Appeals Board Restricts Asylum for Certain Gender-Based Persecution Claims

Summary

• The Board of Immigration Appeals issued a ruling in Matter of K-E-S-G- that bars sex or gender alone (or sex or gender plus nationality; e.g., “Salvadoran women”) groups from being cognizable “particular social groups” for the purpose of asylum eligibility, holding that such group formulations are “overbroad” and therefore not sufficiently “particular” to meet the Board’s standards.
• Specifically, the Board of Immigration Appeals also found that “Salvadoran women viewed as property” also was not sufficiently particular to be a cognizable “particular social group”.
• The size and diversity of a group is not determinative for whether a group is a cognizable “particular social group”.
• The Board of Immigration Appeals did not analyze other legal issues that are often present in domestic-violence-based asylum claims. These issues include: “nexus”, the “unwilling or unable” standard, and whether internal relocation is reasonably available.
• The United States, with Matter of K-E-S-G-, is departing from the European Union’s approach of recognizing sex- and gender-based particular social groups.
• While the ruling will significantly restrict asylum grants from applicants who make sex- or gender-based persecution claims, it still leaves the door open for similar particular social groups with adequately “narrowing features”.

Background

The Board of Immigration Appeals (BIA) issued a ruling on July 18, 2025, in Matter of K-E-S-G- that will make it more difficult to receive asylum in the United States because of domestic or gender-based violence. The ruling, however, still leaves open the possibility that an applicant could obtain asylum because of gender-based violence in limited circumstances.

The Immigration and Nationality Act (INA) authorizes the government to grant asylum on a discretionary basis to an alien if the alien is unable or unwilling to return to their country of origin because he or she has suffered past persecution or has a well-founded fear of future persecution on account of “race, religion, nationality, membership in a particular social group [PSG], or political opinion”.¹ In Matter of K-E-S-G-, like most asylum claims based on private violence (where the purported persecutor is a non-government entity), the alien claimed that the persecution they feared was specifically on account of their membership in the particular social groups “Salvadoran women” and “Salvadoran women viewed as property”. The asylum claim was denied by the immigration court.

The issue brought before the BIA was only whether these groups could be considered cognizable PSGs for the purpose of asylum eligibility. The BIA determined that the groups at issue were not cognizable PSGs, meaning they did not fit the legal definition that has emerged through case law, because they are not sufficiently “particular”, as BIA precedent requires.

What Is a Particular Social Group (PSG)?

The INA does not define “persecution on account of … membership in a particular social group”. Rather, the definition of PSG has evolved through case law. Previous circuit court and BIA rulings dictate that a cognizable particular social group must be “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.”² Each element must be met for a proposed group to be cognizable under the INA.³

Immutable characteristics are those that cannot be changed or are so fundamental to identity or conscience that a person should not be required to change them to avoid persecution.⁴ For example, having a severe congenital medical condition, such as Type 1 diabetes, is an immutable characteristic because it is inherent to a person and cannot be changed.

The “social distinction” element requires the relevant society to recognize the group as distinct. Specifically, the BIA explained that:

[T]he “social distinction” requirement considers whether those with a common immutable characteristic are set apart, or distinct, from other persons within the society in some significant way. … A viable particular social group should be perceived within the given society as a sufficiently distinct group. The members of a particular social group will generally understand their own affiliation with the grouping, as will other people in the particular society.”⁵ This does not mean, however, that members of this group need to be literally or ocularly visible, however, because an immutable characteristic may not always be visible.

Finally, the BIA’s test for whether a group is sufficiently “particular” to be a cognizable “particular social group” requires that a group be defined by “characteristics that provide a clear benchmark for determining who falls within the group.”⁶ Specifically, the group must also be “discrete and have definable boundaries – it must not be amorphous, overbroad, diffuse, or subjective”.⁷

Sex or Gender Alone as a PSG

In the present case (Matter of K-E-S-G-), the BIA explicitly held that “sex alone” could not be a considered a protected ground for the basis of asylum eligibility, even when paired with the alien’s nationality. The Board held that PSGs defined only by their members sex are “overbroad and insufficiently particular” to be cognizable under the INA. While the Board acknowledged that sex is an immutable characteristic, the BIA declined to analyze whether sex alone or sex plus nationality meet the “social distinction” requirement after it determined that such formulations did not meet its “particularity” requirement.

When analyzing the group “Salvadoran women”, the BIA concluded that the group did not meet its particularity requirement because it “encompasses a large, diffuse, and disconnected portion of El Salvador’s population with few unifying characteristics. … The group encompasses women from various age groups, socioeconomic statuses, levels of education, religions, and widely diverse cultural backgrounds.”

