Rejecting a Salvadoran woman’s gender-based asylum claim, a U.S. immigration court has put women fleeing violence at greater risk. It’s time to rethink what we mean by “fixing” immigration—and work toward real solutions.
In the matter of K-E-S-G-, an asylum case decided by the U.S. Board of Immigration Appeals on July 18, Department of Justice officials declared that a Salvadoran woman stalked and threatened by gang members could not obtain asylum based solely on the argument that her persecution was due to her gender, despite occurring in a country that, she argued, views women as property.
The decision is the latest in a 30-year battle over the legitimacy of gender-based asylum claims and closely tracks the first Trump administration’s efforts to roll back decisions and policies that recognized the unique role gender plays in many asylum cases, particularly those involving domestic abuse, sexual violence or trafficking.
According to the attorneys representing S.G., while the decision does not prevent women from making gender-based asylum claims, it will make it much more difficult to prove them. Neela Chakravartula, associate director of litigation at the Center for Gender & Refugee Studies and a co-counsel in the case, predicts that this new ruling will lead to more denials of women’s asylum claims since it “sends a strong signal to immigration judges that women’s asylum claims should not be taken seriously.”
Chakravartula said in a press briefing:
“This isn’t the first time the Trump administration has singled out women seeking asylum, and we know where this path leads. More judges denying protection to women who qualify for it. More refugees being deported to danger. Even more chaos and confusion injected into our immigration system.”
The Tahirih Justice Center’s Kursten Phelps, another co-counsel on S.G.’s case, expressed concern about the chilling effect the decision will have on many potential asylum seekers.
“This decision does not mean they are suddenly ineligible for asylum,” she noted. “But harmful rhetoric and decisions like this one are designed to deter them—and us—from even trying. We must not do their work for them. These cases are still winnable, and we owe it to survivors to keep fighting and affirm that their stories do count.”
Asylum law is complex, making it difficult to obtain asylum in the United States. You must demonstrate that you have been or will be persecuted based on a protected category, and that your own government will not or cannot help you. You must show that your persecutor intended to harm you because you are a member of the protected category. You must show that you can’t simply move to another part of your country and that your life is in danger if you return home.
If you demonstrate all these things based on the protected grounds of race, religion, nationality or political opinion, you have a shot at winning your case. If someone is persecuting you because you are a woman, however, you also must prove that you are a member of a particular social group, one sufficiently distinct and separate from the general population of women in your country that your membership in this group makes you a target for some particular form of persecution.
Some asylum claims seem straightforward—persecution by the Russian government of a political dissident is tied to political opinion, while ethnic cleansing operations are persecution on account of race—but others are more complicated. Union membership, sexual orientation, gender, whistleblowing or geography can all be part of persecution claims that don’t necessarily fit under the delineated grounds.
Gender has been controversial, driven in large part by the fact that many forms of gender-based persecution are committed by private actors rather than by the government itself, and by fears of overwhelming the asylum system if gender is accepted as the basis for persecution without more evidence to distinguish the claim.
Since the Clinton administration, efforts to fully address gender have swung back and forth in U.S. courts; most advocates have pinned their hopes on regulations that would definitively address gender as part of a rule defining a “particular social group.” Those efforts have been thwarted politically in Democratic administrations and have been completely abandoned under the Trump administration.
The board’s decision in K-E-S-G- takes on deeper significance because it doesn’t simply reject the applicant’s definition of a particular social group. It goes further, declaring that gender is never sufficient on its own to demonstrate a protected class. In classic originalist form, the board pivoted to the 1950s, declaring that it could not recognize gender as a distinct protected class because it wasn’t part of the original group of five established at the 1951 U.N. Refugee Convention.
However, an analysis of the Refugee Convention and its history argues for recognizing that protected groups can change over time and custom. It’s not that gender can’t be a protected category, but that gender must be tied to certain specifics that define a woman’s status in a particular country at a particular time. Given the state of the world, this should mean that gender-based claims would not require linguistic gymnastics to establish that a woman in El Salvador is likely at risk for persecution.
An obvious example is the condition of women in Afghanistan. Under Matter of K-E-S-G-, it appears that Afghan women fleeing the Taliban may not be considered a sufficiently specific group, despite the overwhelming threat to life and freedom women face in Afghanistan today. Afghan women refugees in the U.S., many of whom are still waiting for the government to keep its promises to protect them from the Taliban through permanent U.S. residence, are keenly aware of this possibility.
“When I learned about the decision in K-E-S-G-, I thought of our clients,” said Laila Ayub, cofounder and director of Project ANAR (the Afghan Network for Advocacy and Resources), a legal services organization founded to assist Afghan refugees. “With every new announcement from this administration, they reach out to us asking if they will face deportation. It is shameful that at a time when other countries are expanding protections for displaced peoples fleeing gender-based violence and persecution, this administration is weaponizing the immigration court system to further restrict them.”
This piece is the first in a three-part Ms. series on women, asylum and immigration policy. Part 2, out Thursday, examines how feminist leaders are rethinking what it means to ‘fix immigration.
