As immigration practitioners, we’ve all experienced that feeling.  The email alert.  Seeing "EOIR BIA Decision" in thesubject line.  Your stomach sinking.  Anticipating what new precedent is beingannounced.  Today is no different, withthe issuance of Matterof V-A-B-.  In this decision, the BIA is once againattacking the viability of asylum for women.

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We know very little about V-A-B- as the BIA was cursory in its treatmentof her story.  We know she entered arelationship with a man at age 16 and that a year later, he began abusingher.  We know this man was part of anorganized crime family.  We don't knowexactly how long the relationship lasted, but we know it was long enough tohave seven children.  And we know she wasterrified to seek help from authorities. Not only because culturally women are not given protection in domesticsituations in her country, but also because her husband's family has powerwithin the government through their organized crime ties.

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An Immigration Judge found that the information provided by V-A-B- wassufficient to grant protection from removal. The BIA disagreed, reversing on three grounds.  First, it held that her proposed particularsocial group was not cognizable as it was circularly defined (the inability"to leave" is itself a product of the harm) and lacking theparticularity required under Matterof M-E-V-G-, 26 I&N Dec. 227(BIA 2014), and Matterof A-B- I, 27 I&N Dec. 316(A.G. 2018).  Second, the BIA found theImmigration Judge's determination that Mexico was unable or unwilling toprotect V-A-B- was clearly erroneous, pointing to the State Department countryreport documenting Mexico's prosecution and imprisonment of domestic abusers.  Third, the BIA concluded that V-A-B- had notshown that internal relocation within Mexico was unreasonable.

The BIA used this decision to reassert its current position on thelong-contested question of whether women should be provided protection based onhow they, as females, are treated in their home countries.  Unsurprisingly, the answer is once again aresounding no.  But this isn't just about"married Mexican women who are unable to leave theirrelationship."  This is yet anotherstep backward in the attempt to build a fair and just system of protection for all.

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The 1951 Refugee Convention, the cornerstone of international refugeeprotection, defines a refugee as a person with a well-founded fear ofpersecution on account of race, religion, nationality, membership in aparticular social group, or political opinion. It is a powerful definition.  Itis also, at its core, a definition that emerged from a particular historicalmoment: post-World War II Europe, where the paradigmatic refugee was a manfleeing political persecution by a state.  Thetraditional interpretation of the refugee definition focused on persecution inthe public sphere:  political activism,military resistance, civil opposition. These are activities historically associated with men.  The private sphere, the home, the family, theintimate relationship, was treated as outside the reach of refugee law.  Domestic violence, forced marriage, femalegenital mutilation, and rape were classified as personal matters, not politicalones.  This was not a neutral legalconclusion.  It was a choice.  One that reflected and reinforced thegendered assumptions of its era.  The"active" refugee archetype was a male political fighter.  Women who were targeted simply because theywere women, who were persecuted in the spaces where they lived and loved, werelargely invisible to this framework.

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The absence of recognition of gender as a protected ground in therefugee definition is a substantive gap with profound consequences.  For decades, women fleeing gender-basedviolence faced the nearly insurmountable obstacle of trying to fit theirexperiences of persecution into categories that were not designed to holdthem.  Absent a clear path, lawyers havebeen working to fold these experiences into the male-centric framework, and theparticular social group ground became the primary vehicle for gender-basedclaims.  But it has never been acomfortable fit.  In attempts to keep therefugee definition narrow, the requirements of immutability, particularity, andsocial distinction have been applied in ways that have, too often, workedagainst women.  The very experiences thatdefine the persecution such as the inability to leave an abusive relationship,the social expectation of submission, and the cultural tolerance of violenceagainst women have been used to define the group itself, creating the circularityproblem that the BIA invoked in Matterof V-A-B-.

Sadly, in the United States this battle has played out against a deeplypolitical backdrop, with sharp reversals between Democratic and Republicanadministrations.  From Matter of R-A- (a case that originated out of the SanFrancisco Immigration Court nearly 30 years ago!!) to failed regulations, to Matter of A-R-C-G- in 2014, to the countless iterations of Matter of A-B-: each step forward has been followed by a step — or several steps —back.  Meanwhile, our peers in Canada,Australia, and the United Kingdom have long recognized gender as a fundamentalaspect of the refugee definition.  Therest of the world has not stood still. We have.

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I want to be direct about something that often goes unsaid in thecareful language of legal analysis: the treatment of gender-based asylum claimsin the United States is a policy failure, and it is a failure driven bypolitics.  The refugee definition does not change when administrations change.  The suffering of women does not change whenadministrations change.  What changes iswhether the people making decisions choose to see that suffering as legallycognizable.  And that choice has, fordecades, tracked the political winds rather than the merits.  Matter of A-R-C-G- opened a door in2014.  Matter of A-B- slammed itshut in 2018.  Matter of A-B- IIIbriefly reopened it in 2021.  Matterof S-S-F-M- closed it again in 2025. And today, Matter of V-A-B- confirms what that closure means forreal people.  A woman who entered a relationship at 16, whowas abused for years, who bore seven children, who feared that the veryauthorities meant to protect her were connected to the people who hurt her.  A woman that was found by a fact-finder to becredible and deserving of protection. The BIA reversed that finding, not because her suffering was not real,but because the legal category her lawyers tried to use does not fit neatlyenough.

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This is what politicization looks like in practice.  It arrives in the language of legal doctrine— particularity, circularity, social distinction — and produces outcomes thatwould be difficult to justify on any neutral humanitarian ground.  Theimmigration system will never be what it should be until we commit toseparating the legal question from the political moment.  The question of whether a woman fleeingdomestic violence at the hands of a criminal organization, in a country whereauthorities are unwilling or unable to protect her, deserves asylum is not aRepublican question or a Democratic question. It is a human question.  And untilwe treat it that way, women like V-A-B- will continue to pay the price for ourpolitical dysfunction.

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