Detailed Table of Contents

4 Immigration Basics –  Precedential LGBT/H Asylum Cases

With asylum cases in general, and LGBT/H cases in particular, there is not that much precedent that exists.  The vast majority of cases are decided without any written opinion at the Asylum Office level.  Even cases that go before Immigration Judges are mostly decided by oral opinion which is only transcribed if a party appeals.  In any event, decisions by Asylum Officers and Immigration Judges do not have precedential value.

Similarly, the vast majority of BIA decisions are unpublished.  To date there has been only one precedential LGBT/H BIA decision.  In recent years, there has been an increasing number of LGBT/H decisions in the federal Courts of Appeals.

The following is a complete list of LGBT/H asylum cases as of the date of publication of this Manual.

Matter of Toboso-Alfonso 20 I&N Dec. 819 (BIA 1994) (pdf) –- (B.I.A. 1990) -- the original case, designated as precedent in 1994, which established sexual orientation as “membership in a particular social group” and paved the way for asylum based on sexual orientation.  Toboso-Alfonso was a gay man from Cuba who suffered various abuses at the hands of his government, including being forced to participate in a labor camp.

Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997) (pdf) -- finding that even if the abuser does not intend harm to the victim, if the victim experiences the abuse as harm, this can rise to the level of persecution.  In this case, the applicant was a lesbian from Russia who, among other abuses, had been forced to undergo electroshock therapy to “cure” her of her homosexuality

Hernandez-Montiel v. INS, 225 F.3d 1088 (9th Cir. 2000) (pdf)  -- finding that a gay man with a female sexual identity who suffered persecution in Mexico, largely because he was effeminate, qualified for asylum.

Amanfi v. Ashcroft, 328 F.3d 719 (3rd Cir. 2003) (pdf) -- finding that it is possible to proceed with an asylum claim based on persecution on account of imputed membership in a particular social group, in this case sexual orientation, even if the applicant is not actually gay.  In this case the applicant, a man from Ghana who feared he would be ritually sacrificed, engaged in a homosexual act with another man, knowing that this would lead to his being spared the sacrifice.  After he was spared, however, he was mistreated because the authorities believed he was gay.  The Court recognized his imputed membership in a particular social group and remanded the case for further investigation on his claim of persecution.

Gebremaria v. Ashcroft 378 F.3d 734 (8th Cir. 2004) (pdf) -- motion to reopen based on feared persecution by HIV-positive Ethiopian woman denied becasue she knew of her HIV-positive status at the time of the original hearing and did not raise the issue.

Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004) (pdf) -- reaffirming that a “gay man with a female sexual identity” belongs to a particular social group, and finding that if a government willfully turns a blind eye to severe physical abuse inflicted by non-government actors this can rise to the level of government acquiescence in torture so as to qualify for relief under the Convention Against Torture treaty.  In this case Reyes-Reyes was a gay man with a female sexual identity from El Salvador who had been kidnapped, beaten and raped by non-government actors because of his sexual orientation.  The Court remanded for further proceedings on his CAT and withholding claims.

Molathwa v. Ashcroft, 390 F.3d 551 (8th Cir. 2004) (pdf) -- holding that the federal court lacked jurisdiction to review his claimed exception to the one year filing deadline for asylum and that Molathwa had failed to demonstrate that it was more likely than not that he would be persecuted because of his gay sexual orientation in his native Botswana.

Galicia v. Ashcroft, 396 F.3d 446 (1st Cir. 2005) (pdf)  -- denying a gay Guatemalan man’s petition for review because he failed to show government involvement or lack of protection from past mistreatment he suffered by his neighbors

Karouni v. Gonzales, 399 F.3d 1163  (pdf) (9th Cir. 2005) (pdf) -- holding unequivocally that “all alien homosexuals are members of a 'particular social group'" and finding that Karouni, a gay HIV positive man from Lebanon, had established a well founded fear of future persecution.
Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005) (pdf) -- holding that a gay Mexican man with AIDS who was sexually and physically abused by a Mexican police officer was statutorily eligible for asylum.  The case also contains good language about the applicant's HIV status making internal relocation within Mexico impossible, as well as good language that return trips to the home country alone do not render an applicant ineligible for asylum.

Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005) (pdf) -- holding that a gay Mexican man with AIDS who was sexually and physically abused by a Mexican police officer was statutorily eligible for asylum.  The case also contains good language about the applicant's HIV status making internal relocation within Mexico impossible, as well as good language that return trips to the home country alone do not render an applicant ineligible for asylum.

Salkeld v. Gonzales, 420 F.3d 804 (8th Cir. 2005) (pdf) -- holding that gay man from Peru who did not personally suffer past persecution and who did not meet a one year filing deadline exception, failed to prove a clear probability of future persecution and therefore did not meet the standard for withholding of removal. The Court found it significant that Salkeld himself had never experienced physical violence, there are no laws against homosexuality in Peru, and there are some regions in Peru which are relatively safer for gay people than others.

