Individuals seeking asylum must prove past persecution or a well-founded fear of persecution on account of one of five protected grounds, one ground being membership in a particular social group. In Matter of Acosta, the Board of Immigration Appeals defined a social group as a group of persons who share an immutable characteristic, meaning a characteristic that is either unchangeable or fundamental to one's identity or conscience such that the person should not be required to change. Despite listing sex as an immutable characteristic in Acosta, courts are reluctant to accept social group formulations based on gender alone. A number of circuits, however, have recognized social groups defined by gender and one or more characteristics. In Cece v. Holder, the en banc Seventh Circuit recognized that the formulation of "gender plus one or more narrowing characteristics" is a legitimate method to form a cognizable social group.
Historically, courts have narrowly construed gender-based social group formulations to limit the breadth of asylum claims. When courts found gender plus groups cognizable, they reasoned each plus characteristic was immutable. For example, the majority in Cece v. Holder found the social group of young Albanian women living alone cognizable because the group shared the immutable characteristics of being (1) young, (2) Albanian, (3) women, (4) living alone. While the Seventh Circuit was ultimately correct to find the gender plus group cognizable, the reasoning had the same convoluted logic as other courts that have found gender plus groups cognizable. Interpreting gender-based social group formulations to require each plus characteristic to be immutable as well has led to a lack of uniform decision making, including circuit splits, uncertainty for applicants claiming gender-based persecution, and ultimately, an underinclusive effect of granting asylum to persecuted women.
The Board of Immigration Appeals already determined gender is an immutable characteristic that could define a social group; thus, requiring applicants to demonstrate the plus characteristics are immutable as well requires them to prove at least twice as much as applicants who use the other protected grounds. Gender alone should be the immutable characteristic defining the social group, and the issue should be whether the plus characteristics narrow the group sufficiently so that group members can establish the nexus between group membership and persecution.
Gender Plus One: Broadening Judicial Interpretation of Gender-Based Social Group Formulations,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol9/iss1/7