5. Asylum

Under U.S. immigration law, individuals who are fleeing persecution in their home countries may be granted refugee or asylum status in the United States.

To comply with international law, most developed countries give some kind of status to those who would face harm at the hands of their governments at home. For those who apply from within the United States, the status is called “asylum,” and for those who apply from abroad, it is called “refugee.” This chapter will focus on asylum. Transgender asylum-seekers have had a great deal of success in bringing claims for protection. This chapter will cover the basics of asylum law with a focus on the special issues affecting transgender applicants. 1

5.1 Benefits and Limitations of Asylum Status

Asylum is a very good status to have under U.S. immigration law. Asylees are permitted to apply for lawful permanent resident (LPR) status one year after winning asylum status in the United States. 2 Four years after obtaining LPR status, the asylee can apply to naturalize to become a U.S. citizen (USC). 3 Asylees are permitted to work lawfully in the United States without being required to have a valid employment authorization document (EAD). 4 They also receive “unrestricted” Social Security cards from the Social Security Administration, meaning, they can work lawfully without needing an EAD. 5

As a general premise of U.S. immigration law, once an individual has fallen out of lawful status, he or she generally cannot make an application from within the United States to get back into lawful status. However, the Immigration and Nationality Act (INA) carves out a major exception for asylum-seekers. 6 Thus, the fact that the asylum applicant has overstayed a visa or has entered the country without inspection (for example, by crossing the Mexican border) will not preclude a grant of asylum. Counselors should be aware, however, that some forms of entry—such as using a fake passport—will not hurt an asylum application, but will require a special waiver when the asylee applies for LPR status. 7

Nonetheless, there are limitations imposed by asylee status. Since the grant of asylum is based on the asylee’s fear of his or her government and of being returned to the home country, asylees are not permitted to travel back to their country of origin; doing so could cause the asylee status to be revoked. 8 Likewise, the asylee is not permitted to seek any protections or benefits from the home country, so once he or she applies for asylum, there should be no attempt to renew the passport from the home country. Thus, if an asylee or LPR who was formerly an asylee wishes to travel internationally, he or she must first obtain a Refugee Travel Document. 9

Practice Tip: You should be wary of an asylum-seeker who is very disturbed by the inability to return to the home country. Of course, it is natural for the applicant to want to visit with family in the future, but if the applicant does not seem genuinely afraid of returning home, it may not be appropriate to file for asylum.

5.2 Process of Applying for Asylum

Asylum is a complex area of the law and it is important that applicants are represented by qualified counsel in order to submit the strongest possible application. The possibility of winning declines with each step in the litigation process, so it is essential to prepare a strong application from the beginning.

5.2.1  Affirmative Application

An applicant may apply affirmatively for asylum, meaning that the applicant submits an asylum application, Form I-589, 10 with U.S. Citizenship and Immigration Services (USCIS) and gets scheduled for an interview with an asylum officer. There are eight asylum offices throughout the United States. Asylum interviews are generally scheduled within six weeks of submission of the application, although there may be a delay in scheduling the interview if the applicant lives far from an asylum office and has to wait for an asylum officer to “ride circuit” in that geographic region.

Interviews with asylum officers are nonadversarial 11 and informal, taking place in the office of the asylum officer. Although each asylum officer will have his or her own individual style, in general, the officer will ask the applicant many of the same questions that are contained in the asylum application—one’s purpose for seeking asylum, kinds of harm suffered in the country, how and when one first came to realize being transgender and express this identity, and what one thinks will happen if forced to return to the home country. The interview generally lasts between one and two hours. Since the interview is nonadversarial, the attorney plays a limited role, commonly only asking questions about any significant incidents that the officer failed to elicit and making a closing statement at the end. 12

Asylum officers receive special training in conducting interviews with individuals who have fled persecution. Most asylum officers are very professional and respectful. In the rare instance where you as an attorney feel that an asylum officer is asking inappropriate questions, or displaying a transphobic attitude, you should halt the interview and ask to speak to a supervisor immediately.

Practice Tip: In some asylum offices, the officers do not receive the asylum application packet until the morning of the interview. Do not be disturbed if you have submitted voluminous materials on your client’s behalf and it seems as if the officer has barely looked at them; he or she probably hasn’t. The most important function of the asylum interview is for the officer to assess your client’s credibility. The officer will go back and review all the documents as he or she prepares the decision in the case.

The officer will explain to the applicant that he or she must return to the asylum office two weeks after the interview to pick up the decision. There are three possible outcomes: Recommended Approval, Notice of Intent to Deny, or a Notice to Appear initiating removal proceedings in immigration court.

Sometimes the decision is not ready after two weeks and the asylum office will either call the attorney before the scheduled pick-up date to state that it will be mailed, or the applicant will go to the asylum office and be informed then that the decision is not ready. There are various reasons that the decision may not be ready after two weeks. A delay in rendering the decision is not predictive of the result. Currently, all Mexico cases get sent to Asylum Headquarters before a decision is rendered, so Mexico cases almost always take several months for a decision.

5.2.1.1  Recommended Approval

If the asylum officer believes that the case is strong enough to warrant a grant of asylum, the decision that the applicant picks up will be a letter recommending approval of the application. This means that the applicant has won, and that once the criminal and terrorist background checks on the fingerprints have cleared, one will receive a final approval notice in the mail.

Once the applicant has won recommended approval, he or she can apply for an EAD by filling out an I-765, Application for Employment Authorization, 13 under the category of “asylum pending.” When the applicant eventually receives “final approval,” he or she is no longer required to have an EAD to work, although one may want to apply anyway because it can serve as valid government-issued photo identification.

Practice Tip: You should try to apply for the EAD in your client’s corrected gender. (See the section below on removal proceedings in immigration court for more information on identity documents.) Some asylum offices automatically send an EAD in the mail seven to 10 days after an applicant is granted asylum.

Note: It is possible that your client’s background check will take longer if your client has used different names (i.e., a male birth name and a female name now) because USCIS will have to run background checks on each name.

5.2.1.2  Notice of Intent to Deny

If the applicant is still in valid nonimmigrant status at the time the asylum officer issues the decision on the case (for example, in the United States on a skilled worker visa), the officer will issue a Notice of Intent to Deny (NOID) if he or she does not feel that the application is strong enough to recommend approval of the case. 14 The NOID will explain in detail the reasons for the intended denial. 15 The applicant then has 16 days to submit further evidence in an attempt to rebut the denial. 16 After this evidence is submitted, the asylum office will either grant the application or issue a final denial. If the application is denied, there is no appeal. 17 However, the applicant is in the United States lawfully and can remain in the country until the current status expires.

