If you are present in the United States and meet the definition of a refugee, you can be granted asylum. An asylum applicant must show that they face a serious risk of persecution in their home country and that the persecution is motivated by one of five protected grounds: race, nationality, religion, political opinion, or membership in a particular social group. Whether persecution exists is determined on a case-by-case basis. Generally, persecution includes any of the following: (1) serious physical harm, (2) coercive psychological or medical treatment, (3) disproportionate punishment for a crime, (4) severe economic persecution or discrimination, and (5) robbery or severe criminal extortion.
Your refugee status can be based on your membership in a particular social group, such as a group based on sexual orientation or gender identity. The statute doesn't define what constitutes belonging in a particular social group, but generally, a social group is one that shares a common and immutable characteristic that the group can't or shouldn't have to change. This area of law is still developing.
Types of Persecution Relevant in LGBTQ+ Asylum Cases
Individuals may apply for asylum either from within or outside the U.S., but the process differs.
The most commonly recognized type of persecution is serious physical harm. This can include the rape and beating of an LGBTQ+ individual due to sexual orientation or gender identity. It is not uncommon for LGBTQ+ individuals to be raped or sexually assaulted due to their sexual orientations or gender identities. However, prohibition of homosexual acts in a country's criminal codes and threats of violence alone are rarely considered persecution, unless it can be shown that a group is making these threats and has the interest and ability to carry them out.
Harassment and discrimination are not considered persecution in most cases. Discrimination only rises to the level of persecution if the discriminatory measures result in substantially prejudicial consequences for the refugee. For example, these might include restrictions on the right to earn some type of livelihood or the right to practice one’s religion. When discrimination is cumulative and increases in severity, it is more likely to be considered persecution.
Asylum adjudications turn on Section 208 of the Immigration and Nationality Act (INA). Although the Supreme Court's rulings would be binding on those who decide these cases (e.g., adjudicators, federal courts, the Board of Immigration Appeals, immigration judges and asylum officers), there have been no Supreme Court rulings related to LGBTQ+ asylum cases.
Two laws have presented obstacles to claiming asylum status on the basis of sexual orientation: the 1996 Illegal Immigration Reform and Immigration Responsibility Act and the Real ID Act. The former requires applicants to file for asylum within one year of arriving in the United States, which can create an impediment to someone who is either unaware that gender identity or sexual orientation can be the basis for asylum, or who is afraid to tell the government about their identity. The latter statute requires asylum seekers to provide documentary proof related to their claims.
Burden of Proof
Asylum applicants bear the burden of proving that they are eligible for asylum and must present evidence to support their claims.
The first issue that you will need to prove in an asylum claim based on sexual orientation is that you are lesbian, bisexual, or gay. Proof could include letters or testimony from past romantic partners and evidence of involvement in LGBTQ+ organizations, as well as your own testimony. Marriage to someone of the opposite sex is not necessarily fatal to a sexual orientation-based application, but presents a fact-sensitive question. However, the more committed and enduring a marriage appears to be (such as when the relationship has produced children), the more in-depth explanation you will have to give, and testimony from a psychologist or psychiatrist may also be necessary.
In most asylum cases, and particularly with regard to LGBTQ+ cases, there isn't a significant amount of legal precedent that claimants can rely upon. Many cases are decided without written opinions. However, there have been more decisions in the federal Courts of Appeal, and this area of law is rapidly developing.