Perdomo V. Holder: A Step Forward in Recognizing Gender as a "Particular Social Group" per Se

IntroductionIndividuals seeking asylum in the United States who have suffered gender-based persecution have faced substantial difficulties in navigating an asylum system that does not explicitly recognize gender-related persecution as grounds for political asylum.1 Immigration laws afford the Attorney General the discretion to grant political asylum.2 In order to qualify for this protection, however, an applicant must be a refugee under the Immigration and Nationality Act (INA).3 To qualify as a refugee, an asylum seeker must show that (1) she has suffered persecution or has a well-founded fear of persecution, (2) on account of race, religion, nationality, membership in a particular social group, or political opinion, and (3) is unable or unwilling to escape this persecution.4Gender is not a recognized ground under which applicants may receive protection within this definition.5 Asylum seekers who have suffered gender-based persecution must fit their applications within one of the statutorily recognized categories.6 Such asylum seekers generally use the "membership in a particular social group" category.7 Unfortunately, the legislature has declined to define the scope of this term, and courts have been reluctant to include gender under this category for fear of inundating immigration courts with asylum claims.8 In response, asylum seekers who have suffered gender-based persecution have begun to base their applications on membership in very narrow social groups in order to increase their chances of a favorable outcome.9 This method has allowed courts to extend protection to those individuals who have presented valid claims for political asylum without the fear of opening the floodgates to immigration.10The narrow approach of defining a "particular social group" is problematic, however, for victims who suffer persecution solely on the basis of their gender.11 This Comment addresses one such case, Perdomo v. Holder, a 2010 decision by the U.S. Court of Appeals for the Ninth Circuit Court involving a petitioner's attempt to define "all women in Guatemala" as a "particular social group."12 Part I provides a brief background of the case, including the facts of the petitioner's asylum application that make her claim particularly relevant to the issue of genderrelated persecution.13 Part II discusses the Ninth Circuit's argument for the expansive definition of "particular social group," which illuminates the inconsistency with which courts have applied this term.14 Finally, Part III argues that, in light of these inconsistencies, the Board of Immigration Appeals (BIA or "Board") should use Perdomo as an opportunity to expressly qualify gender as a "particular social group" per se.15 Such an expansion will likely raise concerns of inundating immigration courts with asylum claims, but the framework of political asylum law itself provides a practical limit to the extension of asylum.16I. Gender in Perdomo v. HolderIn Perdomo, the Ninth Circuit rejected a narrow interpretation of "particular social group" and called for an expansive definition that would accommodate a group defined exclusively by gender.17 Perdomo presented the case of Lesley Perdomo, a Guatemalan woman who faced deportation after living continuously in the United States since 1991.18 In response to a removal order, Perdomo requested asylum based on her fear of persecution as a member of the "particular social group" of "all women in Guatemala."19 She based her persecution claim on the high incidence of murder of women in Guatemala.20 Perdomo presented various reports describing these "femicides," including documentation of their brutality, their prevalence, and the Guatemalan government's lack of responsiveness.21 The immigration judge denied her application, and the BIA affirmed on the grounds that she had failed to prove that she was a member of a "particular social group" under the Immigration and Nationality Act.22On appeal, the Ninth Circuit rejected the BIA's reasoning and remanded the case for a determination of whether the group "all women in Guatemala" constitutes a "particular social group. …