Practice Tip: Although it seems counter-intuitive, it is often advisable to wait until an applicant is out of status to file for asylum so that if the applicant is unsuccessful at the asylum office, he or she can continue to pursue the application before an immigration judge (IJ) and, if necessary, on appeal. Once an asylum application has been denied by the asylum office, it is difficult to refile in the future.

An individual whose asylum application has been denied should be able to maintain the current nonimmigrant status, (for example, as a student.) As a practical matter, however, the fact that one has applied for asylum will be seen as evidence of one’s “immigrant intent”—that is, the intent to remain in the United States permanently. Therefore, even if the unsuccessful asylum applicant never technically violates the terms of the current student or tourist visa, it is unlikely one will be permitted re-entry if one leaves the country because U.S. officials will see one as having “immigrant intent.”

5.3 Immigration Court—Removal Proceedings

If the applicant is not in lawful status at the time the asylum officer makes a negative decision on the case, when the applicant returns to the asylum office to pick up the decision, he or she will be handed a Notice to Appear (NTA) in immigration court.

The NTA is the charging document in removal proceedings, and in referred asylum cases, the United States is almost always seeking removal because the applicant is here without lawful status. The NTA will provide a court date and the applicant must appear in immigration court on that date; otherwise, he or she will be ordered removed (deported) in absentia. 18 Unlike the asylum interview, removal proceedings are adversarial, and there will be an attorney from U.S. Immigration and Customs Enforcement (ICE) arguing the case against the applicant.

There are two types of court dates in immigration court—master calendars and individual hearings. Master calendars dispose of administrative and procedural issues such as pleading to the charges in the NTA, submitting the asylum application to the IJ, conferencing the case to discuss any issues, etc. Many cases will have two or three master calendars before the individual hearing is scheduled. Generally, IJs have very full calendars, and it can take a year or more after the last master calendar before the applicant gets an individual court date.

Practice Tip: There has been significant attention lately to the high discrepancy in grant rates of asylum applications among different IJs. It is extremely helpful to know as much as possible about your judge before the hearing. See trac.syr.edu/immigration/reports/judgereports for a comparison of IJ asylum grant rates. The U.S. Department of Homeland Security (DHS) does not keep statistics on the ground on which asylum-seekers are applying, so there is no way to track how responsive particular judges are to transgender claims.

5.3.1  Defensive Asylum Applications

Losing an affirmative asylum application is just one way that a foreign national can be placed in removal proceedings. The U.S. government also initiates removal proceedings against noncitizens who have committed criminal offenses, 19 who seek to enter the United States without proper entry documents, 20 or who are in the United States illegally and come into contact somehow with ICE agents, such as at a work raid. 21 Even if a noncitizen has not filed for asylum affirmatively, one may submit an application to the immigration court as a defense to the removal proceedings. 22

5.3.1.1  Decision of the Immigration Judge

After hearing the evidence in the case, the IJ will issue a decision. If the IJ believes the case is strong enough, he or she will grant asylum. If the IJ believes the applicant would suffer persecution if forced to return home, but there are other problems in the case (such as the applicant missed the one-year filing deadline 23 or has certain criminal convictions), the IJ may grant a lesser form of relief such as withholding of removal or relief under the Convention Against Torture (CAT). 24

If the IJ does not feel that the case is strong enough, he or she will order the applicant removed. The applicant then has 30 days to submit an appeal to the Board of Immigration Appeals (BIA). 25

5.4 Appeals—The BIA

An applicant who is ordered removed by an IJ can appeal the decision to the BIA. 26 The BIA has put out a very helpful practice manual that practitioners should consult if doing a BIA appeal. 27

The Notice of Appeal and accompanying fee must be received within 30 days of the denial or the right to appeal is lost. 28 The BIA gives this rule extremely strict interpretation, so it is imperative to file the appeal in a timely manner.

Once a BIA appeal is filed, the removal (deportation) is automatically stayed until the BIA renders a decision. 29 After submitting the Notice of Appeal, it generally takes about a year to receive the transcript in the case and a briefing schedule. Once the attorney receives the transcript, he or she has only 21 days to submit a brief. It is usually possible for each party to obtain one (and only one) 21-day extension. 30

If the applicant is detained, 31 the appeals process is accelerated and the briefing probably will be scheduled three or four months after the IJ’s decision. 32 For detained cases, the applicant and DHS have the same 21-day due date for the brief 33 (in other words, the appellee does not get to see the appellant’s argument before defending the appeal), and only one extension is available per appeal regardless of which party makes the request. 34

The BIA reviews questions of law de novo but employs a substantial evidence standard for questions of fact. 35 The BIA routinely rubber stamps IJ decisions either through an affirmance without opinion or a single paragraph summary decision.

It is very important for the party commencing the appeal to argue for a three- member panel and explain why the case is not appropriate for summary affirmance. 36 The BIA has a crushing backlog of appeals and will affirm the case without opinion or writing only a summary opinion, if possible. There are six categories of issues that require the board to utilize a three-member panel:

  1. The need to settle inconsistencies among the rulings of different IJs;
  2. The need to establish a precedent construing the meaning of laws, regulations, or procedures;
  3. The need to review a decision by an IJ or the service that is not in conformity with the law or with applicable precedents;
  4. The need to resolve a case or controversy of major national import;
  5. The need to review a clearly erroneous factual determination by an IJ; or
  6. The need to reverse the decision of an IJ of the service in a final order, other than nondiscretionary dispositions. 37

Having a three member-panel review the decision will greatly increase the likelihood that the decision will be overturned. Conversely, in defending an appeal brought by DHS, the practitioner should not seek review by a three-member panel.

5.4.1 Appeals—Federal Court

If an applicant loses a appeal before the BIA, one must file a petition for review with the U.S. Court of Appeals that would have jurisdiction 38 within 30 days of the BIA denial. Unlike the BIA appeals, there is no automatic stay when a petition is filed in federal court. The standard for appeal in federal court is the “substantial evidence test,” 39 meaning that the court cannot substitute its own judgment for that of the BIA and/or the IJ; so long as substantial evidence supports the decision, it must be upheld. For this reason, it is difficult to win a federal appeal, and an attorney who does not generally practice in this area of law should consult with an organization or attorney who has experience in this area prior to deciding whether to pursue a federal appeal.