The BIA then went beyond the “particularity” analysis by adding that if it held that groups defined solely by sex were cognizable,

we would essentially create another protected ground under the INA – that of sex – to add to the grounds of race, religion, nationality, membership in a particular social group, or political opinion. Had Congress or the drafters of the United Nations Convention Relating the Status of Refugees …. or the United Nations Protocol Relating to the Status of Refugees … intended sex in and of itself to be a protected ground, they could have specifically listed it a separate ground.” [Citations omitted.]

“Women Viewed as Property” as a PSG

Like PSGs defined solely by sex, or sex and nationality, the BIA concluded that “Salvadoran women viewed as property” also was not sufficiently particular to be a cognizable PSG. The Board noted that this formulation lacks “clear benchmarks” for determining who falls within the group and was unpersuaded that “viewed as property” has a commonly accepted definition in El Salvador: “It is not clear which women are viewed as property or who views them as property. Thus, the group is too ‘amorphous, overbroad, diffuse, or subjective’ to qualify as a particular social group under the INA.”⁸

Will This Ruling Survive?

While it is clear that PSGs based just on the perception of a third party (“Salvadoran women viewed as property”) should generally not be cognizable for the purposes of asylum eligibility because they lack “clear benchmarks” for determining membership, I am not persuaded that the BIA’s rationale applies to sex or gender alone (or sex or gender plus nationality) PSG formations in all cases. The BIA would have to implicitly be taking a remarkably progressive idea of sex (that it is “amorphous” or “subjective”, and “lacking clear benchmarks”) to land on that conclusion, which it did not.

Rather, the BIA relied on the size and diversity of the group “Salvadoran women” to determine that it is “overbroad” and therefore not sufficiently particular. The BIA in Matter of M-E-V-G-, however, clarified that particularity is about whether the group is discrete and definable, not about its numerical size. It reaffirmed this notion in in Matter of W-G-R-, which rejected the idea that large groups automatically fail the particularity test: “We have never held that a particular social group must be small. … What matters is whether the boundaries of the group are sufficiently distinct.”⁹

The essence of the particularity requirement is that the members of the group should be identifiable. Courts should be able to determine whether an individual is in the group or not in the group.

Moreover, the BIA and the federal courts have recognized other PSGs that are comparatively large and diverse. The BIA and circuit courts have found that immutable characteristics such as disability or sexual orientation, for example, can form the basis of a cognizable PSG, despite their sizes and the diversity of their members.¹⁰ Like “Salvadoran women”, a PSG based on a health disability or sexual orientation could also encompass people from “various age groups, socioeconomic statuses, levels of education, religions, and widely diverse cultural backgrounds”. A reviewing court may, therefore, conclude that the BIA in Matter of K-E-S-G- has misapplied the particularity requirement.

As BIA precedent, Matter of K-E-S-G- is binding on immigration judges and asylum officers, unless it is overruled by the attorney general or the BIA itself at a later time. Federal appellate courts, however, are not bound by this ruling and may reverse or reject its reasoning.

Legal Issues for Sex or Gender-Based Asylum Claims Not Addressed by This Case

Even assuming sex or gender characteristics alone can form a cognizable PSG, claims involving private violence have additional legal hurdles to overcome. The primary legal issue with gender-based asylum claims, in my view, is not whether gender or sex alone can be the basis for a cognizable PSG, but whether these claims satisfy other requirements for asylum eligibility, i.e., nexus, the “unwilling or unable” standard, and whether internal relocation is reasonably available.

Nexus

The nexus requirement emerges directly of the language of the statute, which states that a person may only be eligible for asylum if the persecution they experienced or fear is committed on “account of” a protected ground.¹¹ Accordingly, even if sex or gender alone can form a cognizable PSG, the persecutor must be causing or threatening the harm specifically because of the applicant’s membership in the PSG, or because of the applicant’s sex or gender.¹²

Whether the violence was committed because the applicant is a man or woman or if the persecution was committed on account of the applicant’s private relationship with the persecutor must be analyzed. Asylum generally does not provide relief to applicants who fear generalized violence.

Unwilling or Unable

Second, to qualify for asylum, INA § 101(a)(42)(A) requires that an applicant must establish that persecution is “by the government or by persons or an organization that the government is unable or unwilling to control”.¹³ This standard recognizes that persecution can be inflicted by non-state actors if the state fails in its duty to protect.¹⁴

A government is “unwilling” if it has the capacity to protect but refuses to act.¹⁵ A government is “unable” to protect an applicant against persecution if it genuinely lacks the means to provide protection, whether due to lack of resources, breakdown of order, or systemic dysfunction.¹⁶

Applicants are required to provide credible testimony or evidence to demonstrate that their home government either refuses to protect them or lacks the ability to do so effectively. Accordingly, asylum claims based on gender-based violence should not have a high likelihood of success if the government in the applicant’s country of origin normally and effectively enforces laws related to domestic violence, absent special circumstances regarding the applicant.

