Gender-Based Asylum in the US: The Case for a Sixth Ground Amid Legal Volatility

Introduction

The legal framework surrounding gender-based asylum in the United States has been marked by instability. The landmark 2014 decision in the Matter of A-R-C-G- provided a crucial precedent, affirming that women fleeing domestic violence could qualify for asylum under the “particular social group” (PSG) category, specifically “married women in Guatemala who are unable to leave their relationship” [1]. However, this recognition was short-lived. In 2018, former Attorney General Jeff Sessions reversed the Matter of A-R-C-G- in Matter of A-B-, dismissing domestic violence as a “private” matter and rejected the recognition that the Board of Immigration Appeals (BIA) had given to the particular social group [2]. Under the Biden administration, Attorney General Merrick Garland vacated Matter of A-B-, reinstating Matter of A-R-C-G- as precedent [3]. But, as changes in asylum policy are becoming increasingly volatile under the Trump Administration, it is important that we underscore a critical flaw: gender-based asylum law, and the survivors of gender-based persecution it concerns, are vulnerable to shifting political landscapes and administrative priorities.

In response to this legal volatility, immigration advocates propose two primary solutions: (1) adding gender as the sixth ground or asylum, or (2) restoring gender-based asylum law to its pre-2018 interpretation under the 1980 Refugee Act and Matter of Acosta. It is imperative that we solve the confusion surrounding gender-based and domestic-violence-centered asylum, and protect survivors from the whims and agendas of the new Attorney General.

Adding Gender as the sixth ground for asylum in the United States would recognize the existence of gender-based oppression, as opposed to reflecting domestic violence as a private manner, and enforce a legal instrument consistent with the UNHCR’s guidelines – one that is more resistant to administrative changes. Absent a statutory “gender” ground, judicial and executive actions clarifying the viability of gender-based asylum claims are subject to changes in administration and partisan politics.

(1) Gender-Based Asylum is Vulnerable to Political Shifts

Without a statutory mandate allowing claims based on gender alone, administrative and judicial actions are subject to revocation by the Trump administration, and other leadership to follow. The Trump administration’s Matter of A-B- ruling sought to eliminate gender and domestic violence-based asylum, leveraging the omission of gender from the 1951 Refugee Convention to justify restrictive policies. This decision revoked the protections established in Matter of A-R-C-G- and effectively denied many survivors the opportunity to seek refuge in the U.S. [4]. In this way, the fluctuating legal landscape has subjected asylum seekers to traumatic instability. Within a decade, Matter of A-R-C-G- was established, reversed, and reinstated, reflecting a disturbing inconsistency in U.S. asylum law. Here, the A-R-C-G- clearly established that women fleeing domestic violence can qualify for the three elements of an asylum claim – (1) persecution (2) on account of (3) membership in a particular social group. The particular social group in this case, married Guatemalan women, was (1) “composed of members who share a common immutable characteristic,” (2) “defined with particularity,” and (3) “socially distant within the society in question” [5]. Thus, A-R-C-G- became the first published precedential decision from the Board of Immigration Appeals (BIA) that affirmed the validity of a particular social group encompassing victims of domestic violence. However, in the Matter of A-B-, former Attorney General Jeff Sessions rejected the recognition that the BIA had given to this PSG. He proclaimed that “generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum, effectively overturning A-R-C-G- [6], and erroneously characterized domestic violence as a “personal matter” [7]. Here, Sessions ignored that legal decisions not only allow for the pursuit of justice, but also serve as symbols of what is deemed socially acceptable or unacceptable. In failing to consider the gender-based power dynamics innate to domestic violence, the decision implicitly forces women to retreat to environments plagued by physical/sexual violence, high femicide rates, and non-existent government protection [8].

Though Attorney General Merrick Garland later vacated Matter of A-B- and reinstated Matter of A-R-C-G-, this constant oscillation results in grave consequences for survivors, who may receive asylum under one administration only to face deportation under the next. A statutory recognition of gender as a ground for asylum would protect survivors from this uncertainty and create a more stable framework for adjudication.

