Asylum is a form of relief from removal that is granted if a person is able to prove that he or she will be harmed on return to their native country. The applicant must file the application (Form I-589) within one year of their entry into the U.S., whether they enter legally or not. The person must prove that they belong to one or more of several groups facing harm, on the basis of political opinion, nationality, or membership in a particular social group or religion. The individual must prove that he or she has suffered past persecution or has a well-founded fear of future persecution.. Asylum is an evolving area of immigration law and an application that may not have been granted a few years ago may, in fact, be approved now.
A member of a particular social group (“PSG”) is someone who has a characteristic or trait that is immutable (cannot or should not be changed). Sexual orientation is now considered an immutable trait and, if an applicant can demonstrate that he or she has been persecuted or have a well-founded fear of future persecution because of how they identify, asylum can be approved by either an asylum officer or an immigration court.
The Ninth Circuit Court of Appeals found that “gay men with female sexual identities” in Mexico were a PSG and granted asylum. Hernandez-Montiel v. INS, (9th Circuit, 1999). Mr. Hernandez-Montiel suffered harassment in school from the age of eight years, as well as sexual assault by police officers who encountered him dressed as a woman.
In Karouni v. Gonzales (Ninth Circuit, 2005), the appeals court found that homosexuals in Lebanon were a PSG since the state and local governments there “attempt to curb homosexual conduct through oppressive state action.” Mr. Karouni had friends who were beaten, shot, and tortured in an attempt to either “reform” them into heterosexual men or kill them.
In Kadri v. Mukasey, (First Circuit, 2008), the court found that Dr. Kadri, a licensed medical doctor in Indonesia, was denied employment because of his homosexuality and that such denial constituted persecution.
In Ayala v. U.S. Attorney General (11th Circuit, 2010), the court found that Mr. Ayala had proven that he was persecuted in the past by his family, employers, and was sexually assaulted by police officers in Venezuela because of his sexual orientation and HIV status.
In Nabulwala v. Gonzales (Eigth Circuit, 2007), the court found that Ms. Nabulwala had proven that she was a lesbian in Uganda who had experienced rape at the instigation of family members in an effort to change her sexuality, as well as hospitalization after being attacked while at a meeting of a group that supported gay rights.
In Avendano-Hernandez v. Lynch, (Ninth Circuit, 2015), the court found that a trans woman was persecuted in Mexico in the past and faced future persecution based on her perceived sexual orientation and gender identity by police and military officers. It is interesting that the Ninth Circuit used the proper pronouns (she/her), while the Immigration Court and the Board of Immigration Appeals referred to Ms. Avendano-Hernandez as “he/him.” The Ninth Circuit pointed out the irony of the use of improper pronouns while finding that she had not been persecuted based on her trans identity in Mexico.
These are some of the court decisions finding that an LGBT applicant had proven his or her PSG status and he or she had been persecuted in the past or had a well-founded fear of future persecution based on their PSG status. I would caution any applicant to be truthful and forthcoming; a finding that the application for asylum is fraudulent results in a lifetime ban to eligibility for any immigration benefit.
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