PERSECUTION AND PROTECTION: THE LEGAL LANDSCAPE FOR LGBTQ+ ASYLUM SEEKERS

INTRODUCTION

In more than 70 countries, some aspect of being lesbian, gay, bisexual, transgender, or queer (“LGBTQ+” or collectively, “the queer community”) is a crime. Even if criminalization is not explicit, it may nevertheless be unsafe to exist as an LGBTQ+ person in certain countries. Many queer people face harassment, discrimination, and violence in their countries of origin that force them to flee. As U.S. immigration law evolved, sexual orientation and gender identity became salient factors in the determination of asylum status. This paper will trace the history of LGBTQ+ asylum law as it relates to the U.S. and cover components of an asylum claim for LGBTQ+ persons. Next, it will review relevant federal case law and how precedent has evolved. Finally, the paper will present a history of legal reform and systemic changes to LGBTQ+ asylum policies and propose changes to the current system to improve functionality and address gaps in the existing framework. 

COMPONENTS OF AN LGBTQ+ ASYLUM CLAIM

Existing as a lesbian, gay, bisexual, transgender, queer, intersex, or genderqueer person may serve as a basis for pursuing an asylum claim in the U.S. Asylum is a protection granted to foreign nationals already in the U.S. or at the border who meet the international law definition of a “refugee.” The United Nations (UN) 1951 Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to his or her home country and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” This definition was explicitly incorporated into U.S. immigration law through the Refugee Act of 1980. Asylum eligibility is codified in 8 C.F.R. § 1208.13, which defines the burden of proof, limitations, and other key components. Typically, there is a one-year filing deadline for asylum applicants. However, in some instances (such as if an applicant has recently “come out”, suffers from PTSD or other mental health issues, or has recently been diagnosed with a serious illness like HIV), they may qualify for an exception to the deadline. The following subsections elaborate on the definition of “refugee” and how it applies to LGBTQ+ asylum seekers.

1. Past Persecution or Well-Founded Fear of Future Persecution

Applicants are eligible for asylum based on “past persecution” or a “well-founded fear of future persecution.” When evaluating a claim of “past persecution” it is important to consider the following questions: (1) Does the harm rise to the level of persecution; (2) Is the harm inflicted on account of a protected ground (race, religion, nationality, membership in a particular social group, or political opinion); and (3) Is the government is unable or unwilling to provide reasonable protection to the applicant? The perpetrator may either be a state actor, such as the police or government officials, or a non-state actor, such as paramilitary forces or community members.

Due to LGBTQ+ individuals’ intersectional identities, they often face unique challenges and are even more vulnerable to certain harms than other applicants. Thus, asylum claims should be analyzed in light of the prevailing attitudes about queer identities in the applicant’s country of origin. Common harms against LGBTQ+ persons include violations of fundamental human rights, criminal penalties, sexual violence, torture, discrimination, economic abuse, forced marriage, and gender-based mistreatment. The persecutor’s intent may be relevant but is not the sole factor in determining “past persecution.” For example, an applicant has suffered past persecution even if the persecutor intended to “cure” them of their sexual orientation or gender identity, rather than to “harm” them.

An applicant who was forced to conceal their sexual orientation or gender identity in their home country to avoid harm and thus did not suffer harm rising to the level of persecution may still qualify for refugee status if they have a well-founded fear of future persecution.​​ To prove a well-founded fear of future persecution, the applicant must have a subjectively genuine fear and an objectively reasonable fear of return. Just because a country has anti-discrimination laws or other facially LGBTQ+ friendly legislation does not mean that queer people are protected from harm in that country. Furthermore, applicants cannot be expected to suppress their sexuality or gender identity to avoid future persecution. If an applicant left their country of origin for other reasons (such as education or employment) and has since “come out”, they may be eligible for asylum if they can demonstrate a well-founded fear of future persecution if they were forced to return. 

2. Particular Social Group (PSG)

LGBTQ+ persons most commonly qualify for asylum as members of a particular social group (PSG), although it is also possible to qualify based on political opinion, particularly if the applicant openly advocated for LGBTQ+ rights in their home country. When evaluating PSGs, courts examine whether the group (1) shares immutable or fundamental traits; (2) is “socially distinct” and (3) is “particular.” An immutable characteristic is defined as “one that members of the group either cannot change or should not be required to change because it is fundamental to the member's identity or conscience.” Sexual orientation and gender identity qualify as “immutable” because they are characteristics that a person cannot change or should not be required to change. Concerning social distinction, the Board of Immigration Appeals (BIA) has clarified that the applicant does not have to “look gay or act gay” to satisfy this criterion. Thus, literal or physical visibility is not necessary; instead, the society in question must distinguish LGBTQ+ individuals from others in a meaningful way. For example, discriminatory attitudes and behaviors towards LGBTQ+ identities are examples of social distinction. Ultimately, for particularity to be established, the applicant must demonstrate that their particular social group (PSG) possesses distinct boundaries—neither excessively broad, making it challenging to differentiate group members from others, nor overly narrow, such that it fails to constitute a meaningful and identifiable grouping. 

