A new immigration court ruling declares that gender alone is not enough to qualify for asylum—putting countless women fleeing violence at greater risk.
In Matter of K-E-S-G-, an asylum case decided by the Board of Immigration Appeals on July 18, Department of Justice officials declared that an abused Salvadoran woman could not obtain asylum based only on the argument that her persecution was based on her gender, in a country that views women as property.
The decision is the latest in a 30-year battle over the legitimacy of gender-based asylum claims and closely tracks the first of the Trump administration’s efforts to roll back decisions and policies that recognized the unique role that gender plays in many asylum cases, particularly those involving domestic abuse, sexual violence or trafficking.
According to the attorneys representing Ms. S-G, the decision does not prevent women from making gender-based asylum claims, but it will make it much more difficult to prove them.
Neela Chakravartula, associate director of litigation at the Center for Gender & Refugee Studies (CGRS) and co-counsel in Matter of K-E-S-G-, predicts that this new ruling will lead to more denials of women’s asylum claims:
“This ruling sends a strong signal to immigration judges that women’s asylum claims should not be taken seriously. This isn’t the first time the Trump administration has singled out women seeking asylum, and we know where this path leads. More judges denying protection to women who qualify for it. More refugees being deported to danger. Even more chaos and confusion injected into our immigration system.”
Kursten Phelps, litigation counsel at the Tahirih Justice Center and co-counsel in Matter of K-E-S-G-, is concerned about the chilling effect the decision will have on many potential asylum seekers.
“This decision does not mean they are suddenly ineligible for asylum. But harmful rhetoric and decisions like this one are designed to deter them — and us — from even trying. We must not do their work for them. These cases are still winnable, and we owe it to survivors to keep fighting and affirm that their stories do count.”
Asylum law is complex. It is difficult to obtain asylum in the United States. You must demonstrate that you have been or will be persecuted, based on a protected category, and that your own government will not or cannot help you. You must show that your persecutor intended to harm you based on the protected category. You must show that you can’t simply move to another part of your country, and you must provide evidence that your life is in danger if you return home.
If you demonstrate all these things based on the protected grounds of race, religion, nationality or political opinion, you have a shot at winning your case. If someone is persecuting you because you are a woman, however, you also must prove that you are a member of a particular social group, one sufficiently distinct and separate from the general population of women in your country that your membership in the club somehow makes you a target for some particular form of persecution.
There’s far more to the legal analysis, of course, but the consensus is that “membership in a particular social group” is not meant to diminish a claim but is designed to account for evolution in society’s thinking. Some asylum claims seem straightforward—the persecution by the government of a political dissident in Russia is tied to political opinion, while ethnic cleansing operations are traced to persecution on account of race—but other claims are more complicated. Union membership, sexual orientation, gender, occupation or geography can all be part of persecution claims that don’t necessarily fit under the four delineated grounds, but instead are in the catch-all category of a particular social group.
Gender has been controversial, driven in large part by cultural backlash against feminism, the fact that many forms of gender-based persecution are committed by private actors rather than the government itself, and fears of overwhelming the asylum system if gender is accepted as the basis for persecution without more evidence to distinguish the claim.
With Matter of Kasinga, issued in 1996, the board explicitly connected gender to persecution in a case involving female genital mutilation, recognizing that societal norms and the power exerted over young women in Togo shaped a particular social group of young women who opposed FGM. If this last sentence feels complicated, it is because the construction of a social group always involves gradations of social context and the relationship between the individual, the society and the government.
It is shameful that at a time when other countries are expanding protections for displaced peoples fleeing gender-based violence and persecution, this administration is weaponizing the immigration court system to further restrict them.
Laila Ayub
Since the Clinton administration, efforts to fully address gender have swung back and forth in the courts; most advocates have pinned their hopes on regulations that would definitively address gender as part of a rule defining “particular social group.” Those efforts have been thwarted politically in Democratic administrations and have been completely abandoned under the Trump administration.
The board’s decision in K-E-S-G– takes on deeper significance because it doesn’t simply reject the applicant’s definition of a particular social group. It goes further, declaring that gender is never sufficient on its own to demonstrate a protected class. In classic Trump administration form, the board pivots to the 1950’s, declaring that it could not recognize gender as a distinct protected class because it wasn’t part of the original group of five in the Refugee Convention.
But that misses the point.
The possibilities of what constitutes a particular social group, based on analysis of the Refugee Convention and its history, argues for recognizing categories under the rubric of a particular social group acknowledging that protected groups could change over time and custom. In essence, it’s not that gender can’t be a protected category, but that gender will be tied to certain specifics that define a woman’s place in a particular country at a particular time. Given the state of the world, this should mean that gender-based claims should not require linguistic gymnastics to establish that a woman in El Salvador is likely at risk for persecution.
An obvious example is the condition of women in Afghanistan. Under Matter of K-E-S-G-, it appears that Afghan women fleeing the Taliban may not be a sufficiently specific group, despite the overwhelming threat to life and freedom women face in today’s Afghanistan. Afghan women refugees in the United States, many of whom are still waiting for the government to keep its promises to protect them from the Taliban by granting permanent residence, are keenly aware of this possibility.
“When I learned about the decision in K-E-S-G-, I thought of our clients,” said Laila Ayub, co-founder and director of Project ANAR, a legal services organization founded to assist Afghan refugees. “With every new announcement from this administration, they reach out to us asking if they will face deportation. It is shameful that at a time when other countries are expanding protections for displaced peoples fleeing gender-based violence and persecution, this administration is weaponizing the immigration court system to further restrict them.”
The impact of this decision won’t just be felt in immigration court. Each time the administration makes it more difficult for asylum seekers to qualify for protection under U.S. law, it fuels the prejudice that people fleeing violence don’t have legitimate asylum claims. In the case of women who are victims of gender-based violence, it will likely encourage mistreatment by line officers already pre-disposed to discount women’s stories and experiences. Not only will some women be discouraged from applying for asylum, but many more who try to assert their claims may be dismissed out of hand and removed without any hearing at all.
This isn’t idle speculation. In the first Trump administration, Matter of A-B-, Attorney General Jeff Sessions’ attempt to deny gender-based claims unleashed a torrent of negative decisions and added to the climate of disrespect for immigrants cultivated in DHS.
Eventually, A-B- was overturned and A-B-, or Anabel, as she identified herself during a recent press conference, received asylum.
She has a message for the women reeling from Matter of K-E-S-G-.
“I have felt very glad that my case has been able to help other women escaping similar situations of violence. But now I am hearing that this government is trying to do the same thing to another woman, putting her life in danger, and using her case to close the door to other women. When they tell people they have to return to the country they have fled, where there is so much violence, many are sent back to die.
“What I desire most is for all women who are fleeing abuse in their country to have their asylum cases heard and to be safe here. The situation right now is dire. The struggle continues. But they have to keep fighting.”
Great Job Mary Giovagnoli & the Team @ Ms. Magazine Source link for sharing this story.