5.5 Asylum—Sources of Law

Asylum law is governed by statute, 40 regulations, 41 BIA decisions, and federal court decisions. The vast majority of asylum applications are decided by asylum officers or IJs whose decisions are not precedential. Interviews before the asylum office are not transcribed or recorded, and there is no substantive written decision when asylum is recommended.

Likewise, asylum hearings in immigration court are generally closed proceedings. In most cases, the IJ issues an oral decision, which, like the proceedings themselves, is recorded, but is only transcribed if there is an appeal. The vast majority of BIA decisions also are unpublished. Some commentators believe that the BIA intentionally publishes more cases denying asylum than cases granting asylum to avoid providing a “blueprint” for a successful asylum case. 42

There is an increasing number of federal court decisions on asylum matters available through commercial legal research companies. Many of these decisions are unpublished, but under recent changes to federal court rules, most circuits now permit some citation to unpublished circuit court decisions.

5.5.1 Published Decisions Concerning Transgender Applicants

Under immigration law, the BIA is the administrative body that hears appeals from final decisions of IJs. 43 Precedential BIA decisions are binding across the country unless the federal circuit in which the applicant lives has issued a conflicting opinion. 44 Appeals from the BIA in asylum, withholding, and CAT cases are taken directly to the U.S. Court of Appeals. 45

5.5.1.1 Hernandez-Montiel v. INS

To date, there has not been a published BIA decision that directly addresses a claim for asylum based on transgender identity. There have, however, been several federal court decisions that deal with transgender or otherwise gender-nonconforming asylum-seekers. The first published decision that dealt with a transgender applicant was Hernandez-Montiel v. INS. 46 Geovanni Hernandez-Montiel is identified as a “gay male with female sexual identity” 47 from Mexico. Hernandez-Montiel was detained, sexually assaulted, and threatened by the Mexican police because they considered him homosexual and because he was wearing female clothing. 48 The IJ framed Hernandez-Montiel’s particular social group as “‘homosexual males who wish to dress as a woman [sic]’” and found that the applicant’s choice to sometimes wear female clothing was “volitional” and, therefore, not immutable. 49 Fortunately, the U.S. Court of Appeals for the Ninth Circuit recognized that Hernandez-Montiel’s outward expression of his gender identity through his attire was a manifestation of his fundamental identity, and as such, persecution for this reason qualified him for asylum. The court wrote, “Gay men with female sexual identities outwardly manifest their identities through characteristics traditionally associated with women, such as feminine dress, long hair and fingernails … Their female sexual identities unite this group of gay men, and their sexual identities are so fundamental to their human identities that they should not be required to change them.” 50 Thus, in the Ninth Circuit, it was established that a gender-nonconforming individual who could frame one’s transgender identity in terms of sexual orientation would fit into a recognized particular social group.

5.5.1.2 Reyes-Reyes v. Ashcroft

In Reyes-Reyes v. Ashcroft, the Ninth Circuit again recognized that “gay men with female sexual identities” formed a particular social group, this time in the applicant’s native El Salvador. 51 Reyes-Reyes had dressed like a woman for 16 years prior to his application for immigration relief. He wore make-up, a woman’s hairstyle, and female clothing. 52 As a teenager, Reyes-Reyes was kidnapped by a gang, beaten, and raped on account of his homosexuality. Because Reyes-Reyes had missed the one-year filing deadline, he was not eligible for asylum. However, the Ninth Circuit remanded the case for further review of his withholding and CAT claims. Importantly, the court determined that even though there was no allegation that members of the Salvadoran government had themselves tortured Reyes-Reyes, the court found that if the government was willfully blind to the type of harm Reyes-Reyes suffered, this could be sufficient to meet the CAT standard. 53 The court further remanded to determine whether the harm Reyes-Reyes had suffered qualified as past persecution, or, in the alternative, whether he had demonstrated a likelihood of future persecution. 54

In Reyes-Reyes, the court again grappled with an applicant’s gender identity and its connection to sexual orientation. In a footnote, the court wrote:

It is not clear from the record whether Reyes’s female sexual appearance was fully manifest at this age [16]. We note, however, that Reyes’s sexual orientation, for which he was targeted, and his transsexual behavior, are intimately connected. As we have recognized, it is well-accepted among social scientists that ‘sexual identity is inherent to one’s very identity as a person …. Sexual identity goes beyond sexual conduct and manifests itself outwardly, often through dress and appearance. 55

It is important to bear in mind that some applicants will view their transgender identity as an outgrowth or manifestation of their sexual orientation, as, apparently, Reyes-Reyes did. Other applicants may identify as heterosexual and see their gender identity as an issue entirely distinct from sexual orientation. Because this area of law and human experience is so complicated, it is important for the practitioner to be an educator as much as an advocate in putting forward these claims.

5.5.1.3 Ornelas-Chavez v. Gonzalez

In Ornelas-Chavez v. Gonzalez, the Ninth Circuit again considered the case of a gay male with “female sexual identity” from Mexico. 56 Ornelas-Chavez also framed his claim as being based on his homosexuality and female sexual identity. He had suffered various harms including beatings and rapes at the hands of private actors. 57 The IJ and BIA found that Ornelas-Chavez had failed to establish persecution because the government was not directly involved other than one minor police detention. The BIA further faulted Ornelas-Chavez for failing to report the harms that he had suffered to the police. The Ninth Circuit again remanded, finding that an individual who has faced persecution is not required to report the persecution if doing so would be futile or would subject one to further harm. 58 This holding is important for the many transgender asylum-seekers who are afraid to even set foot in the police stations of their home countries because cross-dressing is illegal or because they know that the police themselves may harm them without any repercussions.

