Asylum Law Basics – Brief History of Lesbian, Gay, Bisexual, Transgender and HIV (LGBT/H Asylum) Law ~ The Rainbow Maldivian

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U.S. asylum law is derived from international agreements written after World War II which provide protection to people fearing or fleeing from persecution. The first agreement, the 1951 Convention Relating to the Status of Refugees, was drafted by the United Nations in response to the large migrations of people in the aftermath of the Second World War. The United Nations attempted to set forth an internationally agreed upon standard for who will be considered a refugee. The 1951 Convention, however, only applied to people who were refugees on the basis of events occurring before January 1, 1951. The United Nations incorporated the definition of refugee set forth in the 1951 Convention but expanded it to include future refugees in the 1967 U.N. Protocol Relating to the Status of Refugees.1 The United States acceded to the 1967 Protocol in 1968. In order to bring U.S. law into compliance with its obligations under the Protocol, the United States enacted the Refugee Act of 1980, adopting essentially the same definition of refugee as set forth by the Convention. A refugee is defined as:

“any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

An individual can be granted asylum if she is present in the United States and otherwise meets the definition of a refugee.3 Refugee status can be based on either race, religion, nationality, membership in a particular social group, or political opinion. Of the five grounds on which a claim for asylum can be based, membership in a particular social group is the most open to interpretation and thus provides the best basis for claims of asylum based on sexual orientation and gender identity. Although there is no statutory definition of what suffices as membership in a particular social group, it has frequently been described as a group of persons who share a common, immutable characteristic that the members of the group cannot or should not be required to change.4 In 1994, Attorney General Janet Reno declared as precedent the Matter of Toboso-Alfonso case in which a gay Cuban man was found to be eligible for withholding of removal on the basis of his membership in the particular social group of homosexuals.5 This case was pivotal in establishing that a well-founded fear of persecution on the basis of one’s sexual orientation is a valid basis on which to claim asylum status in the United States. More recently, the Ninth Circuit has affirmed that “all alien homosexuals are members of a ‘particular social group.’”6 The recognition of this basis for asylum is in accord with other countries which have granted asylum to gay and lesbian refugees.7

In the years after Matter of Toboso-Alfonso, courts have employed a more expansive definition of what constitutes a particular social group, including gender-based violence, such as female genital mutilation and domestic violence, as sufficient grounds for asylum.8 Courts have also been more willing to recognize persecution based on sexual identity. Since Toboso-Alfonso there have been more than half a dozen precedential lesbian, gay, bisexual, transgender and/or HIV-positive (“LGBT/H”) asylum cases.9

Although those who identify as transgender have not been explicitly found to be considered members of a particular social group, courts have recognized that gay men with female sexual identities constitute a social group and may be persecuted based on this identity.10 While there has been no precedential decision recognizing women with male sexual identities as members of a social group, there have been numerous successful, non-precedential claims based on this ground.

Another significant ruling for LGBT/H people considers the intent of the person or persons who commit the persecution. Generally in asylum cases, the persecutor intends harm to the victim, however, courts have acknowledged that persecution can occur even when the persecutor has no intention to harm the victim, such as when a gay person is subjected to electroshock therapy to “cure” her sexual orientation.11

Persons living with HIV and/or AIDS face harsh and discriminatory policies when attempting to immigrate to the United States. Their entry as legal immigrants is barred unless they are legally married to, are the parent of, or are the unmarried son or daughter or lawfully adopted child of a U.S. citizen or legal permanent resident. For the purposes of asylum, however, there is the possibility that people facing HIV persecution in their own country may be considered members of a particular social group. In 1996, the Immigration and Naturalization Service (INS) Office of General Counsel issued a memorandum which recommended that the INS and the Executive Office for Immigration Review (EOIR) should grant asylum based on the social group category of HIV-positive individuals, assuming that the applicant in question meets all of the other elements required for asylum.12 Although there are no precedential cases which recognize HIV status as creating membership in a particular social group, asylum has been granted in some cases where HIV persecution was an essential element of the application.13

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which generally restricted access to asylum protection and greatly hindered the ability to obtain asylum status on the basis of sexual orientation. This legislation created additional bars to asylum, the most restrictive of which was the one year filing deadline. In order to be granted asylum, an applicant must file for asylum within one year of his or her arrival in the United States. This deadline has created unique hardships for LGBT/H asylum seekers because they are often unaware that their sexual orientation, gender identity, or HIV status can form the basis of an asylum claim and, are often afraid to disclose these intimate aspects of their identity to a government official given the persecution they faced in their own country.14

In May 2005, Congress passed the Real ID Act which imposes further limitations on the asylum process.15 Under the revised law, asylum seekers must provide documents to corroborate their claims unless they can demonstrate to the adjudicator why the documents are unavailable or why the applicant cannot obtain them. The Real ID Act also makes it easier for an adjudicator to deny a claim based on lack of credibility by the asylum seeker. Now, if an asylum seeker makes an inconsistent statement, even if the statement is not directly related to the substance of the claim, the application can be denied on credibility grounds. An applicant also must now demonstrate that his or her protected characteristic was “at least one central reason” behind the persecutor’s actions. It remains to be seen whether adjudicators will see the Real ID Act as a codification of existing case law, or whether they will apply a stricter standard to cases filed after May 2005.

In recent years there have been several precedential cases from federal Courts of Appeals on LGBT/H asylum cases.16 LGBT/H status-based asylum law is an exciting and developing area of the law. As LGBT/H immigrants struggle for equality under U.S. immigration law, asylum continues to be one of the few areas of immigration law where the U.S. government gives LGBT/H foreign nationals the opportunity to begin a new and freer life in the United States.