Impact of the Proposed Asylum Rule on Gender-Based Claims

“NY Statue of Liberty” by Celso Flores

Margo McGehee, Associate Member, University of Cincinnati Law Review

I. Introduction

Long before the onset of COVID-19, the world met a different type of global pandemic, one that affects one in three women in their lifetime.[1] Worldwide, women and girls are facing escalating levels of gender-based violence (“GBV”).[2] The United Nations estimates that 87,000 women were intentionally killed in 2017, and more than half of those killings were by intimate partners or family members.[3] Additionally, there are at least 650 million girls who were married before age eighteen in the world today, and at least 200 million who have undergone female genital mutilation (“FGM”).[4] Despite these alarming levels of violence, women and girls who experience GBV are often unable to find adequate protection from their government, leading many to the U.S. border in search of asylum.[5]

The term “gender-based asylum” generally refers to asylum applicants who have faced persecution on account of their gender.[6] Historically, gender-based asylum-seekers have seen mixed success; however, in recent years, new asylum rules and regulations have drastically inhibited their ability to succeed on these claims.[7] The newest proposed asylum rule, introduced as a joint notice by the Department of Homeland Security and the Executive Office of Immigration Review on June 15, continues this trend.[8] This proposed rule, stretching over 160 pages, amends the regulations governing asylum and leaves gender-based asylum-seekers particularly vulnerable. This article will discuss some of the most significant aspects of the proposed rule changes and explain the impact the rule will have on gender-based asylum claims.[9]

II. Background

The current United States asylum system is relatively new, tracing back to the Refugee Act of 1980.[10] Adopting the United Nations’ definition, U.S. law defines “refugee” as a person who is unable or unwilling to return to his or her country of nationality because of a “well-founded fear of persecution” on account of race, religion, nationality, political opinion, or membership in a particular social group.[11] This well-founded fear must be based on persecution by the government itself or an entity that the government is unable or unwilling to control.[12] The Act created two pathways for obtaining refugee status in the U.S.—either from abroad as a resettled refugee, or from inside the U.S. as an asylee.[13]

The definition of “refugee” does not explicitly mention “sex” or “gender” as a protected ground for asylum.[14] However, international bodies have long recognized the close relationship between gender and persecution.[15] In 2002, the United Nations High Commissioner for Refugees (“UNHCR”) declared that “[t]he refugee definition, properly interpreted, . . . covers gender-related claims,” recognizing that many women fleeing GBV are in need of international protection.[16]

Despite international recognition of gender-based asylum claims, these claims do not have clear protection under U.S. law; women bringing these claims must rely on favorable court rulings and executive policy to provide avenues for asylum.[17] Since 1985, U.S. courts have broadly interpreted two of the protected grounds for asylum—“membership in a particular social group” (“PSG”) and “political opinion”—to encompass gender-based claims.[18]

In 1985, the Board of Immigration Appeals (“BIA”) determined that “sex” could be a cognizable PSG, as it is a “common, immutable characteristic” that “members of the group either cannot change, or should not be required to change.”[19] In the 1996 Matter of Kasinga decision, the BIA granted asylum to a woman fleeing female genital mutilation (“FGM”) and forced marriage, recognizing that she was part of a cognizable PSG on account of her gender.[20] Later, in 2014, the BIA ruled that domestic violence is broadly a form of persecution for which asylum can be granted on PSG grounds.[21]

Courts have also interpreted “political opinion” broadly to not only encompass movements against a state or political entity, but also movements against a culture.[22] Under this broad interpretation, women have succeeded on gender-based asylum claims by proving that they faced persecution on account of feminist political views.[23]

In recent years, some courts have adopted a narrower interpretation of asylum law as it relates to gender-based claims. In the 2018 Matter of A-B- decision, Attorney General Jeff Sessions pronounced that asylum claims based on domestic violence would no longer be approved or recognized as a PSG, overruling Matter of A-R-C-G-.[24] However, since this decision, numerous courts have ruled favorably for parties challenging Matter of A-B-, rejecting Sessions’ attempt to bar these claims.[25]

Demonstrating that a claim falls within a protected ground for asylum is only one step toward a successful asylum case. The asylum-seeker must also show that she was persecuted “on account of” a protected ground, which is known as the “nexus” requirement.[26] Additionally, the asylum-seeker must satisfy all other administrative and procedural requirements set forth by asylum law, policies, and precedents.[27]

III. The Proposed Rule

The proposed rule introduced this summer touches on nearly every aspect of asylum law, offering clarifications of previous rules and new definitions for existing terms.[28] Some of the most substantial changes to asylum policy involve particular social groups, political opinion, the nexus requirement, and third country transit.