5.5.1.4 Morales v. Gonzalez

In 2007, the Ninth Circuit issued another decision concerning a transgender asylum-seeker. In Morales v. Gonzalez, the Ninth Circuit again remanded the case to determine whether the applicant met the standard for withholding of removal or CAT. 59 This is the only published decision in the asylum realm that uses the term “male-to-female transsexual” rather than the awkward “gay man with female sexual identity” employed in prior cases. Morales was a native of Mexico who began dressing as a woman and working at a bar at the age of 15. 60 She was arrested for working in a bar as a minor on two occasions, and on one of these occasions, was raped while in jail, with her cries for help going unanswered.[ref]Id.[/ref]

While much of the decision analyzes Morales’s statutory eligibility for asylum and withholding because of a crime she committed in the United States, the court also found that the IJ and BIA had employed the wrong standard in her CAT claim. The court remanded for consideration of all claims, particularly the fact that the IJ’s decision had made no reference to the police’s role in failing to protect Morales while she was in jail, and instead actually laughing and ignoring her screams while she was raped. 61 The decision is significant because transgender prisoners are often subjected to violence and rape, and here the court holds the Mexican government accountable for the police’s failure to intercede. The case also is important in that Morales’s claim for protection was based directly on her transsexual identity, without the court finding any need to tie the harm she suffered explicitly to her sexual orientation. Notably, too, this is the first in the line of Ninth Circuit transgender cases where the female-identified applicant is referred to in the decision by the female pronoun.

5.6 Elements of an Asylum Claim

To prevail on an asylum claim, an applicant must prove that he or she meets the definition of “refugee”:

[A]ny person who is outside any country of such person’s nationality … and who is unable or unwilling to return to, and is unable or unwilling to avail himself … of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion …. 62

Thus, an applicant can establish refugee status by showing that: (i) one was persecuted in the past; or (ii) one has a well-founded fear of present or future persecution upon return to the home country; and (iii) the past and/or future persecution is on account of one of the statutory grounds. 63 An applicant for asylum also must show that he or she applied within one year of his or her last arrival in the United States or meets one of the exceptions to the one-year filing deadline. 64

5.6.1  Membership in a Particular Social Group

An applicant must first prove that the fear of persecution is on account of a ground protected by refugee law. While the most common ground for asylum is probably political opinion, the “particular social group” category has expanded greatly in recent years. This category encompasses many nontraditional areas of asylum law, including female genital cutting, domestic violence, sexual orientation, and gender identity-based claims.

In 1994, former Attorney General Janet Reno designated as precedent the BIA decision Matter of Toboso-Alfonso. 65 Toboso-Alfonso involved a gay Cuban man who had suffered numerous abuses at the hand of the Cuban government, including regular check-ins with a government official and forced labor. In this case, the board held that sexual orientation could constitute a particular social group for purposes of asylum or withholding of removal.

Although there has not been a precedential decision directly addressing the question of whether transgender identity constitutes a particular social group, there have been several Ninth Circuit cases involving transgender applicants, three of which have framed the applicant’s social group as “gay man with female sexual identity.” 66

Practice Tip: Although the above‑mentioned wording may sound awkward, “gay man with female sexual identity” may be a useful way to frame your client’s claim since it has been specifically recognized by the federal court. For example, it might be an appropriate social group formulation if you are working with a transgender woman who had romantic relationships with men in her country of origin and identified and continues to identify at least in part as a gay man.

Even presuming that the Ninth Circuit cases are not accepted in other circuits, or that they do not conclusively state that transgender identity constitutes a particular social group, strong arguments can be made that transgender identity does form the basis for membership in a particular social group. The leading BIA case on defining particular social group is Matter of Acosta. 67 In Acosta, the BIA determined that the qualifying characteristic “must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” 68 A practitioner could certainly argue that there is almost no other characteristic more fundamental to one’s identity than his or her gender identity and that transgender identity therefore clearly falls within this definition. 69

Practice Tip: It is important to bear in mind that as an attorney working on transgender issues, your role is not just to advocate for your client, but also to educate the adjudicator about what it means for your client to be transgender. For example, in Hernandez-Montiel, the BIA was willing to accept that Hernandez-Montiel’s sexual orientation could be grounds for asylum, but was unconvinced that the persecution Hernandez-Montiel suffered for dressing as a woman was on account of a protected characteristic. Fortunately, the Ninth Circuit recognized Hernandez-Montiel’s attire as directly related to gender identity. It is important to bear in mind that an adjudicator may not make this connection, and you should be prepared to do so.

Moreover, since precedent in transgender asylum cases is so much more limited than precedent in sexual orientation-based cases, it is often a good strategy to include a claim based on perceived sexual orientation as well as transgender identity. For example, if a female-to-male (FTM) applicant was perceived as a masculine female growing up and now has romantic relationships with women, he would likely be perceived as a lesbian if forced to return to his home country, even though he identifies as a man. In 2001, legacy INS issued proposed regulations governing the particular social group category that recognize the possibility of “perceived membership in a particular social group.” 70 To date, those regulations have not been promulgated. However, one federal court has explicitly stated that imputed sexual orientation can serve as the basis for an asylum claim. 71 In Amanfi v. Ashcroft, a heterosexual man from Ghana engaged in a homosexual act to escape a ritual sacrifice and thereafter feared persecution as a perceived homosexual. Thus, if it is factually possible to frame the applicant’s claim based on imputed sexual orientation, it is generally a good idea to include this as an alternative theory of the case.

Practice Tip: Remember, it is fine to put forward more than one potential ground of asylum simultaneously. Thus, it is acceptable for an applicant to frame the claim as, for example, belonging to the particular social groups of “transgender women and perceived gay men.”

Practice Tip: Asylum cases are always based on the facts presented. If you have a client who does not identify as gay or lesbian and has never identified this way, don’t try to frame the case in a way that makes one uncomfortable or that will be inconsistent with one’s testimony. That being said, you may be able to help your client to understand that a claim based on “imputed sexual orientation” does not mean that one is actually gay or lesbian.

