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

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 in the United States.

By , J.D., LL.M.

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 is tied to one of five grounds (race, religion, nationality, membership in a particular social group, or political opinion), the law allows you to be granted asylum. This article will discuss whether your sexual orientation—that is, whether you are gay, lesbian, transgender, bi, or otherwise fall into the category often called LGBTQ—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.

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

What Is a Social Group for Asylum Purposes?

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. 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 (9th 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 LGBT-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 LGBTQ people as much as anyone else, and where there's no reason to fear future persecution.

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

Proving LGBTQ Identity to an Immigration Judge or Asylum Officer

Depending on which immigration judge or asylum officer you meet with, proving that you fit somewhere in the LGBTQ definition can be tricky. 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, or even membership cards for relevant organizations or known gay clubs or bars. You can also submit sworn affidavits from people who know you.

The immigration judge or asylum officer will likely question you about whether you are truly lesbian or gay, or fit whatever sexual orientation 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.

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

Once you 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. As discussed in 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 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 LGBTQ rights, such as Immigration Equality, also offer helpful materials on country conditions.

How Your Own 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.

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.

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