The Role of Federal Courts in Shaping Gender-Based Asylum
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Zack Albun and Sabi Ardalan *
Abstract: This article explores federal courts' significant role in clarifying that survivors of gender-based violence can qualify for asylum under U.S. law. When adjudicators have found such claims lacking with respect to one or more elements of the refugee definition, federal judicial review has often proven a useful corrective to misguided assumptions and incorrect analyses. This article highlights the role of federal courts in shaping gender-based asylum law, specifically in the context of claims based on membership in a particular social group and feminist political opinion, as well as nexus to a protected ground.
Although the statutory definition of "refugee" does not explicitly reference gender or sex, it is well-established that asylum claims brought by women fleeing domestic violence are encompassed within both international and U.S. law. 1 Over the last four decades, Article III federal courts and the Board of Immigration Appeals (the Board) have repeatedly recognized that women fleeing domestic violence and asylum seekers who fear gender-based violence are eligible for refugee protection. Yet, some adjudicators nonetheless remain confused about gender-based asylum claims, improperly dismissing them as claims based on personal disputes, as opposed to claims based on a protected ground recognized by the Refugee Convention. In one prominent and misguided example, the U.S. Departments of Justice and Homeland Security published in late 2020 twin regulations that would have adopted "a presumption against asylum claims that are rooted in gender-based persecution," 2 notwithstanding the myriad authorities that contradict any legal basis for that proposition. Crucially, those regulations were enjoined before ever being implemented, and remain enjoined as of this writing. 3 Thus, U.S. law implementing the Protocol to the Refugee Convention protects refugees fleeing gender-based persecution.
This article provides a brief overview of the impact of federal courts on the development of gender-based asylum claims, focusing on the protected grounds of membership in a particular social group and political opinion, as well as nexus to harm in gender-based asylum cases. In so doing, the article seeks to underscore the viability of gender-based asylum claims within the existing refugee definition and framework. Well-intentioned proposals to amend the refugee definition to explicitly include gender or sex as a sixth ground would only exacerbate confusion by bringing the United States further out of step with the definition of "refugee" under Refugee Convention and its Protocol, which Congress codified into U.S. law with the Refugee Act of 1980. 4
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Gender-Based Particular Social Groups and Domestic Violence-Based Asylum Claims
Federal courts have built on long-standing Board precedent and expanded the recognition of gender-based asylum claims. Although the Board has issued multiple unpublished decisions recognizing the cognizability of gender-plus-nationality-based social groups, 5 it has issued only a handful of precedent decisions addressing gender-based asylum claims. In the absence of Board precedent, federal courts have stepped in to fill the gap and clarify the understanding of the social group ground for asylum in the context of gender-based claims.
Almost 40 years ago, in Matter of Acosta, the Board recognized that a group defined by sex can establish a cognizable social group. 6 In Acosta, the Board used the ejusdem generis canon of statutory construction, which counsels that "general words used in an enumeration with specific words should be construed in a manner consistent with the specific words," to clarify the meaning of "particular social group." 7 The Board found that the other protected grounds—race, religion, nationality, and political opinion—describe "immutable characteristic^]" that are "beyond the power of an individual to change or [ ] so fundamental to individual identity or conscience that [they] ought not be required to be changed." 8 The Board therefore determined that "particular social group" should be read to encompass "a group of persons all of whom share a common, immutable characteristic." 9 The Board then recognized "sex, color, or kinship ties" as "shared characteristic[s]" that can establish cognizable social groups. 10 In Matter of Kasinga, the Board built on the reasoning in Acosta to recognize the social group of "young women of the Tchamba-Kunsuntu Tribe who have not had FGM [female genital mutilation], as practiced by that tribe, and who oppose the practice." 11
