Prof. Karen Musalo on The Wrong Answer to the Right Question: How to Address the Failure of Protection for Gender-Based Claims?

Prof. Karen Musalo, Mar. 9, 2021

"In 1996 I was honored to litigate the first case at the Board of Immigration Appeals (BIA), Matter of Kasinga,[1] that opened the door to protection for women fleeing gender-based harms.  To qualify for recognition as a refugee under U.S. law, an individual must establish “persecution or a well-founded fear of persecution” on account of one of five grounds – “race, religion, nationality, political opinion or membership in a particular social group.”[2]  This definition in the 1980 Refugee Act essentially adopts the standard set forth in the 1951 UN Refugee Convention[3] and its 1967 U.N. Refugee Protocol,[4] which the U.S. ratified in 1968.   

The woman seeking asylum in the Kasinga case fled female genital cutting and forced marriage.  In a ground-breaking decision, the BIA ruled that cutting was persecution, and it was “on account of” her membership in a gender-defined social group.  In so ruling, the BIA was following the guidance that UNHCR has issued over a number of years, noting that the absence of gender as a protected ground should not impede protection for women fleeing persecution, because the particular social group ground encompasses gender-defined groups.[5]

The Kasinga decision was a breakthrough for women, and a highwater mark in U.S. adjudicators following international guidance.  It also raised expectations that U.S. law would continue to evolve and extend protection to women fleeing the many forms of gender-based violence to which they are subject.  However, that has not been the case, and there have been retreats from protection across administrations, although undoubtedly we witnessed the most dramatic attempts to end protection in gender claims during the Trump administration, which issued extremely limiting Attorney General decisions, such as Matter of A-B- I,[6] and Matter of A-B- II –[7] as well as regulations[8] – currently enjoined[9]—that explicitly rule out gender-based claims. 

The Biden administration has committed itself to reviewing the issue of protection for those fleeing gender-based violence.[10]  As we consider how to remedy the issue, some argue for a legislative amendment to the refugee definition, adding gender as a sixth ground to the statute’s five protected grounds of race, religion, nationality, political opinion and membership in a particular social group.  This is the wrong solution.  It would not only repeat the errors of the past (amending the refugee definition in 1996, discussed below), but it would also fail to adequately protect survivors of gender-based violence.  At the same time, it would lead to the quite foreseeable consequence of leaving many deserving asylum seekers outside the ambit of refugee protection.  It is also likely to signal to other Convention State parties that unless they also add a sixth ground, they could deny protection to women and girls without running afoul of the treaty’s obligations. 

In order to prescribe a remedy, one first has to diagnose the illness; in order to understand why the sixth ground solution is wrong, we need to examine what occurred after Kasinga that limited protection in subsequent claims involving women fleeing gender-based persecution.  Although Kasinga was a landmark, its analysis – especially as to particular social group – was anchored in long-existing precedent.  In the 1985 decision, Matter of Acosta,  the first case in U.S. law to interpret the particular social group ground, the BIA held that in the absence of clear legislative intent regarding the meaning of  the statutory term “particular social group,” it would apply the interpretive doctrine of ejusdem generis, meaning “meaning literally ‘of the same kind.’”[11]  The BIA ruled that because the other four grounds – race, religion, nationality and political opinion – all refer to characteristics which an individual cannot or should not have to change to avoid persecution, a particular social group should be understood to be a group defined by similarly immutable or fundamental characteristics.  One of the examples the BIA provided of such a characteristic was sex.  Eleven years later, in Kasinga, when the BIA found a gender-defined social group to be cognizable under the law, it was not going out on a limb.  It had named “sex” as a paradigm characteristic in Acosta, and was simply applying that straightforward principle in Kasinga.  

A short three years after Kasinga, when the BIA was again faced with a case of persecution based on gender – but this time domestic violence, rather than female genital cutting – it began to hint that it was backing away from Acosta’s straightforward analysis.  The case was Matter of R-A-[12] and the BIA ruled that proof of immutable or fundamental characteristics was a necessary, but not sufficient basis for establishing a particular social group.  It had to be shown that the group perceived itself as a group, and was perceived by society to be a group. The BIA ruled that the proposed gender-defined social group in R-A- did not meet this newly invented test, and therefore it reversed Ms. R-A-’s grant of asylum.

