Natalia Trotter, Associate Member, University of Cincinnati Law Review
As with many other legal problems, the answer to the question of what standard applies when bringing a claim of gender-based asylum is, “it depends.” Gender-based asylum claims refer to situations affecting a particular gender, such as domestic violence, sexual assault, female genital mutilation, and forced marriage. To succeed on a gender-based asylum claim, individuals must demonstrate that they form part of a particular social group. Although the Board of Immigration Appeals (BIA), through various holdings, provided guidelines for determining the parameters of the particular social group classification, the standard is vague and confusing. Because of the lack of clarity, circuit courts have either ignored, modified, or adopted the BIA’s standards, leading to inconsistent results across jurisdictions. Victims of gender-based violence, including physical and sexual assault, forced marriage, human trafficking, and female genital mutilation face a system made entirely too complicated by the BIA’s unclear standards. To resolve the inconsistency across jurisdictions, the BIA should require only that individuals claiming membership in a particular social group show that the group is created based on an immutable characteristic. Greater uniformity is necessary in the creation of particular social group classifications for victims of gender-based violence, to avoid inconsistent findings by the circuit courts and to provide greater relief for abused individuals.
Legal Analysis: The BIA Standards
When seeking asylum, an individual must demonstrate four distinct elements. The person must:
(1) . . . have a “fear” of “persecution”; (2) the fear must be “well-founded”; (3) the persecution feared must be “on account of race, religion, nationality, membership in a particular social group, or political opinion”; and (4) the [person] must be unable or unwilling to return to his country of nationality or to the country in which he last habitually resided because of persecution or his well-founded fear of persecution.
An individual may face challenges proving the first, second, and fourth elements, however, demonstrating membership in a particular social group is particularly difficult. Since claims of gender-based violence do not fall under the broader terms of race, religion or nationality, they are classified within the “particular social group” arena. Although the statute lays out the elements, it does not provide a definition for “particular social group” (PSG). In an attempt to fill in the gap, the BIA endeavored to delineate the standards for PSG claims. In one case, Matter of Acosta, the Board of Immigration Appeals (BIA) stated: “we interpret the phrase ‘persecution on account of membership in a particular social group’ to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic.” The court defined immutability as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” The court proceeded to include sex as a valid immutable characteristic.
Although Matter of Acosta appeared favorable to gender-based claims, by accepting “‘sex’ as an immutable characteristic, few circuits have recognized the possibility of a cognizable social group based on gender alone, specifically a social group of women.” In addition to the courts’ reluctance, two BIA cases, Matter of S-E-G and Matter of E-A-G created additional hurdles for individuals claiming membership in a PSG. In these two cases, “the BIA added two new requirements to the PSG test,” holding “that in order to establish a viable PSG, the group must be based on an immutable characteristic, be socially visible, and particularly defined.” Although described as two distinct features, “social visibility” and “particularity” seem interconnected. While particularity refers to the recognition in society of the group “as a discrete class of persons,” social visibility is vaguely described as a trait generally recognized by individuals in the community. The BIA later clarified the definition of social visibility claiming that it “does not mean literal visibility, but instead refers to whether the PSG is recognized within society as a distinct entity.” Based on the BIA’s standards, claiming membership in a particular social group requires demonstrating that the shared characteristic of the group is an immutable characteristic, that the group is recognized in society, and that the group maintains an identity as a distinct class of individuals.
Circuit Split Over PSG Standard
While all the circuits accept the immutability standard identified in Matter of Acosta, the BIA’s use of the term “immutability” appears unclear. In 2014, the BIA held that “‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group.” Following Acosta, the BIA in A-R-C-G acknowledged gender as an immutable characteristic and additionally held that “marital status can be an immutable characteristic where the individual is unable to leave the relationship.” In deciding that marital status qualified as an immutable characteristic, the court based the decision on factors such as “whether dissolution of a marriage could be contrary to religious or other deeply held moral beliefs or if dissolution is possible when viewed in light of religious, cultural, or legal constraints.” The BIA’s description of marital status as constituting an immutable characteristic provided a much broader and confusing standard.
