Providing a Pathway to Asylum: Re-Interpreting Social Group to Include Gender


PROVIDING A PATHWAY TO ASYLUM:
RE-INTERPRETING "SOCIAL GROUP" TO

INCLUDE GENDER

Aimee Heitz*

"The United States may soon stand alone among industrialized
nations in its refusal to fully acknowledge that women who suffer serious
gender-based violations of their fundamental human rights are entitled to
protection as refugees."'

"[B]eing a woman is a sufficiently political statement in itself so far
as violence against women, domestic, sexual or public, is part of the
process of oppression."

RODY'S STORY

Rody Alvarado's husband told her, "If you want to die, go ahead. But
from here, you are not going to leave." 3 Rody Alvarado, a Guatemalan
woman, was married at the age of sixteen to her then twenty-one year-old
husband.4 "From the beginning of the marriage, her husband engaged in
acts of physical and sexual abuse against [Rody]."s Rody's husband
repeatedly raped and beat her before, during, and after unwanted sex.6

When Rody attempted to leave her husband, he came after her.7 When she
went to the Guatemalan police, they refused to help.8 It was not until Rody
came to the United States that she was able to escape,9 but this is more than
many women in Rody's situation in Guatemala can hope.' 0 She sought

* Aimee Heitz is a 2012 graduate of Indiana University Robert H. McKinney School
of Law.

1. T.S. Twibell, The Development of Gender as a Basis for Asylum in United States
Immigration Law and Under the United Nations Refugee Convention: Case Studies of
Female Asylum Seekers from Cameroon, Eritrea, Iraq and Somalia, 24 GEO. IMMIGR. L.J.
189 (2010) (quoting Karen Musalo & Stephen Knight, Unequal Protection: When Women
Are Persecuted, It's Often Described as a Cultural Norm Rather Than a Reason to Grant
Asylum, 58 BULL. ATOMIC Sc., 56-57 (2002)).

2. Id. at 212 (quoting Guy S. Goodwin-Gill, THE REFUGEE IN INTERNATIONAL LAW
(1983)).

3. In re R-A-, 22 I. & N. Dec. 906 (B.I.A. 2001)
4. Id. at 908.
5. Id.
6. Id.
7. Id.
8. Id at 909.
9. Id.

10. Karen Musalo, et al., Crimes Without Punishment: Violence Against Women in
Guatemala, 21 HASTINGS WOMEN's L. J. 161, 162 (2010), [hereinafter Musalo, Crimes



IND. INT'L & COMp. L. REV.

asylum on the basis of her membership in the social group comprised of
women who are victims of extreme domestic violence." The Board of
Immigration Appeals (BIA), the "highest administrative body for
interpreting and applying immigration laws,"l2 denied her petition for
asylum, finding that she did not meet the requirements for a "social group"
for asylum purposes." In 2009, Rody was eventually granted asylum after
spending approximately fifteen years away from her two children waiting
for the decision.14

I. INTRODUCTION

As Rody Alvarado's case demonstrates, meeting the standard for
asylum is often an extremely difficult, if not impossible, task.'5 Asylum
seekers must establish that they cannot or will not return to their native
country because they have been persecuted or fear they will be persecuted if
they return.16 However, the requirement does not end there. More
importantly, asylum seekers must link the established persecution to one of
the enumerated categories found within the definition of refugee-race,
nationality, religion, political opinion, or-- as was the basis for Rody and
the focal point of this Note-- membership in a particular social group."
Establishing persecution alone is insufficient if the nexus to one of the
enumerated categories is not met.'8

What qualifies as a "social group" is a contested issue and is viewed
differently by the United Nations High Commissioner for Refugees
(UNHCR) and the United States' Immigration and Nationality Act (INA).' 9

Without Punishment] available at http://cgrs.uchastings.edu/law/articles.php.
11. Id.
12. Board of Immigration Appeals, U.S. DEP'T OF JUST., http://www.justice.gov/eoirl

biainfo.htm (last updated Nov. 2011).
13. R-A-, 22 I. & N. Dec. at 927.
14. Musalo, Crimes Without Punishment, supra note 10. Rody was entitled to asylum only

after two remands to the BIA. This decision was decided around the same time as Matter ofL-R-,
found in Brief of Dep't of Homeland Security (Apr. 13, 2009) (redacted) [hereinafter DHS Brief],
available at http://cgrs.uchastings.edu/pdfs/Redacted%20DHS%2brief%/2Oon%2OPSG.pdf.,
which required that an amicus brief be filed by the Attorney General on behalf of the female
asylum seeker. She, too, sought asylum on the possibility of domestic abuse. The matter of
L-R- opened the asylum door to "Mexican women in domestic relationships. . ." Blake, infra
note 61 at 73.

15. The Obama Administration recently began to allow claims for asylum based on
extreme cases of domestic violence, provided that the applicant meets all parts of the asylum
definition. See Karen Musalo, Toward Full Recognition ofDomestic Violence as a Basis for
Asylum, AMERICAN CONSTITUTION SocrETY BLOG (Aug. 20, 2010), http://www.acslaw.org/
acsblog/toward-full-recognition-of-domestic-violence-as-a-basis-for-asylum.

16. 8 U.S.C. § 1101(a)(42)(A)(2012).
17. Id.
18. Id
19. See Karen Musalo, A Short History of Gender Asylum in the United States:

Resistance and Ambivalence May Very Slowly Be Inching Towards Recognition of Women's

214 [Vol. 23:2



PROVIDING A PATHWAY To ASYLUM

In fact, the "evolution of the definition of 'particular social group' is one of
the primary issues in both US asylum law and comparative international
asylum law under the United Nations Convention Related to Refugees."20

In the United States, the category of "social group" has been very
narrowly construed. While the "membership in a particular social group"
category was originally created to provide a basis for relief for groups
which did not fit into the other categories, it has been internationally
interpreted to exclude large numbers of persecuted individuals because they
do not neatly fit into a "social group."2 1 Its limitations create an under-
inclusive effect denying status for individuals seeking to escape persecution
on account of many factors, especially on the basis of gender. However,
persecution based on gender is a widespread problem throughout the world.
Problems of forced marriages, rape, female genital mutilation, honor
killings, and forced abortions are just a few examples of this type of
persecution.

This Note proposes that the gaps in existing US asylum law have
created a need for the re-interpretation and re-structuring of the meaning of
"membership in a particular social group" to provide a uniform pathway to
asylum for victims of gender-based persecution. This re-interpretation
should be based on criteria outlined in existing international conventions,
other countries' domestic laws, and a widening of the idea of "immutable
characteristic" as seen in earlier immigration opinions.

Specifically, Part I of this Note provides a brief introduction to the
scope and purposes of this work. Part II provides background information
on the widespread phenomenon of gender-based violence as it occurs
throughout the world and how restrictive US asylum policies are unable to
remedy or alleviate this problem. Part III explains how the international
community defines and interprets "membership in a particular social
group." This section focuses on the United Nations' approach, as well as
approaches used in Canada, Great Britain, and Australia. Part IV of this
Note explains the United States' standard for "membership in a social
group" and its various inconsistencies and inadequacies. Principally, this
section focuses on the "social visibility" test, the current standard used by
Immigration Officers, Immigration Courts, the Board of Immigration
Appeals (BIA), and the majority of United States Circuit Courts of Appeals.
Part IV also focuses on new positive trends in social group interpretation
and why they, too, are still inadequate to combat gender-based persecution.

Part V of this Note will advocate a new means for interpreting and
accessing US asylum claims for gender-based persecution. This section will
explain the proposed re-interpretation of the United States' definition of
"social group," relying on international standards, approaches from other

Claims, 29:2 REFUGEE SURV. Q. 46, 62-63 (2010).
20. Twibell, supra note 1, at 199.
2 1. See id.

2013] 215



IND. INT'L & COMP. L. REV.

countries, and ideas of self-identification, immutability, and equal
protection. Additionally, this section will address the reasons why the
current administration has failed to include gender-based persecution within
the definition of social group and explain why the uniform pathway
approach is the best. Finally, Part VI of the Note will explain how
expanding the idea of "membership in a particular social group" to include

22gender will allow for greater protection to women.

II. BACKGROUND: GENDER-BASED VIOLENCE

A. Gender-Based Violence Is an International Problem

Violence against women is a pervasive problem throughout the
world.2 3 It "cuts across lines of income, class and culture." 24 "While rates of
women exposed to violence vary from one region to the other, statistics
indicate that violence against women is a universal phenomenon and
women are subjected to different forms of violence - physical, sexual,
psychological and economic - both within and outside of their homes."25

This presents an almost insurmountable obstacle to achieving gender
equality, economic and social development, and peace.

Gender-based violence was not universally recognized as a human
rights violation until very recently. "It was only in June 2008, that the
United Nations Security Council voted unanimously 'that rape and other
forms of sexual violence can constitute a war crime, a crime against
humanity, or a constitutive act with respect to genocide."' 26 The Security
Council went on to note that women and girls are particularly targeted in
military tactics, in which sexual violence is used as a means "to humiliate,
dominate, instill fear in, disperse and/or forcibly relocate civilian members

22. This Note will be limited to a small portion of the asylum definition, "membership
in a particular social group." It will not address, at least directly, asylum claims based on
race, nationality, religion, or political opinion. Furthermore, the Note will not address the
entire standard required to qualify as a refugee: past persecution and/or well-founded fear of
future persecution based on one of the enumerated reasons. While meeting the entire
standard is necessary to apply for asylum or refugee status in the United States, the scope of
this Note is limited to meeting and expanding the preexisting standard for membership in a
particular social group. This Note will not address the other hurdles asylum seekers must
jump, such as meeting the persecution requirement and the credibility requirement.

