Introduction

In Matter of K-E-S-G-, the United States Board of Immigration Appeals (BIA) ruled that persecution on account of sex, or sex in combination with nationality, is not grounds for asylum in the United States. Applicants for asylum in the United States must demonstrate that they have faced past persecution or fear future persecution on account of a protected ground, such as race, religion, nationality, political opinion, or membership in a “particular social group.” The ruling in Matter of K-E-S-G- flies in the face of decades of past precedent, and will make it more difficult for women fleeing gender-based violence to find refuge in the United States. Countervailing legal theories, however, may aid women seeking asylum, although such arguments will need to be carefully tailored.

De Facto Violence and FGM

The BIA has previously ruled in Matter of M-E-V-G- that applicants seeking asylum on the basis of belonging to a particular social group must establish such group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” In K-E-S-G-, the BIA found that the petitioner’s proposed class of “Salvadoran women” and “Salvadoran women viewed as property” were not sufficiently particular, and was not persuaded by “evidence that women in El Salvador face disproportionate levels of violence.” Troublingly, the BIA also suggests that sex is an immutable characteristic that was not intended to be covered by asylum law, unlike race or nationality, stating that “[i]t would have been an obvious choice to have included sex as one of the expressly enumerated grounds for persecution if sex alone was intended to form a basis for protection.” This view would exclude potentially all asylum claims based on gender-based violence.

In a footnote, however, the BIA separates female genital mutilation (FGM) from other forms of gender-based violence, distinguishing the K-E-S-G- holding from Hassan v. Gonzales in the U.S. Court of Appeals for the Eighth Circuit, which held that a Somali survivor of FGM could have a valid asylum claim. The logic of K-E-S-G-, in one view, is incoherent, simultaneously rejecting and accepting gender-based violence as a form of persecution. Furthermore, this ruling may require women to suffer actual harm, rather than the statutory standard of well-founded fear of persecution. Yet, for women in countries where FGM or other forms of de facto discrimination are widely practiced, even despite legal protections, asylum may still be possible.  

The Climate Connection

If FGM meets the threshold for asylum but other forms of gender-based discrimination do not, how is this distinction drawn? Whose suffering is seen in the eyes of the law, and whose is not? One possible framing is fast versus slow violence, a term originally coined to describe environmental pollution. For instance, women are disproportionately burdened by climate change, especially in the Global South. Research demonstrates that violence against women increases during heatwaves, and drought can also make women more vulnerable to violence. For women in drought-stricken Central America, climate change has spurred a growing refugee crisis, with women and girls increasingly fleeing north to the United States.

The recent climate advisory opinion of the Inter-American Court of Human Rights (IACtHR) recognized that women and girls have a “greater risk of gender-based violence following disasters.” The IACtHR also condemned gender-based violence against women environmental defenders and clarified that women are disproportionately affected by drought and famine due to cultural norms of women gathering water and eating last after men, exhorting that “a gender-based perspective should be included in all actions undertaken in the context of the climate emergency.”

Despite criticism by legal experts for not delivering a more complete analysis, the IACtHR ruling highlights the conflicting legal authority in the United States currently. Although the U.S. has historically not always recognized international courts, the IACtHR ruling directly contradicts the logic of K-E-S-G- and supports the idea that gender can be a cognizable factor in asylum claims by recognizing gender as a legitimate axis of oppression.

Lex ferenda

The United States remains a difficult forum for climate refugees following the rescission of Executive Order 14013, an order addressing climate migration signed by former President Biden, and controversial crackdowns on asylum seekers. Although domestic courts remain reticent to grant asylum solely on the basis of climate impacts, an intersectional approach – arguing that women asylum seekers are persecuted or subjected to gender-based violence disproportionately even compared to other climate refugees – may aid in individual cases. Indigenous women, women with disabilities, and other marginalized women may also be able to argue membership in a particular social group based on intersectional oppression, not gender alone. This intersectional approach is further supported by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) General Recommendation 37, which identifies women with disabilities and Indigenous women, among others, as disproportionately impacted by climate change. Women may also still be able to claim asylum as survivors of FGM or other forms of direct violence, although this is murkier following the K-E-S-G- ruling. Moreover, women are not solely victims but also agents of change, both in and out of courtrooms. Girls today who bear the heaviest burdens of climate and gender injustice may someday be the women who change the law.