A recent ruling has denied asylum for women from El Salvador who are facing violence from gang members. The Immigration Appeals Committee, which serves as the top administrative body for US immigration law, determined that Salvadoran women, as a group at risk of persecution, are “overloaded and not recognizable” under existing laws.
According to both international and US refugee laws, asylum is meant for individuals who have a genuine fear of persecution due to their race, religion, nationality, political views, or “membership in a particular social group.” This last category aims to protect those at risk just like the others, recognizing fixed characteristics that individuals cannot change.
There is legal precedent in the US and internationally for classifying women as “specific social groups.” Cases like Perdomov. Holder and Mohamed vs Gonzalez have acknowledged that gender is an intrinsic aspect of identity. Similarly, the European Union Court of Justice has recognized that being a woman can expose individuals to persecution.
However, the board’s decision to dismiss the claims suggested that acknowledging a group defined solely by sex would create an additional protected category under the Immigration and Nationality Act. This raises questions about how such definitions can complicate the landscape of asylum claims.
The interpretation of “membership in a particular social group” is quite broad and open to varying perspectives, which complicates matters further. It leads to the question: why should asylum be denied to individuals because their persecuted group is defined in a certain way? Persecution doesn’t depend on the size of the group; what really matters is the threat level faced by individuals and the nature of the abuse they endure.
While being a woman alone may not justify asylum, if a woman’s gender is the reason she is being targeted, then gender should definitely be recognized as a meaningful category for protection.
Some women have successfully obtained asylum by classifying themselves as part of a very specific group. For instance, in the notable Fausia Kasinga case, women escaping forced genital mutilation were recognized as being persecuted as members of a particular social group, rather than simply being persecuted based on their gender. Recognizing narrower groups still happens, but it’s rare.
In many cases, societal pressures can skew the understanding of persecution. Take, for example, women in Afghanistan under Taliban rule. Afghan girls are banned from education after sixth grade and face strict limitations on college and work. They cannot leave their homes without male relatives and can face severe penalties for violating dress codes enforced by the Taliban.
In September 2024, the UN Special Rapporteur on human rights in Afghanistan noted that the Taliban had institutionalized gender persecution affecting nearly all women in the country.
As Congress re-evaluates US immigration laws, it’s worth asking whether women should have to fit their claims into a narrow definition of what constitutes membership in a particular social group, leaving them with less reliable protection than other groups like racial or political ones. Given the narrow interpretation by the Immigration Appeals Committee, there’s a pressing need for Congress to amend the Immigration and Nationality Act to explicitly include gender as a protected basis for refugee status alongside race, religion, nationality, and political opinion.
