On July 18, the Board of Immigration Appeals (BIA), the highest administrative immigration tribunal in the United States, issued a controversial ruling in the case of Matter of K-E-S-G-. This decision has significant implications for the definition of a “particular social group” (PSG) under U.S. law, particularly for women fleeing gender-based violence.
The BIA’s ruling stated that a PSG cannot be defined by sex—referred to as “gender” throughout the decision—whether considered alone or in conjunction with nationality.
This ruling emerged from the case of a young Salvadoran woman who endured immense terror from members of the MS-13 gang, who sought to coerce her into sexual submission. After experiencing police inaction when she sought help, and failing to escape her tormentors despite relocating twice, she fled El Salvador in search of protection.
The BIA’s decision in K-E-S-G- is seen as consistent with a troubling trend in its jurisprudence over several decades, as well as with the restrictive immigration policies supported by the Trump administration. Observers note that the BIA has made it increasingly difficult to satisfy the criteria for a PSG, effectively excluding many women facing gender violence from refugee protections.
The ruling’s implications are particularly severe given that immigration judges operate under the Department of Justice and must adhere to decisions made by the Attorney General. Following the issuance of K-E-S-G-, Attorney General Bondi introduced two additional rulings that further limit the scope of PSG and gender claims, reinforcing the BIA’s restrictive trajectory.
The legal framework governing refugees in the U.S. stems from the 1951 Refugee Convention and its 1967 Protocol, which outlines that a refugee is someone with a well-founded fear of persecution based on several grounds—including membership in a particular social group. Although the drafters of the Convention did not elaborate on PSG, international scholars emphasize its purpose of filling potential gaps in protection not addressed by other categories.
The BIA first addressed the concept of PSG in 1985 through the ruling in Matter of Acosta. The BIA decided that the concept should include immutable or fundamental characteristics such as sex or kinship ties based on the doctrine of ejusdem generis, which interprets a general term in the context of specific terms.
This foundational ruling was significant as it established a standard for evaluating PSG claims, particularly benefitting women. At the same time, the UN High Commissioner for Refugees (UNHCR) highlighted the relevance of PSG for women fleeing gender-based persecution in directives from 1985, 1991, and 1993.
By the late 1990s, the BIA continued to uphold this view. Its first gender-related decision in 1996, Matter of Kasinga, granted asylum to a woman escaping female genital cutting, affirming PSG status defined by gender alongside other characteristics.
However, the BIA began to retreat from this position as evidenced in the 1999 ruling in Matter of R-A-, which denied asylum to a Guatemalan woman fleeing domestic violence, establishing a precedent that PSG claims required recognition as a societal faction.
Instead of providing clarity, these rulings only served to create additional barriers for applicants. The BIA’s more recent decisions introduced the concepts of particularity and social distinction, which further convoluted the evaluation process.
Particularity requires that a group possesses a clear benchmark for membership, while social distinction necessitates that the group be societally recognized as distinct. This shift in requirements has severely limited the success of PSG claims, particularly those based on gender.
In the years that followed, few favorable rulings for PSG claims emerged, one being Matter of A-R-C-G-, which the government stipulated to during hearings. However, this landmark decision was vacated under the first Trump administration, with Attorney General Jeff Sessions claiming it did not meet the necessary criteria for cognizability.
Subsequent to these shifts, Attorney General Merrick Garland reinstated A-R-C-G-, only for it to be vacated once again under Attorney General Bondi’s recent rulings.
The decision in K-E-S-G- was remanded to immigration court for further consideration of alternative relief, but its restrictive reasoning threatens to undermine protections for women fleeing fundamental human rights violations.
In contrast, various circuit courts have continued to acknowledge social groups based on gender. Noteworthy rulings since 2005 have accepted gender plus nationality groups in a multitude of contexts, including claims tied to domestic violence and other forms of gender-based persecution.
If upheld, the ruling in K-E-S-G- threatens to create significant hurdles for women who are seeking asylum due to persecution rooted in gender. The BIA’s narrow interpretation diverges sharply from a broader collection of legal precedents that recognize social groups defined by gender and nationality.
Critics of the BIA’s analysis point out that it dismisses the growing body of contrary legal precedents. For example, it selectively references just two circuit court decisions while failing to acknowledge others, misleadingly claiming one case was based on a prior definition of social group.
Particularly flawed is the BIA’s reliance on the Third Circuit’s decision in Chavez-Chilel, which dismissed the proposed group of “Guatemalan women” as cognizable. Detractors argue that the BIA’s reasoning erroneously conflates elements of the refugee definition.
Moreover, the Board’s particularity analysis regarding Salvadoran women presents a significant weakness in its reasoning. Although it concedes that the defining characteristics of this group are immutable, it declares the group lacks particularity based on its internal diversity. Yet, the term “Salvadoran women” clearly delineates a specific and identifiable group.
This reasoning also contradicts previous rulings—such as the identification of “Cuban homosexuals” as a cognizable group—indicating a double standard in the BIA’s application of its own criteria.
Ultimately, the BIA has turned to a form of policy justification for rejecting gender-based groups, arguing that recognizing such groups would constitute the establishment of a new protected ground under the relevant statutes.
This claim raises questions, as recognizing social groups based on gender should not be equated with creating new protected grounds, which has never been suggested in immigration law.
The BIA’s reasoning also misinterprets international conventions. The UNHCR has long advocated for the recognition of gender-based social groups, and many countries have legislated or adjudicated similar claims successfully.
The BIA’s justifications ultimately lack persuasive power. While K-E-S-G- poses a severe threat to protections for women contesting violence and persecution, it is far from the final word on this issue.
Federal courts now have the opportunity to address the implications of the BIA’s latest ruling. Following recent Supreme Court decisions, federal courts are no longer bound by Chevron deference, offering a glimmer of hope that they will arrive at conclusions more aligned with the growing body of legal precedent supporting gender-defined social groups.
The K-E-S-G- decision represents a pivotal moment for advocates of refugee protections, highlighting a longstanding and troubling trajectory in the BIA’s interpretation of social group claims. Meanwhile, legal professionals are urged to continue to argue for gender and nationality groups in court, as the BIA is still obligated to evaluate each case on its merits.
image source from：justsecurity