5.6.2  Persecution

To succeed in an application for asylum, the burden of proof rests on the asylum applicant to demonstrate either that he or she has suffered persecution in the past, or that there is a well-founded fear of future persecution. 72 The term “persecution” is not defined in the INA, but a definition has evolved through case law. Generally, “persecution” encompasses physical harm, including, physical assaults, female genital mutilation, and torture. 73 To rise to the level of persecution, the harm must be perpetrated directly by the government or by private individuals that the government is unable or unwilling to control. 74 Police officers, the military, and government-run schools generally are considered to be arms of the government. Private individuals including armed militia, death squads, gangs, and family members also may qualify as persecutors if the government is unable or unwilling to protect the applicant from them. 75

In the lesbian, gay, bisexual, and transgender (LGBT) context, harm that has risen to the level of persecution has included: being forced to report all sexual activities to a government official, being detained, and being confined in a labor camp for 60 days; 76 being forced to undergo electroshock therapy in an effort to “cure” the applicant of her lesbianism; 77 being raped at gunpoint by a police officer; 78 and being raped by nongovernment actors whom the government is unable or unwilling to control. 79

5.6.2.1  Past Persecution

Establishing an applicant’s past persecution creates a rebuttable presumption that one will be persecuted in the future. 80 Thus, if an applicant establishes past persecution, the burden of proof shifts to DHS to prove that the applicant should not be granted asylum. 81 The regulations list two grounds for rebutting the presumption of future persecution: (a) a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in his or her country; or (b) the applicant could relocate to another part of the country to avoid persecution, and such relocation would be reasonable under all of the circumstances of the case. 82 If the past persecution was at the hands of the government, there is a presumption that internal relocation is unreasonable. 83

Practice Tip: As a practical matter, it is much easier to win an asylum case where there was past persecution than to win a case based wholly on future persecution. For obvious reasons, it is easier to prove that something already happened in the past than to prove its likelihood of happening in the future.

5.6.2.2  Well-Founded Fear of Future Persecution

Even if an applicant has not experienced harm in the past, he or she may still prevail on the case by demonstrating that there is a “well-founded fear” of persecution. The U.S. Supreme Court has held that to meet this standard, a showing of a 10 percent likelihood of future persecution may be sufficient. 84 Although 10 percent sounds like a fairly low threshold, as the regulations spell out, cases based on future persecution alone can be difficult to win. The regulations explain that an applicant can prevail based on future persecution if he or she can demonstrate either that he or she will be singled out for persecution or that there is a pattern and practice of persecution of a group that is similarly situated to the applicant of which the applicant is a member. 85

Thus, in a typical claim by a transgender applicant, he or she could succeed without showing past persecution if he or she could demonstrate some reason to be singled out and persecuted in the future. For example, if one is now taking hormones and is presenting and living as a male, or if one has appeared in a newspaper article about transgender issues and has thus, been “outed,” these outward manifestations and proclamations could make one newly susceptible to persecution. If there is no way to show that the applicant would be singled out, one could still prevail if one can demonstrate a pattern and practice of persecution against transgender individuals in the home country—a fact pattern that is often easy to show for transgender applicants. 86

Note: One IJ speaking on a continuing legal education panel stated that she uses an imaginary sliding scale in her mind in order to determine future persecution—the worse the country conditions, the less individualized harm an applicant needs to show; the better the country conditions, the worse the individualized harm must be.

Practice Tip: One reason that future persecution cases may be more difficult than past persecution cases is that the adjudicator may reasonably ask the applicant, “If you weren’t persecuted in the many years you lived in your country before, why should I believe you’d be persecuted now?” If your client had not yet begun to live in his or her corrected gender, or had not done so full time, the fact that he or she is now doing so and would thus be more of a target may be a compelling answer.

5.6.3  Nexus

The asylum applicant also must demonstrate that there is a nexus between the harm suffered and the protected ground. Under the REAL ID Act that was enacted in 2005, 87 an applicant must prove that one of the five protected grounds “was or will be at least one central reason for persecuting the applicant.” 88 Thus, an applicant must establish not only that he or she is transgender and that he or she has been harmed or fears future harm, but also that the harm is “on account” of his or her membership in a recognized particular social group.

Practice Tip: The “nexus” requirement is another reason that it may be helpful to posit an alternative particular social group of “perceived sexual orientation.” For example, if your client grew up in her country perceived as an effeminate gay man before beginning to transition, the harm she suffered may have been based on the persecutor’s belief that she was a gay man. In retelling the story of an incident of harm, your client may explain that the assailant called her “faggot” or a similar term, so it is important to demonstrate the connection between this harm and your client’s current identity.

5.6.4  Favorable Exercise of Discretion

In addition to meeting the legal standard for asylum, an applicant also must demonstrate that he or she merits a favorable exercise of discretion. 89 Thus, the applicant must convince the adjudicator that, viewing all the relevant facts, he or she “deserves” asylum. Issues that could prevent a favorable exercise of discretion include criminal convictions or prior fraud in immigration matters, such as a “fake” marriage-based application or use of fraudulent documents. Conversely, it is important for the practitioner to highlight any favorable discretionary factors, such as close family members who are USCs or LPRs, work history, school attendance, attendance at a place of worship, public service, etc.

Practice Tip: If your client’s background includes any negative factors, such as a prostitution conviction, it is best to include this information in the declaration and testimony. It is always best to let your client explain anything negative in his or her own words, and to put the most favorable light on a difficult situation. For example, your client may have engaged in prostitution for a brief period of time after being thrown out of her family’s home once she started dressing as a woman. If you can demonstrate that this is something she did in the past out of desperation and that she has since turned her life around, it probably will not prevent a favorable exercise of discretion.

5.7 One-Year Filing Deadline

An asylum applicant also must prove that he or she filed an asylum application within one year of his or her last entry into the United States or qualify for an exception to this rule. 90

The burden of proof is on the applicant to establish that he or she is filing within one year of his or her last arrival. Unless one can do so, one is ineligible for asylum but may be eligible for withholding of removal or relief under the CAT. 91

Practice Tip: In most instances, an applicant will have entered with a visa and the stamp in the passport will be proof of the entry date. If, however, your client crossed the border without inspection, he or she will need to prove his or date of entry. This is easiest to do if there is any documentary proof that one was outside of the United States such as employment records, medical records, proof of sale of property, etc. Often, individuals seeking to cross the Mexican border are caught, fingerprinted, and released into Mexico before they ultimately succeed in crossing. If this happened to your client, you may be able to obtain records of the earlier crossing attempt to help corroborate the date of entry.

5.7.1 Changed Circumstances Exception

There is an exception to the filing deadline if the applicant can demonstrate changed circumstances. 92 This exception is intended to cover an applicant who, during his or her first year in the United States did not fear persecution in his or her country, but because of recent changes, now does fear persecution. In addition to demonstrating a changed circumstance, the applicant must show that he or she is filing within a reasonable period of time following the change. 93 “Reasonable period of time” is not defined and is analyzed on a case-by-case basis. However, the application should be filed within six months of the changed circumstances whenever possible and should not be filed more than one year after the change unless there is no other option, for example, if the applicant is already in removal proceedings.

