Claiming Asylum Based on Sexual Orientation

If you have been persecuted or have a well-founded fear of future persecution because you are lesbian, gay, bisexual, or transgender, you could have a claim for asylum.

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U.S. immigration law allows an Immigration Judge or Asylum Officer to grant asylum to people who are found to be refugees. The judge or officer determines this after a hearing or interview at which you explain why you left your country and why you are afraid to return. You will have to submit an application for asylum along with evidence corroborating your claim, and you will have to testify as to the reasons you are afraid.

If you can convince the judge or officer that you suffered or fear persecution and that the persecution is tied to one of the five grounds mentioned in the Immigration Nationality Act (race, religion, nationality, membership in a particular social group, or political opinion), you could be granted asylum. This article will discuss whether your sexual orientation could be considered to be membership in a particular social group.

(For more information on basic eligibility for asylum, see “Asylum or Refugee Status: Who Is Eligible?.”)

What Is a Social Group?

Social group is the most expansive of the five grounds and many scenarios can fit within its definition. It is up to you to name or define the group you claim to belong to. The judge or officer will look at whether the members of the group you are crafting have an immutable characteristic. An immutable characteristic is a trait you cannot change or one that is so fundamental to who you are that you should not be required to change it (see Matter of Acosta, 19 I&N Dec. 211 (B.I.A. 1985)).

Courts have found sexual orientation to be a recognizable social group, specifically finding that homosexuals and transgender people constitute a social group (see Matter of Toboso-Alfonso, 20 I&N Dec. 819 (B.I.A. 1990) and Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000)). If you can demonstrate that you are a member of either of these groups you will be considered a member of a particular social group for asylum purposes.

Proving Sexual Orientation to an Immigration Judge or Asylum Officer

Depending on which judge or officer you see, proving sexual orientation can be tricky. Submit copies of any documents with your application for asylum and bring the originals to the hearing or interview. These documents can include a new birth certificate after sexual reassignment, a marriage certificate that demonstrates you are married to someone of the same gender, or even membership cards for certain organizations or known gay clubs or bars. You can also submit affidavits from people who know you.

The judge or officer will likely question you about your sexual orientation. These questions should be meaningful without being inappropriate. All questions should be specific for your case and not generalized. For example, if you testify that you are living openly in your country and that you are active in the gay community, it would be reasonable for you to name gay rights organizations, publications, or certain clubs in your area. If you testify that you have been living a closeted life in your country, you would not necessarily be able to name organizations or clubs.

Showing That the Harm Is Tied to Your Sexual Orientation

Once you prove that your sexual orientation makes you a member of a particular social group you will have to show that the persecution you suffered or fear is on account of your sexual orientation. As discussed in Nolo’s article “Claiming Asylum Based on Persecution on Account of Political Opinion,” you should provide details about what happened to you on your application for asylum and during your testimony. Completely describe incidents you experienced, including names, dates, and why you believe the harm is tied to your sexual orientation.

Don’t forget to submit country-conditions information that supports your claim that homosexuals are persecuted in your country. You can submit copies of any laws, reports of incidents in newspapers, or statistics compiled by organizations. Have a look at the U.S. Department of State Country Reports on Human Rights for information that may support your claim.

Your application, documents, and testimony will be assessed for detail, consistency, and plausibility. If the judge or officer finds that you have presented a coherent, detailed, consistent, and plausible story that explains how your past persecution or well founded fear of future persecution was on account of your sexual orientation, you can be granted asylum.

It is always a good idea to consult with an immigration attorney when thinking about filing an application for asylum. There are even immigration attorneys who specialize in sexual orientation cases.

by: , J.D., LL.M.

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