Although accepting the standard of immutability, jurisdictions split over whether to adopt the additional steps laid out in Matter of S-E-G and Matter of E-A-G for gender-based asylum cases. The Seventh Circuit, in a case addressing the issue of female genital mutilation, discarded the BIA’s social visibility step, stating candidly: “it makes no sense.” In Gatimi, the court pointed out one of the problems with including the social visibility step by stating: “[w]omen who have not yet undergone female genital mutilation in tribes that practice it do not look different from anyone else.” The court demonstrated great discomfort with allowing the social visibility test to preclude the respondent from relief and ultimately chose not to show deference to the BIA’s additional standard. Similarly, in a case involving a woman fleeing from forced prostitution, the court disagreed with the use of the particularity requirement. The court found “it would be antithetical to asylum law to deny refuge to a group of persecuted individuals who have valid claims merely because too many have valid claims.” The court disagreed with the particularity step in instances where the requirement would preclude relief merely because the PSG would encompass a large group of people. When analyzing various claims of gender-based violence, the Seventh Circuit explicitly rejected the social visibility requirement and contradicted the particularity step, attempting to make it easier for the respondents to claim membership in a valid PSG.
While the Seventh Circuit clearly rejected the BIA’s additional requirements, the Sixth Circuit represents a jurisdiction where the standard appears hazier. In Rreshpja v. Gonzales, a case of a woman fleeing forced prostitution (factually similar to Cece v. Holder but decided prior to S-E-G and E-A-G), the Sixth Circuit alluded to the principle of particularity in deciding to deny the PSG and therefore the asylum claim. The court found that the PSG of “young (or those who appear to be young), attractive Albanian women who are forced into prostitution” did not qualify because it represented a “generalized, sweeping classification.” In addition, the court held that “individuals in the group must share a narrowing characteristic other than their risk of being persecuted.” The court appeared to emphasize particularity, requiring more than persecution and gender to qualify as a PSG. On the other hand, in a case five years later, and decided after S-E-G and E-A-G, the Sixth Circuit relied exclusively on the Acosta immutability test. The court in Bi Xia Qu v. Holder accepted the PSG of a woman from China fleeing from forced marriage and involuntary servitude. The Court viewed the situation as a case where the respondent shared “the common, immutable characteristic of being a woman who has been abducted by a man trying to force her into marriage in an area where forced marriages are recognized.” Based on Bi Xia Qu, it appears that the Sixth Circuit applies only the Acosta standard for gender-based violence claims, yet the Sixth Circuit has not affirmatively ruled on this issue.
Although all circuits apply the Acosta immutability test, the BIA should clarify the definition of immutability to allow victims of gender-based violence to claim relief. Similarly, while a portion of jurisdictions follows the BIA’s addition to the Acosta test of particularity and social visibility, some jurisdictions flatly reject the supplementary requirements. In addition, the holding by the Ninth Circuit demonstrates the confusion of the BIA in applying its own standards. Because of the misunderstandings generated by the requirements, the BIA should accept the Seventh Circuit’s position and revert back to an exclusive Acosta test, eliminating the added burden of demonstrating particularity and social visibility.
The BIA could greatly reduce the confusion of the immutability requirement by viewing sex as a sufficient element for creating a PSG. In Acosta, the BIA specifically accepted sex as a valid immutable characteristic. Based on the BIA’s decision in that case, sex could stand alone in the creation of a particular social group. As pointed out by the Seventh Circuit, the possible size of the category should not be a factor in precluding persons from bringing valid asylum claims. Although courts fear the floodgates of litigation if individuals could claim membership in a particular social group based only on sex, as with the other categories, the individuals claiming sex as the immutable characteristic must still demonstrate a well-founded fear of persecution. For women in situations of domestic violence, forced prostitution, female genital mutilation, or forced marriage, acquiring the evidence to prove the persecution in their home countries is often a very difficult process. Assuming that allowing sex to constitute membership in a particular social group will blow open the door to asylum claims is unrealistic. Because women are more likely to seek asylum on the basis of a PSG then on the basis of race, nationality, or membership in a political group, defining the PSG class so narrowly, creates an “under-inclusive effect in granting asylum to women.” Allowing “sex” to serve on its own as an immutable characteristic would allow women an equal opportunity to pursue asylum claims. In its next decision, the BIA should accept its own ruling from Acosta and permit sex to serve as a stand-alone immutable characteristic.
