Can You Claim Asylum Based on Being a Persecuted Gay, Lesbian, Bisexual, or Transgender Person?

U.S. immigration law allows an immigration judge or asylum officer to grant asylum to people who meet the legal definition of a "refugee." If you can convince the judge or asylum officer hearing your case that you suffered or fear persecution in your home country, and that the persecution that you experienced or reasonably fear is tied to one of five grounds (race, religion, nationality, membership in a particular social group, or political opinion), U.S. law allows you to be granted asylum.

This article will focus on whether your sexual orientation—that is, whether you identify as gay, lesbian, transgender, bisexual, intersex, genderqueer, non-binary, asexual, or otherwise fall into the category often called LGBTQIA—could match one of these five grounds. The best bet is usually to claim membership in a particular social group as the basis for an asylum claim, though it's important to remember that you can choose more than one ground.

(For more information on basic eligibility for asylum, see Asylum or Refugee Status: Who Is Eligible? and 8 U.S.C. § 1158.)

Should I Apply for Refugee or Asylum Status?

First, let's clear up a matter of word usage. The word "refugee" is a broad one when it comes to who the United States will offer protection to. But procedurally, a refugee is only someone who applies for protection from overseas, through the United Nations High Commissioner for Refugees (UNCHR), and who is then assigned to the United States.

Applying for asylum is the only option for someone who is already in the United States, whether they arrived legally, such as with a visa, or illegally, such as by crossing the border without permission.

What Is a Social Group for Asylum Purposes?

No, we're not talking about a party or group of friends here. A "social group" is the most expansive of the five grounds for asylum, and many categories of people can fit within its definition. It is largely up to you to name or define the group you claim to belong to. The immigration judge or asylum officer will look at whether the members of the group you are crafting have an immutable characteristic: in other words, have a trait that either cannot be changed or one that is so fundamental to who they are that they should not be required to change it (see Matter of Acosta, 19 I&N Dec. 211 (B.I.A. 1985)).

U.S. courts have found sexual orientation to be a recognizable social group, specifically saying that homosexuals and transgender people constitute a social group for purposes of claiming asylum. Some of the early decisions on this include Matter of Toboso-Alfonso, 20 I&N Dec. 819 (B.I.A. 1990), Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997), and Hernandez-Montiel v. INS, 225 F.3d 1084 (9^th Cir. 2000)).

Later cases have continued to uphold or follow this "social group" finding, such as Ayala v. U.S. Attorney General, 605 F.3d 941 (11th Cir. 2010), which concerned a Venezuelan gay, HIV-positive man; Todorovic v. U.S. Atty. Gen., 621 F.3d 1318 (11th Cir. 2010), which concerned a Serbian gay man; Doe v. Att'y Gen. of the U.S., 956 F.3d 135 (3d Cir. 2020), which concerned a gay man from Ghana; and Xochihua-Jaimes v. Barr, 962 F.3d 1175 (9th Cir. 2020), concerning a lesbian woman from Mexico.

This is not to say that all cases of LGBTQIA-based asylum result in approval; just that the denials are usually based on issues such as failure to prove the facts alleged, or failure to prove other important elements of an asylum claim, such as a that a violent event wasn't a one-time concern, in a country where the police normally protect gay people as much as anyone else, and where there's no reason to fear future persecution.

None of the U.S. court cases to date have upended the core finding that an LGBTQIA identity can be considered a social group for asylum purposes.

Proving LGBTQIA Identity and Social Group Membership to an Immigration Judge or Asylum Officer

Depending on which immigration judge or asylum officer you meet with, proving that you fit somewhere within the LGBTQ definition can be challenging. You'll want to submit copies of any relevant documents with your application for asylum and bring the originals to the hearing or interview. (See Preparing Persuasive Documents for Your Asylum Application.)

These documents might include, for example, a new birth certificate after sexual reassignment, a marriage certificate that demonstrates you are married to someone of the same gender, photos of you at events with your partner(s), or membership cards for relevant organizations or known gay clubs or bars. You can also submit sworn affidavits from people who know you or with whom you've been partnered.

The immigration judge or asylum officer will likely question you about whether you are truly lesbian, gay, or whatever sexual orientation or identity you have claimed. 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, when asked 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 these organizations or clubs—but should be ready to explain or show how that affected your life.

Political Opinion Is Also a Ground of Persecution LGBTQIA Persons Might Claim

If you were loud and proud about your identity, whether that meant volunteering for a gay rights group, leading a pride parade, or writing media articles or social media posts that were widely viewed, you could be viewed as having expressed a political opinion. If the authorities in your country viewed that opinion as offensive and persecuted you accordingly (or you reasonably fear they will do so in the future), that too could be a ground upon which to base your asylum claim.

See Claiming Asylum Based on Persecution on Account of Political Opinion for more information.

Proving Persecution to an Immigration Judge or Asylum Officer

Mere harassment or personal affronts, such as a classmate calling you names or family members refusing to invite your partner to celebrations, probably won't be enough to support an LGBTQ-based asylum claim.

As discussed in What Counts as Persecution When Applying for Asylum or Refugee Status, you will need to show more serious physical or emotional harm, such as threats of violence, severe discrimination, or unwanted medical or psychiatric treatment, including efforts to "cure" you of your identity.

Showing That the Persecution or Harm Is Tied to Your LGBTQIA Identity

Assuming you can prove that your known membership in the LGBTQ community 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 this. Provide details about what happened to you on your application for asylum (Form I-589) and during your in-person testimony. Completely describe incidents you experienced, including names, dates, and why you believe the harm is tied to your being gay, lesbian, transgender, or something related.

Don't forget to submit country-condition information to show that homosexuals and/or transgender persons 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 might support your claim. Nonprofit organizations dedicated to LGBTQIA rights, such as Immigration Equality, also offer helpful materials on country conditions.

How Your Believability Will Factor Into the U.S. Government's Decision on Your Asylum 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 even without specific proof or documents.

The opposite is also true, however. If the asylum officer or judge doesn't believe what you're saying, your claim can be denied. For more on how to prepare, and on demonstrating your credibility, see Chances of Winning a Grant of Asylum in the U.S.

Next Step: Apply for Asylum Within One Year of U.S. Entry

If you've determined that you'd like to apply for asylum because you are afraid to return to your country of origin owing to persecution you fear or experienced there, you'll find an overview of the application procedure in How to Prepare an Affirmative Asylum Application.

Don't delay. U.S. law requires that you submit this within one year of entering the United States, though exceptions do exist, particularly for changed circumstances. If, for example, your country recently passed a law criminalizing homosexual behavior, or you have just realized or acted upon your true identity, those could be grounds for a late submission of your Form I-589 for asylum.

Getting Legal Help

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 serving people within the LGBTQ community. And if you're low-income, be sure to read How to Get a Lawyer to Represent You Pro Bono (Free) in Immigration Court Removal Proceedings.