Women and girls crossing borders are open wounds. Subjugated, enslaved, mutilated. Because they are viewed as lesser and disposable by governments, tribal groups, gangs. Because they possess soft pink flesh. The wetness of vulvas, the plumpness of labias, the quivering of clitorises, the pulsing of vaginas. They absorb the misdirected pain of patriarchy until their battered bodies collapse, until fleeing is the only available option.
I sit cross-legged on the floor sifting through piles of cases and country conditions documents trying to fold you into the narrow space of United States asylum law. The brief is due in three weeks, it must convince the judge you are a statutorily-defined refugee.
You must have experienced harm that rises to the level of persecution. The persecution must have been on account of your belonging to a protected category (race, religion, ethnicity, political opinion, membership in a particular social group). Your government must have been unable or unwilling to control your persecutors.
I am tossed like flotsam in a sea of sentences and legal arguments that threaten, like siren songs, to shatter me on the rocks of contradictory opinions and non-binding decisions. I grab at an anchor — "particular social group" — and throw it overboard, hoping it will sink deep into moving sands.
The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying immigration laws in the United States. It does not derive its powers from the judicial branch of the federal government as do independent Article III courts but rather, is a creature of the executive branch housed within the Department of Justice.
The BIA has been given nationwide jurisdiction to hear appeals from certain decisions rendered by immigration judges and district directors of the Department of Homeland Security. BIA decisions are binding on all immigration judges unless modified or overruled by the Attorney General or a federal court.
Most BIA decisions are subject to judicial review in federal courts, but federal courts give high deference to administration court decisions and rarely overturn them.
Counsel, you cannot argue that your client should be afforded refugee status because she was persecuted on account of her sex. As you well know, gender is not a basis for asylum under the law. She must prove that she was the member of a particular social group, or PSG, and that that is the reason she was persecuted.
You’re asking why sex, by itself, can’t constitute a PSG? That’s simple, counsel, just take a look at the plain language of the 1951 United Nations Refugee Convention. If they wanted to allow refugee status based on sex alone, they would’ve said so. No, it doesn’t matter that gender-based persecution wasn’t on western men’s radar when they coined the refugee definition more than half a century ago.
What’s that you say? You’ll come back with a particular social group that encompasses girls and women like your client? Good luck. In the meantime, we’ll be working on whittling down the PSG definition to ensure sensible limits. Think about it, if we allowed all females who were persecuted on the basis of their, er … femaleness, we’d have a crisis on our hands.
I force my mind to spin in tandem with the BIA’s legal acrobatics that contort impressively, impossibly, to guard against the opening of floodgates. Real or imagined, I cannot say. It is irrelevant anyway because we are complicit in creating the human tide that stands behind the walls and fences of our curated naiveté. We are obligated, if not by man-made laws, then by human decency, to grant asylum where persecution is a result of the authoritarian regimes we funded and the gangs we exported.
In 1996, the BIA recognized a gender-based PSG by granting asylum to a young woman from Togo fleeing female genital cutting. Matter of Kasinga, 21 I&N 357 (BIA 1996).
In 2008, the BIA placed restrictions on PSGs that seemed to contradict its earlier decision. Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008).
In 2014, the BIA attempted to clarify its conflicting and widely criticized PSG definition. In doing so, the BIA drastically reduced the types of gender-based PSGs that are cognizable under U.S. asylum law. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014); Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014).
We’ve come up with a new formula for proving persecution on account of membership in a particular social group. An applicant must show that the PSG she claims to be a member of is a cognizable PSG by demonstrating three things:
Immutability. All members of the PSG must share the same immutable characteristics. That is, something they cannot or should not be forced to change such as their biological sex or their country of origin.
Social Distinction. A PSG must be socially distinct within the culture at issue. This means people within the applicant’s country must view members of the PSG as a distinct group within that society. For example, it’s likely that a society recognizes a PSG if that society has passed laws that protect members of the PSG.
But beware counsel, if a country passes laws that recognize a given PSG—laws against domestic violence, for instance, arguably demonstrate the existence of a PSG comprised of women unable to leave their relationships—the existence of such laws could defeat the “government is unwilling or unable to control persecutors” requirement of your asylum claim.
