For Victims of Gender-Based Violence, Getting Asylum Just Got Harder – American Immigration Council

Report on the U.S. Board of Immigration Appeals Decision in *Matter of K-E-S-G-* and its Implications for Sustainable Development Goals

Executive Summary

A recent decision by the United States Board of Immigration Appeals (BIA) in Matter of K-E-S-G- significantly narrows the pathway to asylum for individuals fleeing gender-based violence. The ruling, which finds that sex alone does not constitute a “particular social group” (PSG) for asylum purposes, presents a direct challenge to the principles of several Sustainable Development Goals (SDGs), most notably SDG 5 (Gender Equality), SDG 16 (Peace, Justice and Strong Institutions), and SDG 10 (Reduced Inequalities).

Key Findings of the BIA Decision

The BIA’s ruling on July 18 established new precedents for asylum claims based on gender persecution. The core findings include:

• Persecution based solely on an individual’s sex is insufficient to qualify for asylum under the PSG category.
• A social group defined by the combined characteristics of sex and nationality (e.g., “Salvadoran women”) also fails to meet the legal standard for a PSG.
• The BIA reasoned that such groups lack “particularity” because they encompass a diverse cross-section of society, despite acknowledging that sex is an immutable characteristic.
• This decision effectively reverses prior approaches that allowed for case-by-case determinations of PSGs based on specific country conditions.

Conflict with SDG 5: Gender Equality

The decision fundamentally undermines progress toward SDG 5, which aims to achieve gender equality and empower all women and girls. Specifically, it conflicts with Target 5.2: “Eliminate all forms of violence against all women and girls in the public and private spheres.”

• By denying a recognized protection pathway, the ruling leaves women fleeing extreme gender-based violence, such as the applicant from El Salvador—a country with one of the world’s highest femicide rates—without recourse.
• It institutionalizes a framework where gender, a primary driver of persecution globally, is not considered a sufficient basis for protection, thereby failing to address the root causes of gender-based asylum claims.
• The decision places a higher burden of proof on female applicants, forcing them to define their persecution in terms other than their gender, which is often the central reason for their targeting.

Implications for SDG 16: Peace, Justice and Strong Institutions

The ruling impacts the achievement of SDG 16, which promotes just, peaceful, and inclusive societies. It directly relates to Target 16.3, “Promote the rule of law at the national and international levels and ensure equal access to justice for all.”

1. Failure of Institutional Protection: Asylum seekers often flee nations where institutions have failed to protect them from violence (a failure to meet SDG 16.1). The BIA decision represents a secondary institutional failure, whereby the legal system of the receiving country also denies them access to justice.
2. Weakened Legal Frameworks: The decision narrows the interpretation of U.S. asylum law, which is based on the 1951 Refugee Convention. While the convention’s PSG category was designed to be flexible and evolve, this ruling imposes a rigid interpretation that excludes a significant and vulnerable group.
3. Unequal Access to Justice: It creates a system where justice is less accessible to those persecuted for their gender compared to those persecuted for race, religion, or political opinion, even though the harm suffered is equivalent.

Setbacks for SDG 10: Reduced Inequalities

The BIA’s decision exacerbates inequalities, running counter to the aims of SDG 10, particularly Target 10.3, which calls for ensuring “equal opportunity and reduc[ing] inequalities of outcome, including by eliminating discriminatory laws, policies and practices.”

• The ruling creates a discriminatory outcome by requiring victims of gendered violence to meet a more complex and specific standard for their PSG than other asylum applicants.
• It disproportionately affects women from countries where gender-based violence is systemic and state protection is non-existent, thereby deepening inequality based on both gender and national origin.
• This policy hinders progress toward Target 10.7, which advocates for “orderly, safe, regular and responsible migration and mobility of people,” by closing a critical legal pathway for a highly vulnerable migrant population.

Conclusion and Path Forward

The BIA’s decision in Matter of K-E-S-G- represents a significant regression in human rights protection within the U.S. asylum system. It places the United States at odds with its commitments to the Sustainable Development Goals by weakening protections against gender-based violence, undermining access to justice, and reinforcing systemic inequalities. To align with the principles of the SDGs, asylum seekers and their advocates must now navigate a more difficult legal landscape.

1. Applicants fleeing gender-based violence must now formulate more narrowly defined PSGs, such as “single mothers targeted by gangs” or “women who have escaped domestic abuse,” which requires a greater evidentiary burden.
2. Advocates may challenge the BIA’s interpretation in federal circuit courts, arguing that the agency’s reading of the statute is not entitled to deference, particularly in light of the Supreme Court’s decision in Loper Bright.