This exception encompasses both changed country conditions and individual changed circumstances. 94 Thus, an exception could be found if the foreign government recently enacted a law criminalizing cross‑dressing. It is more likely that a changed circumstances exception for a transgender individual will be based on personal circumstances. For example, if the applicant has only recently begun to live full-time as a man, or if the applicant has recently had a mastectomy, an adjudicator could find that these events constitute changed circumstances. Even if the applicant’s past experience of harm based on transgender identity is insufficient to meet the asylum standard, it may be possible to argue that recent medical steps in transitioning would now make it impossible for him to “pass” as his birth gender in his home country.

A recent HIV diagnosis also could constitute a changed circumstances exception if the applicant is able to demonstrate that he or she also fears persecution on this basis. Often, such claims can help bolster the LGBT claim and vice versa, in that an applicant who is HIV-positive may be assumed by medical providers and community members to be LGBT, thus subjecting him or her to greater future harm.

5.7.2 Extraordinary Circumstances Exception

The other exception to the one-year filing deadline is for extraordinary circumstances. 95 The purpose of this exception is to excuse late filing if something prevented the applicant from filing within one year. Examples of this exception include: serious medical problems such as recurring hospitalizations, 96 serious mental health problems, 97 ineffective assistance of counsel that prevented timely filing, 98 and maintaining lawful immigration status. 99

Probably the most common exception to the one-year filing deadline is a claim based on mental health-related extraordinary circumstances, for example, post traumatic stress disorder (PTSD), severe depression, or mental illness. 100 Since so many asylum-seekers have suffered severe trauma in their home countries, it is hardly surprising that many asylum-seekers suffer from PTSD or other mental health issues. In order to prove a mental health exception to the filing deadline, it is imperative to have a detailed affidavit from a psychiatrist or psychologist. If the case is in immigration proceedings, it is best if the mental health professional can testify at the hearing.

Practice Tip: It is sometimes possible to combine a changed circumstances exception with an extraordinary circumstances exception. For example, a changed circumstance may be that the applicant only began to live full-time as a woman two years ago, but doing so may have caused her family to disown her, and thus, may have caused her to spiral into a deep depression.

Another common “exceptional circumstance” is maintaining lawful nonimmigrant or immigrant status. Thus, a student who attends college in the United States is not required to file during his or her first year of study. One can wait until one is graduating, and if afraid to return to his or her country at that point, one need only file within a reasonable period of time after his or her lawful status expires. Likewise, a long-term LPR who is placed in removal proceedings for having committed a crime may be able to apply for asylum if he or she maintained lawful status here, although the crime that leads to the loss of LPR status also may result in a denial of the asylum application. 101

5.8 Withholding of Removal

The same form that is used to apply for asylum, Form I-589, is used to apply simultaneously for withholding of removal. 102

As with asylum, an applicant for withholding must prove that he or she will face persecution on account of one of the five protected grounds. 103 Unlike asylum, a grant of withholding is mandatory, not discretionary, if the applicant meets the higher standard. 104 To prevail on a claim of withholding of removal, an applicant must demonstrate that it is “more likely than not,” that is, at least 51 percent likely that one will face persecution in one’s country. 105 As with asylum, proof of past persecution carries a presumption of future persecution. 106 There is no one-year filing deadline for withholding applications.

Withholding of removal can be granted only by an IJ. 107 Thus, for example, if an applicant who has missed the one-year filing deadline files affirmatively for asylum and the asylum office does not believe there is an exception to the filing deadline, he or she will be placed in removal proceedings in immigration court. There, the applicant will present his or her asylum application de novo, along with the application for withholding of removal. If the IJ finds that the applicant did not demonstrate a one-year exception, the best the applicant can hope for is withholding of removal. Winning withholding means that the IJ orders the applicant removed (deported) but “withholds” enforcement of that order as to the country of feared persecution. This means that an individual with withholding has lawful status in the United States, can work legally (with DHS work authorization), 108 and receive certain federal financial benefits (such as welfare), but also will have a final order of removal against him or her, and thus, can never apply for legal permanent residence or citizenship. 109 Likewise, one cannot ever travel outside the United States, because with a final order of removal, one will not be permitted reentry. 110

For many individuals, the ability to work lawfully makes withholding of removal a much better status to have than being here unlawfully, but it is very important for applicants who obtain this status (or accept this status through “plea bargaining” with ICE attorneys) to understand its limitations.

An individual who has been convicted of a “particularly serious crime” 111 is statutorily barred from receiving withholding of removal or asylum. 112 In determining whether a crime is “particularly serious,” the court will look to: the nature of the crime; the circumstances surrounding the crime; the length of the sentence; and whether the crime indicates dangerousness to the community. 113

5.9 Convention Against Torture Relief

Another form of relief related to asylum and withholding is relief under CAT. 114 As with withholding, only an IJ can grant CAT relief, and it also is applied for on Form I-589.

There is no criminal bar to receiving CAT but the standard is very difficult to meet. An applicant must demonstrate that if he or she is returned to his or her country, it is more likely than not that he or she will be tortured either directly by the government or with the government’s acquiescence. 115 There is no requirement to demonstrate that the torture will be on account of one of the protected grounds, and there is no one-year filing deadline.

Because the standard is so high in these cases, CAT applications are generally claims of last resort for applicants with such serious criminal convictions that they are barred from asylum or withholding. 116

5.10 Elements of an Asylum Application

Most asylum applications consist of several hundred pages worth of materials that include the asylum application itself (Form I-589), a detailed declaration from the applicant, corroborating documents specific to the applicant’s case, country conditions materials, and, sometimes, a legal brief.

A comprehensive guide to preparing these documents is beyond the scope of this manual; again, the reader is directed to the LGBT/H asylum manual available on Immigration Equality’s website. 117

5.10.1 Form I-589

In order to apply for asylum, an applicant must submit Form I-589. 118 Although it is important to submit all of the documents discussed below in order to succeed in an application for asylum, technically, all that is required to file is the I-589. Thus, if an applicant is close to the one-year filing deadline, it is sometimes advisable to file a barebones I-589 and submit the remaining documentation on the date of the asylum interview.