23. U.N. DEP'T OF EcON. & Soc. AFFAIRS, THE WORLD'S WOMEN 2010 TRENDS AND

STATISTICS, (2010) [hereinafter U.N. WORLD'S WOMEN 2010 TRENDS].

24. Id. at 127.
25. Id. at x.
26. U.N. High Comm'n for Refugees, Age, Gender and Diversity Policy: Working with

People and Communities for Equality and Protection, at 194 (June 2011), available at
http://www.unhcr.org/4e7757449.html (citing S.C. Res. 1820, 1 4, U.N. Doc. S/RES/1820
(June 19, 2008)) [hereinafter U.N. Age, Gender, and Diversity Policy].

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PROVIDING A PATHWAY TO ASYLUM

of a community or ethnic group."27

As both a cause and consequence to this gender-based violence,
"[women] often have fewer opportunities and resources, lower socio-
economic status, [and] less power and influence" than their male
counterparts.28 Women who suffer from gender-based violence "face
enormous challenges providing for their families and themselves." 2 9 This
gender disparity is further amplified by displacement, which leads to
exposure, "exploitation, enslavement, rape and other forms of abuse and
Sexual and Gender Based Violence (SGBV)." 30

According to the UNHCR, among the "approximately 50 million
uprooted people around the world," including refugees and displaced
peoples, "[b]etween 75-80 percent of them are women and children."'
Furthermore, the United States General Accounting Office (GAO) has
found that female refugees are "among the world's most vulnerable
populations."3 2 Despite comprising such a large segment of the displaced
persons globally, and despite the vulnerability women face at home and as
refugees, women represent a disproportionately low percentage of asylum
seekers, and an even lower percentage of those women gain relief through
residency.3 3

B. Inability to Escape Gender-Based Persecution Through Asylum

This dire reality of females' inability to qualify for asylum "is
constituent of continued female oppression." 34 Particularly in the United
States, the difficulty in meeting the standard for asylum perpetuates
continued oppression on the basis of gender. This problem is exemplified
through the notable cases of Rody Alvarado, Aruna Vallabhaneni, and
Elizabeth Ngengwe.

In In re R-A-, the BIA held that Rody Alvarado, a victim of extreme

27. S.C. Res. 1820, 4, U.N. Doc. S/RES/1820 (June 19, 2008).
28. U.N. Age, Gender, and Diversity Policy, supra note 26, at 17.
29. Id.
30. Id.
3 1. Twibell, supra note 1, at 194 (quoting The World of Refugee Women at a Glance,

REFUGEE MAGAZINE, Issue 126, available at http://www.unhcr.org/publ/PUBU3cb6ea290.html.).
32. Id. (quoting U.S. GENERAL ACCOUNTING OFFICE, REPORT TO THE RANKING

MINORITY MEMBER, COMMITTEE ON FOREIGN RELATIONS, U.S. SENATE, HUMANITARIAN

ASSISTANCE: PROTECTING REFUGEE WOMEN AND GIRLS REMAINS A SIGNIFICANT CHALLENGE
1 (2003), available at http://www.gao.gov/new.items/d03663.pdf).

33. See UNHCR, DIVIsION OF OPERATIONAL SERVICES, FIELD INFORMATION AND
COORDINATION SUPPORT SECTION, 2006 GLOBAL TRENDS: REFUGEES, ASYLUM-SEEKERS,
RETURNEES, INTERNALLY DISPLACED AND STATELESS PERSONS 9 (July 16, 2007), available at
http://unhcr.org/statistics/STATISTICS/4676a71d4.pdf.

34. S.C. Res. 1820, supra note 27, 1 4.
35. Ngengwe v. Mukasey, 543 F.3d 1029 (8th Cir. 2008).

2013] 217



IND. INT'L & COMP. L. REV.

and brutal domestic violence, failed to qualify for asylum due to the lack of
"membership in a particular social group." 6 Rody did not "introduce
meaningful evidence that her husband's behavior was influenced by his
perception of her opinion," 3 that she should not be subjected to
rudimentary beatings by her husband, and that she should be able to leave
the marriage. The BIA went on to note that simply because the applicant
"shared descriptive characteristics" with other women who were victims of
domestic violence in Guatemala, the evidence was insufficient to qualify
the applicant as a member of a particular social group under the
Immigration and Nationality Act (INA). Despite the Court's
acknowledgment of the horrific instances of abuse Rody suffered, the Court
was bound by precedent and Rody was barred from immigration relief
because she could not meet the narrow definition promulgated by
Congress.3 9

In the case of Aruna Vallabhaneni, Aruna was a young woman who
fled India to escape her abusive husband.40 She came to the United States
seeking asylum. 4 1 Through an arranged marriage, Aruna married her
husband at the young age of seventeen.42 Her husband regularly beat her if
she refused to give him money for his gambling problem.43 On one
occasion, Aruna lost her sense of smell as a result of a particularly
unforgiving beating." On another occasion, she was hospitalized for two
days.45 Neither complaint to the police nor to her family offered her any
respite from these abuses.46 Aruna came to the United States with the hope
of gaining asylum for herself and a safe home for her children. Aruna's
claim for asylum was denied.4 7 She has been awaiting a final decision for
over ten years while her children wait without their mother in India.48

In the third case, Elizabeth Ngengwe was a Cameroonian woman who
sought asylum on the basis of membership in the social group of
Cameroonian widows.49 When her husband passed away in 2000, her

36. R-A-, 22 I & N Dec. at 927.
37. Id. at 906.
38. Id. at 919 (citing 8 U.S.C. § 1101 (a)(42)(A) (1994)).
39. Id. at 927.
40. Alex Kotlowitz, Asylum for the World's Battered Women, N.Y. TIMES (Feb. 11,

2007), http://www.nytimes.com/2007/02/1 1/magazine/I1 wwlnidealab.t.html.
41. Id.
42. Id.
43. Id.
44. Id.
45. Kotlowitz, supra note 40.
46. Id..
47. Id.
48. Id.
49. Twibell, supra note 1, at 213-16.

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husband's parents inexplicably blamed her for his death.50 Elizabeth's in-
laws came into her home following her husband's death and took all of her
and her husband's material possessions.51 As part of an "exaggerated
mourning period," Elizabeth was forced to sleep on the floor and to have
her head shaved with a broken bottle; she was not allowed to bathe or greet
people with her hands; and her children were not allowed to leave the
home.52 Facing threats of being forced to marry her deceased husband's
uncle or never seeing her children again, Elizabeth fled Cameroon and
made her way to the United States.

When Elizabeth arrived in United States in 2001, she filed for asylum
on the basis of being a part of a protected social group, defined as
"widowed Cameroonian females of the Bamileki tribe ... who are falsely
accused of causing her husband's death" or more generally, "Cameroonian
widows."54 Elizabeth's claim for asylum was denied by both the
Immigration Judge and the BIA, each court finding that Elizabeth had not
met the standard for a recognizable social group. While both courts agreed
that Elizabeth's plight was tragic, she had not established a social group
based on an immutable characteristic. 56 The Eighth Circuit granted
Elizabeth's petition for appeal in 2008 and remanded the case to the BIA;57

however, Elizabeth is still awaiting a decision on her asylum claim.58

The previous examples suggest that it is often difficult to articulate
the precise grounds on which a woman faced with persecution qualifies for
asylum purposes. In fact, defining the social group by a specific and
recognized characteristic, whether it is immutability or social perception, is
not an easy task. While the United States has recognized a few limited
exceptions to this rule, i.e., women who refuse to undergo the procedure of
female genital mutilation 9 and certain victims of domestic violence

50. Id. at 213 (citing Opening Brief at 3, Appeal of the Decision of the Immigration
Judge, In the Matter of Elizabeth Ngengwe (July 26, 2003)). Elizabeth's parents thought that
her race and family history brought bad luck to the family, eventually causing her husband's
death.

51. Id. at 214.
52. Id. The typical mourning period in Cameroon at the time was two weeks. However,

Elizabeth's in-laws forced her to endure two month of physical and emotional turmoil. Id.
53. Id. at 214-15.
54. Id. at 216.
55. Id. at 221.
56. Id. at 221.
57. Id. at 225. See also Ngengwe v. Mukasey, 543 F.3d 1029, 1031 (8th Cir. 2008).
58. Twibell, supra note 1, at 225. At the time Twibell's work was published in 2010,

Elizabeth's claim was still pending before the BIA.
59. In re Kasinga, (B.I.A. 1996) ("Young women who are members of the Tchamba-

Kunsuntu Tribe of northern Togo who have not been subjected to female genital mutilation,
as practiced by that tribe, and who oppose the practice, are recognized as members of a
'particular social group' within the definition of the term "refugee" under section
101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1 101(a)(42)(A) (1994)."

2013] 219



IND. INT'L & COMP. L. REv.

inflicted by immediate relatives, 60 there are still large gaps that can only be
remediated by broadening the definition of social group to include gender.

