LGBT Asylum

In 1994, Attorney General Janet Reno declared as precedent the Matter of Toboso-Alfonso case in which a gay Cuban man was found to be eligible for withholding of removal on the basis of his membership in the PSG of homosexuals. This case was pivotal in establishing that a well-founded fear of persecution on the basis of one's sexual orientation is a valid basis on which to claim asylum status in the United States. The Ninth Circuit Court of Appeals followed up in 1997 with a decision recognizing a lesbian from Russia as belonging to a PSG for asylum purposes. The recognition of this basis for asylum is in accord with other countries which have granted asylum to gay and lesbian refugees.

In the years after Matter of Toboso-Alfonso, courts have employed a more expansive definition of what qualifies for asylum.Courts have also been more willing to recognize persecution based on sexual identity. Since Toboso-Alfonso there have been more than half a dozen precedential lesbian, gay, bisexual, transgender, queer, and/or HIV-positive ("LGBTQ/H") asylum cases.

Although those who identify as transgender have not been explicitly found to be considered members of a PSG for asylum purposes, courts have recognized that "gay men with female sexual identities" (problematic as this formulation may be) constitute a social group and may be persecuted based on this identity. While there has been no precedential decision recognizing women with male sexual identities as members of a social group, there have been numerous successful, non-precedential claims based on this ground.

Another significant ruling for LGBTQ/H people considers the intent of the person or persons who commit the persecution. Generally in asylum cases, the persecutor intends harm to the victim, however, courts have acknowledged that persecution can occur even when the persecutor has no intention to harm the victim, such as when a gay person is subjected to electroshock therapy to "cure" her sexual orientation.

Important: There is a one-year deadline after entry to the U.S. for applying for asylum. You can still apply after that time, but it becomes harder to win your claim.