By: Mackenzie Heinrichs
Afghan women are currently experiencing unprecedented levels of oppression and violence under the Taliban’s brutal regime. Many Afghan women who flee the Taliban’s tyranny must then deal with the byzantine reality of seeking asylum based on gender persecution. Because “gender” is not explicitly protected under the 1951 Refugee Convention (the Convention), women who fear gender-based violence are often forced to adapt their claims into a “particular social group” (PSG). Unfortunately, the convention does not define PSG, which has resulted in various interpretations across international jurisdictions. This ambiguity creates a gap in protection for women asylum-seekers, like Afghan women, who seek protection based on their membership in a particular social group defined by gender. Therefore, Afghan women face a significant barrier to obtaining asylum due to the lack of consensus worldwide regarding the lawfulness of gender per se PSGs.
Because of the horrific treatment of women in Afghanistan, the current need for courts to accept gender per se social groups—PSGs encompassing gender plus nationality—is pressing. Under both international and US asylum law, there is evidence that courts and administrative agencies are increasingly receptive to gender per se social groups. This has resulted in courts like the Court of Justice of the European Union finding that women from Afghanistan are eligible for asylum based solely on their gender. This positive trend in PSG jurisprudence, combined with the growing number of Afghan arrivals to the United States, presents a strong argument that US asylum law should recognize “Afghan women” as a PSG.
“Afghan women” as a social group avoids many of the pitfalls of other gender-based social groups commonly used because of its concise articulation. Further, “Afghan women” is distinguishable from other cases where gender PSGs were unsuccessful because of the extensive nature of the persecution inflicted on women in Afghanistan by the Taliban government. While Afghan women who fear gender persecution may be able to make asylum claims based on other protected grounds, the social group, “Afghan women,” directly addresses the reason for their persecution: gender. Because the gender gap in asylum protection is particularly acute for women in Afghanistan, “Afghan women” is a uniquely compelling PSG.