The practitioner must be careful to complete every box in the background sections of the application form, or the entire submitted application may be returned as incomplete. It also is important to put enough information in the “essay questions” in the second-half of the form for the adjudicator to understand the nature of the claim.

Practice Tip: Often, the asylum officer literally reads the “essay” questions aloud as the substantive questions at the interview. It is thus best practice to greatly condense the answers to these questions to fit in the space provided on the form and then give a fuller explanation of the applicant’s story in the declaration. If the answers spill over onto the additional pages provided with the form, it is harder for the adjudicator to follow along. Likewise, the answers should be succinct but complete; it is never advisable to simply fill in “see attached declaration.”

5.10.2 Notice of Appearance Form

In order to be recognized as the attorney of record, counsel must submit a Notice of Appearance Form. For applications filed affirmatively, this is Form G-28, 119 which should be submitted on blue paper, if possible. If the case is in immigration court already and the applicant is filing a defensive application, the representative must file Form EOIR 28, 120 preferably on green paper.

Practice Tip: In the past, DHS has only recognized one attorney of record at a time on a case. Thus, if a “team” of attorneys was working on the case, only one attorney would be permitted to file a Notice of Appearance form on behalf of the client. The Executive Office for Immigrant Review recently issued the Immigration Court Practice Manual that became effective July 1, 2008. According to this manual, each of the attorneys working on a case must file Notices of Entry of Appearance annotated to reflect which attorney is the primary attorney, and only the primary attorney should expect to receive correspondence about the case from the court. 121

5.10.3 Declaration

The declaration is the applicant’s opportunity to tell the story in his or her own words. This is probably the single most important piece of evidence in the case, and the attorney’s primary role in preparing the application is to work with the applicant until the declaration reaches its best possible form. The declaration should be paragraph-numbered and should generally be anywhere from 15 to 30 pages, depending on the applicant’s age and life history.

The declaration should detail the applicant’s entire life, including, but not limited to:

  • Childhood—any difficulties the applicant faced if he or she was perceived as gender nonconforming, i.e., too masculine or too feminine as a child. It is important to relate any difficulties to this gender identity and, if any mistreatment was at the hands of private individuals, to explain why the authorities were unable or unwilling to protect him or her.
  • Adolescence—this is the age when most people start to come to terms with their sexuality and their adult gender identity. For many transgender people, this is a particularly difficult age. To win asylum, the applicant first must prove membership in the particular social group (of transgender individuals and/or perceived homosexuals), so the practitioner must be sure to fully describe the applicant’s experience of coming to terms with his or her gender identity to establish membership in a particular social group as well as establishing any harm suffered.
  • Past incidents of harm to the applicant—the most important aspect of the asylum claim will be proving harm that the applicant suffered as a result of his or her transgender identity. The clearest examples of persecution are those where the government was directly involved, such as arbitrary arrests or violence by the police or military. It also is important to detail harm at the hands of private actors such as family, schoolmates, community members, gang members, etc., provided that the applicant can show the government was unable or unwilling to protect him or her.
  • Past incidents of harm to others—because asylum is based on an applicant’s fear of future harm, it also is relevant to include incidents that happened to other transgender people since these will affect the applicant’s own fear of return. If the applicant personally knows transgender individuals who suffered violence or harm, he or she should include these stories in the declaration. Likewise, if the applicant has read or seen media reports of harm to other transgender people, these should be included in the declaration as well. It is always better to include specific accounts as opposed to generalized statements. For example, it is better to say, “I remember in 2005 I read in The Daily Journal about a transgender woman who was found murdered outside the capital,” than to say, “Everyone knows that if you’re transgender they can kill you.”
  • Incident that led to applicant deciding to flee the home country—for most asylum applicants who have suffered for much of their lives, there is some reason, some incident or threat, which propels them, finally, to flee their country. It is important to detail this in the declaration, especially if the applicant has made multiple return trips to his or her country. The applicant must be able to explain why he or she is now too afraid to return if he or she has made return trips in the past.
  • Negative facts—the declaration is the applicant’s best opportunity to explain everything about the case in his or her own words and in the most positive light. The practitioner should not make the mistake of trying to gloss over negative facts; asylum officers and IJs will spot “thorny issues” and it is much better to address them head on. So if the applicant has missed the one-year filing deadline; has committed a crime; has lied to immigration officials in the past; has returned repeatedly to his or her home country; or has any other negative factor, it is best to explain the issue fully in the declaration.

5.10.4  Corroborating Documents

Under the REAL ID Act of 2005, 122 rules regarding corroborating evidence in asylum cases have become more strict. Essentially, all documents that the adjudicator would reasonably want to see must be provided, or the applicant must explain the steps taken to try to get them and why he or she has been unable to obtain them. For example, if the applicant states that he or she was arrested and charged for “lascivious behavior” for hanging out in a park with other transgender people, he or she will need to either obtain the arrest record or provide a detailed account of why doing so is impossible. Maybe in his or her country only family members can obtain such records, and he or she is estranged from his or her family because of his or her transgender identity, or maybe the friends a_Toc211075769re too afraid to ask for such records because they would be perceived as transgender or gay themselves.

In any event, one of the first steps an attorney should take in meeting with a potential asylum applicant is to brainstorm about corroborating documents that can be submitted. These can and should include affidavits or letters from other people (friends, family, partners, etc.) who were present during past instances of harm or who saw the applicant shortly thereafter and can confirm injuries or distress that they observed that the applicant had suffered. Likewise, if the applicant describes being forced to sell his or her home after receiving threats, it would be very helpful to have a copy of the deed of sale that confirms the date.

Any documents that are not in English must be translated into English along with a notarized certificate of translation by someone other than the applicant that attests to the translator’s proficiency in both languages and that the translation is true and accurate. Both the original and the translation must be submitted. 123

5.10.4.1 Medical Records

If the applicant has taken any medical steps to begin transitioning, medical records or a letter from the treating physician should be included. This will help confirm the applicant’s membership in the social group of transgender individuals. Also, the more permanent the transition steps are, the easier it is to refute any notion that the applicant could “pass” as his or her birth sex if returned to his or her country.