It was only a short time after Matter of R-A- that the BIA went beyond merely hinting that proof of immutable/fundamental characteristics was not sufficient, and formally imposed two additional requirements, neither of which have any basis in the statute, the treaty, or UNHCR guidance.  In a series of cases, beginning with Matter of C-A-,[13] continuing to Matter of S-E-G-,[14] and Matter of E-A-G-,[15] and concluding with Matter of M-E-V-G-[16] and Matter of W-G-R-,[17] the BIA ruled that only groups that met Acosta’s requirements, and also demonstrated particularity and “social visibility” (subsequently renamed “social distinction”) were cognizable under the law.[18]  The BIA has variously described what these terms mean and how they are satisfied, and they remain confusing and elusive requirements to this day. 

Particularity requires that the social group has characteristics that “provide a clear benchmark for determining who falls within the group. . . The group must also be discrete and have definable boundaries -- it must not be amorphous, overbroad, diffuse, or subjective.”[19]  In order to establish social distinction, a group must be “perceived as a group by society.”  And the two requirements tend to work at cross-purposes – define a group broadly enough so that it is perceived as a group by society, and most likely it will be considered too amorphous and overbroad to meet the particularity requirement.  Since the imposition of these requirements, the BIA has only issued one positive decision in a gender case, Matter of A-R-C-G-,[20] and former Attorney General Sessions vacated it in his 2018 Matter of A-B- decision, questioning whether the BIA was sufficiently rigorous in applying the particularity and social distinction requirements, and its finding that the group at issue met those criteria.

It is in the face of such challenges to particular social group that some argue for the addition of the sixth ground of gender.  Below I will focus on all the reasons that is a wrong-headed solution.  But it bears noting that the failure of protection in gender cases is not due solely to  the raising of the bar for social group cognizability.  It also results from another problematic interpretation in U.S. law – that of “on account of” or nexus – which requires the showing of a causal connection between persecution and one or more of the protected grounds.  In 1992, in INS v. Zacarias,[21] the Supreme Court ruled that “on account of” requires proof of intent of the persecutor.  One can see its impact in gender cases; in Matter of R-A-, the BIA ruled that even if it had found the asylum seeker’s social group to be cognizable, her claim would still fail because she had not shown that her husband beat her because of her gender or marital status (the defining characteristics of the group), rather than because he was just a mean individual.

The U.S. approach to nexus is problematic in countless ways.  Proving what is in the persecutor’s mind – as to events that happened hundreds or even thousands of miles away – obviously poses evidentiary challenges.  More importantly, as recognized by UNHCR, it runs counter to a system of protection.  It certainly matters in criminal law what the perpetrator’s intent is, but it should not in the refugee arena, where the objective is to protect those who are persecuted.  This is best illustrated by the example of a political dissident who is captured, interrogated, and tortured during the course of questioning.  Should the decision of whether the dissident deserves protection depend on whether the perpetrator’s motive was to harm him for his political opinion (in which case he would be protected), as opposed to harming him in order to force him to disclose information (in which case he would not be)?  Under Zacarias, that is exactly what it turns upon.    

To its credit, Congress did recognize the problem with Zacarias’ intent requirement in the early 1990s.  It was during the period when China was implementing its one couple/one child policy, and couples who did not comply with the policy could be forced to undergo abortions or sterilization.  Application of the Zacarias rule to the claims of Chinese nationals who fled these persecutory practices, resulted in the denial of protection because, as the BIA held in Matter of Chang[22] the Chinese government’s intent was population control and not persecution on account of one of the five grounds. 

So, Congress responded.  Unfortunately, its solution was not to address the barrier to protection Zacarias posed with its extremely problematic interpretation of “on account of,” but to simply “fix” it as it applied to one specific category of cases - Chinese asylum seekers.  Congress amended the refugee definition with a provision that expressly legislated a “political opinion” nexus in all cases involving forcible sterilization or abortion:  “[A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure….shall be deemed to have been persecuted on account of political opinion[.]”  This solution did nothing for all the other asylum seekers who would continue to be denied protection under Zacarias’ unreasonable nexus interpretation, and who did not have the “benefit” of Congress legislating nexus for them.

