For women seeking asylum in the United States, things are about to get harder

The Trump administration is making it much more difficult for women fleeing gender-based violence in other countries to immigrate to the United States.

On Friday, the Board of Immigration Appeals, which is part of the Justice Department, determined that a person can’t seek asylum for persecution based on their sex alone—or sex and nationality. “It’s a significant decision,” says Neela Chakravartula, a lawyer at the Center for Gender & Refugee Studies who is co-counsel on the case. “This is trying to make it harder for all women fleeing harm.”

The case focuses on a woman from El Salvador, referred to as K-E-S-G, who came to the United States after Salvadoran police would not protect her from gang members who were stalking and threatening her. The Board’s decision is chock full of legalese, but one of the most important lines is this: As a woman from El Salvador, K-E-S-G “is not a member of a cognizable particular social group.”

To understand what that means, I turned to Michael Kagan, a law professor at the University of Nevada, Las Vegas. He directs the UNLV Immigration Clinic and says the Board of Immigration Appeals “got its logic tangled in an effort to close the door on gender-based asylum claims.”

This conversation has been edited for length and clarity.

In layman’s terms, why is this decision so important?

This is the latest chapter in a legal struggle about when women who flee gender-based violence are eligible for asylum. It goes back to the Clinton administration at least, so more than 30 years.

A lot of people know that to get asylum, you need to be in danger of persecution. But the problem is that it’s not enough to be in danger of being killed or beaten or raped. You have to be in danger for the right reason, and there are five. [They are race, religion, nationality, political opinion, and “particular social group” membership.]

This is a definition that was written in 1951, and so while some categories that we would recognize from discrimination law, like race and religion, are among the five reasons, sex and gender were not listed. What is in the definition is something called “membership in a particular social group.” So for decades, there’s been a legal struggle over whether gender-based violence can fit in this definition.

This has often been fought over domestic violence cases, but it can also come up in other types of gender violence. The gangs in El Salvador like MS-13 have often targeted women for kidnapping and sexual slavery. Their choice is either to be subjected to repeated rape or to flee.

How difficult was it, before this case, to seek asylum for gender violence?

Winning asylum is never easy. It’s very time consuming and it requires a great deal of evidence, or at least a great deal of testimony by the applicant. It also requires pretty extreme facts: Mild forms of domestic violence that might be criminal under US law might not be enough to generate an asylum claim if someone fled from another country.

In addition, the key question is, often, does the other government take enough steps to protect women from it? Domestic violence happens in every country, but violence can be worsened if men are taught by their society that their partners are their property or that men are allowed to beat their their wives, and likewise, if a government decides, “We don’t get involved, or our police don’t protect women from this because we think men are allowed to beat their female partners,” then that might be discriminatory violence. And that gives rise to the question of, well, are women a particular group? The decision today is that women are not. That is kind of a surprising conclusion.

Why surprising?

It certainly fits the Trump administration’s anti-immigrant orientation, but it seems surprising in terms of gender ideology issues. In other contexts—think of the rhetoric about transgender identity—the government is saying there’s only two genders, and we know exactly what they are—”we know what is a man, and we know what is a woman.” But now we have them saying, “Well, actually, we don’t think women are a socially cognizable group,” which certainly sounds like you’re saying, “I don’t know what you mean when you say ‘women.’”

If you read the Board of Immigration Appeal’s decision, literally what it says is that women are not socially cognizable. And that sounds like talking out of both sides of your mouth. If you took some of those lines out of context, it might sound like something that Republicans would caricature as coming from some left-wing woke academic at an Ivy League university, but actually it’s being deployed here for a very different purpose.

What are the holes in the argument?

I think there are ways in which it confuses elements of the asylum definition. In fact, if a student turned it in, I would have a number of critiques that I’d want them to do some more thinking about.

An initial critique is that it seems to conflate, at least for women, the question of being a cognizable social group with being being persecuted at a high rate. The board noted that female genital mutilation in Somalia might still be a valid basis for asylum, because in Somalia 98 percent of women are mutilated.

I’m glad that women from Somalia can seek asylum. But in terms of the legal theory, this is where the Board of Immigration Appeals got its logic tangled, because you are generally not supposed to define the particular social group by the persecution. Instead, you’re supposed to show that the persecution is caused by membership in the particular social group. And they got that confused.

Let me give an illustration. White men could be a particular social group. The issue, though, is, are white men likely to be persecuted because of their identity? Usually not, so they wouldn’t have valid asylum claims. But that doesn’t mean it’s not a valid particular social group. In the case today, the board seemed to get these issues confused. Just because women are a social group doesn’t mean every woman would be able to get asylum—she would still have to show, “I have a well-founded fear of being persecuted on account of being a woman in my country,” and that’s difficult in many cases.

This is a very basic question, but what exactly is the Board of Immigration Appeals, and are its decisions binding in the way a court decision might be?

It is not a court, though it tries sometimes to walk and talk like a court. Immigration courts are not really courts either, but they also try to walk and talk like courts. This is administrative adjudication within the Department of Justice. So basically, decisions of immigration judges are appealed to the Board of Immigration Appeals, and both of those entities sit underneath the attorney general, who can overrule either of them.

Going back to the Clinton administration, there has been a promise to have regulations on gender-based claims for asylum, particularly by Democratic administrations, but they never get it done. Clinton didn’t get it done, Obama didn’t get it done, and then Biden didn’t get it done. And so we’ve actually ended up with fairly muddled law.

There was muddled law at the end of the Obama administration that left the door open to domestic violence-based asylum claims, but in a fairly convoluted way. Then, in Trump’s first term, Jeff Sessions, the attorney general, issued a decision called Matter of A-B that largely rejected asylum based on domestic violence, but also was a very, very long decision that seemed, in some ways, to just be a long essay of Sessions’ thoughts about asylum and immigration law. That decision was then vacated by [then-Attorney General] Merrick Garland during the Biden administration. But the Biden administration didn’t actually clear up the legal terrain very much. They just erased what Trump had done. So they kind of returned things to the way they were under Obama, which hadn’t been perfectly clear.

Trump is back now, and this is where we are. Appeals can be reviewed in normal asylum cases by the Circuit Courts of Appeals, and this decision by the Board is likely to be challenged in multiple courts around the country. Maybe the Supreme Court will eventually take it up. That’s very hard to predict, but this is probably not the last word, though it’s a very significant development.