Internal Relocation

Additionally, all asylum claims based on harm caused by non-governmental actors, including domestic violence claims, will have to show that it is not reasonable to relocate internally within their country of origin in order to be eligible for asylum.¹⁷ This regulatory bar restricts asylum eligibility from applicants who can reasonably move to another region in their country of origin to avoid the harm that they are claiming to be fleeing.

Internal relocation is presumed to be unreasonable when the persecutor is a government, but “in cases in which the persecutor is not the government or government-sponsored, it shall be presumed that internal relocation would be reasonable, unless the applicant establishes by a preponderance of the evidence that it would not be reasonable to relocate”.¹⁸ This is true regardless of whether the applicant has established persecution in the past.¹⁹

These legal issues may not be present when the purported persecutor is a government entity. Following the Board’s ruling in Matter of K-E-S-G-, sex or gender-based persecution claims in which the persecutor is a government, however, are now also less likely to be meritorious unless applicants put forth a narrower PSG.

A Departure from the European Union’s Approach

The Board’s ruling in Matter of K-E-S-G- marks a significant departure from the approach the European Union (EU) has undertaken in recent years. The EU has formally taken the position that sex or gender alone can be a cognizable PSG.

The Common European Asylum System (CEAS) issued a qualification directive (QD; formally known as Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011) to make protection standards more consistent across EU member states and was pivotal in recognizing gender-related PSGs. This QD explicitly made clear that gender-related characteristics can define or contribute to a PSG, depending on the situation and country of origin. Specifically, Article 10(1)(d) of the QD states:

Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation, gender identity or gender aspects. Gender-related aspects, including gender identity, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States. [Emphasis added.]

Following the issuance of the QD, the Court of Justice of the European Union (CJEU) ruled, on January 16, 2024, that women as a whole may be regarded as belonging to a social group within the meaning of QD and may qualify for refugee status if they are exposed to physical or mental violence, including sexual violence and domestic violence, in their country of origin on account of their gender.²⁰ On June 11, 2024, the Grand Chamber of the CJEU ruled that ruled that women who genuinely identify with the fundamental value of equality between women and men during their stay in a member state may, depending on origin-country circumstances, constitute a PSG.²¹

These rulings have set the precedent for similar holdings in the EU member states. For example, relying on the CJEU rulings, the National Court of Asylum (CNDA) in France ruled on July 11, 2024, that “all Afghan women”, specifically, could be considered as belonging to a “social group” eligible for refugee protection in France.

The United States, of course, is not bound by the EU’s rulings or the ruling of any international authority. Neither the United Nations Convention Relating the Status of Refugees nor the United Nations Protocol Relating to the Status of Refugees are self-executing treaties. Asylum benefits and other forms of nonrefoulement protections are only enforceable in the U.S. legal context to the extent that they have been implemented by domestic legislation.²² (The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly abbreviated as CAT, is also not self-executing.)

Policy Implications of Recognizing Sex or Gender Alone PSGs

The significant policy implications of recognizing sex- or gender-based PSGs shed some light on why Congress or the drafters of the United Nations Convention Relating the Status of Refugees and the United Nations Protocol Relating to the Status of Refugees declined to include sex or gender as a protected ground on its own merit.

As a preliminary matter, it is necessary to consider the historical context for these treaties. The Convention was negotiated in the aftermath of World War II, with the primary aim of protecting refugees displaced by war and political upheaval in Europe. Gender-based persecution issues were largely overlooked at the time and not widely recognized within international law. Rather, women were frequently viewed as dependents of male refugees, not as independent rights holders.

There is only one recorded mention of a proposal to add “sex” to the list of protected grounds.

The official travaux préparatoires (drafting history) of the 1951 Refugee Convention shows no formal proposal, but references an attempt from a Yugoslav delegate to insert “sex” as a category. The idea was quickly rejected, with the British delegate remarking that “the issue of gender equality was a matter for national legislation”. An Italian delegate responded that, “if sex were to be included among the grounds … then age and health would also be justified”. An American delegate also cautioned that including sex “would significantly broaden the scope of Article 3. If this was adopted, some States [with facially discriminating laws] might hesitate to accede to the Convention.”