III. EXISTING STANDARDS FOR "SOCIAL GROUP" IN INTERNATIONAL LAW

In order to address how the United States views "membership in a
particular social group," it is appropriate to first look to the original and
existing standard for refugee status and its application in international law.
The United States relied heavily on preexisting international law,
principally international laws articulated by the United Nations General
Assembly and the United Nations High Commissioner on Refugees
(UNHCR), in drafting its current immigration laws and standards.6 1

Established in 1951, the UNHCR was created primarily for the
"international protection" of refugees. 62 The UNHCR seeks to meet this
goal by assisting governments in reaching permanent and lasting solutions
to remedy problems faced by refugees and by promoting the "ratification of
international conventions for the protection of refugees."63 The powers and
purposes of the UNHCR are outlined in the United Nations Convention
Relating to the Status of Refugees (Refugee Convention)," one of the most
widely used refugee conventions in the world. Under this Convention, the
UNHCR continues to provide international protection for refugees and
guidance for states.

A. UNHCR's Standard for Refugee and Social Group

Membership in a particular social group is only one factor to meeting
the UNHCR's definition of refugee, which in itself is constantly changing
and nearly always in dispute under international and domestic laws. The
Refugee Convention, Article 1, defines who qualifies as a "refugee."67 The

Id.).
60. Twibell, supra note 2, at 213-21.
61. Jillian Blake, Commentary, Welcoming Women: Recent Changes in U.S. Asylum

Law, 108 MICH. L. REV. FIRST IMPRESSIONs 71, 72 (2010).
62. United Nations Convention Relating to the Status of Refugees, Geneva, July 28,

1951, UNITED NATIONS [hereinafter U.N. REFUGEE CONVENTION], available at
http://www.unhcr.org/3b66c2aal0.html; see also ENABLING UN RESOL. 428(V) (1950).

63. Statute of the Office of the United Nations High Comm. for Refugees, G.A. res. 428
(V), annex, 5 U.N. GAOR Supp. (No. 20) at 46, U.N. Doc. A/1775 (1950).

64. See generally U.N. REFUGEE CONVENTION, supra note 62.
65. Id.
66. E.g., Twibell, supra note 2, at 246; U.N. REFUGEE CONVENTION, supra note 62.

Under international and national immigration law, refugees and asylees are subject to the
same standard. The only practical difference between the two categories is that refugees
petition for asylum while they are outside of the country from which they are seeking asylum
and asylees apply once they are already within the country from which they are seeking
asylum.

67. U.N. REFUGEE CONVENTION, supra note 62, at 14.

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PROVIDING A PATHWAY TO ASYLUM

Refugee Convention's definition and applications operate as model
standards for states' asylum laws; the Convention is not binding on a state
unless it is ratified by a state who is party to the Convention. Nevertheless,
it has been ratified by 145 countries. The United States, however, has not
acceded to the Convention.6 9

1. United Nations'Definition ofRefugee

In 1951, the United Nations set out the standard for defining a refugee
under international law during the Refugee Convention.70 Pursuant to
Article 1 of the Convention:

The term "refugee" shall apply to any person who ... [a]s a
result of events occurring before 1 January 1951 and owing
to well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country;

71

In summary, a refugee is a person who fears returning to their native
country because of persecution, past or future, on the basis of race, religion,
nationality, social group, or political opinion. However, the ambiguity of
the definition has led to countless interpretations of "refugee" under the
Convention. Indeed, this section of the Refugee Convention is viewed as
one of the most controversial Articles in international asylum law.72

2. United Nations' Definition ofSocial Group

The Refugee Convention further defines what it means to be a
member of a "particular social group." According to the UNHCR, a social
group is "a group of persons who share a common characteristic other than
the risk of being persecuted, or who are perceived as a group by society."73

68. U.N. TREATY COLLECTION, CONVENTION RELATING TO THE STATUS OF REFUGEES,
UNITED NATIONS, Treaty Series, vol. 189, p. 137, available at http://treaties.un.org/pages/
ViewDetailsHl.aspx?&src-TREATY&mtdsg no=-2&chapter-5&Temp-mtdsg2&lang-=en.

69. Id.
70. U.N. REFUGEE CONVENTION, supra note 62, at 14.
7 1. Id.
72. See e.g., U.N. High Comm. for Refugees, Interpreting Article 1 of the 1951 Convention

Relating to the Status of Refugees (Apr. 2001), available at http://www.unhcr.org/
refworld/docid/3b20a3914.html.

73. Blake, supra note 61, at 72 (quoting United Nations High Commissioner for
Refugees, Guidelines on International Protection, "Membership of a particular social group,"

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IND. INT'L & COMP. L. REV.

This common "characteristic will often be one that is innate, unchangeable,
or which is otherwise fundamental to identity, conscience or the exercise of
one's human rights."74

3. United Nations'Interpretation of Social Group

More importantly, the concept of social group under the Refugee
Convention maintains two essential "characterizations of a particular social
group: immutability - members of the group share a trait that is innate; and
social perception - society views members of the group as such.""

In addition to the definition found in the Convention, the UNHCR has
provided several subsequent guidelines offering further insight on how
"social group" should be interpreted by states.76 In 2002, the UNHCR
issued guidelines that further define the "protected characteristic" and
"social perception" approaches as alternative ways of establishing a
particular social group, instructing ratifying states to determine first if there
is a protected characteristic. Then, only if no such characteristic exists, a
state can determine whether the group is recognized by society.

These two characterizations of membership in a particular social
group are widely incorporated into domestic laws. In fact, "among the
major common law countries ... Canada, New Zealand, and the United
Kingdom follow the principled 'protected characteristic' approach." 79

Australia has emphasized the "social perceptions" approach, "while also
taking immutable characteristics into account."8 0 The United States in the
past followed the social perception approach, but now is following
the "social visibility" approach, representing a "significant
departure" from international precedent.8 2

HCR/GLP/02/02 (May 7, 2002), available at http://www.unhcr.org/3d58de2da.html).
74. Id.
75. Id.
76. Heaven Crawley, Gender-Related Persecution and Women's Claims to Asylum,

FAHAMU REFUGEE LEGAL AID, http://www.frlan.org/content/gender-related-persecution-and-
women%E2%80%99s-claims-asylum (last visited Apr. 11, 2013); See e.g., 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. T 6, U.N. Doc. HCR/GIP/02/01 (May 7, 2002) [hereinafter UNHCR Guidelines].

77. Fatma Marouf, The Emerging Importance of "Social Visibility" in Defining a Particular
Social Group and Its Potential Impact on Asylum Claims Related to Sexual Orientation and
Gender, 27 Yale L. & Poly Rev. 47 (2008), available at http://scholars.law.unlv.edu/facpub/419.

78. See generally, id.
79. Id. at 48-49.
80. Id.
81. The social visibility approach is the current, de facto standard for social group

characterizations in the United States. While the States also rely on the concept of
immutability, social visibility works in conjunction with the aforementioned social
perception approach.

82. See e.g., Marouf, supra note 77, at 49.

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4. Gender Is Treated as a "Social Group"

Under the Refugee Convention's definition of refugee, gender is not
included as an enumerated ground used to meet the persecution nexus

requirement.83 However, the two-step process provided in the UNHCR
guidelines can and has been interpreted to apply to gender-based asylum

petitions.84 First, under these guidelines, gender, as interpreted within its
social or political context, is designated as a protected social group. Second,
gender is arguably socially perceptible-female and male gender identities
are perceived by the greater society.85 Under either of these interpretations
of the international definition, gender can be treated as an underlying basis
for a social group. Accordingly, the asylum seeker would need to prove that
she was persecuted on account of her social group of "female."

As one scholar suggests, "[i]t is important to understand that women's
claims for asylum can, more often than not, be properly recognised within
the meaning of the [Refugee] Convention if their experiences are properly
understood within the social and political context within which they
occur."86

In addition, the UNHCR guidelines have been proactive in the move
toward including gender as either an individual enumerated class or under
the social group category. 87 Specifically, in relation to gender-based
persecution claims for asylum, the UNHCR guidelines state that while
gender is "not specifically referenced in the refugee definition, it is widely
accepted that it can influence, or dictate, the type of persecution or harm
suffered and the reasons for this treatment."88 Therefore, the guidelines can
be properly interpreted to include "gender-related claims." 89 "As such, there
is no need to add an additional ground to the 1951 Convention definition."90

The UNHCR has made clear that "women may constitute a particular social
group under certain circumstances based on the common characteristic of
sex, whether or not they associate with one another based on that shared
characteristic." 9' Therefore, the UNHCR does not need to amend the
rules.92

Despite this argument, critics contend that the Refugee Convention's
definition of refugee is ineffective and requires modification.93 While

83. Id. at 70; see also Blake, supra note 61, at 71.
84. Id. at 49.
85. Id. at 74.
86. Crawley, supra note 76.
87. Id.
88. Id.
89. Id.
90. UNHCR, GUIDELINES, supra note 73, at 1 6.
91. Perdorno v. Holder, 611 F.3d 662, 667 (9th Cir. 2010).
92. Additional practical considerations lay at the heart of this decision.
93. Definition of a Refugee Needs Updating, Report Tells United Nations, University of

2013] 223



IND. INT'L & COMP. L. REV.

substantial guidelines offer additional protection to gender-based
persecution in interpreting the Refugee Convention's definition of refugee,
"the definition is more of an issue for individual asylees seeking to qualify
as a 'refugee' under the more detailed asylum laws of the respective state in
which they find themselves."94 Therefore, the domestic laws of the nation in
which the asylee is seeking safety offers the definition in which the asylee
must meet.

