The US Supreme Court recently ruled on Keisler v. Gao where an EOIR Immigration Judge denied a petitioner’s petition of asylum and was affirmed Board of Immigration Appeals.  This court holds that, contrary to the Immigration Judge’s conclusion, Gao had established that the persecution she fears is on account of her membership in a particular social group: women who have been sold into marriage and who live in a feudal community in China where forced marriage is condoned.

          The Supreme Court further holds that the lower court’s conclusions that the petitioner failed to show that she would not have been protected by the Chinese government and that the she could safely relocate within China were not based on substantial evidence.  As the lower courts failed to consider the petitioner’s application for protection against torture, this Court remanded the case to the BIA so that it can be considered.  The BIA decision affirming denial of asylum, withholding of removal, and protection against torture was vacated and remanded.

          Gao, a Chinese woman, was sold into an arranged marriage by her parents.  Her potential husband was abusive and threatened Gao with imprisonment if she did left or did not choose to marry him.  Fearing for her life, Gao escaped to the US when she was twenty years old.  The Immigration Judge held that Gao’s predicament did not arise from a protected class, and attributed her dilemma simply as "a dispute between two families," further holding that Gao could not establish that the Chinese government would protect her life. 

          The Supreme Court examined the protection grounds determined by the United Nations Protocol Relating to the Status of Refugees, which states the five social groups protected: race, religion, nationality, membership in a particular social group, and political opinion. 

            The lower courts cite Gomez v. INS to determine if Gao qualifies for being a protected class.  With Gomez, the US Supreme Court denied the petition of a woman whose asylum claim was based on the fact she had been raped and beaten by guerilla forces on a number of occasions.  Gomez argued that she had been part of a particular social group – "women who have been previously battered and raped by Salvadoran guerillas."  This Court determined that "possession of broadly-based characteristics such as youth and gender will not by itself endow individuals with membership in a particular group.

          However, with Gao’s case, the Supreme Court rejected the Gomez argument, since it found that Gao belongs to a particular social group – women sold into marriage and living in a part of China where forced marriages are considered valid and legally enforceable – and that classification establishes that she might well be persecuted in China, on account of her membership in this group.