In addition to historical blind spots regarding the issue of sex- or gender-based persecution, adding such categories would have expanded refugee protection far beyond what many states were willing to accept. Another Yugoslav delegate stated that states “earnestly desired to reduce the number of refugees”, and that refugee numbers should not be “unnecessarily swollen” by policies encouraging flight. Recognizing sex or gender alone PSGs would broaden the types of claims that will qualify for refugee or asylum protection – i.e., claims that are categorized as private violence (e.g., domestic violence, forced marriage) will be more likely to be meritorious.

The issue of a significant increase in volume of cases cannot be overstated. Recognition of gender- or sex-based PSGs can lead to a surge in applications, especially in countries with entrenched gender inequality. As Nicolas Pouvreau-Monti explained when discussing France’s July 2024 ruling:

In concrete terms, around 20 million Afghan women can now be welcomed as refugees in France, without political leaders having any say in the matter (they are bound and subject to the judge’s decision). But in reality, this decision could affect an even larger part of the Afghan population – including men – by taking into account the right to “family reunification,” a sort of maximalist version of family reunification provided for refugees: Afghan nationals who have obtained protection in France have the right to be joined by their nuclear family, without criteria of resources, housing, or length of residence. [via Google Translate]

With numbers as high as these, Pouvreau-Monti conjectured that, “Under these conditions, everyone can easily understand that the unconditional reception of millions of Afghan nationals – as made possible in the new state of our jurisprudence – would not be sustainable either economically or in terms of social cohesion, and would render all the refugee care systems absolutely ineffective.”

Will This ruling Preclude All Sex- or Gender-Based Asylum Claims?

No. While this ruling will significantly restrict asylum grants from applicants who make gender-based persecution claims, it still leaves the door open for PSGs with adequately “narrowing features, such as specific age range or a specific position in the country’s society or its economy”, assuming all other elements to the asylum requirements are met.

In a footnote, for instance, the BIA disclaimed that Matter of K-E-S-G- should have no impact on asylum claims related to female mutilation. Female genital mutilation cases, while by definition only victimizing females, do not require applicants to put forth a sex or gender alone (or a sex or gender plus nationality) PSG.²³

It is apparent from this decision that the BIA panel is attempting to craft a bright line rule for immigration judges to follow in considering asylum claims based on “particular social groups”, not only to expedite the consideration of those individual claims but also to reduce the backlog of pending applications generally. This decision also serves to warn applicants of the need to describe alleged PSGs with specificity when filing a Form I-589, “Application for Asylum and Withholding of Removal”.

End Notes

¹ See INA §§ 101(a)(42)(A) and 208(b)(1)(a), (b)(i).

² See Matter of M-E-V-G-, 26 I&N Dec. at 237; see also Matter of W-G-R-, 26 I&N Dec. 208, 212–18 (BIA 2014).

³ See Matter of M-E-V-G-, 26 I&N Dec. at 240–41.

⁴ See Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985).

⁵ See Matter of M-E-V-G- at 238.

⁶ See Matter of M-E-V-G- at 239.

⁷ Id.

⁸ See Matter of K-E-S-G- at 154.

⁹ See Matter of W-G-R- at 222.

¹⁰ See Matter of M-E-V-G-, 26 I&N Dec. at 242–43, citing Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). See also Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990), finding “homosexuals” are a cognizable PSG.

¹¹ INA § 208(b)(1)(B)(i).

¹² See Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023), holding that an asylum applicant must show that the protected ground is “one central reason” for persecution – not merely incidental or subordinate to another motive.

¹³ Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985).

¹⁴ See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992).

¹⁵ See Matter of O-Z- & I-Z-, 22 I&N Dec. 23, 26 (BIA 1998), finding Ukrainian authorities unwilling to protect Jewish applicants despite complaints.

¹⁶ See Matter of S-A-, 22 I&N Dec. 1328, 1335 (BIA 2000).

¹⁷ See 8 C.F.R. § 208.13(b)(3).

¹⁸ See 8 C.F.R. § 208.13(b)(3)(ii).

¹⁹ See 8 C.F.R. § 208.13(b)(3)(iii).

²⁰ See J.N. v. Staatssecretaris van Veiligheid en Justitie (C-601/15).

²¹ See K & L v Staatssecretaris van Justitie en Veiligheid (C-646/21).

²² See INS v. Stevic, 467 U.S. 407, 428 n.22 (“Article 34 merely called on nations to facilitate the admission of refugees to the extent possible; the language of Article 34 was precatory and not self-executing.”).

²³ See Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996; granting asylum to an applicant who feared persecution on account of her membership in a PSG defined as “young women of the Tchamba-Kunsuntu Tribe who have not had female genital mutilation, as practiced by that tribe, and who oppose the practice”).