“Gender is a Particular Social Group” — “Not surprisingly, the combination of terminating its best appellate judges, foregoing input from leading asylum law experts, and rushing out its decision resulted in an opinion so flawed it is difficult to know where to begin discussing it.” – immigrationcourtside.com

In what follows, I focus on (1) the current requirements for determining the validity of PSGs, (2) why gender alone satisfies all of those requirements, (3) how the Board went wrong in K-E-S-G-, and (4) strategies for continuing to argue and decide these cases.

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So where does this leave us? In the long term, the facts that (1) Chevron deference is no longer due to agency decisions following the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 639 (2024); and (2) that the Board’s decision in K-E-S-G- is just so bad might result in the case being rejected by circuit courts at some point down the road.

But practitioners must argue these cases in the meantime, and adjudicators must decide them under this precedent for the time being. What follows offers some food for thought on the issue, divided by circuit.

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It is always advisable for representatives to present, and adjudicators to consider, all protected grounds that might constitute a reason for persecution, including political opinions imputed to women who assert their rights in patriarchal societies. See, e.g., Rodriguez Tornes v. Barr, 993 F.3d 743 (9th Cir. 2021); Hernandez-Chacon v. Barr, 948 F.3d 94 (2d Cir. 2020); Alvarez Lagos v. Barr, 927 F.3d 236, 254 (4th Cir. 2019).

It is further recommended that, in addition to gender plus nationality, representatives offer alternative PSGs containing additional narrowing grounds. The Attorney General’s recent decision reinstituting Matter of A-B-, and vacating the BIA’s decision in Matter of A-R-C-G-, does not constitute a prohibition on asylum grants based on “women of a particular nationality who are in a domestic relationship, and are unable to leave that relationship;” it merely requires additional work in presenting and deciding such cases. Many Immigration Judges continued to grant domestic violence based asylum claims in well-reasoned written decisions while Matter of A-B- was in force during the first Trump Administration.33  And Department of Justice attorneys at the time argued in litigation that the only binding impact of Matter of A-B- was vacating Matter of A-R-C-G-; the rest of the Attorney General’s decision was merely dicta.34