First, the proposed rule significantly narrows the definition of PSG by enumerating nine specific grounds that would “generally be insufficient to establish a particular social group.”[29] Among these nine grounds, the proposed rule prohibits adjudicators from recognizing PSGs based on “interpersonal disputes” or “private criminal acts” of which government authorities were unaware or uninvolved, with exceptions only in “rare circumstances.”[30]

Second, the proposed rule narrows the definition of “political opinion” by requiring persecution on this ground be related to “political control of a state or unit thereof.”[31] This narrowed definition excludes political opinions based on movements against a culture.[32]

Third, the proposed rule outlines eight specific situations where nexus cannot be found between an asylum-seeker’s persecution and her protected ground.[33] This includes “gender” and “personal animus or retribution” where the alleged perpetrator did not also target other members of the PSG, and exceptions are only permitted in “rare circumstances.”[34]

Finally, asylum-seekers who traveled through another country en route to the United States are significantly penalized under the proposed rule.[35] Failure to seek asylum in at least one country through which an asylum-seeker traveled before entering the U.S. will be considered a “significantly adverse factor,” subject only to very limited exceptions.[36]

Although the proposed rule imposes many more changes on the asylum system, these listed changes have the most significant impact gender-based asylum claims.

IV. Analysis

The proposed rule’s exclusion of “interpersonal disputes” and “private criminal acts” from the definition of PSG virtually eliminates gender-based asylum on this basis.[37] Domestic violence and other instances of GBV are considered interpersonal disputes and private criminal acts by the current Administration, despite the fact that GBV is often indicative of larger societal problems that are systematically tolerated by governments and their law enforcement agencies.[38] These exclusions breathe new life into Matter of A-B- by virtually eliminating domestic violence as a recognized PSG.[39]

The proposed rule also requires that for any PSG designation, the asylum-seeker’s government authorities must have either been aware of or involved in her persecution.[40] This requirement completely disregards how victims of GBV generally react to and deal with their abuse. Victims who live in societies where GBV is systematic and widespread often do not report their abuse or seek any sort of help, and those who do seek help from formal government institutions watch as their perpetrators are treated with impunity.[41] Victims of GBV also experience high levels of trauma and many continue to experience Post Traumatic Stress Disorder after escaping from their abusive situations.[42] This affects their ability to think clearly, make rational decisions, and may prevent them from seeking help, as required by the proposed rule.[43]

The proposed rule’s narrowed definition of “political opinion” will also have the effect of excluding virtually all gender-based asylum claims on this ground. Political opinions involving movements against a culture are excluded, meaning that women who have faced persecution on account of feminist political opinions, such as the political opinion that women should have equal access to education, employment, marriage, etc., will have no claim under the proposed rule.[44] This rule disregards the fact that many people who hold feminist political opinions do so in defiance of government laws and policies, both actual and implied, and face significant persecution from government entities as a result.[45]

Virtually all gender-based asylum claims will be excluded under the proposed rule’s changes to PSG and political opinion. However, if a claim manages to survive under one of the limited exceptions to these changes, the claim will still likely fail under the changes to the nexus requirement. The proposed rule explicitly deems “gender” an invalid basis for establishing nexus between persecution and a protected ground for asylum.[46] GBV and other gender-based claims are, by definition, a result of persecution on account of one’s gender—these claims cannot exist separate from gender.[47] Without this necessary link between the persecution suffered and the protected ground, the claim will necessarily fail to satisfy the definition of “refugee.”[48]

Additionally, the proposed rule states that an asylum-seeker cannot establish nexus based on “personal animus or retribution” if her perpetrator did not also target other members of her PSG.[49] Domestic violence and GBV cases are often the result of intimate partner violence where the perpetrator targets only one individual, such as a spouse.[50] Even if an asylum-seeker’s persecutor targeted other members of the PSG, the asylum-seeker may not be able to obtain evidence to prove to an adjudicator that others were persecuted.[51] In both of these situations, an asylum-seeker’s gender-based claim will fail to establish nexus under the proposed rule.

Finally, the proposed rule reinforces the third country transit bar implemented in 2019, despite the fact that the bar has since been struck down by several federal circuit courts, with one court specifically noting that “denial of asylum cannot be predicated solely on a [noncitizen]’s transit through a third country.”[52] This bar has a disparate impact on victims of GBV, especially women and children escaping domestic abuse, as women in these circumstances often have limited access to family finances, resources, and official documents needed for visas and other travel papers.[53] As a result, land travel is often the only avenue of escape, which requires transit through third countries.[54] Regardless of the strength of her asylum case on the merits, an applicant will be denied asylum if she did not first seek asylum in one of the countries through which she traveled.[55]

V. Conclusion

As it stands, the proposed rule is a death knell for gender-based asylum. Even if a gender-based asylum claim qualifies for one of the rare exceptions to the PSG or political opinion changes, the claim will still likely fail under the nexus requirement or any number of the rule’s additional changes.[56] And if (and that’s a big “if”) a gender-based claim satisfies the substantive requirements of the proposed rule, the claim still must fight its way through a slew of procedural changes, such as the third country transit bar.[57]

As seen with the Matter of A-B- decision and the 2019 third country transit bar, this rule, once implemented, will be subject to extensive litigation.[58] However, unlike other recent changes to immigration policy that have been swiftly revoked, many of these changes will be hard to challenge, particularly changes that are clarifications of previous rules and offer new definitions for existing terms.[59] A complete change in Administration may be necessary to revoke these changes and implement new policies that better protect gender-based claims.