3. Nexus

An asylum applicant must also establish a nexus by demonstrating the persecution suffered (or feared) was (or will be) motivated “on account of” their protected characteristic. Proving fear of persecution “on account of” membership in a particular PSG requires a nexus that is established by a two-part analysis: (1) whether the persecutor perceives the applicant as possessing a protected characteristic (either because the applicant does possess it or because the persecutor attributes it to the applicant); and (2) whether the persecutor acted or would act against the applicant because of the persecutor's perception of that protected characteristic. For LGBTQ+ cases, the applicant must show the persecutor's harm resulted from the applicant’s perceived or actual sexual orientation, the persecutor’s belief that the applicant transgresses traditional gender norms, or the persecutor's more general animus toward the LGBTQ+ community. The nexus requirement is also satisfied when, as previously mentioned, a persecutor attempts to “cure” the applicant of their sexual orientation or gender identity.

4. Internal Relocation and Change of Circumstance 

Once an applicant establishes past persecution, the burden shifts to the Government to show that internal relocation is reasonable or that there has been a fundamental change in circumstances. If the Government is the perpetrator, there is a presumption that internal relocation is not reasonable. Homophobia generally exists nationwide, and laws that criminalize homosexual conduct typically apply to all parts of the country, making internal relocation difficult. The presumption of a well-founded fear of future persecution can also be rebutted by showing “a fundamental change in circumstance such that the applicant no longer has a well-founded fear of persecution.” Country condition reports and the circumstances of each applicant should be weighed when making this determination. 

MAJOR FEDERAL CASES ADDRESSING LGBTQ+ ASYLUM SEEKERS

This Section will highlight significant federal cases that address the rights and protections of LGBTQ+ asylum seekers. Various configurations of PSGs based on LGBTQ+ identity are well-recognized in case law as providing a valid basis for an asylum claim. This Section traces the foundational case law of LGBTQ+ asylum claims. It also discusses Circuit splits and notable similarities among jurisdictions. 

1. Laying the Foundation

In 1990, the Board of Immigration Appeals (BIA) recognized “persons identified as homosexuals by the Cuban Government” as a particular social group (PSG) for purposes of asylum in Matter of Toboso-Alfonso. The case is acknowledged for establishing the groundwork for asylum claims grounded in sexual orientation. In 1994, the U.S. Attorney ruled the case was precedent for “all proceedings involving the same issue[s].” A few years later, the Ninth Circuit Court of Appeals paved the path for transgender asylum seekers by finding that “gay men with female sexual identities” constituted a PSG because they “are immutable characteristics so fundamental to one’s identity that a person should not be required to change them.” Classifying “gay men with female sexual identities” as a PSG was affirmed again in Reyes-Reyes v. Ashcroft. Unfortunately, these cases relied on a problematic formulation of gender identity, referring to the applicant’s “transsexual behavior,” and failing to properly classify the PSG as “transgender.” Notwithstanding this outdated terminology, these cases are considered landmark transgender asylum cases and have fundamentally shaped how LGBTQ+ applicants pursue protection. Although the BIA has not issued other precedential decisions since Matter of Toboso-Alfonso, U.S. Circuit Courts of Appeals have ruled on LGBTQ+ asylum cases in numerous instances. 

2. Concealing Sexual Orientation

Can the failure to initially disclose one's sexual orientation due to fear or lack of understanding later hinder a successful asylum case? The Seventh Circuit denied a petition for review for a Mexican national who initially applied for asylum based on a fear of persecution from gangs and concealed his gay identity. The applicant testified that he had been discriminated against because he was perceived as effeminate and faced difficulty finding employment; however, he told the judge that he was not gay. The judge denied the asylum application, first finding that being mistreated by the gangs was not connected to a protected ground under the law, and then finding that the applicant had not sufficiently demonstrated a fear of persecution based on an imputed sexual orientation claim. On appeal before the BIA, the applicant asserted a fear of persecution based on his sexual orientation for the first time. He argued that he had not disclosed his gay identity previously because he was only 18, he was representing himself pro se, and he was afraid to admit his sexual orientation openly in court. The BIA denied the motion to remand, finding the applicant’s state of mind did not provide sufficient evidence to explain why his sexual orientation claim was not previously available. 