(2) The Limits of the PSG Framework

Although Matter of A-R-C-G- established that women fleeing domestic violence can qualify for asylum under the “particular social group” category, confusion surrounding the definition of PSG has continued to obstruct gender-based claims. Recent cases, Such as the 2021 rulings on Gleidy Yessenia Jaco and Martha Chavez-Chilel, reveal inconsistent judicial interpretations regarding whether women as a group meet the PSG criteria. In 2021, Gleidy Yessenia Jaco, a Honduran asylum seeker who was repeatedly raped and threatened by her partner, was provided no meaningful protection by the Honduran government [9]. Still, the Fifth Circuit rejected her appeal for asylum, flouting long-standing precedent and uncovering the volatility of said precedent. Just months later, the Third Circuit denied a petition for review filed by Martha Chavez-Chilel, a Guatemalan women who fled rape and threats of assault and death and received no protection from her Government [10]. Here, despite the reinstatement, confusion over the meaning of “particular social group” has continued to obscure adjudicators’ misunderstanding of asylum law and its protections for women. Membership in a PSG is one of the five grounds for seeking asylum, in addition to race, religion, nationality, and political opinion, that protects distinct groups who have suffered or fear persecution. Without a statutory gender ground, adjudicators remain uncertain about whether gender-based claims meet the threshold for asylum, catalyzing inconsistent and often unfair rulings.

(3) Counter arguments and the Shortcomings of Existing Solutions

Some legal scholars argue that rather than adding gender as a sixth ground, the U.S. should return to the definition of PSG outlined in Matter of Acosta (1985), which stipulated that a PSG must share common, immutable characteristics fundamental to identity [11]. The BIA initially included sex and kinship within this definition, and the UNHCR similarly recognized sex as falling within the social group category [12]. But since the Matter of Acosta, the BIA added two criteria to the definition of PSG, “socially distinct” and “particularity,” inciting extensive confusion and consequences for women like Ms. Jaco and Ms. Chavez-Chilel.

While returning to the Acosta decision would eliminate unnecessarily restrictive PSG interpretations, it would not provide sufficient safeguards against shifting policies. Asylum jurisprudence would remain dependent on judicial and executive decisions, rendering protections vulnerable to political oscillations.

Another challenge is the structure of the U.S. common law system, which values precedents and case-by-case adjudication over broad statutory categories. Adding gender as a statutory ground in this way may clash with the common law’s preference from flexible judicial interpretation over rigid codification, further fragmenting statutes and case law.

Accordingly, critics also argue that adding gender as a sixth ground could undermine the existing PSG framework and foster confusion. In this way, according to the Founder of the Harvard Law School Immigration and Refugee Clinical Program (HIRC), Deborah Anker, and current director of the HIRC, Sabrineh Ardalan, any divergence from the Convention’s original five grounds would undermine the 1980 Refugee Act and with it, Congress’s intent to conform US legislation to international refugee law. They draw on the UNHCR’s concession that gender is already encompassed within the Convention’s definition of refugee and that adding gender as a sixth ground would inadvertently thwart that definition [13]. A statutory amendment, conflicting with existing PSG jurisprudence, may impede a coherent body of case law around gender-based asylum.
(4) Comparative Examples from Other Common Law Countries

Still, other common law countries have successfully integrated gender-based asylum protections into their legal frameworks–reliance on precedent is not an insurmountable barrier to statutory recognition of gender-based asylum. Canada, for instance, issued binding Guidelines on Woman Refugee Claimants Fearing Gender-Related Persecution (Guideline 4) in 1993 [14]. Though not statutory, these guidelines have been adopted and consistently applied by adjudicators. Instructing immigration judges on how to properly analyze gender-based claims, they ensure that women’s claims are assessed fairly within a gender-sensitive framework.