B. Other Domestic Standards Utilizing the UNHCR Approach

Specifically, the UNHCR Committee has urged "states to develop and
implement domestic criteria and guidelines regarding protection for women
who claim refugee status based on a well-founded fear of gender-related
persecution." 95 In fact, the approach has a basis in the UN Refugee
Convention, subsequent UNHCR guidelines, and other countries'
definitions of refugee. 96 Countries such as Australia,97 Canada, and Great
Britain99 now recognize "social groups defined by gender," but the "United
States has been reluctant to follow suit."' 00 The remainder of this section
will focus on how Canada, Great Britain, and Australia articulate their
standards for asylum and include gender-based persecution as a means to
asylum for a particular social group.

1. Canada - A Precedent

Canada was the first county to "recognize that women suffer from
gender-specific forms of persecution that should be recognized" under the
UN Refugee Convention.'o' The core body of law that governs Canada's

Oxford, June 25, 2009, available at http://www.ox.ac.uk/media/newsreleasesfor
journalists/090625_2.html.

94. Twibell supra note 1, at 207.
95. Gender Guidelines. CENTER FOR GENDER & REFUGEE STUDIES, http://cgrs.uchastings.edu/

law/genderguidelines.php#_ednref3 (last visited Apr. 11, 2013) (citing UNHCR Exec. Comm.,
Conclusion No. 73 Refugee Protection and Sexual Violence, e., (1993), reprinted in UNHCR,
A Thematic Compilation of Executive Committee Conclusions on International Protection 430-
32 (2nd ed. 2005), available at http://www.unhcr.org/publ/PUBL/3d4ab3ff2.pdf; UNHCR Exec.
Comm., Conclusion No. 77 (1995)) [hereinafter Gender Guidelines].

96. Marouf, supra note 77, at 49.
97. See Minister for Immigration & Multicultural Affairs v. Khawar [2002] HCA 14,

210 CLR 1, 13-14 (Austl.).
98. See Ward v. Att'y Gen. of Can., [1993] 2 S.C.R. 689, 739. (Can.), available at:

http://www.unhcr.org/refworld/docid/3ae6b673c.htn (last visited Apr. 11, 2013).
99. See Islam v. Sec'y of State for the Home Dep't, [1999] 2 A.C. 629 (H.L.) (appeal

taken from Eng.) (U.K.).
100. Marouf, supra note 77, at 90.
101. Twibell supra note 1, at 197 n. 23. "There is increasing international support for the

application of the particular social group ground to the claims of women who allege a fear of
persecution solely by reason of their gender, within the meaning of Article 1 A(2) of the

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PROVIDING A PATHWAY TO ASYLUM

immigration and refugee programs is found in the Immigration and Refugee
Protection Act.10 2 While this Act does not refer to gender-based persecution
itself, Canada issued national guidelines "regarding gender-based
persecution in 1993."o0 In 1993 and again in 2003, Canada updated the
guidelines to include gender-based persecution claims, allowing gender as a
social group.104

Canadian Guideline Four-Women Refugee Claimants Fearing
Gender-Related Persecution (Guideline Four), issued in 2003, states that
persecution resulting from certain circumstances of severe discrimination
based on gender could be seen as reasonable grounds for persecution. 05

Guideline Four went on to note that a "gender-defined particular social
group" may be a solid basis for asylum when two necessary considerations
are met. o0 First, the idea that most "gender-specific claims involving fear of
persecution for transgressing religious or social norms may be determined
on the grounds of religion or political opinion."'07 Second, the consideration
is that women may establish a well-founded fear of persecution "by reason
of her membership in a gender-defined particular social group," a group
"defined by an innate or unchangeable characteristic."' 08 Guideline Four
went on to note that the fact that a social group is comprised of a large
number of people is irrelevant because "race, religion, nationality and
political opinion are also characteristics that are shared by a large number of
people." 09 Rather, "[t]he relevant assessment is whether the claimant, as a
woman, has a well-founded fear of persecution in her country of nationality
by reason of her membership in this group." 0

While these guidelines are not binding on Canadian Courts, "the
Federal Court of Canada determined that Canadian courts should follow the
guidelines unless circumstances are such that a different analysis is
appropriate."'

1951 United Nations Refugee Convention." Immigration and Refugee Board of Canada,
Compendium of Decisions: Guideline 4 - Women Refugee Claimants Fearing Gender-
Related Persecution (Update) 13, (Feb. 2003), available at http://www.unhcr.org/refworld/
docid/4713831 e2.html.

102. Gender Guidelines, supra note 95 (citing Immigration and Refugee Board of
Canada website, http://www.irb-cisr.gc.ca/Eng/Pages/index.aspx).

103. Id.
104. Id.
105. Immigration and Refugee Board of Canada, Compendium of Decisions: Guideline 4 -

Women Refugee Claimants Fearing Gender-Related Persecution (Update), (Feb. 2003), available
at: http://www.unhcr.org/refworld/docid/4713831e2.html, at 14. [hereinafter Canadian
Immigration Guideline 4].

106. Id at 12.
107. Id.
108. Id. at 15.
109. Id.
110. Id.
111. Gender Guidelines, supra note 95 (citing Amy K. Arnett, One Step Forward, Two

Steps Back: Women Asylum-Seekers in the United States and Canada Stand to Lose Human

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IND. INT'L & COMP. L. REV.

i. Attorney General of Canada v. Ward

Canada's approach to gender-based persecution claims began in 1993
with the case Attorney General of Canada v. Ward.1 12 Ward was an unlikely
case to be the basis for gender-based claims of asylum in Canada because
the asylum seeker, Patrick Ward, sought asylum on the basis of political
opinion." Patrick was a member of the Irish National Liberation Army
(INLA).1 14 He was assigned to guard, and then ordered to kill, a group of
hostages, but he allowed them to escape. is When his deeds were
discovered, he was tortured and sentenced to death.116 He eventually
escaped, but was later caught and sent to jail because of his initial
involvement with the kidnapping. "7 Patrick eventually escaped to Canada
and claimed refugee status. He was denied asylum by both lower courts and
appealed to the Supreme Court of Canada.' 18

The Supreme Court of Canada, drawing on the preamble to the United
Nations' Refugee Convention, which states that "human beings shall enjoy
fundamental rights and freedoms without discrimination,""'9 found there to
be an inherent limit to cases under the United Nations' Refugee
Convention.12 0  "Accordingly, '[t]he manner in which groups are
distinguished for the purposes of discrimination law can . . . appropriately
be imported into this area of refugee law."'l 2 1 Following this reasoning, the
Court found three possible avenues for establishing a particular social
group, the first being "groups defined by an innate or unchangeable
characteristic." 2 2 Under this first avenue, the Ward court explained that a
social group would include, "individuals fearing persecution on such bases
as gender, linguistic background and sexual orientation, while the second
would encompass, for example, human rights activists." 2 3 Thus, in dicta,
the Supreme Court of Canada recognized explicitly, for the first time, that

Rights Under the Safe Third Country Agreement, 9 LEWIS & CLARK L. REv. 951, 969 (2005)
(citing Narvaez v. Canada, [1995] 2 F.C. 55, 62 (Can.)).

112. Ward v. Att'y Gen. of Can., [1993] 2 S.C.R. 689, 736 (Can.) (recognizing non-State
persecution for the purpose of refugee status).

113. Id.
114. Id.
115. Id.
116. Id.
117. Id.
118. Ward, S.C.R. 689 (Can.).
119. Id.
120. Id.; Marouf, supra note 77, at 54.
121. Marouf, supra note 77, at 55 (citing Ward, S.C.R. 689 (Can.).
122. Id.; see Ward, S.C.R. 689 (Can.) (the second two possibilities are "groups whose

members voluntarily associate for reasons so fundamental to their human dignity that they
should not be forced to forsake the association; and.. .groups associated by a former
voluntary status, unalterable due to its historical permanence.") Id.

123. Ward, S.C.R. 689.

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gender-related persecution could be an acceptable basis for asylum.124

ii. Narvaez v. Canada

Canada went beyond the scope of Ward to specifically include
gender-based persecution as a basis for "social group" within the asylum
definition in Narvaez v. Canada.125 In Narvaez, an Ecuadorian woman
sought asylum in Canada because she feared violence at the hands of her
ex-husband.126 She had suffered seven years of abuse, and the police in
Ecuador failed to offer her protection.12 7 Basing its reasoning on the
Canadian Guidelines and the Ward decision, the Court found that "women
in Ecuador subject to domestic violence belong to a particular social
group."l28 "The past experience of the claimant and the experiences of
similarly-situated women were evidence of the lack of protection
available." 2 9 Thus, Ms. Narvaez was granted asylum on the basis of her
membership in a particular social group, one of gender.