In contrast, another case of concealed identity heard by the Seventh Circuit resulted in a different outcome. In Moab v. Gonzalez, a gay man from Liberia did not disclose his sexual orientation during his pro se credible fear interview upon arrival. Instead, he stated he left Liberia due to the civil war and feared that he would be killed because of a familial land dispute. On his subsequent application for asylum, he added that he feared returning because of his gay identity and that he suffered physical abuse in Liberia on account of his sexual orientation. Upon review, the Seventh Circuit characterized his subsequent testimony as a “mention of additional harms,” rather than “increased egregiousness in the description of the harms themselves” as the BIA had previously stated. The Court found it reasonable that the applicant would not have mentioned his sexual orientation upon arrival for fear that it would cause further persecution, as he had experienced in his country of origin. These cases demonstrate the conflicting ways that failure to immediately disclose one’s sexual orientation can be interpreted by the courts and highlight the risk that an applicant will be viewed as less credible, despite having valid reasons for withholding this information. These cases also showcase the tension between credibility and the forced “outing” of one’s identity, an issue that will be further discussed.  

3. Imputed LGBTQ+ Membership

As previously mentioned, LGBTQ+ membership can be imputed to establish a PSG when the persecutor (properly or improperly) believes the applicant is part of the LGBTQ+ community. The Third Circuit Court of Appeals was the first jurisdiction that found it possible to proceed with an asylum claim based on account of imputed LGBTQ+ identity. In that case, a Ghanaian man engaged in “homosexual activity” with another man to be spared from being ritually sacrificed; following the incident, he was repeatedly beaten by police for his perceived gay identity. The Court recognized that harm resulting from the persecutor's belief that the applicant was gay was sufficient for an asylum claim, irrespective of the applicant’s actual sexual orientation. In another successful case of imputed LGBTQ+ membership, the Seventh Circuit remanded an HIV-positive Honduran man’s case upon hearing expert testimony that the applicant’s HIV status would be equated with the LGBTQ+ community and thus, he would suffer future harm. The decision stemmed from the pervasive belief in Honduran society that associating HIV with gay men leads to violence and fatalities among many gay Hondurans. Based on this social stigmatization, the Court imputed an LGBTQ+ PSG on unmarried, HIV-positive, cisgender men in Honduras.

However, courts have reached disparate outcomes when determining what behaviors and stereotypes rise to a level that warrants imputation. For example, the Eleventh Circuit denied a petition for review of a Cameroonian man who publicly defended LGBTQ+ rights and his gay friends who were expelled from university; he was also physically attacked and harassed by an anti-gay group because he was perceived to be gay by association. Despite this potential for imputed membership, the Court found the harms were not “more than a few isolated incidents of.... harassment or intimidation.”  The Court also rejected the applicant’s claim of well-founded fear of future persecution because he never alleged the police physically harmed him or questioned him about his sexuality, and country conditions reports indicated conditions for the LGBTQ+ community in Cameroon were improving. These cases illustrate divergent perspectives on the judicial assessment and evaluation of evidence in establishing an applicant's PSG through the imputation of LGBTQ+ identity.

HISTORY OF REFORM AND SYSTEMIC CHANGES

Discussions and concerns surrounding the historical context and ongoing propositions for legal reforms in asylum law remain a highly debated topic. Over the years, various changes to asylum law have impeded LGBTQ+ asylum seekers’ access to justice. As early as 1917, federal law restricted immigration by individuals who showed signs of “constitutional psychopathic inferiority,” a classification used to discriminate against people based on their sexual orientation. During the 1950s, “homosexual panic” on the rise during the McCarthy Era contributed to the passage of the Immigration and Nationality Act of 1952, which explicitly barred foreigners from entering or staying in the U.S. for being (or suspected of being) homosexual. This ban lasted until 1990, when the Immigration Act of 1990 removed homosexuality as grounds of exclusion. 

In recent decades, there has been a notable overall reduction in protections for those seeking asylum, which has undoubtedly impacted queer applicants. In 2020, the Department of Homeland Security and the Justice Department proposed regulations that would drastically limit LGBTQ+ applicants from applying for asylum by effectively banning all gender-related asylum claims. On January 8, 2021, the rule was enjoined by a federal judge, but if enforced, it has the potential to eradicate an entire avenue for LGBTQ+ asylum claimants to seek relief. 

