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Sexual Orientation as a Social Group

Introduction 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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Asylum Seekers

U.S. Asylum Law U.S. asylum law is made up of several different legal authorities, including U.S. immigration statutes and regulations, federal case law and international treaties and conventions.  People who are outside of the United States may apply for refugee protection under the United Nations Protocol, to which U.S. is a signatory.  People who have arrived in the U.S. or are physically inside the country may apply for asylum protection. In order to qualify for asylum protection, an individual must meet the basic definition of a refugee: [A]ny 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 avail himself or herself of the protection of that country because of persecution or wellfounded fear of persecution on account of race, religion, nationality, membership in particular social group, or political opinion. Persecution What does it mean to be persecuted? The word itself is not specifically defined in the rules and regulations but through case law the courts have found that persecution exists in the following situations: Serious violations of basic human rights Target of persistent death threats and threats to property and business Severe economic deprivation that threatens an individual's life or freedom, or cumulative forms of discrimination or harassment rising to the level of persecution Violation of one's fundamental beliefs In certain circumstances, physical harm to others, such as close family members The persecutor must be either the government or a group of individuals that the government is unable or unwilling to control.  In cases where the persecutor is not a state actor, an adjudicator will consider the efforts made to inform the government of threats or attacks, as well as governmental efforts to prosecute similar harm.

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