2. Great Britain

Canada was not alone in pioneering the expanding concept of social
group to include gender as an acceptable basis for asylum. "On March 25,
1999, the House of Lords of the United Kingdom issued an historic decision
granting asylum protection to two Pakistani women fleeing violence by
their husbands and related retaliatory abuse tolerated, and to some extent
sanctioned, under Pakistani law." 30

In Islam (AP) v. Secretary of State for the Home Department; R. v.
Immigration Appeal Tribunal ex parte Shah (AP), ["ex parte Shah"], the
majority of the House of Lords found that "gender can define a 'particular
social group,' one of the five grounds of persecution in the definitional
criteria for refugee status or asylum eligibility."'3 ' In this case, two married
Pakistani women sought asylum in Great Britain after they were victims of
domestic violence and forced to leave their homes.132 Each woman was at
risk of being falsely accused of committing adultery,133 a crime under

124. Id.
125. Narvaez v. Canada (Minister of Citizenship and Immigration), [1995] 2 F.C. 55

(T.D.).
126. Id.
127. Id.
128. Id.
129. Canadian Immigration Guideline 4, supra note 105.
130. Twibell, supra note 1, at 208 n. 112.
131. Deborah E. Anker, et al., Defining "Particular Social Group" in Terns of Gender:

The Shah Decision and US. Law, 76 IR 1005 (1999).
132. Islam v. Sec'y of State for the Home Dep't, [1999] 2 A.C. 629 (H.L.).
133. Id.

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IND. INT'L & COMP. L. REv.

Islamic law. 3 4 The Pakistani women claimed that if they were forced to
return to Pakistan, they could be criminally punished for sexual immorality,
a crime punishable by flogging or stoning to death. 135 Both women sought
refugee status as members of a particular social group under the United
Nation's definition, claiming a well-founded fear of being persecuted for
such membership.' 3 6 The principal issue faced by the court was "whether
the appellants [were] members of a particular social group within the
meaning of article 1A(2) of the [United Nations' Refugee] Convention.137

In reaching the ultimate conclusion to grant the appellants' asylum,
the ex parte Shah court made several findings of fact. The Court found that
domestic violence and abuse of women was prevalent in Pakistan, but that
the "distinctive feature in these cases [was] that discrimination against
women in Pakistan is partly tolerated and partly sanctioned by the state." 38

The Court accepted that each appellant had a well-founded fear of
persecution, but found the case turned on whether they qualified as
members of a particular social group.139 The court found the reasoning
behind the persecution covered Pakistani women because "they are
discriminated against and as a group they are unprotected by the state."l40

Ultimately the House of Lords granted both the women's appeals, finding
that "it would be contrary to the United Kingdom's obligations" to force the
appellants to leave the country.141

What is interesting about the ex parte Shah case is that the House of
Lords could have chosen, much like the United States' courts have done,14 2

a more limited definition of "social group;" it could have limited its opinion
to Pakistani women fleeing domestic violence and being accused of
adultery. However, the House of Lords specifically mentioned that the
women were persecuted because they were women, thus qualifying gender
as a social group.

134. SAINT GROUP, PSO LANGUAGE & CULTURE, ISLAMIC LAW: SHARIA AND FIQH,
http://www.saint-claire.org/resources/Islamic%2OLaw%20-%20SHARIA%2OAND%2OFIQH.pdf
(last visited Apr. 11, 2013).

135. Islam, 2 A.C. 629 (H.L.).
136. U.N. REFUGEE CONVENTION, supra note 62, Art. 1 A(2) (articulating the definition

of refugee). Islam, 2 A.C. 629 (H.L.).
137. Islam, 2 A.C. 629 (H.L.)
138. Id.
139. Id.
140. Id. at 9. The Court went on to note that even if the women in the case did not qualify

under a particular social group, the women were "members of a more narrowly
circumscribed group" based on "[t]he unifying characteristics of gender, suspicion of
adultery and lack of state protection . . . ." Id. at 10.

141. Id. at 12.
142. See e.g., In re R-A-, 22 I. & N. Dec. 906 (BIA 2001).

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3. Australia

As early as 1994, Australia recognized the unique characteristics of
gender-based persecution in relation to the United Nations' Refugee
Convention.143 Specifically, in the 1994 case of a Filipina woman who was
"systematically and sexually abused over the course of a 27-year
marriage,"'" the Australian Refugee Review Tribunal (RRT) found that
women share both immutable and social characteristics which make them a
recognizable social group and consequently subjects them to persecution.14 5

The RRT went on to mention the social characteristics that bind women
together into a social group of gender: "ability to give birth," "role of
principal child-rearers," inability to make the same wages as men, and "fear
of being subjected to male violence ... 146 Thus, the RRT saw no reason
not to recognize the particular social group of "women" as defined and
conceptualized by their gender.

Australia's interpretation of gender-based social groups is articulated
in Minister for Immigration & Multicultural Affairs v. Khawar, where a
Pakistani woman came to Australia with her three daughters after being a
victim to repeated violence at the hands of her husband and his family.14 7

In Khawar, Ms. Khawar claimed asylum on the basis that the Pakistani
police had systematically discriminated against her by failing to provide her
protection and that this was tolerated and sanctioned by the state.14 8

Accordingly, the applicant argued that her persecution was based on the
state's failure to protect a particular social group--"women in Pakistan." 4 9

Ms. Khawar's petition for asylum was initially denied by Australia's
Department of Immigration, Multiculturalism and Ethnic Affairs5 o and
Australia's appellate body, the Refugee Review Tribunal. Both courts found
that Ms. Khawar could not establish the needed nexus between the
persecution she faced and the United Nations' Refugee Convention's

143. The Committee on Immigration and Nationality Law Assoc. of the Bar of City of
New York, Gender-Related Asylum Claims and the Social Group Calculus: Recognizing
Women as a "Particular Social Group" Per Se, 5 (Mar. 27, 2003) available at
http://www.nycbar.org/pdf/report/FINAL%20%2OGende/o20Related%2OAsylum%2OClaims.pdf.

144. Id. at 11.
145. Id. (citing N93/00656 (Australian Refugee Review Tribunal, Aug. 3, 1994) (Hunt)

(emphasis added)).
146. Id.
147. A Compilation ofAustralian Refugee Law Jurisprudence, AusTL. REFUGEE L. JURIs.

COMPILATroN, 141 (Feb. 2006), available at http://www.unhcr.org/refworld/docid/3f5c5ffH2.html
(last visited Apr. 11, 2013).

148. Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, 5-6
(Austl), available at http://www.unhcr.org/refworld/pdfid/3deb326b8.pdf.

149. Id.
150. Australia's equivalent to United States' Citizenship and Immigration Services

("USCIS").

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IND. INT'L & COMP. L. REV.

standard for asylum. Specifically, the RRT found that Ms. Khawar "was
harmed for personal reasons" in relationship to her marriage and that the
Refugee Convention was "not intended to provide protection to people
involved in personal disputes."' 5'

On appeal to Australia's Federal Court, the Court considered two
issues. The first was "whether the failure of a country of nationality to
provide protection against domestic violence to women, in circumstances
where the motivation of the perpetrators of the violence is private, can
result in persecution of the kind referred to in Art 1A(2) of the [Refugee]
Convention." The second was whether "women or, for the present purposes,
women in Pakistan may constitute a particular social group within the
meaning of the Convention." 52 The Court answered both questions in the
affirmative.

Specifically, the Australia Federal Court found that the RRT erred in
not making any findings "in relation to any particular social group of which
Ms. Khawar might be a member." 153 As a result, the RRT had also erred in
failing to make a finding in relation to the lack of police protection for Mr.
Khawar's social group, women in Pakistan.154

As illustrated in the cases highlighted from Canada, Great Britain, and
Australia, it is not a new or novel idea to include "gender" as an acceptable
basis for defining a social group. In fact, women are commonly grouped
together based on their need for protection under international law.155

IV. UNITED STATES' DEFINITIONS OF REFUGEE, SOCIAL GROUP, AND

THEIR CONSTRUCTIONS

The United States is not alone in failing to include gender as an
acceptable "social group" under the definition of refugee. From a policy
standpoint, "gender-based asylum faces many obstacles against its
implementation." 156 First, countries such as the United States are "seeking
more restrictions on the ability to obtain asylum generally."l 57 In other
words, immigration is viewed as a problem of scope, and countries feel the
need to heighten restrictions to limit the number of people coming into that
particular country. Expanding the definition to include gender is seen as

151. Khawar (2002), 210 CLR at 5-6.
152. Id.
153. Id.
154. Family Violence in Refugee Law, AUSTRALIAN LAW REFORM COMMISSION (Mar. 11,

2011), available at http://www.alrc.gov.au/publications/family-violence-and-commonwealth-
laws%E2%80%94immigration-law/family-violence-refugee-law.

155. See United Nations Convention of the Elimination of All Forms of Violence Against
Women [CEDAW], New York, December 18 1979, available at http://www2.ohchr.org/
english/law/cedaw.htm.

