people, family members, and others who have suffered or fear persecution. The forthcoming regulations could—if properly formulated—dispel confusion surrounding particular social group membership and help bring the United States back into compliance with its obligations under domestic and international law.

The term “particular social group” comes from the definition of refugee in the 1951 Refugee Convention and the 1967 Protocol to the Convention, which the United States signed and ratified to provide a safe haven to people when their own home countries failed to protect them. Congress incorporated the refugee definition into U.S. law with the passage of the 1980 Refugee Act and in so doing declared its intent to “respond to the urgent needs of persons subject to persecution in their homelands[.]” Yet recent decisions by the Fifth and the Third Circuit stand in stark conflict with that purpose.

The Board of Immigration Appeals in its seminal 1985 decision Matter of Acosta explained that members of a particular social group share common immutable characteristics that they cannot change or should not be required to change given how fundamental they are to a person’s identity or conscience. The Board in Acosta explicitly identified sex and kinship ties, along with race and past status, as quintessential examples of this type of characteristic. The United Nations High Commissioner for Refugees (UNHCR), which provides “legal interpretative guidance for governments,” adopted that reasoning and similarly emphasized 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.” Multiple state parties to the Convention and Protocol followed suit, explicitly adopting the Acosta immutability standard.

Since Acosta,however, the Board has added two incomprehensible criteria—social distinction and particularity—to the definition of particular social group, requiring that groups be “socially distinct within the society in question” and “defined with particularity.” These added criteria have caused extensive confusion among advocates and decision-makers alike. Indeed, the Fourth Circuit recently rejected the Board’s “muddle[d]” analysis of the particularity requirement, concluding that the Board “impermissibly conflate[d]” social distinction and particularity and emphasizing that the particularity test the Board set forth “d[id] not make sense.”

The Board’s imposition of these additional, confused criteria has had dire consequences for women like Ms. Jaco and Ms. Chavez-Chilel, whose gender-based asylum claims were erroneously denied for not satisfying those criteria. As the First Circuit observed in De Pena Paniagua v. Barr, these additional requirements have been “deployed in ways that may have cast some doubt on the possibility of a group defined as ‘women,’ as sensible as it would seem to be.” The First Circuit explained that precedent “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,” but emphasized 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.” As UNHCR guidelines note, “[t]he size of the purported social group is not a relevant criterion in determining whether a particular social group exists[.]” Other elements in the refugee definition—e.g., the causal connection to a protected ground, the level of fear the applicant has to establish, and the severity of the harm—serve a narrowing function.

In order to dispel the confusion wrought by these criteria, it is thus critical that the administration return to the definition of particular social group set forth in Acosta in its forthcoming regulations—eliminating the additional requirements that have led to unnecessarily restrictive interpretations of the refugee definition and improper denials of protection to women fleeing domestic violence.

In addition, any legislative fixes should similarly return to the Acosta framework. Some have suggested that Congress revise the statute to add gender as a sixth ground for asylum, but doing so would only exacerbate confusion about the meaning of the term particular social group. Diverging from the five grounds set forth in the Convention would undermine Congress’s intent to bring U.S. law into conformity with international refugee law when it enacted the 1980 Refugee Act. As scholars, adjudicators, and the UNHCR alike have emphasized, sex and gender are already encompassed within the Convention’s definition of refugee. Adding gender as a sixth ground would, even if unintentionally, suggest otherwise.

The executive, Congress, and the judiciary all need to ensure that people who come to the United States seeking asylum are not summarily turned away from our borders and are instead afforded the safety they need. The Biden administration must take explicit steps to reaffirm its commitment to providing asylum seekers with the protection required under U.S. and international law. Restoring gender-based asylum law to the interpretation that had governed for decades and explicitly recognizing Acosta as the relevant definitional framework is one piece of the puzzle critical to protecting bona fide refugees from forced return to countries where they face persecution or torture.