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IMMIGRATION AUGUST 01, 2025 | The Indian Eye 37

of FGM mandates their acceptance consistent with the Second Circuit’s number of women face some other gender should not merely accept the
as a particular social group, then sig- decision in Ordonez Azmen (and form of persecution. BIA’s decision in K-E-S-G- at face val-
nificantly lower rates of persecution thus legally non-viable within the The BIA appears to have avoided ue, but should preserve the issue for fu-
of women ought to do so as well. Second Circuit or other Circuits that immediate judicial review of its logi- ture challenge on a petition for review,
Even apart from the issue of the have held similarly), however, this cally incoherent decision in K-E-S-G- while of course also asserting any oth-
percentage chance of harm required proposition is falsified by the BIA’s by remanding the specific case to the er PSGs or other protected grounds
to make out a claim, the BIA’s ac- own FGM exception. Apparently, the Immigration Court for further consid- that remain available even under the
knowledgement of an exception for BIA accepts that the record in Has- eration of an application for cancella- BIA’s current view of the law. When
the 98% prevalence of FGM in So- san revealed such widespread per- tion of removal, meaning that there the issue does come before the various
malia according to Hassan exposes secution of women in Somalia that is currently no final order of removal Court of Appeals, some or all of those
another flaw in its logic. As the Court asylum was warranted in that case. regarding which a petition for review courts may recognize that the BIA’s
of Appeals for the Second Circuit ex- But the BIA has no logical basis for could be filed under 8 U.S.C. § 1252. attempt to cabin gender-based claims
plained in Ordonez Azmen v. Barr, categorically ruling out the possibility It is this author’s view, however, that to one particular form of persecution,
965 F.3d 128 (2d Cir. 2020), assess- that the same could be true of some lawyers handling other cases that pres- and an overly-demanding threshold of
ments of a particular social group other country in which a sufficient ent the possibility of a PSG based on probability, should be rejected.
must be done on a case-by-case ba- ___________________________________________________________________________________________________________________________________
sis, with reference to the record ev- Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
idence pertaining to a particular & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
country. The BIA has not overruled mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
the case law relied upon by the Sec- Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
ond Circuit in Ordonez Azmen (and of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
perhaps could not do so without itself Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
being overruled by a court), and yet
it seems, in K-E-S-G-, to be trying Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
to suggest that a social group of all on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
women of a particular nationality can Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
never be a particular social group, and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
regardless of the record evidence immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
regarding that particular country. In the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
addition to this proposition being in- in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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