Alternatively, Congress could write protections for gender-based claims into asylum law, thereby protecting it from significant policy change. The framework for these protections exists internationally through the UNHCR’s guidelines and handbooks, and many U.S. courts already consider UNHCR’s interpretations when assessing refugee claims.[60] However, as Congress has declined to incorporate international gender-based guidelines into U.S. law since asylum law’s inception, it is unlikely to do so now in response to the proposed rule changes.[61]   

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^[1] Facts and Figures: Ending violence against women, UN Women (Nov. 2019),

https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures.

[2] Devon Cone, Exacerbating the other epidemic: how COVID-19 is increasing violence against displaced women and girls, Refugees International (Aug. 4, 2020), https://www.refugeesinternational.org/reports/2020/7/31/exacerbating-the-other-epidemic-how-covid-19-is-increasing-violence-against-displaced-women-and-girls.

^[3] Facts and Figures: Ending violence against women, UN Women (Nov. 2019),

https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures.

^[4] Id.

^[5] Id.; Gender-Based Violence Against Women: Both Cause for Migration and Risk along the Journey, Migration Policy Institute (Sept. 7, 2017), https://www.migrationpolicy.org/article/gender-based-violence-against-women-both-cause-migration-and-risk-along-journey.

^[6] Gender-Based Asylum, The Advocates for Human Rights (Jan. 2010), https://www.stopvaw.org/gender-based_asylum.

[7] Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996); Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014); Matter of A-B–, 27 I&N Dec. 316 (A.G. 2018).

^[8] Procedures for Asylum and Withholding of Removal, 85 Fed. Reg. 36264 (proposed June 15, 2020).

^[9] Gender-based claims are available to persons of any gender. However, this article focuses on gender-based asylum claims brought by cisgender women because the proposed rule largely targets asylum-seekers from Central America, and a large portion of gender-based claims from this area of the world are brought by cisgender women fleeing GBV.

^[10] Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102.

^[11] 8 U.S.C. § 1101(a)(42); Asylum in the United States, American Immigration Council (June 11, 2020), https://www.americanimmigrationcouncil.org/research/asylum-united-states.

^[12] Id.

^[13] Asylum in the United States, American Immigration Council (June 11, 2020), https://www.americanimmigrationcouncil.org/research/asylum-united-states.

^[14] Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102; 8 U.S.C. § 1101(a)(42).

[15] UNHCR, Guidelines on International Protection: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, U.N. Doc HCR/GIP/02/01 (May 7, 2002), https://www.unhcr.org/3d58ddef4.pdf.

[16] Id.

^[17] Tahirih Explains: Gender-Based Asylum, Tahirih Justice Institute (June 2020), https://www.tahirih.org/wp-content/uploads/2020/06/Tahirih-Explains-Gender-Based-Asylum.pdf.

[18] Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996); Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014).

^[19] Acosta, 19 I&N Dec. at 233-34.

^[20] Kasinga, 21 I&N Dec. at 357.

^[21] A-R-C-G, 26 I&N Dec. at 388.

^[22] Tara Murtha, The Trump Administration’s Proposed Asylum Rule is Cruel and Dangerous, Women’s Law Project (July 16, 2020), https://www.womenslawproject.org/2020/07/16/the-trump-administrations-proposed-asylum-rule-is-cruel-dangerous/.

^[23] Kasinga, 21 I&N Dec. at 376.

^[24] Matter of A-B–, 27 I&N Dec. 316 (A.G. 2018)(citing Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014)).

^[25] See Grace v. Whitaker, 344 F. Supp. 3d 96, 126-27 (D.D.C. 2018) (finding that the policies articulated in Matter of A-B- were arbitrary, capricious, and contrary to law); See also Rosales Justo v. Sessions, 895 F.3d 154 (1st Cir. 2018) (rejects Matter of A-B-’s attempt to rewrite the standard of state protection in domestic violence cases).

^[26] 8 U.S.C. § 1101(a)(42).

[27] Obtaining Asylum in the United States, U.S. Citizenship and Immigration Services (last visited Sept. 14, 2020), https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/obtaining-asylum-in-the-united-states.

