Gender Per Se

In De Pena Paniagua v. Barr, a three-judge panel of the U.S. Court of Appeals for the First Circuit made several corrections to the Trump administration’s application of the law of asylum as it applies to victims of domestic violence.  The court’s precedent decision provided validation to the longstanding views of asylum advocates that the administration has worked hard to ignore. 

As background, after an 18-year legal battle, the BIA in a 2014 decision, Matter of A-R-C-G-, finally recognized that the particular social group of married Guatemalan women unable to leave their relationship warranted asylum where its members are targeted for persecution due to their group characteristics.

In 2018, then-Attorney General Jeff Sessions vacated A-R-C-G-, claiming that it lacked the rigorous legal analysis expected of such a decision.  Sessions stated that while his new decision did not bar all such claimants from asylum, he believed few victims of domestic violence would manage to qualify.  In particular, Sessions decided that “women unable to leave their domestic relationship” could not form the legitimate particular social group needed under the asylum laws, on the ground that such groups cannot be defined even in part by the persecution the group fears.  In support of this view, Sessions concluded that the asylum-seeker’s inability to leave her relationship in the case in question was due to persecution, although he provided no insight as to what facts supported his belief.

Many similar cases were pending when Sessions issued his fateful decision.  But instead of remanding all pending cases to allow the opportunity to respond to the sudden change in the law, the BIA instead began denying those cases on the grounds that Sessions had rejected the concept, without bothering to actually analyze the specific facts of each case to see if they still merited asylum under the law.

In De Pena Paniagua, the First Circuit called shenanigans.  It began by noting that nothing in Sessions’ decision created a categorical rule precluding any and all applicants from succeeding on asylum claims as members of the group defined as women unable to leave their relationships.  The BIA had thus erred in categorically denying such a claim.

The court next turned to Sessions’ error in concluding that the inability to leave a relationship necessarily results from persecution, calling Sessions’ statement to the contrary “arbitrary and unexamined fiat.”  But the court continued that even if  persecution was the cause, the threatened abuse that precludes someone from leaving a relationship “may not always be the same...as the physical abuse visited upon the woman within the relationship.”  Finally, the court held that even if the harm was the same, there is no reason such abuse can’t do “double-duty, both helping define the group and providing the basis for a finding of persecution.”

It bears noting that in a 2007 precedent decision, Matter of A-M-E- & J-G-U-, the BIA had only held that a particular social group cannot be defined “exclusively by the fact that its members have been subjected to harm.”  And the group in De Pena Paniagua (and in A-B- and A-R-C-G-, for that matter)  was not exclusively defined by the inability to leave, but also by its members’ gender, nationality, and domestic relationship status.  Of course, the inability to leave a relationship can be due to social, religious, economic, or other factors having nothing to do with persecution.  But even if the inability to leave is interpreted as resulting from persecution, the fact that such harm would only partially define the group would not invalidate it under A-M-E- & J-G-U- (which borrowed the “exclusively defined” language from particular social group guidelines issued by UNHCR in 2002, which the Board had cited in an earlier decision).

In a 2014 case, Matter of M-E-V-G-, DHS had argued for a requirement that a particular social group “must exist independently of the fact of persecution,” a stricter requirement that would seemingly forbid a group from being even partially defined by persecution.  Strangely, the BIA responded to DHS’s argument in a footnote, claiming that DHS’s proposal “is well established in our prior precedents,” a statement that was clearly untrue.   And in support of its claim, the BIA cited to Matter of A-M-E- & J-G-U-, which as discussed only precludes groups defined exclusively by persecution.

In his decision in A-B-, Sessions relied in part on the footnote in M-E-V-G- mischaracterizing prior case law to support his claim that a particular social group must exist independently of the harm asserted, thus perpetuating the Board’s prior falsehood.   As in fact no prior BIA precedent had ever held that a particular social group cannot partially be defined by persecution, the First Circuit was correct to call out the unsupported legal conclusion.  As merely looking up the citation in the BIA’s footnote would have revealed the error, one could argue that Sessions’ decision lacked the rigorous legal analysis expected of such a decision.

In remanding the record back to the BIA, the First Circuit also held out the possibility of considering a more concise group defined by an asylum applicant’s gender per se.  This group was suggested in the amicus brief filed in the case by Harvard Law School’s Immigration and Refugee Clinical Program.  While leaving it to the BIA to decide whether gender alone may constitute a cognizable particular social group for asylum purposes, the court provided very strong reasons why it should.  The BIA’s recognition of gender per se would constitute a historical correction to U.S. asylum law, putting it in line with long recognized international standards.  The same 2002 UNHCR Guidelines recognized gender as falling “properly within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently to men.”    

Attorneys Jonathan Ng and Robert F. Ley of the Law Offices of Johanna Herrero represented the petitioner.  Our Round Table of Former Immigration Judges is proud to have been among the distinguished amici filing briefs in the case, which included the Center for Gender and Refugee Studies, the Harvard Immigration and Refugee Clinical Program, a distinguished group of immigration law professors, and a group of faith-based organizations.  Our heartfelt thanks to attorneys Richard W. Mark, Amer S. Ahmed, Indraneel Sur, Timothy Sun, Grace E. Hart, and Chris Jones of the law firm of Gibson Dunn for their outstanding efforts on our brief.

Copyright 2020 Jeffrey S. Chase.  All rights reserved.