Kimumwe v. Gonzales, 431 F.3d 319 (8th Cir. 2005) (pdf) -- terrible decision (with good dissent) holding that a gay man from Zimbabwe had not established past persecution although, among other things, he was jailed without charges for two months after having sex with another man at college.  The Court found that he was jailed because of sexual misconduct, not homosexual identity.  The Court also found that in spite of Mugabe's statements that homosexuals have no rights, and Zimbabwe's poor record on human rights, that Kimumwe had failed to prove a fear of future persecution.

Ornelas Chavez v. Gonzalez, 458 F.3d 1052 (9th Cir. 2006) (pdf) -- withholding of Removal and Convention against Torture decision remanding the case of a transgender woman from Mexico who suffered abuse from family and coworkers, because the Immigration Judge applied an impermissibly strict legal standard to both claims. The circuit court found that reporting past abuse to police was not a requirement for withholding of removal, and that the legal standard for CAT relief was not that the abuse was sanctioned by government official but that it occurred by their “consent or acquiescence” or “willful blindness.”

Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d. Cir. 2007) (pdf) -- terrible decision finding that in spite of the clear regulatory language that the one year filing deadline is calculated from the last date of entry, this applicant who applied within one year of entering the U.S. after receiving advance parole was untimely.  Worse still, the 2nd Circuit upholds the immigraiton judge's holding that Joaquin-Porras, a gay man from Costa Rica, did not suffer past persecution when he was raped by a police officer, but rather suffered a random act of violence by a corrupt officer and that an incident during his last visit to Costa Rica during which he was detained by the police and forced to pay a bribe did not rise to the level of persecution.  This case serves as a cautionary tale that bad facts make bad law.  Joaquin-Porras had obtained advance parole through a fraudulent marriage which may have predisposed the courts against him, and State Department reports for Costa Rica show it to be a more tolerant country than others in Latin America.

Morales v. Gonzalez, 472 F.3d 689 (9th Cir. 2007) (pdf) -- Asylum decision remanding the case of a transgender woman from Mexico whose case had been denied because the IJ improperly found her misdemeanor conviction to be a crime of moral turpitude rendering her ineligible for asylum or withholding of removal. The Circuit Court found that the IJ erred in denying her Convention against Torture claim by ignoring “willful blindness” on the part of government officials, and found that suffering sexual assault in prison under the watch of prison guards met the legal standard for CAT relief.

Nabuwala v. Gonzales, 481 F.3d 1115 (8th Cir. 2007) (pdf) -- good decision from the 8th Circuit, noting that the government's unwillingness or inability to control a private actor may apply in a lesbian asylum case.  The Court also reprimands the BIA for erroneously making a finding of fact on that issue, and remands.

Shahinaj v. Gonzales, 481 F.3d 1027 (8th Cir. 2007) (pdf) -- another good decision from the 8th Circuit finding that an Immigration Judge's findings that a gay applicant from Albania was not credible because his mannerisms and speech did not indicate that he was homosexual, and because he had not reported instances of abuse to the authorities or an LGBT rights organization, were clearly erroneous and tainted the entire decision.  The case was remanded with an advisement that it should be referred to a different immigration judge.

Lavira v. Att’y Gen of U.S., 478 F.3d 158 (3d. Cir. 2007) (pdf) --  good Convention against Torture decision finding that an HIV-positive, pro-Aristide, double amputee who would face imprisonment  under atrocious conditions in Haiti had proven that it was more likely than not that he would face torture because of his specific, severe circumstances. (Note this case may no longer be good law.)

Moab v. Gonzales, 500 F.3d 656 (7th Cir. 2007) (pdf) -- good asylum decision remanding the case of a gay man from Liberia whose application had been denied because the judge and BIA found that his claim had become "increasingly egregious."  Court found it reasonable that he would not disclose sexual orientation at airport credible fear interview and remanded for further proceedings.

Jean-Pierre v. US Attorney General, 500 F.3d 1315 (11th Cir. 2007) (pdf) -- Good Convention against Torture decision finding that an HIV-positive man who faced imprisonment in Haiti had proven that he would be singled out for abuse amounting to torture by prison guards because of his AIDS-related mental illness.

Ixtlilco-Morales v. Keisler, 507 F.3d 651 (8th Cir. 2007) (pdf) -- Denying asylum to a gay man from Mexico because the abuse he suffered at the hands of his family as a child did not rise to the level of past persecution and his age was a changed circumstance rebutting his fear of future persecution. The circuit court also upheld the BIA’s finding that attacks against gay men and HIV-positive individuals in Mexico were not widespread enough to constitute a well-founded fear of persecution.

Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008) (pdf) -- withholding of removal case denying claim by Nigerian man who claims to be gay.  Denial is based on applicant's credibility -- he made contradictory statements about fathering children and being married and in no way corroborated his homosexuality.  Good dicta however, accepting IJ's acknowledgement that there is a pattern and practice of persecution against gay people.

Bosede v. Mukasey, 512 F.3d 946 (7th Cir. 2008) (pdf) -- Withholding of Removal decision remanding the case of an HIV-positive man from Nigeria who faced imprisonment and torture if deported due to his drug convictions in the United States and HIV status.  The circuit court remanded the case to a different Immigration Judge, finding that the IJ in this case “cared little about the evidence” that the petitioner would be imprisoned and be tortured and had suggested that petitioner bribe Nigerian officials to get out of jail.

Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir. 2008) (pdf) -- good case finding that there is a pattern and practice of persecution against homosexuals in Jamaica.  The court remanded the case to determine whether the persecution meets the heightened standard for withholding of removal.  This is the only published gay case to find a pattern and practice of persecution against gay people.

Kadri v. Mukasey, 543 F.3d 16 (1st Cir. 2008) (pdf) -- good case remanding the asylum claim by a gay Indonesian man for the BIA to articulate the standard for economic persecution.  Kadri had been unable to make a living as a medical doctor and the IJ had granted asylum, the BIA reversed without having explained what standard it used.

Razkane v. Holder, 562 F.3d 1283 (10th Cir. 2008) (pdf) -- good decision which reversed and remanded a decision that relied on gay stereotypes in order to prove that a Moroccan man did not appear gay enough for persecution to occur.  The lower court immigration judge relied on the fact that a gay Moroccan man did not appear to adhere to homosexual stereotypes as the basis on which it denied him withholding of removal.  This court reversed the case, stating that the stereotyping prevented meaningful review of the case.

Ali v. Mukasey, 529 F.3d 478 (2nd Cir. 2008) (pdf) -- good decision which remanded a decision due to a judge’s reliance on offensive homosexual stereotypes.  When a gay Guyanese man made a CAT claim based upon his status as a criminal deportee and homosexual, the lower court immigration judge stated that “violent dangerous criminals and feminine contemptible homosexuals are not usually considered to be the same people” as a basis of proving that evidence for one status contradicted evidence for the other and therefore weakened his claim.  This was only one of several homosexual stereotypes that the judge relied upon, resulting in his review being determined to be so grounded in bias or hostility such that it could not be granted meaningful review.

Manini v. Filip F.3d, 2009 U.S. App. LEXIS 1980 (8th Cir. 2009) (pdf) -- denial of asylum to HIV-positive Kenyan woman is upheld.  Manini entered the U.S. in October 2001, was diagnosed with HIV in January 2003 and filed for asylum in May 2004.  Although the Chicago asylum office found that there was a “changed circumstance” it also found that the 16 month delay in filing after her HIV diagnosis was not a “reasonable period of time.”  The BIA upheld and the 8th Circuit found that it lacked jurisdiction to review the one year issue since there was not a constitutional or question of law raised.  The federal court upheld the IJ and BIA’s findings that she did not meet the higher withholding standard because “has not shown a clear probability that the Kenyan government, or private actors that the Kenyan government is unable or unwilling to control, would deliberately deprive her of access to life-saving medical care. Nor has Manani shown that any inadequacies in Kenya's health care system result from an effort to persecute persons diagnosed with HIV.”  The silver lining in the case is that it implicitly accepts HIV as a particular social group and accepts an HIV diagnosis as a changed circumstance.

Martinez v. Holder, 557 F.3d 1059 (9th Cir. 2009) (pdf)–- a bad decision which found that an asylum applicant from Guatemala who initially made a false claim based on political opinion was not credible in the sexual orientation-based claim he subsequently put forth.  He added his sexual orientation-based claim very soon after homosexuality was first acknowledged as a valid basis for asylum.  The effect of the majority basically establishes that an initial lie renders any supplemental claim not credible.  There was also a good dissent about fear of sexuality-based persecution possibly being the reason why one pursuing asylum based on one’s sexuality would initially withhold that information from immigration officials.

Pangilinan v Holder, 2009 WL 1508761, (9th Cir. June 1, 2009) (pdf) -- a good case that protected an immigrant representing herself pro se in asylum and Convention Against Torture claims.  The case remanded an immigration judge’s case because a Filipino transsexual woman representing herself pro se had her right to due process violated when she was simply asked if she had “anything to add in support of [her] claim” instead of being probed about the details and facts of her case.  She was not given the chance to describe the past persecution she faced as a transgender person as support for her asylum and CAT claims.  Since many immigrants representing themselves pro se lack a comprehensive knowledge about immigration law, and their failure to do so can result in removal, immigration judges have a duty to inquire about all the relevant facts.

This Manual is intended to provide information to attorneys and accredited representatives. It is not intended as legal advice. Asylum seekers should speak with qualified attorneys before applying.