More recently, in Matter of A—R—C—G-, the Board cited Acosta and its finding that "sex is an immutable characteristic" in recognizing as cognizable the social group of "married women in Guatemala who are unable to leave their relationship" in a domestic violence—based asylum claim. 12 The Board further explained that the social group satisfied the additional criteria of particularity and social distinction set forth in Matter of M—E—V—G—. 13 In terms of particularity, the Board pointed to the "commonly accepted definitions within Guatemalan society" of the terms "married" and "women" (among others) used to describe the group and the fact that "[i]n some circumstances, the terms can combine to create a group with discrete and definable boundaries." 14 With respect to social distinction, the Board pointed to unrebutted country conditions evidence in the record that "Guatemala has a culture of 'machismo and family violence'" and cited the ineffective laws and institutions put in place in Guatemala to prosecute domestic violence. 15
In the years since, rather than clarify protections for women fleeing domestic violence, the agency tasked with interpreting the refugee definition
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has contributed to confusion over the viability of gender-based asylum claims, including through former Attorney General Jeff Sessions' misguided efforts to eviscerate gender-based asylum law in Matter of A—B—. 16 In 2020, the Department of Justice promulgated regulations that attempted to codify Matter of A—B— and create a strong presumption against asylum claims that involve domestic violence. 17 Although the regulations were enjoined before implementation, 18 they nonetheless still create confusion and obstruct accurate adjudication of the refugee definition. 19 As a result, Article III courts have had to step in and bridge the gap.
The First Circuit, for example, has recognized the potential cognizability of the social group of Dominican women when evaluating the asylum claim of a woman from the Dominican Republic fleeing domestic violence. 20 In De Pena-Paniagua v. Barr, the First Circuit emphasized that "it is difficult to think of a country in which women are not viewed as 'distinct' from other members of society . . . It is equally difficult to think of a country in which women do not form a 'particular' and 'well-defined' group of persons." 21 As the First Circuit recognized in De Pena-Paniagua, the reluctance to recognize gender-based social groups largely stems from concerns, not grounded in law, regarding the size of a particular social group. 22 Yet, as the court explained, the other protected grounds—race, religion, nationality, and political opinion—also refer to large groups of people, and the size of a group is not relevant in evaluating cognizability. 23 The other elements of the refugee definition, including the requirement that the persecution suffered or feared be on account of a protected ground, and that the state be either unable or unwilling to protect against the harm, serve a limiting function and narrow who qualifies for protection. 24
Other federal courts have also recognized the potential cognizability of gender-based social groups in asylum cases involving femicide, trafficking, and female genital mutilation. The Ninth Circuit in Perdomo v. Holder, for instance, recognized a gender-plus-nationality social group in a case involving fear of femicide, and the Second and Seventh Circuits have recognized gender-plus-nationality social groups in cases involving sex trafficking. 25 The First, Third, Sixth, and Seventh Circuit have also recognized the potential cognizability of gender-based social groups in cases where women have refused to conform to societal expectations. 26 Further, multiple federal courts have built on Board precedent in Kasinga to recognize the cognizability of gender-based social groups in cases involving women fleeing female genital mutilation. 27
Feminist Political Opinion as a Protected Ground in Gender-Based Asylum Claims
Article III courts have paved the way for expanded protection for women not only through their recognition of gender-based social groups but also
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through a robust body of case law recognizing actual or imputed feminist political opinions as a protected characteristic. In line with the construction of the Refugee Convention's use of "political opinion" as broader than electoral politics or political parties, federal courts have recognized that political opinion encompasses diverse forms of political belief and expression, including feminist opinions. 28 Indeed, over three decades ago, then-Judge Samuel Alito of the Third Circuit noted that there was "little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes." 29 In the years since, federal courts have upheld and expanded upon the Fatin v. I.N.S. court's reasoning. Feminism need not be expressed through more conventional avenues for political participation, such as protest. Rather, possession of a feminist political belief, regardless of the expression thereof, and resistance to patriarchy may constitute political opinion for purposes of refugee protection. 30
Under both the Refugee Convention and U.S. law, women may establish eligibility for protection...
