Gender Per Se And The PSG Ground

Gender-based particular social group (PSG) claims encompass those in which the applicant’s gender is the defining, or one of the defining, fundamental or immutable characteristics (usually also including citizenship or nationality) giving rise to her past persecution or fear of future persecution. Gender-related claims may fall analytically within different grounds. In many cases, PSG is appropriate where a claimant fears persecution because she is a woman, where gender is the trait that gives rise to a differential risk of harm. As discussed below, gender also may meet the Board’s requirements, problematic as they are, of “social distinction” and “particularity.” Some types of gendered PSG claims include those based on female genital mutilation (FGM); spousal or relational violence, forced marriage, trafficking, and gender-based discrimination.

Gender or “sex” is a form of immutable characteristic specifically recognized in the seminal Acosta definition of particular social group – indeed “sex” is the first exemplary characteristic named in Acosta. The Ninth Circuit in Mohammed v. Gonzales called gender a “prototypical immutable characteristic,” an analysis reaffirmed later in Perdomo v. Holder. The gender/immutable characteristic formulation, endorsed by the Third Circuit in Fatin v. INS as far back as 1993, was later reinforced in the 1995 U.S. Gender Guidelines. In addition to the Third and Ninth Circuits, the Seventh, the Eighth and the Tenth Circuits all have endorsed the Board’s immutability analysis in gender cases. Several immigration judge decisions have recognized gender plus nationality or citizenship—Mexican women, or Honduran women, for example—as meeting the immutability criterion of Acosta. Gender is entrenched, innate and central to identity, and it serves as a ground for differential treatment around the world. As the UNHCR Gender Guidelines state, “sex can properly be within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men.” That violence may be directed at women because of their gender is increasingly well-recognized.

To avoid large PSGs, adjudicators have defined gender-specific PSGs in inappropriately complex ways, conflating the definition of PSG with other requirements of the refugee definition. Some decision makers and reviewing courts have been reluctant to define PSGs in terms of gender per se because of fear of “floodgates”—that too many persons may access protection. Such concern is not realistic, nor is fear of floodgates a principled, legal argument. Notably, the Board, in applying its particularity test, has rejected reasoning that a claim can be denied solely because it is too large. Neither PSG nor any ground performs the function of the entire refugee definition. PSG is only one element of eligibility; legitimate concerns about particularizing or individualizing a claim appropriately should be addressed through other definitional criteria. As the Tenth Circuit in Niang v. Gonzales emphasized, in many cases the critical inquiry in gender per se claims is nexus.

The rise of the problematic social distinction and particularity criteria underscores the importance of using gender per se as the defining characteristic of a PSG, or combining gender with another basic Acosta immutable characteristic such as race, nationality, or tribal membership. Gender (or the female gender) is “socially distinct” in almost all societies and “women” meet the particularity test as well, as it has definable boundaries. 

In Matter  of A-B-, the Attorney General vacated Matter of A-R-C-G-, arguing that the formulation of “women unable to leave their relationship” espoused in A-R-C-G- was not sufficient for establishing a PSG, and stating that claims regarding domestic violence or gang violence are “unlikely to satisfy the statutory grounds” for establishing asylum. However, the Attorney General emphasized that A-B- did not impose a categorical bar on cases involving gender or gang violence, a position taken as well by the  District of D.C. Circuit Court in Grace v. Barr

Importantly, a number of immigration judge and unpublished Board decisions post-dating Matter of A-B- have held that a PSG defined by gender plus nationality can meet the Board’s social distinction and particularity requirements (all of which can be found in Law of Asylum in the United States). In addition, since Matter of A-B-, the Ninth Circuit has held that claims based on gender and nationality qualify as particular social groups under established BIA and circuit precedent.  Decision makers in these cases found their PSG analysis to be consistent with precedent Board case law, Matter of W-G-R- and M-E-V-G-, regarding social distinction and particularity, upon which the Attorney General in A-B- relied and which he directed adjudicators to apply. In all of these cases, individual circumstances—the applicant’s own experiences or fear of violence—were addressed through elements of the refugee definition such as well-founded fear or serious harm (as a part of persecution) rather than through the particular social group definition itself. Indeed, it may be more difficult to establish social distinction when, for example, gender-based PSGs are formulated as “theories of the case”—where multiple elements of the refugee definition are contained in the PSG definition itself—as opposed to the Acosta-grounded gender per se PSG approach, suggested here.

In its September 2020 decision, Matter of A-C-A-A-, the Attorney General vacated and remanded a decision, suggesting, much like A-B- that claims based on gender or domestic violence (in this case, gender per se) might be difficult to sustain, much like A-B-. Significantly, the Attorney General based this decision on potential problems in establishing a government’s unwillingness or inability to protect the applicant and, most importantly, on potential problems in establishing nexus, but he did not reject these claims categorically.  Sicaran v. Barr, a decision just issued by the 4th Circuit, rejected a PSG where other elements of the refugee definition were included in the PSG definition (the applicant proposed the PSG: “married El Salvadoran women in a controlling and abusive domestic relationship”, which the court held did not meet A-B-’s “anti-circularity” requirement). The court did not address cases in which gender per se defines the PSG. 

The most significant decision to date on gender per se and domestic violence is that of the First Circuit’ in De Pena Paniagua v. Barr. The court presented gender itself (or gender combined with nationality) as defining the particular social group while remanding to the Board to decide the question in the first instance. The court also endorsed the A-R-C-G- PSG formulation, including “unable to leave” as not impermissibly defining the PSG in terms of the harm. The court rejected the Board’s conclusion that the A-R-C-G formulation—Guatemalan women who are unable to leave the relationship—should be categorically rejected as improperly defining the group circularly in terms of the persecution—inability to leave—since there are various reasons why a woman would be unable to leave the relationship other than fear of persecution itself, including “societal expectations about gender and subordination, as well as legal constraints regarding divorce and separation.” The Court found that A-B- did not require rejection of all claims based on a PSG defined in terms of “inability to leave” the relationship. Importantly, neither the Board nor the courts have ever held that a group cannot be defined in part in terms of the harm suffered. Most significantly, the court endorsed the applicant’s defined PSG, based on gender, as meeting the immutability, particularity, and social distinction requirements as these elements have been set forth in various decisions over the years by the Board and the federal courts. The court adopted the analysis of a gender per se defined PSG, as presented by amicus Harvard Immigration and Refugee Clinical Program, and as described supra in this section. “Courts have found appropriate certain large, particular social groups where the group is defined with reference to an underlying immutable characteristic,” in this case, gender itself.

The authors wish to thank Thomson Reuters for permission to use sections of the chapter on gender per se for use in this blog. 

Maggie LaPoint
Maggie LaPoint

Maggie LaPoint is a 2L at Harvard Law School, and recently completed an Equal Justice Works “Summer Immigration Legal Corps” fellowship providing legal services to detained women and children with Proyecto Dilley.

Deborah Anker
Deborah Anker

Deborah Anker is Clinical Professor of Law and Founder of the Harvard Law School Immigration and Refugee Clinical Program (HIRC). Author of the leading treatise, Law of Asylum in the United States, Anker has co-drafted groundbreaking gender asylum guidelines and amicus curiae briefs.  Professor Anker’s work has been cited by the U.S. Supreme Court and federal circuit courts of appeals, as well as by various international tribunals. She is a pioneer in the development of clinical legal education in the immigration field, training students and creating a foundation for clinics at law schools across the United States.