US should fix the gender gap in refugee protection

In a recent decision denying asylum to a Salvadoran woman being stalked by gang members, the Board of Immigration Appeals — the highest administrative body for interpreting U.S. immigration law — found that under U.S. law, her claim that Salvadoran women constitute a group of people at risk of persecution was “overbroad and insufficiently particular to be cognizable.”

The foundation of refugee law — both internationally and in the U.S. — is that asylum should be provided to a person with a well-founded fear of being persecuted on any of five grounds: race, religion, nationality, political opinion, or “membership in a particular social group.” This last category is intended to protect people similarly exposed to persecution as the other four groups because of immutable characteristics that cannot be changed or beliefs so fundamental they should not be required to change them.

There are precedents in both U.S. and international law for treating women as a “particular social group.” In Perdomo v. Holder and Mohammed v. Gonzales, the Ninth U.S. Circuit Court of Appeals recognized that gender is an “innate characteristic” that is “fundamental to [one’s] identity.” In two cases, the European Union Court of Justice found that Afghan women, as women, are subject to persecution.

But in denying this woman’s claim, the Board said, “If we held that groups defined solely by sex were cognizable, we would essentially create another protected ground under the INA [Immigration and Nationality Act] — that of sex — to add to the grounds of race, religion, nationality, membership in a particular social group, or political opinion.” That, it said, would be a job for Congress.

Because “membership in a particular social group” is so open to interpretation — including very narrow interpretations like the Board’s — the challenge to Congress should be raised.

What is the logic in saying that individuals should be denied asylum because the persecuted group they are a part of is too large? In a country where any group of people is widely persecuted, it shouldn’t matter whether that group is large or small to decide whether one of its members needs protection. All that should matter is the likelihood of the risk that person faces and the severity of the threat to them or of the abuse they have experienced.

Of course, being a woman per se is not grounds for asylum, any more than being a member of any race, nationality or religion. But gender should be similarly recognized as a category deserving protection if it is the reason a specific woman is being persecuted.

Some women have advanced successful asylum claims by identifying themselves as members of a small, highly specific group. In the landmark Fauzia Kasinga case, a woman fleeing genital mutilation was granted asylum not based on her right not to be persecuted on the basis of her gender, but rather as a member of a particular social group, defined as “young women who are members of the Tchamba-Kasungu Tribe of northern Togo who have not been subjected to female genital mutilation, as practiced by that tribe, and who oppose the practice.” A more narrowly defined group is hardly conceivable.

Often, though, the compulsion to particularize can distort the reality of persecution. Consider women in Afghanistan under the Taliban. All Afghan girls are barred from education beyond the sixth grade. No woman is allowed to attend university and all face severe restrictions on employment. A woman is not allowed to walk outside her home unless accompanied by a male relative, limiting access to public spaces and services, including access to health care. Violations of the hijab dress code and other draconian rules are met with severe punishment.

In September 2024, the UN special rapporteur on the situation of human rights in Afghanistan said the “Taliban’s institutionalized system of…gender persecution…impacts almost the entire population.”  

When Congress next looks at U.S. immigration law, it should question why women should have to shoehorn their claims into a narrow understanding of membership of a particular social group and thereby have less consistent or predictable protection than racial, religious, nationality and political groups. In light of the Board of Immigration Appeals’ narrow reading of existing law, Congress should amend the Immigration and Nationality Act to add gender as an unequivocally protected ground of the refugee definition standing alongside race, religion, nationality and political opinion. 

Frelick is Human Rights Watch’s director of Refugee and Migrant Rights.