156. Twibell, supra note 1, at 279.
157. Id. at 284.

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"opening the floodgates" to countless complaints.'" 8 Furthermore, "the
[United Nations'] Refugee Convention does not directly address female
protection because of immigration and asylum restrictionists and those who
believe females do not deserve asylum protection on the basis of gender."' 5 9

These obstacles "can be observed to converge and interact with individual
cases in published appellate decisions." 6 0 Overall, the obstacles hinder the
international acceptance of gender-based asylum in some countries,
particularly in the United States.' 6'

A. The United States' Standard for Refugee

Immigration law in the United States is highly complex. In 1952, the
Immigration and Nationality Act (INA) was created as a means to collect
and codify preexisting statutes and provisions governing immigration law,
and thus "reorganized the structure of immigration law" in the United
States. 16 2 In immigration practice, the INA is cited as, and stands alone as, a
body of law, but it is also "contained within the United States Code
(U.S.C.)." 6 3 Citations can be made directly to the INA or its U.S.C.
equivalent.'6

The term "refugee" in the INA is defined, at least in the text of the
Act, in substantially the same manner as its United Nations' counterpart in
the Refugee Convention.'65 Section 101(a)(42)'66 of the INA defines
refugee as:

any person who is outside any country of such person's
nationality or, in the case of a person having no nationality,
is outside any country in which such person last habitually
resided, and who is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the

158. Id. at 279.
159. Id.
160. Id.
161. Id
162. See U.S. CITIZEN AND IMMIGRATION SERVICES, IMMIGRATION AND NATIONALIfY ACT,

available at http://www.uscis.gov/portal/site/uscis/menuitem.ebld4c2a3e5b9ac89243c6a754
3f6dlaf?vgnextchannel--f3829c7755cb9OlOVgnVCMl0000045f3d6alRCRD (last visited Apr.
11, 2013). The INA was created by the McCarran-Walter bill of 1952, Public Law No. 82-414. The
Act has been amended many times over the years but is still the basic body of immigration law. Id.

163. Id.
164. For the purposes of this Note, the INA and the USC provisions will be used

interchangeably. However, their overall format and section breakdown tend to mimic each
other. Either provision generally includes a reference to the corresponding provision in the
other.

165. See U.N. REFUGEE CONVENTION, supra note 62, at 14.
166. 8 U.S.C. § 1101(a)(42) (2012).

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IND. INT'L & COMP. L. REv.

protection of, that country because of persecution or a well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion.... 167

While this definition does not specifically mention gender in the guise
of social group or as one of the enumerated categories, it goes on to include
a few specific gender related categories:

For purposes of determinations under this chapter, a person
who has been forced to abort a pregnancy or to undergo
involuntary sterilization, or who has been persecuted for
failure or refusal to undergo such a procedure or for other
resistance to a coercive population control program, shall
be deemed to have been persecuted on account of political
opinion, and a person who has a well-founded fear that he
or she will be forced to undergo such a procedure or subject
to persecution for such failure, refusal, or resistance shall
be deemed to have a well-founded fear of persecution on
account of political opinion.'"

From this definition, subsequent Immigration Court and Board of
Immigration Appeals (BIA) decisions have noted thatl69 persecution against
females in certain contexts will be allowed, i.e. in the case of forced
abortion, forced sterilization, and forced female genital mutilation. 70

While these allowances work to the advantage of female asylum
seekers, they are limited in their applicability because they are based on a
woman's sex as opposed to a gender determination. "Sex" as a concept is
defined biologically.171 Yet, "'[g]ender' is a concept which is used to refer
to those characteristics of men and women which are socially rather [than]
biologically determined."l72 The concept of gender is not a static concept
but "can and does change over time and according to changing and varied
political, economic, social, and cultural factors."' 7 3 These exceptions are
based on a woman's sexual functions, to offer protection to the type of
persecution that women face as determined by their socially defined gender

167. Id. (also cited as INA § (a)(42) (2012)).
168. Id.
169. See In re L-R-, Brief of Dep't of Homeland Security, 8 (Apr. 13, 2009) (redacted)

[hereinafter DHS BriefJ, available at http://cgrs.uchastings.edu/pdfs/Redacted%20DHS%20
brief'/o20on%20PSG.pdf.

170. Id.
171. Crawley, supra note 76.
172. Id.
173. Id.

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role. Thus, these few exceptions, although good, are not enough.

B. The United States'Approach - "Social Visibility"

The definition of refugee under the INA is nearly identical to that in
the United Nations' Refugee Convention. Until recently, the United States'

approach mimicked that of the international community.174 Even the
Acosta175 standard focused on the existence of an immutable characteristic:
"one that an individual either cannot change or should not be required to
change because it is fundamental to their identities or consciences."' 76

However, the United States' approach has subsequently changed, and it
now focuses on whether the social group is distinguishable and visible in
the community.17 7 It emphasizes external rather than internal attributes. This
characterization has accordingly been named the "social visibility"
approach.178

The "social visibility test" is most clearly articulated in the 2006 BIA
decision of In re C-A-.1 79 In this case, the BIA "diverged from the
international community's understanding of 'social perception"' and instead
focused on whether the group members were visible in their community.8 o
The BIA stressed a very "subjective standard rather than an objective
standard.",18

In C-A-, the respondents sought asylum on the basis of "membership
in a particular social group composed of noncriminal informants" who had
been government informants against the Cali drug cartel.182 The BIA took
this case on remand from the Eleventh Circuit Court of Appeals to
determine if this classification met the standard for social group.183 The
Court began with Acosta's formulation: persecution "that is directed toward
an individual who is a member of a group of persons all of whom share a
common, immutable characteristic." 84

However, the BIA went on to state that the "social visibility of the
members of a claimed social group is an important consideration in
identifying the existence of a 'particular social group' for the purposes of

174. Marouf, supra note 77, at 48-49.
175. In re Acosta, 19 1 & N Dec. 211 (B.I.A. 1985). For purposes of this Note, the Acosta

case stands for the immutable characteristic approach to membership in a particular case.
176. Marouf, supra note 77, at 48; See Acosta, 19 1. & N. Dec. at 233.
177. See generally Marouf, supra note 77.
178. Id.
179. In re C-A-, 23 1. & N. Dec. 951 (BIA 2006).
180. Marouf, supra note 77, at 49.
181. Id.
182. C-A-, 23 1 & N Dec 951.
183. Id.
184. Id. at 951 (citing Matter ofAcosta, 19 I&N Dec. 211 (BIA 1985)).

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IND. INT'L & COMP. L. REV.

determining whether a person qualifies as a refugee."ss The BIA argued
that inherent in the immutable characteristic standard is high visibility and
social recognition as a member of the given group.'86 Finally, the BIA
determined that, given the "voluntary nature" of the decision to be a
government informant and "the lack of social visibility of the members of
the purported social group," the respondents failed to demonstrate that
"noncriminal drug informants" could constitute a particular social group "as
the term is used in the definition of a 'refugee' in section 101(a)(42)(A) of
the [INA]."

This opinion represents a significant departure from both the
international "social perception" test and the "immutable characteristics"
approach.' 88 The "social visibility" test suggests that a social group has to
be visually recognizable by the general public.' 89 This approach implies that
a complete stranger would have to recognize an individual as a member of
the social group based on visual impression alone.190 It is no longer enough
that a group itself is recognized in the general sense. Moreover, the C-A-
court's decision "seems to indicate that the visibility of some group
members is not sufficient to satisfy the 'social visibility' test." 9' Rather, the
majority of the group needs to be subjectively perceivable by a majority of
the public, begging the question of whether many of the already accepted
classifications of social group would cease to exist under this new
standard.19 2

While not all Circuits have officially adopted this standard - indeed,
Judge Posner on the Seventh Circuit Court of Appeals has adamantly
refused to follow this approach' 9 3- the social visibility test is generally

185. Id.
186. Id. at 960.
187. Id. at 961.
188. Marouf, supra note 77, at 64.
189. Id.
190. See Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009).
191. Marouf, supra note 77, at 64.
192. Id.
193. Benitez Ramos, 589 F.3d at 430. In this case, Judge Posner highlights what he

believes to be the ridiculousness in the social visibility approach. To him, the social visibility
approach means "you can be a member of a particular social group only if a complete
stranger could identify you as a member if he encountered you in the street, because of your
appearance, gait, speech pattern, behavior or other discernible characteristic." Id. Posner
continues:

If society recognizes a set of people having certain common characteristics as
a group, this is an indication that being in the set might expose one to special
treatment, whether friendly or unfriendly. In our society, for example,
redheads are not a group, but veterans are, even though a redhead can be
spotted at a glance and a veteran can't be. "Visibility" in the literal sense in
which the Board has sometimes used the term might be relevant to the
likelihood of persecution, but it is irrelevant to whether if there is persecution

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accepted as the current United States' approach to membership in a
particular social group.194

1. "Social Visibility" Approach Is Inadequate to Account for Gender-
Based Persecution

The "social visibility" test does not provide a workable standard
under current US immigration law. Based on this approach, it is unclear
whether "social visibility" means something based on external criteria, such
as hair color, or whether it means social visibility in a more literal sense,
such as being accepted as a group within society.195

Furthermore, the "social visibility" test effectively gives decision-
makers total discretion to decide whether or not a particular social group
exists. Because the test is not law-based and social perceptions are so fluid,
adjudicators will be able to freely deny the existence of a particular social
group, despite the existence of a protected characteristic, based on a finding
that the group is not socially visible.19 6 Since the BIA has not adequately
defined social visibility, the amount of discretion remains virtually
unlimited. "Embracing the BIA's new approach not only will lead to chaotic
case law" but could also "cause the legal community to reject the refugee
status determination as a serious, principled process." 97

This social visibility approach is unworkable for a wide variety of
groups. However, when viewing it under the auspices of gender-based
persecution, the effects of this approach are staggering. In Kante v. Holder,
a native of Guinea sought asylum in the United States on the basis of
membership in a particular social group.'98 The Guinean woman had been
subjected to rape at the hands of government soldiers.199 The applicant
sought to distinguish the social group as "women subjected to rape as a
method of government control." 20 0 Despite acknowledging that the
applicant had suffered greatly, the Court found that this group was not a
particular social group warranting relief under the INA. 20 ' The Court found
that the group had been "circularly defined by the fact that it suffer[ed]
persecution and the group [did] not share any narrowing characteristic other

it will be on the ground of group membership. Often it is unclear whether the
Board is using the term "social visibility" in the literal sense or in the
"external criterion" sense, or even whether it understands the difference.