Without a reversal or legislative correction, this ruling will continue to obstruct the achievement of a just, equitable, and sustainable global community by denying protection to some of the world’s most vulnerable individuals.

Relevant Sustainable Development Goals (SDGs)

• SDG 5: Gender Equality
• SDG 10: Reduced Inequalities
• SDG 16: Peace, Justice and Strong Institutions

Identified SDG Targets

SDG 5: Gender Equality

• Target 5.1: End all forms of discrimination against all women and girls everywhere.

  The article discusses the Board of Immigration Appeals (BIA) decision in Matter of K-E-S-G-, which establishes that sex alone does not qualify as a “particular social group” (PSG) for asylum purposes. This legal interpretation creates a discriminatory barrier for women fleeing gender-based persecution, as they are now required to prove a more specific reason for their suffering compared to those fleeing persecution based on other protected grounds like race or religion. The article notes this puts them in a “precarious position.”

• Target 5.2: Eliminate all forms of violence against all women and girls in the public and private spheres.

  The central theme of the article is the struggle of individuals fleeing gender-based violence to find safety. The case of Ms. S.G. from El Salvador, who was “stalked and threatened by gang members,” is a direct example of such violence. The article further highlights the severity of this issue by stating that El Salvador has “the world’s highest rate of intentional female homicides,” directly referencing the most extreme form of violence against women.

SDG 10: Reduced Inequalities

• Target 10.2: By 2030, empower and promote the social, economic and political inclusion of all, irrespective of age, sex, disability, race, ethnicity, origin, religion or economic or other status.

  The BIA’s decision creates a legal inequality. By ruling that “sex alone does not meet the definition of a particular social group,” the decision actively works against the inclusion and protection of a group based on their sex. The article points out this inconsistency, stating that “racial, religious, national, and political groups also contain diverse cross-sections of society,” yet they are protected while women as a group are not, thus reducing equality within the asylum system.

• Target 10.7: Facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies.

  The article analyzes a specific U.S. asylum policy that directly impacts the mobility of a vulnerable population. The decision in Matter of K-E-S-G- is a policy shift that makes it harder for victims of gender-based violence to gain asylum, thereby hindering their ability to find safety through international migration. It represents a less “well-managed” policy from the perspective of protecting vulnerable groups, as it places a higher burden of proof on them.

SDG 16: Peace, Justice and Strong Institutions

• Target 16.1: Significantly reduce all forms of violence and related death rates everywhere.

  This target is directly addressed by the article’s reference to El Salvador’s security situation. The mention that Ms. S.G. fled because “her government would not protect her” and that El Salvador has “the world’s highest rate of intentional female homicides” points to a failure to reduce violence and death rates, which is the root cause of her asylum claim.

• Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all.

  The entire article is a critique of a legal decision that limits access to justice for a specific group. The BIA’s ruling makes it more difficult for women fleeing gender-based violence to have their claims recognized by the U.S. immigration system. The article states that the decision gives these asylum seekers “an uphill climb,” effectively impeding their equal access to the justice and protection offered by asylum law.

Mentioned or Implied Indicators

For Target 5.2 and 16.1

• Prevalence of gender-based violence and femicide.

  The article explicitly provides a qualitative and quantitative indicator by stating that Ms. S.G. fled “gender-based violence” and that “El Salvador’s status as the country with the world’s highest rate of intentional female homicides.” This directly corresponds to SDG Indicator 16.1.1 (Number of victims of intentional homicide per 100,000 population, by sex) and implies Indicator 5.2.1 (Proportion of ever-partnered women and girls subjected to physical, sexual or psychological violence).

For Target 5.1 and 16.3

• Existence of discriminatory laws and policies and access to justice.

  The indicator is the legal decision itself: Matter of K-E-S-G-. The article describes it as a policy that makes it “harder for people fleeing gender-based violence to gain asylum.” The number of asylum claims denied on this basis could serve as a quantitative measure of its impact. This relates to Indicator 5.1.1 (Whether or not legal frameworks are in place to promote, enforce and monitor equality and non-discrimination on the basis of sex) and implies a barrier to Indicator 16.3.3 (Proportion of the population who have experienced a dispute… and who accessed a formal or informal dispute resolution mechanism).

For Target 10.7

• National migration policies that affect vulnerable groups.

  The BIA’s decision is an indicator of a national policy that restricts access to asylum for a specific group. The article’s analysis of how this decision will force victims to “prove a more specific reason for their suffering” serves as a qualitative indicator of a migration policy that is less accommodating to people fleeing gender-based violence. This relates to Indicator 10.7.2 (Number of countries with migration policies that facilitate orderly, safe, regular and responsible migration).

Summary of Findings

Source: americanimmigrationcouncil.org