Gender “plus” as a particular social group

woman migrantThe saga of gender as a particular social group for asylum claims in the United States took an interesting turn earlier this month.  On August 9th, the Seventh Circuit Court of Appeals en banc decided Cece v. Holder, holding that the applicant was a member of a cognizable social group: young Albanian women living alone.  Not a hotbed of liberal activism, the Seventh Circuit has been remarkably progressive in its asylum jurisprudence.  This decision, penned by Judge Ilana Rovner, who fled Latvia with her mother as a babe-in-arms to escape Nazism, continues that trend.

While the court does not take on the fraught question of whether gender can constitute a particular social group in U.S. asylum law, it holds decisively that gender “plus one or more narrowing characteristics” is a legitimate method of constructing a social group.  The court’s clarification of its holding offers even more progressive reasoning on at least four fronts.

The court notes that a particular social group can be defined in part by the persecution faced as long as it’s not solely defined by the persecution.  This is a longstanding debate in asylum law, with some courts categorically excluding any social group that mentions the persecution faced.  Judge Rovner draws here on the logic of the mixed motives doctrine, which allows persecutors to have multiple motives as long as the protected ground is a central motive.  Similarly, the court notes, the social group definition may have to include the persecution faced as one of several components in order to be accurate.  This alone should not defeat a social group definition.

The court further explains that the social group of young Albanian women living alone is not too broad.  Even if the group is large, Judge Rovner explains that the nexus narrows the number of applicants eligible for asylum.  In other words, while there may be a large number of young Albanian women living alone, far fewer are targeted for persecution on this ground.  Moreover, the court states, even if that group was enormous, the number of members of a particular social group is not a legitimate consideration of this humanitarian doctrine.  Judge Rovner notes the large numbers of Rwandan Tutsis prior to the 1994 genocide (approximately 700,000) and of German Jews killed by the Nazis (an estimated 6 million) to underscore her point — any of these individuals should and would have been eligible for asylum.

The court also takes on the state action doctrine, explaining that an asylum seeker must show only that her government was unable or unwilling to protect her.  Judge Rovner responds directly to the dissent, arguing that an asylum seeker need not show that the government was or would be actively involved in the persecution — just that the government would not protect the asylum seeker against her persecutors.

Finally, the court notes that it is able to overcome the deference due to the Board of Immigration Appeals as an administrative agency because the underlying decision refusing to grant Cece asylum was inconsistent with the Board’s own precedent.  Taking specific note of the limits of its review powers laid out in Gonzales v. Thomas and INS v. Orlando Ventura, the court still determines that it has the authority to find the Board’s decision to be in error.

Though it stops short of finding gender to be a valid particular social group, the Cece v. Holder decision offers careful and thoughtful reasoning on several important points in the often confusing social group jurisprudence. 

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