Id. (emphasis added).
194. Marouf, supra note 77, at 63.
195. Benitez Ramos, 589 F.3d at 430.
196. Marouf, supra note 77, at 106.
197. Id.
198. Kante v. Holder, 634 F.3d 321, 324 (6th Cir. 2011).
199. Id. at 322.
200. Id. at 326.
201. Id. at 327.

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IND. INT'L & COMP. L. REV.

than the risk of being persecuted."202 Furthermore, the applicant did not
demonstrate that the overall "Guinean society viewed females as a group
specifically targeted for mistreatment." 20 3

In Kante, the persecution that the woman faced was real, and she was
not offered protection from her government because they allowed and even
sanctioned the sexual abuse and misconduct. Accordingly, the applicant
was in need of protection through asylum. Nevertheless, due in part to the
fact that women were not socially viewed as being "targeted for
mistreatment,"20 she was denied protection. The "socially visibility" test
prevented relief to a person so entitled.

2. "Social Visibility" Approach Is Inadequate in Other Contexts:
Sexual Orientation-Based Persecution

Not only does the "social visibility" test create a nearly
insurmountable hurdle for gender-based asylum claims, it also acts as a bar
to asylum for other less visible social groups. To demonstrate, consider
sexual orientation-based persecution. The United States has historically
treated sexual orientation as socially unidentifiable or non-distinct, and, in
many cases, as a not readily-identifiable trait. "Unlike some characteristics
or traits, sexual orientation is not externally visible, and sexual minorities
often feel compelled to hide their orientation for various reasons."20 5

Nevertheless, persecution based on sexual orientation is a global
phenomenon. Lesbian, Gay, Bisexual, and Transgendered (LGBT)
individuals are often exposed to discrimination and abuse linked to their
sexual orientation and gender identity.20 6 This risk of abuse is compounded
by situations of displacement, profound isolation from family and
community, and strong and often violent abuse.207 While immigration
courts have started to accept the asylum claims of LGBT individuals, the
"social visibility" approach makes it "difficult to prevail in asylum claims
based on sexual orientation, particularly where the claimants are
women." 208

Thus, the "social visibility" approach harms not only women, but also
disproportionately affects groups that are not easily identifiable or visible in
a community. Instead of focusing on why the persecution is occurring, the

202. Id.
203. Id.
204. Id.
205. Marouf, supra note 77, at 79.
206. U.N. High Comm'r for Refugees Prot. Policy and Legal Advice Section, UJNHCR

Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity 4.
(Nov. 21, 2008), available at http://www.unhcr.org/refworld/docid/48abd5660.html.

207. Id. at 9.
208. Marouf, supra note 77, at 79.

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"social visibility" approach unfairly limits asylum to subjective and external
criteria. Such a standard cannot and should not be where the United States
rests its hat on at the end of the day.

C. Recent Trends Toward the International Standard of Social Group

Based on recent case law in the United States, it appears that a new,
more internationally accepted framework allowing for gender-based claims
may be possible in the United States. In fact, international "[w]omen's
rights advocates have reason to be hopeful" because immigration courts
across the United States have been "more open to accepting asylum claims
from battered women." 209 While these petitions have not considered
"women" or "gender" to be a social group per se, they have begun to
recognize the unique vulnerability that women face in the domestic violence
context.

1. Perdomo v. Holder

In Perdomo v. Holder, the Ninth Circuit Court of Appeals remanded a
BIA decision denying a Guatemalan woman's claim for asylum based on
membership in a particular social group.210 Lesly Yajayra Perdomo "sought
asylum based on her fear of persecution as a young woman in
Guatemala." 2 1 1 The Immigration Judge denied Perdomo's application, and
the BIA affirmed, "finding that a social group consisting of 'all women in
Guatemala' is over-broad and 'a mere demographic division of the
population rather than a particular social group."' 212

In remanding the case, the Ninth Circuit Court of Appeals went
through a detailed analysis of the evolving notion of social group under US
asylum law, citing both the immutable characteristics and social visibility
tests. 213 The Ninth Circuit noted that it had not "held expressly that
females, without other defining characteristics, constitute a particular social
group," but it concluded that "females, or young girls of a particular clan"
have met the "definition of a particular social group." 214 The Court went on
cite the Third Circuit's decision from Fatin v. INS,2 15 the USCIS "Gender
Guidelines," and the UNHCR Guidelines as a basis for determining that

209. Blake, supra note 61, at 75.
210. Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010).
211. Id. at 663.
212. Id.
213. Id. at 665-67.
214. Id. at 667 (citing Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir.2005)).
215. See Fatin v. INS, 12 F.3d 1233, 1239 (3rd Cir.1993) (recognizing gender as a basis

for social group under the Acosta standard).

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IND. INT'L & COMP. L. REV.

gender alone can be a basis for asylum.216 While the court implicated
gender as an acceptable basis for social group, it limited its decision to
remanding the decision to the BIA.217

2. Guidelines and Recommendations

In addition to cases such as Perdomo, Fatin, and Acosta, the
Immigration and Naturalization Service (INS) has issued recommendations
and guidelines that specifically consider female asylum seekers. For
example, INS issued "Considerations for Asylum Officers Adjudicating
Asylum Claims for Women" in 1995.218 This internal document seeks to
give immigration officers a summary of gender-based asylum issues and
international developments regarding gender-based claims,21 9 and provides
guidelines for adjudicating these types of claims.220 In particular, the
memorandum identifies forms of persecution that are common to women,
including domestic violence, rape, and sexual abuse.221 While the guidelines
do not state that gender could be a basis for asylum, they do provide
specific recommendations for providing greater protection and allowances
for women.222 Nevertheless, they do not recognize gender as an acceptable
basis for asylum. 223

3. Trend Is Insufficient to Meet Growing Problems

While Perdomo and the various INS guidelines mark a beginning to
accepting gender as an appropriate basis for asylum, an approach similar to
what this Note proposes, it is not enough to remedy the under-inclusive
effect US asylum policies have against women or to change the standard as
it is today. First, the Immigration Judge's opinion and, subsequently, the
BIA's ruling are appealable to the federal circuit which has "jurisdiction
over the geographical area where the case was originally brought." 2 24 Yet,
because the federal circuit is limited to its respective geographic region, it

216. Perdomo v. Holder, 611 F.3d at 667.
217. Id.
218. Memorandum from Phyllis Coven, OFFICE OF INT'L AFFAIRS, US. Dept. ofJustice to

All INS Asylum Officers RE Considerations for Asylum Officers Adjudicating Asylum Claims
for Women, (May 26, 1995).

219. Id. at 1.
220. Id.
221. Id. at 4.
222. Id.
223. Id. at 13.
224. Jesse Imbriano, Note, Opening the Floodgates or Filling the Gap?: Perdomo v.

Holder Advances the Ninth Circuit One Step Closer to Recognizing Gender-Based Asylum
Claims, 56 VILL. L. REv. 327, 331-32 (2011).

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225em Corwill only have precedential effect within the circuit. The Supreme Court
has the ultimate jurisdiction, and the parties are free to appeal to the United
States' highest judicial organ. However, in practice the Supreme Court
rarely grants certiorari to hear immigration cases.226 It chooses, for the most
part, to defer to the decisions of the Executive Branch. Trends in
immigration law are established by the BIA and a majority of circuits and,
in turn, become defacto standards.

Furthermore, the statements and guidelines issued by INS and the
Department of Homeland Security ("DHS"), while drawing specific
attention to gender-based claims, are not legally binding to Immigration
Judges or Asylum Officers.227 The considerations may be persuasive, but
judges are still free to make decisions that diverge from the
recommendations, which "results in judges making ad hoc decisions which
are not uniform across the country." 2 28 Without "clear and binding
guidance" the result will be "inconsistent and incoherent decision-making
across the country."2 29 Therefore, binding legal standards defining "social
group" need to be re-interpreted to maintain and provide equal protection
for women suffering from gender-based persecution.

V. PROPOSAL - A NEW STANDARD FOR "MEMBERSHIP IN A SOCIAL
GROUP"

A. An Innovative Standard

Generally speaking, the international community accepts two
characterizations for a particular social group: "immutability-members of
the group share a trait that is innate; and social perception-society views
members of the group as such."2 30 The former view is based in part on the
concept of ejusdem generis.2 3 1 Ejusdem generis, meaning "of the same kind,
class, or nature," is a basic principle of statutory construction.2 32 Ejusdem
generis stands for the proposition that general words in a statute should be
interpreted in accordance with the specific words in the statute or that the
general terms should be viewed in a manner consistent with the specific

225. Id. (citing 8 U.S.C. § 1252 (2012)).
226. Id. at 332.
227. Leonard Birdsong, Recognizing Gender-Based Persecution as a Grounds for

Asylum, Birdsong's Law Blog (Oct. 6, 2010) http://birdsongslaw.com/2010/10/06/recognizing-
genderbased-persecution-grounds-asylum/.

