In 1994, a young woman arrived at a U.S. airport carrying almost nothing, not even her own passport. What she did carry, however, was fear, urgency, and a story the American immigration system had never heard before.
Her name was Fauziya Kassindja, known in legal history as Kasinga.
She was 19 years old, from Togo, and she had fled her home to escape a forced marriage and a traditional practice that would permanently alter her body against her will.
When she asked the United States for asylum, the law offered no clear answer as to whether her fear counted.
Two years later, that changed because of one decision and one judge who understood that the law had to evolve.
What Is the Matter of Kasinga About?
Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), is a landmark precedential decision by the Board of Immigration Appeals (BIA) recognizing that:
- Forced female genital mutilation (FGM) constitutes persecution.
- Gender-based harm can qualify under “membership in a particular social group.”
- Persecution may be inflicted by non-government actors if the government is unwilling or unable to prevent it.
The decision granted asylum to Fauziya Kassindja and fundamentally changed gender-based asylum law in the United States.
Before Kasinga: A Gap in Asylum Law
U.S. asylum law is governed by Section 208 of the Immigration and Nationality Act (INA), incorporating the refugee definition in INA § 101(a)(42)(A).
To qualify, an applicant must show persecution or a well-founded fear of persecution based on one of five protected grounds:
- Race
- Religion
- Nationality
- Political opinion
- Membership in a particular social group
For decades, persecution that disproportionately affected women, especially harm occurring within families or communities, fell into legal gray areas.
When Kasinga first appeared before an immigration judge, her claim was denied. Although her fear was genuine, gender-specific harm tied to cultural practices had not yet been clearly recognized as persecution within asylum law.
Had the case ended there, gender-based asylum jurisprudence might look very different today.
The Case Was Heard En Banc
Because of its legal significance and novelty, the appeal was heard en banc by the Board of Immigration Appeals, meaning the full Board participated in the decision rather than a three-member panel.
En banc review is typically reserved for:
- Cases presenting new legal questions
- Issues likely to shape national precedent
- Matters requiring authoritative clarification of the law
Matter of Kasinga met all three criteria.
Judge Paul W. Schmidt’s Defining Role
At the center of the decision was Paul W. Schmidt, then Chairman of the BIA, who authored the majority opinion.
The case presented a question the Board had never squarely answered:
“Could a woman qualify for asylum based on the threat of a gender-specific practice carried out by her own community, without direct government involvement?”
Judge Schmidt’s opinion answered yes, through careful statutory interpretation.
What the BIA Held in Matter of Kasinga
Under Chairman Schmidt’s authorship, the Board held that:
- Female genital mutilation (FGM), when imposed forcibly, constitutes persecution.
- Persecution by private actors qualifies when the government is unwilling or unable to control them.
- Gender-based claims can fall under “membership in a particular social group.”
The Board defined Kasinga’s social group as:
“Young women of the Tchamba-Kunsuntu tribe of Togo who have not undergone female genital mutilation and who oppose the practice.”
This satisfied the legal requirement that a particular social group be defined by characteristics that are immutable or fundamental to identity.
Kasinga was granted asylum.
And the impact extended far beyond her individual case.
How Matter of Kasinga Changed U.S. Asylum Law
Matter of Kasinga became the first precedential BIA decision to explicitly recognize gender-based persecution in the context of FGM as grounds for asylum.
Its effects included:
- Establishing that persecution need not come directly from a government.
- Providing a workable framework for gender-based “particular social group” claims.
- Influencing later asylum jurisprudence involving forced marriage, domestic violence, and other gender-related harms.
- Strengthening the interpretation of INA § 101(a)(42)(A) in line with international refugee principles.
Importantly, the opinion did not rewrite asylum law. It interpreted existing statutory language in a way that acknowledged lived realities.
The Impact Beyond the Courtroom
The decision:
- Influenced asylum adjudications nationwide.
- Is regularly cited in immigration court decisions.
- Is taught in law schools and immigration training programs.
- Helped shape advocacy efforts focused on gender-based asylum claims.
It demonstrated that asylum law could evolve through principled interpretation rather than legislative amendment.
Judge Schmidt would later serve as an Immigration Judge and a respected legal commentator, but Matter of Kasinga remains one of his key contributions to immigration law.
Frequently Asked Questions
1. Was Matter of Kasinga the first gender-based asylum case?
Yes. It was the first BIA precedent to recognize forced female genital mutilation (FGM) as persecution and grant asylum based on gender.
2. In asylum law, does persecution have to come from the government?
No. Persecution by private actors counts if the government is unwilling or unable to stop it.
3. What is a “particular social group” in asylum law?
A group defined by an immutable characteristic or one fundamental to identity. In Kasinga, it was young women of the Tchamba-Kunsuntu tribe who opposed FGM.
4. Is Matter of Kasinga still relevant today?
Yes. It remains a binding BIA precedent and is still cited in gender-based asylum cases.
5. Why was the decision heard en banc?
The Matter of Kasinga was heard en banc because it involved a novel legal issue of nationwide impact, requiring the full Board’s review to establish a precedent.
