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
Another issue having to do with identifying whether a persecutor perceives an applicant to be LGBTQ is social visibility. Are the actual or imputed characteristics “easily recognizable and understood by others to constitute a social group?” The characteristics do not necessarily need to be visible to the eye, rather we must consider whether or not the social society in question distinguishes individuals who share certain traits from those who do not. For example, information about discriminatory attitudes or behaviors toward sexual minorities would qualify as social visibility.
Persecutor’s Motive and Applicant’s Experience
To qualify for asylum, an applicant must demonstrate that the persecutor seeks to harm the him/her based on their perceived or actual sexual orientation. In some situations, this may even mean the persecutor wanting to “cure” the applicant for his or her sexual orientation or gender identity. Furthermore, the persecutor may not even distinguish the applicant as specifically being LGBTQ, but simply see them as being “outside the norm.”
The applicant must provide evidence that the persecutor is motivated to cause them harm because of their sexual identity. Such evidence may include:
- What the persecutor said or did to the applicant
- What they said or did to others similar to the applicant
- The context of the act of persecution (for example, if the applicant was attacked in a gay bar holding hands with a same-sex partner)
- Reliable evidence of the applicant’s country of origin that corroborates testimony
The U.S. Supreme Court identifies intimate sexual activity between consenting adults as constitutionally protected activity. Therefore, punishing sexual activity between consenting adults of the same sex is tantamount to punishing a person simply for being gay. If a law exists in another country that prohibits such activity, enforcement of that law may result in persecution, not simply prosecution, in the eyes of the U.S. Supreme Court. As with other kinds of refugee/asylum claims, no malignant intent is required on the part of the persecutor, as long as the applicant experiences the abuse as harm.
Persecution and Eligibility Based on Past Persecution
As in the instance of any other protection case, we consider whether the harm rises to the level of persecution, and whether the persecutor the government or an individual/entity from which the government is unable or unwilling to provide reasonable protection.
Does the harm rise to the level of persecution? The following is a list of types of harm that can qualify as persecution against sexual minorities:
- Violation of fundamental rights, such as being compelled by the state to abandon or conceal one’s sexual orientation/gender identity
- Rape and Sexual Violence
- Beatings, Torture, and Inhumane Treatment
- Forced Medical Treatment
- Forced Psychiatric Treatment or Other Efforts to “Cure” Homosexuality
- Discrimination, Harassment, and Economic Harm
- Forced Marriage
- Gender-Based Mistreatment
- Criminal Penalties. In some countries, while there are no official laws put in place that prohibit homosexuality, the authorities will still exercise punishment against people because of their sexual orientation.
Is the agent of persecution government or nongovernment? In either case, the applicant can qualify for asylum if it’s clear that the government will not provide reasonable protection. Governmental agents include police, military, or militia, while non-governmental agents can include family, relatives, neighbors, and other community members.
In some cases when asylum has been withheld from an applicant, the issue is not lack of proof of abuse, but lack of evidence that the government wouldn’t intervene. The belief that an applicant’s government will not protect them isn’t enough, they must be able to demonstrate their government’s failure to act.
Well Founded Fear
In some cases, the applicant has not experienced past persecution, but has good reason to fear the possibility of persecution. To establish well-founded fear of future persecution, the applicant must have a subjectively genuine fear and an objectively reasonable fear of returning to their country of origin. In other words, the applicant must be able to demonstrate a true fear of the potential to be persecuted in their home country, as well as good reason to believe that they would be persecuted should they go back.
It’s important to note that the existence of certain objective elements will not necessarily undermine the applicant’s subjective fear or credibility. For example, just because a government permits LGBTQ organizations to exist, doesn’t mean that LGBTQ people are free from ongoing violence and harm in that country. Sometimes there are even anti-discrimination laws in place, but not truly enforced. In addition, there are some cases in which LGBTQ applicants who were forced to conceal their sexual orientation in their home countries have yet experienced persecution first hand. These applicants only need to show that the persecutor might become aware of their sexual orientation if they were to return.
A sur place claim for refugee status may arise as a consequence of events that have occurred in the applicant’s country of origin since his or her departure, as a consequence of the applicant’s activities since leaving, or say, if a family member revealed their sexual identity while they were gone.
An applicant may have left for reasons other than sexual identity, such as those who come to the United States in pursuit of a job or an educational opportunity. These applicants may still qualify for asylum if they can demonstrate a well-founded fear of future persecution.
Seeking asylum from persecution related to an individual’s sexual orientation can be a complicated sensitive process, due to the many factors taken into consideration. However, it is our intention to support qualifying individuals achieve their goals and receive the help they need. For more information, explore other immigration articles related to asylum, or contact us directly.