Another rule proposed around the same time would set a 15-day requirement on filing an asylum application in asylum-and-withholding-only-proceedings after the applicant’s first hearing with an immigration judge. The proposal also required applications to be filed in English, regardless of the applicant's spoken language. The expedited filing timeframe and language requirement pose an undue burden on LGBTQ+ applicants, many of whom struggle to complete the lengthy asylum application without an attorney’s assistance. In addition, the regulation would implicitly prioritize the U.S. government’s human rights reports over those from reputable nongovernmental organizations (NGOs). Non-profit organizations such as Human Rights Watch, Immigration Equality, and other NGOs regularly conduct research relevant to LGBTQ+ asylum cases that is not provided by other sources. In response to these regulations, the U.N. High Commissioner for Refugees (UNHCR) published a comment condemning the U.S.’s violation of four basic principles of international refugee law. Furthermore, UNHCR stated, “the Proposed Rule re-orients the U.S. asylum process away from a principled, humanitarian approach… towards one that establishes a set of obstacles which must be overcome by individuals seeking international protection.” 

However, the Trump Administration introduced significant setbacks through policies like Title 42 and the "Remain in Mexico" program, which were employed as pretexts to obstruct and remove LGBTQ+ asylum seekers. As a result, LGBTQ+ asylum seekers were forced to remain in vulnerable circumstances and faced heightened violence, discrimination, and harassment in Mexico and elsewhere. Although Title 42 was lifted in May 2023, new policies implemented by the Biden Administration still have the same negative impact on the LGBTQ+ community. The rule creates a presumption of asylum ineligibility for individuals who (1) did not apply for and receive a formal denial of protection in a transit country; (2) entered at a port of entry without a previously scheduled appointment through the CBP One mobile application. The rules formally define CBP One as the only mechanism to request asylum at the southern border and punish those who cannot wait indefinitely in dangerous conditions while they attempt to schedule an appointment. Not to mention, the CBP One app is riddled with logistical errors and practical issues that make it nearly impossible to use. 

PROPOSED CHANGES

1. Enhance Asylum Definitions: Integrate Sexual Orientation and Gender Identity into Protected Status and Embrace a Comprehensive Credibility Standard for LGBTQ+ Asylum Cases

The restrictive definitions within the asylum process result in certain valid claims slipping through the system's cracks. For example, sexual orientation and gender identity are not specifically enumerated as protected grounds for asylum, though these groups often qualify as members of a PSG. LGBTQ+ asylum seekers frequently overlook the potential grounds for asylum based on their sexual orientation or gender identity due to the absence of clear inclusion. This omission leads applicants to be hesitant about discussing their sexual orientation and gender identity. The one-year filing limitation and other expedited procedural constraints only worsen this problem as applicants with valid claims may not have sufficient time to file. To help address these issues, sexual orientation and gender identity should be explicitly adopted into the definition of “refugee,” and asylum officers should have an obligation to communicate these protected classes to applicants. Leeway should be granted for minor inconsistencies between asylum applications and an applicant’s testimony to account for the current lack of knowledge among LGBTQ+ applicants. Additionally, the evidentiary standard of corroboration should be relaxed, particularly for applicants who were forced to conceal their identities in their country of origin and may be hesitant to reveal their true identities once in the U.S. 

The lack of culturally sensitive “credibility” determinations in asylum cases again leaves the door open to improper judgment and mischaracterization, especially because most immigration officers’ ideas about LGBTQ+ identity are based on U.S. norms and stereotypes. Adverse credibility findings often occur when applicants do not immediately “out” themselves. Aside from an applicant’s potential hesitancy to discuss their identity with an asylum officer, this forced self-identification and labeling is a perpetuation of Western ideology. Thus, asylum practitioners are often forced to limit and contextualize their description of the applicant’s identity and the harm they experienced within the confines of white Western culture. Moreover, adjudicators are reluctant to approve cases citing violence akin to experiences in the U.S., as it challenges the perception of the U.S. as “the good guy.” This leaves applicants walking a strategic tightrope, forced to “perform their gender and sexuality in a manner satisfactory to the American adjudicator.” Similarly, the theory of the case in many LGBTQ+ asylum claims requires casting the applicant as a “good” or “deserving gay”, a narrative that juxtaposes the unspoken “bad” or “less-deserving gay.” Because asylum is a discretionary finding, decision-makers heavily rely on their own biases to determine whether an applicant’s described persecution is “credible,” which discounts queer identities that fall outside white Western confines. The expectation that applicants conform to Western gender and sexuality performance is not only demeaning, but it also restricts the likelihood of eliciting valid asylum claims. 

