Caroline Schaeffer
History has marched forward with women gaining more rights, like the ability to vote and contract from picket lines and slogans.[1] However, this has not been an equal march, and in many countries, women still face debilitating gender discrimination.[2] This victimization of half the population poses a significant obstacle in asylum claims.
U.S. immigration law has struggled with its approach to women escaping their home countries. In the past ten years, the law has gone back and forth as to whether a woman can claim asylum for her gender through the A-B- saga, where the law attempted to limit female-based claims for asylum before killing any such distinction entirely on the basis it was overbroad and burdensome.[3] Recently, the Board of Immigration Appeals (“BIA”) reversed course to find female gender and sex cannot be the basis of any asylum claim despite its previous statements indicating why this was unsound policy.[4]
Matter of K-E-S-G-, the BIA’s reversal decision, runs contrary to reasoning. It suggests women cannot base a claim for persecution on their gender because women are otherwise too common to face persecution.[5] The BIA said that without the discrimination, the woman was simply a woman, and women are too great of a class to be refugees.[6]
K-E-S-G- acknowledges its own inability to reconcile its case law with this new standard.[7] Courts, including BIA, have found gender to be the basis for persecution because for cisgender women, their sex is immutable and they can face significant mistreatment for their sex.[8] Asylum cases are to be determined as they come rather than in one grand sweeping opinion, but K-E-S-G- attempts to do exactly that.[9] The BIA’s opinion seems to acknowledge the only exception where sex can be a basis for asylum is in countries where female genital mutilation is prevalent.[10] A woman’s sole path to escape severe gender-based violence is when the most private part of herself has been maimed. This level of persecution is not required for any other protected classes.
This back-and-forth redirection between the A-B- saga and K-E-S-G- highlights the issues with limiting asylum for what is a protected class within the United States.[11] Other classes, like race or religion, can face lesser mistreatment in a home country and still achieve asylum status in the United States. However, like a toxic ex-boyfriend, the BIA cannot seem to let go of the past. It dredges up its bad decisions, hastily wraps it in a crinkled pink ribbon, and presents it to practitioners as if this isn’t the same terrible gift from years ago.
K-E-S-G- is the BIA’s attempt to regurgitate its error into a Frankenstein monster of its former self. While the A-B- saga had the Chevron doctrine to give it a boost in appellate courts, it is unclear how K-E-S-G- will fair in the era of increased judicial scrutiny.[12] In the meantime, however, this political farce will have the immediate impact that many women and their families will die. Whether this is from being a war refugee or stuck in an abusive relationship with nowhere else to go, the BIA denies an entire class of claims because of a letter on a birth certificate, and in doing so, further persecutes them on the basis of gender. What an ode to Liberty.
[1] See U.S. Const. amend. XIX.
[2] Press Release, World Bank, Nearly 2.4 Billion Women Globally Don’t Have Same Economic Rights as Men, (Mar. 1, 2022) (on file with author).
[3] See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018); Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021); and Matter of A- B-, 28 I&N Dec. 307 (A.G. 2021). Collectively, these will be “A-B- saga.”
[4] Matter of K-E-S-G-, 29 I&N Dec. 145, 151–52 (BIA 2025).
[5] Id.
[6] Id. at 148.
[7] Id. at 151–52.
[8] Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007); A-R-C-G-, 26 I&N Dec. 395 (BIA 2014); Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010).
[9]A-R-C-G-, 26 I&N Dec. 395 (BIA 2014), Matter of K-E-S-G-, 29 I&N Dec. 145, 148–49 (BIA 2025).
[10] Matter of K-E-S-G-, 29 I&N Dec. 145, 151 n.7.
[11] Motor Vehicle Manufacturers Ass’n of US, Inc v. State Farm Mutual, Auto. Insurance Co., 802 F.2d 474 (D.C. Cir. 1983).
[12] Contrast Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (granting administrative agencies get deference to their own interpretation of the ambiguous law, even if it is not the best interpretation) and Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 396–407 (2024) (finding judges have a duty to determine the best interpretation of the law which agencies must follow).