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Among these decisions, Matter of K-E-S-G- stands out for its broad reach and because it potentially closes the door to protection for many vulnerable women (and some vulnerable men). At the same time, Matter of K-E-S-G- is not a particularly surprising decision, given that the BIA and the federal courts have long struggled with providing protection (or not) to victims of gender-based violence.
To understand Matter of K-E-S-G-, it is helpful to have an idea about the role of "particular social groups" in asylum law. To win asylum, it is not enough to face harm in your home country. The harm must be on account of your race, religion, nationality, political opinion or particular social group. If you fear harm for some other reason (for example, from a criminal who wants your money), you are probably not eligible for asylum. While the other categories of protection are somewhat self explanatory, particular social group (or PSG to us immigration lawyers) largely defies definition and is confusing (including to us immigration lawyers).
Over the years, the BIA and many courts have struggled to define PSG. Some PSGs are relatively well accepted: LGBT individuals, members of a specific tribe, immediate family members. Others are difficult to define, and PSGs related to gender-based harm are probably the most contested. During many years of the George W. Bush and Barack Obama Administrations, there was a back and forth effort to come up with a cognizable PSG for women that made legal sense. Ultimately, in a 2014 case called Matter of A-R-C-G-, the BIA landed on an awkward but mostly workable definition of PSG that offered some protection to victims of domestic violence: "married women in country X who are unable to leave their relationship"
At the time, I criticized this definition as contrived and difficult to satisfy. I felt that a much better PSG would simply be "women," since the asylum seeker in question was being persecuted because she was a woman; not because she was a woman from a particular country or a woman who could not leave the relationship. Despite my lack of enthusiasm, Matter of A-R-C-G- was a significant step forward, which helped many vulnerable women receive asylum in the United States.
But now, the BIA has largely killed Matter of A-R-C-G-. The new decision holds that--
a particular social group defined by the alien’s sex or sex and nationality, standing alone, is overbroad and insufficiently particular to be cognizable under the [immigration law]. Groups defined solely by the characteristics of sex and nationality contain no narrowing features such as a specific age range or a specific position in the country’s society or its economy. These proposed groups are too broad and diffuse, encompassing a diverse cross section of society of widely varying ages, socioeconomic statuses, marital statuses, family backgrounds, and lifestyles.
Put another way, PSGs such as "women in country X" are too broad to constitute a particular social group. The BIA reasoned that if it allowed PSGs defined solely by sex, it “would essentially create another protected ground under the INA—that of sex—to add to the grounds of race, religion, nationality, membership in a particular social group, or political opinion.” “Had Congress or the drafters of the United Nations Convention Relating to the Status of Refugees… intended sex in and of itself to be a protected ground, they could have specifically listed it as a separate ground." There is a cold logic to this reasoning, and it points to the vulnerability of a decision like Matter of A-C-R-G-, which--while it helped many people--was not built on a very secure foundation.The new ruling narrows the definition of PSG, and makes it more difficult for many women to win asylum, but it does not close the door entirely. For example, "women" could be combined with some other characteristic to formulate a PSG: "indigenous women," "Sunni Muslim women," "women who have been subject to sexual violence," and "women with a disability" are a few ideas. If the persecution is on account of these PSGs, the decisionmaker might still approve asylum.
Also, Matter of K-E-S-G- is not necessarily a done deal. The decision may be contrary to the law in certain jurisdictions (different federal appeals courts have jurisdiction over different parts of the U.S., and their rulings sometimes conflict with each other, so a PSG may work in one jurisdiction, but not another). For example, in my area, the U.S. Court of Appeals for the Fourth Circuit has held that "unmarried mothers living under control of gangs" is a viable PSG. What the Fourth Circuit will do with Matter of K-E-S-G- remains to be seen.
At the minimum, Matter of K-E-S-G- will force asylum applicants (and their lawyers) to think harder about how to present gender-based PSGs. For those who fear harm on account of gender, the decision will make the road to asylum even more difficult. I fear that many vulnerable people, especially those without attorneys, will be blocked from protection. While we can hope that federal courts will mitigate some of the damage, Matter of K-E-S-G- represents another step backwards in the fight for equality and the fight to protect women who face sexual violence and other gender-based harm.
Originally posted on the Asylumist: www.Asylumist.com
