Asylum Based on Sexual Orientation

​The United States has recognized asylum claims based upon sexual orientation since 1994. In this article, we will specifically cover asylum based on sexual orientation such as homosexuality and bisexuality. Still, asylum based on gender identity exists as well, and is a topic that will be covered in the following article. The asylum lawyers at Benach Collopy have been at the forefront of expanding opportunities for LGBTQ immigrants in the U.S. and have obtained asylum for scores of people.

Overview

Homosexuality is criminalized in 69 countries and 11 of those countries impose the death penalty if convicted. As a result, the U.S. is seen as a haven for homosexual, lesbian, and bisexual individuals who would otherwise face significant oppression. Currently, an asylum applicant must demonstrate that they have suffered past persecution or have a reasonable fear of persecution based on either race, religion, nationality, membership in a particular social group, or political opinion. Claims based on sexual orientation are categorized under “membership in a particular social group.”

Brief History

Asylum based on sexual orientation was first established under the Matter of Toboso-Alfonso in 1990, a gay man from Cuba who suffered abuse from the government because of his sexual orientation. In that case, the Board of Immigration Appeals granted Toboso-Alonsoasylum because of a well-founded fear of persecution due to his sexual orientation.  In 1994, this decision was designated as precedent, binding the immigration courts to follow its decision andopening the door to approval of asylum claims based on sexuality.

Claims based on sexual orientation are not limited to fear of persecution from the government of a claimant’s country of origin. For example, the case Reyes-Reyes v. Ashcroft in 2004 dealt with a gay man who had been tortured by non-government actors due to his sexual orientation, and he was granted asylum as a result.  Where the government is unable or unwilling to protect LGBTQ people from persecution, asylum may be granted.

In the case Karouni v. Gonzales (2005), it was found that “all alien homosexuals are a ‘member of a particular social group’”. This decision firmly established that if a homosexual claimant could prove either past persecution or a well-founded fear of persecution on account of their sexual orientation, their asylum application could be granted, as it had now been established as precedent that homosexuality was qualified for asylum applications under one of the five groups.

Significance

​Due to the immense persecution, discrimination, and violence faced by members of the LGBTQ+ community, claimants that demonstrate fear of persecution based on sexual orientation are frequently granted asylum. In addition, a large percentage of initial screening interviews known as credible fear and reasonable fear interviews involving LGBTQ+ claimants result in a positive determination.

Benach Collopy.  Of the Community. For the Community.  

The asylum lawyers at Benach Collopy has a long history of assisting LGBTQ+ asylum applicants and obtaining asylum for persons who have a fear of returning to their country of origin. Advocacy on behalf of our LGBTQ+ clientele is an essential part of Benach Collopy’s work and mission. Our team is ready to assist potential clients with asylum claims regarding sexual orientation, please reach out to us at 202-644-8600 with any questions.