If the BIA chooses not to accept sex as an immutable characteristic sufficient to constitute a PSG, the BIA should do away with the social visibility and particularity requirements. Addressing the social visibility step, the Seventh Circuit highlighted the fact that it is unreasonable in many situations to require that a group be visible within society. In cases of female genital mutilation or sexual assault, although the violence may not be visible to society, the members of the group still share an immutable characteristic. If the social visibility requirement is applied, women in these groups may not be able to receive relief of asylum since not all violence and abuse is visible. In addition to the complications that applying the social visibility standards pose for women in abusive situations, as the Ninth Circuit points out, the BIA’s own application of the standard appears extremely inconsistent. Addressing the particularity requirement the Seventh Circuit also pointed out that courts should not limit asylum relief merely because the class of people is large. Applying the social visibility and particularity requirements greatly decreases the ability of women, from extremely abusive situations, to receive asylum relief.
In addition to eliminating the social visibility and particularity steps, courts should adopt a more flexible approach to the immutability requirement. In Matter of A-R-C-G-, the BIA found the class of married women unable to leave their partners, as cognizing a PSG since the members shared the immutable characteristic of being unable to leave their marriages. Following this standard, women forced into prostitution or subjected to female genital mutilation should also be able to form PSGs, sharing the common immutable characteristic of pertaining to a culture where violence against women is so engrained in societal norms as to be extremely difficult if not impossible to change. Women in machista societies should demonstrate that forced rape or sexual assault counts as an immutable characteristic since it is something that cannot be changed within the society where the individual lives. The BIA in Matter of A-R-C-G-, provided a more flexible approach to the immutability requirement, which courts should use when addressing claims of gender-based asylum.
Because the standards for demonstrating membership in a particular social group are confusing and convoluted, the BIA should return to the Acosta test and require only the demonstration of immutability to establish a PSG. In addition, the BIA should permit sex, as an immutable characteristic, to stand alone in the creation of PSGs based on gender-based violence. Allowing sex to constitute a valid immutable characteristic, permitting a more flexible understanding of the term immutability, and eliminating the social visibility and particularity requirements, will result in enhanced protection of women escaping situations of violence and will decrease the under-representation of women receiving asylum relief.
 8 U.S.C. § 1101(a)(42)(A).
 Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); Matter of S-E-G-. 24 I&N Dec. 579 (BIA 2008); Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008).
 Matter of A-R-C-G- et al., Respondents, 26 I&N Dec. 388 (BIA 2014); Gatimi v. Holder, 578 F.ed 611, 615 (7th Cir. 2009); Cece v. Holder, 733 F.3d 662, 675 (7th Cir. 2013); Bi Xia Qu v. Holder, 618 F.3d 602, 607 (6th Cir. 2010); Henriquez-Rivas v. Holder, 707 F.3d 1081, 1087-1088 (9th Cir. 2013).
 Matter of Acosta at 211; § 1101(a)(42)(A).
 Matter of Acosta at 233.
 Id. at 212.
 Andrea Coutu, Gender Plus One: Broadening Judicial Interpretation of Gender-Based Social Group Formulations, 9 7th Cir. Rev.150, 151 (2013).
 Matter of S-E-G- at 24; Matter of E-A-G- at 591.
 Nat’l Immigrant Justice Ctr., Particular Social Group Practice Advisory: Applying for Asylum After Matter of M-E-V-G- and Matter of W-G-R, at 2 (2016), https://www.immigrantjustice.org/sites/default/files/PSG%2520Practice%2520Advisory%2520and%2520Appendices-Final-1.22.16.pdf (last visited, Mar. 27, 2018).
 Id. at 2.
S-E-G- at 586.
Nat’ Immigrant Justice Ctr., supra note 11; Matter of M-E-V-G-, 26 I&N Dec. 277 (BIA 2014).
 Matter of A-R-C-G- et al., 26 I&N Dec. 388 (BIA 2014).
 Id. at 392-393.
 Id. at 393.
 Gatimi v. Holder, 578 F.3d 611, 615 (7th Cir. 2009).
 Cece v. Holder, 733 F.3d 662, 675 (7th Cir. 2013).
 Nat’ Immigrant Justice Ctr., supra note 11 at 3.
 420 F.3d 551(6th Cir. 2005).
 Id. At 55.
 618 F.3d 602, 607 (6th Cir. 2010).
 Id. at 607.
 Matter of Acosta, supra note 4 at 212.
 Cece, supra note 20 at 675.
 Coutu, supra note 9 at 154.
 Gatimi, supra note 17 at 615.
 Henriquez-Rivas, supra note 27 at 1081.
 Matter of A-R-C-G- et al., supra note 14 at 388.