(5) Inherent Limitations of the PSG ground

Advocates for the sixth ground argue that efforts to clarify PSG or reform it in its current state cannot independently protect survivors. More than administrative and judicial fixes being subject to revocation, the PSG Ground is inherently inefficient, and gender-based claims brought under existing grounds are marginalized from their inception. The complexity of the PSG ground, in which members must prove their group is cognizable, that they are a member of the group, and that their persecution was on account of this membership, renders it difficult for survivors to retain pro bono counsel. They are, for this reason, inherently disadvantaged relative to other types of claims and produce systemic inefficiencies. In this way, cases such as Matter of W-G-R- and Matter of M-E-V-G- (2014) further heightened the PSG standard, making it harder for survivors to meet the “social distinction” and “particularity” requirements. Further, the American Immigration Council and the National Immigrant Justice Center have documented how attorneys avoid PSG cases due to their complexity and high risk of denial. Thus, this structural barrier leaves many survivors without legal representation, and an issue highlighted in a 2016 study by Syracuse University’s TRAC, which found that asylum seekers with attorneys were significantly more likely to succeed in their cases.

(6) The Marginalization of Gender-Based Violence

Finally, without a statutory gender ground, U.S. asylum law implicitly denies the systemic nature of gender-based violence. Other asylum grounds—such as race and religion—are recognized as structural issues warranting international protection, whereas gender-based violence is frequently dismissed as a private dispute. Here, the 1951 Refugee Convention and 1967 Protocol do not explicitly list gender as a protected category, and s this exclusion has led to the marginalization of gender-based claims and the erroneous perception that domestic violence is a personal rather than systemic issue. Adding gender as a sixth ground would affirm the reality that gender-based violence, like persecution on account of race or religion, constitutes a legitimate basis for asylum.

Conclusion

In the wake of heightened partisan polarization, gender-based asylum precedents are increasingly vulnerable to the whims of new administrations and their political agendas. Just as A-R-C-G- was established, reversed, and reinstated within the span of a decade, subjecting women to despicable conditions and trauma in this period of volatility, any other judicial or administrative decision will yield the same results and uncertainty. It is only through adding a sixth ground, gender, that we can cement an affirmative precedent that does not inherently marginalize women or thwart the UNHCR's guidelines. Given the history of changing interpretations, restoring the original definition of refugee would not mitigate existing confusion; it would only further prevent survivors of domestic violence from claiming asylum in the US.

Bibliography

[1] Molina, Rose L, Sabrineh Ardalan, and Jennifer Scott. 2019. “Impact of a US Asylum Decision on Sexual and Reproductive Health and Rights: A Call to Action for Health and Legal Professionals.” Sexual and Reproductive Health Matters 27 (2): 24–26. doi:10.1080/26410397.2019.1598232.

[2] A-B- I, 27 I. & N. Dec. at 320–21.

[3] A-B- III, 28 I. & N. Dec. at 309.

[4] Department of Homeland Security, Department of Justice, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 80,274, 80,385 (Dec. 11, 2020)

[5] 26 I. & N. Dec. 388 (B.I.A. 2014).

[6] A-B- I, 27 I. & N. Dec. at 346.

[7] United Nations High Commissioner for Refugees. Women on the run. 2015;1–58.

[8] Ibid

[9] Jaco v. Garland, 2, 18 (5th Cir 2021).

[10] Chavez-Chilel v. Garland, (3rd Cir 2021).

[11] Ardalan, Sabrineh and Deborah Anker. 2021 “Re-setting Gender-Based Asylum Law,” Harvard Law Review.

[12] Tahirih Justice Center, 2.

[13] Ardalan, Sabrineh and Deborah Anker. 2021 “Re-setting Gender-Based Asylum Law,” Harvard Law Review.

[14] Immigration and Refugee Board of Canada. Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. 1993, updated 1996. Available at: https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx