In a latest decision denying asylum to a Salvadoran lady being stalked by gang members, the Board of Immigration Appeals — the best administrative physique for decoding U.S. immigration legislation — discovered that beneath U.S. legislation, her declare that Salvadoran girls represent a gaggle of individuals vulnerable to persecution was “overbroad and insufficiently specific to be cognizable.”
The muse of refugee legislation — each internationally and within the U.S. — is that asylum needs to be supplied to an individual with a well-founded concern of being persecuted on any of 5 grounds: race, faith, nationality, political opinion, or “membership in a specific social group.” This final class is meant to guard individuals equally uncovered to persecution as the opposite 4 teams due to immutable traits that can’t be modified or beliefs so elementary they shouldn’t be required to alter them.
There are precedents in each U.S. and worldwide legislation for treating girls as a “specific social group.” In Perdomo v. Holder and Mohammed v. Gonzales, the Ninth U.S. Circuit Courtroom of Appeals acknowledged that gender is an “innate attribute” that’s “elementary to [one’s] id.” In two circumstances, the European Union Courtroom of Justice found that Afghan women, as girls, are topic to persecution.
However in denying this lady’s declare, the Board stated, “If we held that teams outlined solely by intercourse have been cognizable, we might primarily create one other protected floor beneath the INA [Immigration and Nationality Act] — that of intercourse — so as to add to the grounds of race, faith, nationality, membership in a specific social group, or political opinion.” That, it stated, can be a job for Congress.
As a result of “membership in a specific social group” is so open to interpretation — together with very slim interpretations just like the Board’s — the problem to Congress needs to be raised.
What’s the logic in saying that people needs to be denied asylum as a result of the persecuted group they’re part of is simply too giant? In a rustic the place any group of individuals is broadly persecuted, it shouldn’t matter whether or not that group is giant or small to determine whether or not certainly one of its members wants safety. All that ought to matter is the chance of the chance that individual faces and the severity of the risk to them or of the abuse they’ve skilled.
After all, being a girl per se is just not grounds for asylum, any greater than being a member of any race, nationality or faith. However gender needs to be equally acknowledged as a class deserving safety if it’s the purpose a selected lady is being persecuted.
Some girls have superior profitable asylum claims by figuring out themselves as members of a small, extremely particular group. Within the landmark Fauzia Kasinga case, a girl fleeing genital mutilation was granted asylum not based mostly on her proper to not be persecuted on the premise of her gender, however reasonably as a member of a specific social group, outlined as “younger girls who’re members of the Tchamba-Kasungu Tribe of northern Togo who haven’t been subjected to feminine genital mutilation, as practiced by that tribe, and who oppose the apply.” A extra narrowly outlined group is hardly conceivable.
Usually, although, the compulsion to particularize can distort the fact of persecution. Contemplate women in Afghanistan beneath the Taliban. All Afghan women are barred from training past the sixth grade. No lady is allowed to attend college and all face extreme restrictions on employment. A girl is just not allowed to stroll exterior her dwelling until accompanied by a male family member, limiting entry to public areas and companies, together with entry to well being care. Violations of the hijab dress code and different draconian guidelines are met with extreme punishment.
In September 2024, the UN particular rapporteur on the state of affairs of human rights in Afghanistan said the “Taliban’s institutionalized system of…gender persecution…impacts virtually all the inhabitants.”
When Congress subsequent appears at U.S. immigration legislation, it ought to query why girls ought to must shoehorn their claims right into a slim understanding of membership of a specific social group and thereby have much less constant or predictable safety than racial, spiritual, nationality and political teams. In mild of the Board of Immigration Appeals’ slim studying of present legislation, Congress ought to amend the Immigration and Nationality Act so as to add gender as an unequivocally protected floor of the refugee definition standing alongside race, faith, nationality and political opinion.
Frelick is Human Rights Watch’s director of Refugee and Migrant Rights.