March 6, 2020
Since the early 1990’s, LGBTQ has been recognized as a legitimate social group eligible for asylum protection under the Immigration and Nationality Act. Therefore, in the face of persecution, an applicant may qualify for asylum or refugee status, provided they are able to establish that the persecution suffered or feared was or will be motivated as a result of his or her actual or perceived status as a member of the LGBTQ social group. This article provides information on the factors considered when determining whether or not an applicant qualifies for asylum.
Defining Membership of the LGBTQ Social Group
In order to be considered as a protected class in American asylum law, a connection, or a nexus, must exist between the harm suffered and a protected characteristic for which the asylum applicant has been persecuted. Nexus analysis first requires consideration of whether the persecutor perceives the applicant to possess a protected characteristic. In other words, is the person or group giving the individual cause to fear persecution doing so because they believe the asylum applicant LGBTQ? In order to establish the cause of persecution, we must identify the characteristics the persecutor perceives. What have they said about the individual in question, or about individuals similar to the applicant?
Individuals who possess or are assumed to possess protected characteristics may:
Identify as gay or lesbian
Be viewed as a sexual minority, regardless of whether the persecutor or society involved distinguishes between sexual orientation, gender, and sex.
Be transgender (note that even if a transgender applicant identifies as heterosexual, he or she may be perceived as gay or lesbian)
Be “closeted” gays and lesbians
Test positive for HIV, regardless of sexual orientation
Be viewed as effeminate or masculine but identify as heterosexual
Not actually be gay but are thought to be gay by others
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