Particularity. What we mean by this is that a PSG must have clearly defined boundaries. A PSG can’t be over-broad, unbounded or diffuse. For example, all females in a given country would not constitute a valid PSG.
What are you complaining about? You’re saying the social distinction and particularity requirements might be construed to cancel each other out because the former contemplates a group that can’t be too small while the latter requires that the group not be too big? Think Goldie Locks and the Three Bears, counsel. We will only recognize a PSG that’s just right.
The BIA’s equation breaks down on the backs of women and girls because PSGs are shape-shifters, sensitive to political tides, career aspirations, and personal biases.
In one case, the BIA recognizes a PSG for “young women of the Tchamba-Kunsuntu Tribe who have not had [female genital cutting], as practiced by that tribe, and who oppose the practice.” In other cases, the BIA rejects PSGs for young women from Central America who oppose systematic beatings and rapes, as practiced by gangs that control their neighborhoods.
I can’t differentiate one from the other except that, perhaps, the first form of persecution has an exotic appeal the latter lacks. The BIA churns waves of distinctions without differences that threaten to swallow me whole. I scan below the surface for a shimmering PSG but every time I grab at one it slips through my fingers, amoeba-like, a floppy gelatinous mess.
Relying on BIA decisions, some immigration judges deny virtually all asylum claims before them, thereby failing to provide meaningful access to asylum. These jurisdictions are referred to as “asylum-free zones.”
The nationwide average asylum grant rate hovers at just above 50%. But in Atlanta, Georgia, the immigration court grants only 2% of all claims, denying 98%. In Eloy, Arizona, the immigration court denies 93% of claims while the court in Charlotte, North Carolina denies 87%. The Justice Department knows about this disparity through multiple studies by scholars and the government itself but hasn’t taken corrective action.
Center for Gender and Refugee Studies, https://cgrs.uchastings.edu/our-work/right-asylum-united-states—“asylum-free-zones”
“The prevalence of gang violence in many countries is a large societal problem. The gangs may target one segment of the population for recruitment, another for extortion, and yet others for kidnapping, trafficking in drugs and people, and other crimes. Although certain segments of a population may be more susceptible to one type of criminal activity than another, the residents all generally suffer from the gang’s criminal efforts to sustain its enterprise in the area. A national community may struggle with significant societal problems resulting from gangs, but not all societal problems are bases for asylum.” Matter of M-E-V-G-, 26 I&N Dec. 227, 250-51 (BIA 2014).
Women and girls crossing borders are harbingers. The very act of refusing to obey to suffer to break broadcasts a message. Forget the PSGs, I want to holler, women and girls are being persecuted on account of the political opinion that they have a right to be free from harm, from sexual predation, from silence that if not forced in life, will be exacted by death.
Over the phone and translated through Rosie, I explain to you the dim status of asylum law in my country. You say you understand, then grow quiet. I say that every case is decided on its own unique set of facts so we must not lose hope. Statutes rely on judicial interpretations that are made up of words that are given meaning through lives like yours.
When you speak again, you say, “Don’t worry, I will make the judge understand.”
This is the fifth essay in Shefali Desai's ongoing series, ASYLUM.
Shefali Desai is a child of the Sonoran Desert, daughter of Indian immigrants, mother of sons, lover of the earth, and a fighter/writer/lawyer. She has been a Rhodes Scholarship finalist, Arizona Supreme Court law clerk, and VONA fellow. Her book-length manuscript was selected by Lidia Yuknavitch as a finalist in the 2016 Kore Press Memoir Competition, and her work has been published widely including in Ms. Magazine, the UCLA Women’s Law Journal, Kartika Review, and the anthology This Bridge We Call Home.
Shefali currently is co-authoring a legal paper on federal and state regulatory power over so-called sanctuary cities, litigating an asylum case, and finalizing a hybrid memoir. Her six-part series for Corporeal Clamor titled “ASYLUM” is a blended legal/personal/lyric essay that layers the law with lived experience. Shefali lives in the painted hills of Tucson with her partner and two sons.