Some argue that relaxing credibility determinations will increase false LGBTQ+ asylum claims. In addition to the lack of evidence supporting this assertion, this argument is predicated on the belief that it is possible to determine the “truth” about someone’s sexual orientation or gender identity. While asylum systems do require some level of objectivity, applicants should be offered the benefit of the doubt, especially considering the systematic violence they endure to arrive at the border and the potential negative repercussions in their country of origin for self-identifying as queer. Shifting the focus from the elusive 'truth' of an applicant's identity to establishing an inclusive system that addresses the underlying causes of applicants' feelings of desperation and powerlessness will naturally deter the embellishment of stories or the use of prepared narratives.

2. Publish Research and Data on LGBTQ+ Asylum Seekers 

More research and publicly available data are needed, as federal agencies do not publish statistics on asylum claims based on sexual orientation or gender identity, which makes it challenging to assess the full extent of the issues and track trends. Agencies responsible for asylum adjudication should record the grounds for asylum claims in an electronic database and release this information to the public. Currently, the largest database of adjudicated cases is cataloged by Immigration Equality. However, this resource is limited to mostly Court of Appeals cases and does not include case data about certain minority subcategories, such as intersex individuals or non-binary persons. Furthermore, sexual orientation, gender identity, sex assigned at birth data, and HIV status should be integrated into registration and data management systems operated by UNHCR and the U.S. Demographic questions regarding sexual orientation and gender identity should be subject to change throughout the asylum process without negative repercussions for the asylum seeker. 

As U.S. State Department country conditions reports are heavily considered in determining asylum (and often contain no information about LGBTQ+ rights and conditions), decision-makers ruling on LGBTQ+ asylum claims should be required to examine country-specific laws, policies, and cultural attitudes towards each subpopulation of the LGBTQ+ community. Furthermore, judges should proactively submit evidence into the record from credible sources on their own authority, especially for pro se litigants or when U.S. State Department reports lack LGBTQ+-specific evidence. 

3. Keep LGBTQ+ Applicants in Mind Throughout the Asylum Process

Applying for asylum is an incredibly taxing endeavor for all migrants. However, research shows that the application process, by itself, has “deleterious effects on LGBTQI+ persons…” particularly because “immigration policies harm [LGBTQ+ persons] based on the compounding effects of their intersectional identities.” It is important to address the challenges faced by LGBTQ+ migrants in the asylum process, including the need to “come out” in a way that is legible to asylum adjudicators, as well as harmful stereotypes that cast doubt on the validity of these identities. For many asylum officers at the border, their first contact with an LGBTQ+ asylum applicant is not contextualized by the history and culture of the applicant’s country of origin. Thus, all frontline workers who engage with asylum seekers must be adequately trained in inclusive interview methods. 

Perhaps most obviously, the U.S. should comply with immigration advocates’ recommendations to eradicate harmful asylum laws that force migrants to wait in dangerous conditions and jump through endless hoops to pursue their claims legally. In addition to reforming these overarching policies, the system should also enhance the utilization of evidence in individual asylum adjudications. Material evidence (such as attendance of Pride Parades, past sexual partners, medical transitioning, etc.) is often used to determine whether the applicant is a member of an LGBTQ+ PSG. However, this heavy focus on material proof of identity hinders immigration authorities’ assessment of the applicant's fear of persecution. Several studies demonstrate that many adjudicators conflate sex with sexuality and thus, applicants without sexual or romantic histories are routinely discredited. However, judges should view a lack of evidence resulting from forced concealment of one’s identity as proof of a well-founded fear of persecution, such as in the Australian asylum law. New rules such as this would help rectify the stark contrast many LGBTQ+ individuals encounter: concealing their identity in their home country, only to be compelled to reveal it immediately upon reaching the U.S. While far from inclusive, these recommendations seek to remedy the past and current harms caused to LGBTQ+ asylum seekers.   

CONCLUSION

The legal terrain for LGBTQ+ asylum seekers is intricate and fraught with challenges, encapsulating the broader struggle for recognition and protection within the global migratory scheme. Despite significant strides noted by landmark cases, recent U.S. asylum regulations threaten to erode pro-LGBTQ+ progress. This paper underscores the unique obstacles faced by LGBTQ+ asylum seekers, including issues of imputed identity and challenges in concealing sexual orientation and gender identity, among others. The proposed reforms advocate for the explicit incorporation of sexual orientation and gender identity into asylum definitions, an expansive approach to credibility, and increased cultural competence among decision-makers. Additionally, the call for further research and data transparency underscores the need to safeguard the rights and well-being of this vulnerable population within the evolving asylum landscape. As the legal journey unfolds, collaborative efforts are essential to ensure a more just and compassionate system that upholds principles of justice, dignity, and equality for all LGBTQ+ individuals fleeing persecution.