The “sixth ground” solution of adding “gender” to protect women persecuted because of their gender is very similar to Congress’ legislated nexus in the forcible abortion and sterilization cases.  Adding a sixth ground may “fix” the problem for one category of asylum seekers, but it will leave out in the cold all the others who rely on the particular social group ground for their claims – be they young men fleeing gangs, street children, individuals with physical or mental incapacity, etc.  They will continue to be impacted by the BIA’s departure from Acosta, and the addition of particularity and social distinction.  How much better to call for a return of particular social group to Acosta – and as part of that effort – to insist that nexus no longer be limited to proof of intent, but include consideration of other causal relationships between the harm and the protected ground.  These would include a “but for” (but for the protected characteristic a person would not have been persecuted) as well as an “effects” analysis (e.g., the intent was not to persecute for religion, but the effect was to harm the person for free exercise of religion).[23]

The fact that the addition of a sixth ground would leave so many other categories of asylum seekers who rely on particular social group without a remedy should be enough of a reason to eschew the approach.  But there are additional reasons to reject the sixth ground strategy related to the United States’ role internationally, and the significance of positions it takes on its protection obligations. The legislative history of the Refugee Act shows U.S. intent to conform to the Protocol.  UNHCR has counseled that gender-defined social groups are encompassed within the particular social group ground.  In fact, many countries have explicitly acknowledged that by mentioning gender as an example of a particular social group in their definition of that protected ground.  For example, South Africa’s Refugees Act of 1998 states that a social group includes “among others, a group of persons of particular gender, sexual orientation, disability, class or caste.”[24]  Current U.S. jurisprudence is an implicit rejection of UNHCR guidance to recognize gender defined social groups as “particular social groups” within the Convention definition.  We should be working to bring the U.S. into compliance with UNHCR’s social group interpretation, rather than surrendering to its flawed interpretation, by adding a sixth ground.  Furthermore, if the U.S. were to add a sixth ground in order to extend protection to women and girls, it would essentially signal that the particular social group ground does not naturally encompass such claims. That would give cover to other countries – who choose not to add a sixth ground – to take the U.S. lead and hold that gender-defined social groups are generally not cognizable within the social group ground.[25]

Endnotes

[1] 27 I&N Dec. 357 (BIA 1996).

[2] 8 U.S.C. § 1101(a)(42).

[3] 189 U.N.T.S. 150 (entry into force 22 Apr. 1954).

[4] 606 U.N.T.S. 267 (entry into force 4 Oct. 1967).

[5] See, e.g., UNHCR’s Views on Gender Based Asylum Claims and Defining “Particular Social Group” to Encompass Gender (Nov. 2016), https://www.unhcr.org/en-us/5822266c4.pdf.

[6] 27 I&N Dec. 316 (A.G. 2018).

[7] 28 I&N Dec. 199 (A.G. 2021).

[8] Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear, 85 Fed. Reg. 80274 (Dec. 11, 2020).

[9] Pangea Legal Services et al. v. DHS, --- F.Supp.3d ----, 2021 WL 75756 (Jan. 8, 2021).

[10] Executive Order No. 14010 on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border, Sec. 4(c)(i) (Feb. 2, 2021).

[11] 19 I&N Dec. 211, 233 (BIA 1985).

[12] 22 I&N Dec. 906 (BIA 1999).

[13]  23 I&N Dec. 951 (BIA 2006) aff’d, Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190 (11th Cir. 2006), cert. denied sub. nom. Castillo-Arias v. Gonzales, 549 U.S. 1115 (2007).

[14] 24 I&N Dec. 579 (BIA 2008).

[15] 24 I&N Dec. 591 (BIA 2008).

[16] 26 I&N Dec. 227 (BIA 2014).

[17] 26 I&N Dec. 208 (BIA 2014).

[18] See Matter of M-E-V-G-, supra note 20, at 232-33 (BIA 2014) (discussing development of the meaning of the particular social group term).

[19] Id. at 239.

[20] 26 I&N Dec. 388 (BIA 2014).

[21] INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992).

[22] 20 I&N Dec. 38 (BIA 1989); see also Matter of G-, 20 I&N Dec. 764, 775 (BIA 1993) (continuing to adhere to Chang, holding it is “legally correct and consistent with [Zacarias]”).

[23] The Refugee Protection Act of 2019, introduced by Senator Leahy and Congressmember Lofgren, two congressmembers with deep refugee knowledge, took exactly this approach.  See S. 2936, 116th Cong. §101 (2019), H.R. 5210, 116^th Cong. § 101 (2019).  

[24] Refugees Act 130 of 1998 art. 1.xxi.

[25] For a more extended discussion of some of these arguments, see Kate Jastram and Sayoni Maitra, Matter of A-B- One Year Later: Winning Back Gender-Based Asylum Through Litigation and Legislation, 18 Santa Clara J. Int'l L. 48 (2020), available at: https://digitalcommons.law.scu.edu/scujil/vol18/iss1/2."

Professor Karen Musalo is the Bank of America Professor of International Law, Director of the Center for Gender & Refugee Studies, UC Hastings.