228. Id.
229. Id.
230. Blake, supra note 61, at 72.
231. Id
232. What Is Ejusdem Generis?, THE LAw DICTIONARY, http://thelawdictionary.org/

ejusdem-generis/ (last visited Apr. 11, 2013).

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IND. INT'L & COMP. L. REv.

terms.233

The designation of "social group" is placed in the same category as
race, nationality, religion, and political opinion in both the United Nations'
Refugee Convention and the INA, Section 101(a)(42). The other
designations outside of social group are based on either immutability or on
"traits so fundamental that a person should not be required to change
them."23 4 Utilizing the principle of ejusdem generis, the designation of
social group should also be seen under at least one of these views. Viewing
social group under the principle of ejusdem generis shows the justification
for a specific characterization of membership in a particular social group
based on a quasi-immutability concept, an aspect so close to a particular
social group that it cannot or should not be changed.

Thus, one cannot change his or her membership in a quasi-immutable
social group because the social group is comprised of members of the same
gender. Persecution for being a member of a social group under this
interpretation, much like one would view race or nationality, would
undoubtedly meet the requirements of the INA. Indeed, a preliminary basis
for this interpretation of social group has already been demonstrated in
immigration opinions.235

This Note advocates a new standard that begins with the rationale set
forth in Acosta and Mohammad and expands the refugee definition to
include "gender" as a set classification of a particular social group. Gender
is already a social group identified in society because it is based on a
distinct characteristic that cannot and should not be changed. A re-
interpretation of social group to include gender would not focus on the
individual woman or man, or even small designated groups, but would
instead focus "on the system which determines gender roles and
responsibilities[J" a system that provides "access to and control over
resources[;]" and a system that allows for decision-making potentials."236

This Note's proposed re-interpretation would reflect the social reality
women face in their home country, and therefore cover women most in
need of international protection. It would create a uniform and fair approach
to asylum claims, remedy current problems, and create a standardized
framework to prevent the so-called "Refugee Roulette."237 While the

233. Id. For more information on the evolution of ejusdem generis as a means of statutory
contruction, see Glanville Williams, The Origins and Logical Implications of the Ejusdem
Generis Rule, 7 Cony. (NS) 119.

234. Blake, supra note 61, at 72.
235. See generally Matter of Acosta in Deportation Proceedings, 19 I & N Dec. 211 (BA

1985); Mohammed v. Gonzalez, 400 F.3d 785, 797 (9th Cir.2005) (deciding the gender issue
within the context of sexual orientation and gender identity). This decision is only applicable
to the Ninth Circuit and not to general immigration law in the United States.

236. Crawley, supra note 76, at 1.
237. Jaya Ramji-Nogales, et. al, Refugee Roulette: Disparities in Asylum Adjudication.

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current standard for asylum appears to be gender-neutral, applying to both
women and men in the same manner, "the refugee definition has been
applied more liberally to persecution commonly affecting men to
persecution unique to, or concentrated against, women." 23 8 This Note's
approach would eliminate the social hierarchy of asylum claims between
men and women, and perpetuate a fair, inclusive system for asylum.239

B. Criticisms to Expanding the Concept ofSocial Group to Include Gender

Including gender-based claims for asylum is an uphill battle.
According to the Central Intelligence Agency's World Factbook, there are
an estimated 15.1 million refugees in the world.240 Of those refugees
seeking asylum, women make up roughly fifty percent. 24 1 Due to the large
number of potential applicants, critics claim that including gender as an
acceptable per se classification would overload or destroy the already
struggling immigration system in the United States.24 2

Immigration courts in the United States are already "inundated with a
very large caseload of complex cases."2 43 The courts already struggle "to
properly assess the credibility of asylum applications" with limited
resources and large lines of applicants waiting for hearings.244 Critics claim
that the immigration system would further deteriorate if gender is accepted
as a basis for asylum.2 4 5 This would, in effect, take attention away from
protecting United States' citizens from potential criminals or terrorists.2 4 6

Furthermore, other critics maintain that gender-based asylum claims
demonstrate a system "structured by ethnocentric and racialized gendered

60 STAN. L. REV. 295, 378 (2007).
Whether an asylum applicant is able to live safely in the United States or is
deported to a country in which he claims to fear persecution is very seriously
influenced by a spin of the wheel of chance; that is, by a clerk's random
assignment of an applicant's case to one asylum officer rather than another, or
one immigration judge rather than another.

Id. (emphasis added).
238. Imbriano, supra note 224, at 352 ("Adjudicators have been unwilling to recognize

rape and other sexual assaults as persecution even when used explicitly to subjugate women,
instead referring to them as personal attacks.").

239. See generally, Imbriano, supra note 224, at 352.
240. CIA WORLD FACTBOOK, https://www.cia.gov/library/publications/the-world-

factbook/fields/2194.html#xx (last visited Apr. 11, 2013).
241. Refugee Women, UNHCR, THE UN REFUGEE AGENcY, http://www.unhcr.org/pages/

49c3646cId9.html (last visited Apr. 11, 2013).
242. Twibell, supra note 1, at 197.
243. Id.
244. Id.
245. Id.
246. Id. at 197-98.

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IND. INT'L & COMP. L. REV.

ideals" rooted in Western ideologies. 247 The argument suggests that the
underlying premise of granting asylum puts asylum-seekers in a position of
valuing "the United States as being a 'more enlightened' place (whether
they believe it or not) than their country of origin." 2 48 Thus, gender-based
asylum claims could perpetuate the idea of the United States' superiority.24 9

C. Response to Criticism

While critics highlight problems that consistently plague the US
immigration system, a re-interpretation of social group to include gender
would not automatically lead to an overflow of asylum claims. In addition
to meeting one of the enumerated bases of the INA "refugee" definition,
asylum seekers must still present a credible claim and must establish a well-
founded fear of returning to their native country on account of one of thosee
enumerated classifications. A woman will not automatically be granted
asylum because she is a woman. She must establish that she and other
members of her gender-based social group are persecuted on account of
their membership in that group.

Even if gender-based persecution would increase the amount of
asylum claims due to the large number of people found in a gender-based
social group, the size of the group is no different from the size of groups
listed in the other sections of the INA definition. The fact that a social
group is comprised of a large number of people is irrelevant because "race,
religion, nationality and political opinion are also characteristics that are
shared by large numbers of people."2 50

Rather, "[t]he relevant assessment is whether the claimant, as a
woman, has a well-founded fear of persecution in her country of nationality
by reason of her membership in this group."2 5 1 "[The] size and breadth of a
group alone does not preclude a group from qualifying as a social group."252

The nature of the problem is not changed by the potential number of people
that are affected and should not be considered when determining an
acceptable social group.

Furthermore, almost any system of asylum can be viewed in an
ethnocentric manner; asylum is, for the most part, a scheme to provide

247. Midori Takagi, Orientals Need Apply: Gender-based Asylum in the US., ETHNIC
STUD. REV., Vol. 33, No. 1, June 2010, available at http://www.thefreelibrary.com/
Orientals+need+applyO/o3A+gender-based+asylum+in+the+U.S.-a0271665071 (last visited
Apr. 11, 2013).

248. Id.
249. Id.
250. Canadian Immigration Guideline 4, supra note 105, at 15.
251. Id.
252. Perdomo v. Holder, 611 F.3d 662, 669 (9th Cir. 2010).

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persecuted individuals with protection that they cannot receive in their
native countries. More often than not, the countries granting asylum are
more developed than the countries the asylum seekers emigrate from.
However, asylum is not the "West" imposing its societal standards and
beliefs on other cultures. It is a means by which countries open their doors
to individuals who desire to but cannot escape from violence in their
respective countries. Casting asylum in a negative light does not change the
problem that there are millions of refugee women seeking asylum. If more
developed countries shut their doors due to a fear of ethnocentrism, where
will these women go? Asylum relief is needed internationally, and this
relief should be available to women who seek it.

VI. CONCLUSION

Re-structuring the current standard of "social group" to include
gender-based persecution claims for asylum will not only give women
additional protection, but it may also lead to protection for other groups
excluded from the current refugee definition. Re-structuring the social
group definition could provide additional protection to groups persecuted
on the basis of sexual orientation or other less socially visible grounds.

A new approach to membership in a particular social group would
bring US asylum law closer to the international standard and closer to the
more inclusive and uniform approaches seen in Canada, Great Britain, and
Australia. The United States should not continue to delay re-interpretation
of social group based on bureaucratic pressures. While positive strides have
been made in the way of recommendations, memoranda, and judicial
opinions, the re-interpretation of "social group" is necessary to remedy the
existing dichotomy between men and women in asylum law. Legislative
action must be taken to ensure greater protection for women persecuted
worldwide.

In the wake of global social movements aimed toward democracy and
equality, now is the time to change the image of the refugee-the image of
a male figure fleeing persecution for holding a different political opinion or
religious belief. It is time to remember that women, too, need to be
adequately represented in immigration law. By re-structuring membership
in a particular social group to include gender, women can, and indeed will,
find their rightful place in US asylum proceedings.

2013] 243