^[28] Procedures for Asylum and Withholding of Removal, 85 Fed. Reg. 36264 (proposed June 15, 2020).

^[29] Id. at 36279.

^[30] Id.

^[31] Id.

^[32] Tara Murtha, The Trump Administration’s Proposed Asylum Rule is Cruel and Dangerous, Women’s Law Project (July 16, 2020), https://www.womenslawproject.org/2020/07/16/the-trump-administrations-proposed-asylum-rule-is-cruel-dangerous/.

[33] 85 Fed. Reg. at 36281.

^[34] Id.

^[35] Id. at 36283-84.

^[36] Id.

[37] Id. at 36279.

[38] Id. (citing Matter of A-B–, 27 I&N Dec. 316 (A.G. 2018)); Takyiwaa Manuh, Confronting Violence Against Women—What Has Worked Well and Why?, United Nations (last visited Sept. 14, 2020), https://www.un.org/en/chronicle/article/confronting-violence-against-women-what-has-worked-well-and-why.

^[39] See A-B-, 27 I&N Dec. at 320 (“Generally, claims by aliens pertaining to domestic violence . . . will not qualify for asylum.”).

[40] 85 Fed. Reg. at 36279.

^[41] Cecilia Menjivar & Shannon Drysdale Walsh, The Architecture of Feminicide: The State, Inequalities, and Everyday Gender Violence in Honduras, 52 Latin American Research Review, 221-240 (2017), https://larrlasa.org/articles/10.25222/larr.73/ (95% impunity rate for sexual violence and femicide crimes in Honduras); Facts and Figures: Ending violence against women, UN Women (Nov. 2019),

https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures.

[42] Gender-based violence in heath emergencies, World Health Organization (last visited Sept. 14, 2020), https://www.who.int/health-cluster/about/work/other-collaborations/gender-based-violence/en/.

^[43] Id.

[44] 85 Fed. Reg. at 36279.

^[45] Megan Specia, Saudi Arabia Granted Women the Right to Drive. A Year on, It’s Still Complicated, N.Y. Times (June 24, 2019), https://www.nytimes.com/2019/06/24/world/middleeast/saudi-driving-ban-anniversary.html.

[46] 85 Fed. Reg. at 36281.

[47] Gender-Based Asylum, The Advocates for Human Rights (Jan. 2010), https://www.stopvaw.org/gender-based_asylum.

[48] 8 U.S. Code § 1101(a)(42).

^[49] 85 Fed. Reg. at 36,281.

[50] Dynamics of Abuse, National Coalition Against Domestic Violence (last visited Sept. 14, 2020), https://ncadv.org/dynamics-of-abuse.

^[51] See Phumzile Mlambo-Ngcuka, Violence against women and girls: the shadow pandemic, UN Women (Apr. 6, 2020), https://www.unwomen.org/en/news/stories/2020/4/statement-ed-phumzile-violence-against-women-during-pandemic (wide underreporting of gender-based violence).

^[52] East Bay Sanctuary Covenant v. Barr, No. 19-16487, 32 (9th Cir. 2020);Exec. Order No. 13946, 84 Fed. Reg. 33829 (July 16, 2019).

[53] Gender-based violence: Financial independence and economic empowerment key to survivors’ recovery, United Nations Office for the Coordination of Humanitarian Affairs (May 17, 2019), https://www.unocha.org/story/gender-based-violence-financial-independence-and-economic-empowerment-key-survivors-recovery.

^[54] Id.

[55] Procedures for Asylum and Withholding of Removal, 85 Fed. Reg. 36283-84 (proposed June 15, 2020).

[56] Id. at 36279, 81.

[57] Id. at 36283-84.

^[58] Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018); “Asylum Eligibility and Procedural Modifications,” 84 Fed. Reg. 33829, (July 16, 2019).

[59] See e.g. Miriam Jordan and Anemona Hartocollis, U.S. Rescinds Plan to Strip Visas From International Students in Online Classes, N.Y. Times (July 14, 2020), https://www.nytimes.com/2020/07/14/us/coronavirus-international-foreign-student-visas.html (“Trump administration said it would no longer require foreign students to attend in-person classes during the coronavirus pandemic in order to remain in the country” after the policy received significant pushback from universities, including lawsuits from Harvard University and M.I.T.).

[60] UNHCR, Guidelines on International Protection: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, U.N. Doc HCR/GIP/02/01 (May 7, 2002), https://www.unhcr.org/3d58ddef4.pdf; INS v. Cardoza-Fonseca, 480 U.S. 421, N. 22 (1987).

[61] Tahirih Explains: Gender-Based Asylum, Tahirih Justice Institute (June 2020), https://www.tahirih.org/wp-content/uploads/2020/06/Tahirih-Explains-Gender-Based-Asylum.pdf.