Gender Is Not a Loophole

As immigration practitioners, we’ve all experienced that feeling.  The email alert.  Seeing "EOIR BIA Decision" in the subject line.  Your stomach sinking.  Anticipating what new precedent is being announced.  Today is no different, with the issuance of Matter of V-A-B-.  In this decision, the BIA is once again attacking 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 treatment of her story.  We know she entered a relationship with a man at age 16 and that a year later, he began abusing her.  We know this man was part of an organized crime family.  We don't know exactly how long the relationship lasted, but we know it was long enough to have seven children.  And we know she was terrified to seek help from authorities. Not only because culturally women are not given protection in domestic situations in her country, but also because her husband's family has power within the government through their organized crime ties.

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

The BIA used this decision to reassert its current position on the long-contested question of whether women should be provided protection based on how they, as females, are treated in their home countries.  Unsurprisingly, the answer is once again a resounding no.  But this isn't just about "married Mexican women who are unable to leave their relationship."  This is yet another step 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 refugee protection, defines a refugee as a person with a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. It is a powerful definition.  It is also, at its core, a definition that emerged from a particular historical moment: post-World War II Europe, where the paradigmatic refugee was a man fleeing political persecution by a state.  The traditional interpretation of the refugee definition focused on persecution in the public sphere:  political activism, military resistance, civil opposition. These are activities historically associated with men.  The private sphere, the home, the family, the intimate relationship, was treated as outside the reach of refugee law.  Domestic violence, forced marriage, female genital mutilation, and rape were classified as personal matters, not political ones.  This was not a neutral legal conclusion.  It was a choice.  One that reflected and reinforced the gendered assumptions of its era.  The "active" refugee archetype was a male political fighter.  Women who were targeted simply because they were women, who were persecuted in the spaces where they lived and loved, were largely invisible to this framework.

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The absence of recognition of gender as a protected ground in the refugee definition is a substantive gap with profound consequences.  For decades, women fleeing gender-based violence faced the nearly insurmountable obstacle of trying to fit their experiences of persecution into categories that were not designed to hold them.  Absent a clear path, lawyers have been working to fold these experiences into the male-centric framework, and the particular social group ground became the primary vehicle for gender-based claims.  But it has never been a comfortable fit.  In attempts to keep the refugee definition narrow, the requirements of immutability, particularity, and social distinction have been applied in ways that have, too often, worked against women.  The very experiences that define the persecution such as the inability to leave an abusive relationship, the social expectation of submission, and the cultural tolerance of violence against women have been used to define the group itself, creating the circularity problem that the BIA invoked in Matter of V-A-B-.

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Sadly, in the United States this battle has played out against a deeply political backdrop, with sharp reversals between Democratic and Republican administrations.  From Matter of R-A- (a case that originated out of the San Francisco 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 fundamental aspect of the refugee definition.  The rest 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 the careful language of legal analysis: the treatment of gender-based asylum claims in the United States is a policy failure, and it is a failure driven by politics.  The refugee definition does not change when administrations change.  The suffering of women does not change when administrations change.  What changes is whether the people making decisions choose to see that suffering as legally cognizable.  And that choice has, for decades, tracked the political winds rather than the merits.  Matter of A-R-C-G- opened a door in 2014.  Matter of A-B- slammed it shut in 2018.  Matter of A-B- III briefly reopened it in 2021.  Matter of 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, who was abused for years, who bore seven children, who feared that the very authorities meant to protect her were connected to the people who hurt her.  A woman that was found by a fact-finder to be credible 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 neatly enough.

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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 that would be difficult to justify on any neutral humanitarian ground.  The immigration system will never be what it should be until we commit to separating the legal question from the political moment.  The question of whether a woman fleeing domestic violence at the hands of a criminal organization, in a country where authorities are unwilling or unable to protect her, deserves asylum is not a Republican question or a Democratic question. It is a human question.  And until we treat it that way, women like V-A-B- will continue to pay the price for our political dysfunction.

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