5.10.4.2 Mental Health Expert

Submitting a report by a mental health expert can be crucial to the asylum case, especially if the applicant missed the one-year filing deadline and is claiming an “extraordinary circumstances” exception. A mental health expert can explain in an affidavit (and via live or telephonic testimony if the case is in court) any mental health difficulties the applicant has suffered, such as PTSD or depression, as a result of the harm endured in his or her country. A mental health expert also can be very helpful to confirm the applicant’s transgender identity, especially if the client is in the early stages of transitioning.

Practice Tip: Make full use of your mental health expert. Have the expert review as many documents that you have submitted as possible. For example, if your client has a history of mental illness, have the expert review all of your client’s medical records. It can even be helpful to have the school records, letters from friends and family, and, of course, the applicant’s declaration reviewed. The broader the range of evidence the expert can cite in writing a report or giving live testimony, the more weight that evaluation will be given. Also, if the mental health expert concludes that your client suffers from PTSD, severe depression, or has another mental health diagnosis, it is important that your client seek ongoing treatment for these issues and document compliance with the treatment.

5.10.5 Country Conditions

An applicant for asylum must prove that his or her fear of return to his or her country is objectively reasonable, in addition to proving a subjective fear of return. 124 Thus, it is essential to submit documentation of country conditions for transgender individuals in the applicant’s country of origin. These conditions should include the most recent DOS Report on Human Rights for the applicant’s country. 125 These reports are often given great weight by the adjudicator, though frequently, they have little or no information about the treatment of transgender individuals. Reports from human rights organizations such as Human Rights Watch, Amnesty International, and the International Gay and Lesbian Human Rights Commission, also are very helpful. The application also should include newspaper articles either from local press or from international press (including the LGBT press) about any incidents of mistreatment of LGBT individuals.

Practice Tip: Remember, your job is to make it as easy as possible for the adjudicator to grant the asylum case. Asylum officers and IJs are dealing with several asylum applications a day, so it is crucial that all country conditions be well-organized (generally in reverse chronological order) and indexed with the most relevant sections of the articles excerpted in the index and/or highlighted with a highlighter on the documents themselves.

5.10.6 Expert Witness Report

If there are few or no country conditions materials available for the country, or if the case is in immigration court, it can be extremely helpful to have a country conditions expert. The expert can prepare a written report about the conditions and may be able to testify live or telephonically in immigration court. This testimony will often make the difference in a case, especially if the judge has a particular concern, such as whether some regions in the country are safer than others or whether conditions overall are improving. Most experts are affiliated with academic institutions. Some charge a fee, while others will provide reports or testimony for free, particularly for pro bono cases.

5.10.7 Legal Brief

In some cases, it can be helpful to provide the adjudicator with a legal brief. Many asylum officers are not attorneys, and all asylum officers are very familiar with the general standards for asylum, thus a brief that accompanies an affirmative application should really focus on the facts of the case, including country conditions, and how these facts meet the asylum standard. Briefs for affirmative cases are most useful if there is a specific legal issue to be addressed, such as a one-year filing deadline exception.

If the case is in immigration court, the stakes are higher since a loss will mean that the applicant will be ordered deported. Since these proceedings are more formal and there is a judge and opposing counsel involved, it is generally best practice to submit a legal brief. Again, the judge will be most interested in why the specific facts of the case meet the standard for the relief requested. If there are any negative factors in the case, it is best to set forth the legal arguments for why the applicant is still eligible for relief.

Notes:

  1. For a more comprehensive manual on LGBT/HIV asylum, see Immigration Equality’s manual at www.immigrationequality.org/issues/law-library/lgbth-asylum-manual.
  2. INA §209(a)(1); 8 USC §1159(b)(2).
  3. INA §316(a); 8 USC §1422(a). Applications can actually be submitted three months prior to the four-year anniversary.
  4. INA §208(c)(1)(B); 8 USC §1158(c)(1)(B).
  5. 8 CFR §208.7(a)(1).
  6. INA §208(a); 8 USC §1158(a).
  7. INA §274C(d)(7); 8 USC §1324c(d)(7).
  8. INA §208(c)(2)(D); USC §1158(c)(2)(D).
  9. INA §208(c)(1)(C); 8 USC §1158(c)(1)(C).
  10. See Appendix I, Form I-589, Application for Asylum and for Withholding of Removal (with instructions).
  11. 8 CFR §208.9(b).
  12. 8 CFR §208.9(d).
  13. 8 CFR §208.7(a)(1).
  14. 8 CFR §§208.14(c)(2), 1208.14(c)(2).
  15. See www.uscis.gov (follow “Services & Benefits” hyperlink; then follow “Humanitarian Benefits” hyperlink; then follow “Asylum” hyperlink; then follow “Types of Asylum Decisions”).
  16. 8 CFR§103(b)(8)(iv).
  17. Supra n. 15.
  18. INA §240(b)(5)(A); 8 USC §1229a(b)(5)(A).
  19. INA §212(a)(2); 8 USC §1182(a)(2).
  20. INA §212(a)(7); 8 USC §1182(a)(7).
  21. INA §212(a)(6); 8 USC §1182(a)(6).
  22. INA §240(c)(6)(A); 8 USC §1229a(c)(6)(A).
  23. See in this chapter, One-Year Filing Deadline section infra.
  24. See in this chapter, Convention Against Torture Relief section infra.
  25. INA §240(c)(6)(B); USC §1229a (c)(6)(B).
  26. INA §240(c)(5); 8 USC §1229a (c)(5).
  27. See the manual at www.usdoj.gov/eoir/bia/qapracmanual/BIA_Practice_Man_FullVer.pdf.
  28. INA §242(b)(1); 8 USC §1252(b)(1).
  29. 8 CFR §208.2(3)(c)(iii).
  30. BIA Practice Manual at 56.
  31. See Relief for Detained Foreign Nationls section infra chapter 6 for more information about detention.
  32. 8 CFR §235.3(b)(5)(iv).
  33. BIA Practice Manual at 55.
  34. 8 CFR §1003.3(c)1.
  35. 8 CFR §§1003.1(d)(3)(ii) and (iii).
  36. The grounds for requesting a three-member panel are laid out in the BIA Practice Manual at 3.
  37. Id.
  38. Some foreign nationals with serious felony convictions may not be able to bring a direct appeal of the removal order. A discussion of these types of cases is beyond the scope of this manual, but be aware that if the applicant is only eligible for Convention Against Torture relief, he or she may have to file a habeas type appeal, arguing substantial constitutional violations in order for the federal court to have jurisdiction over the claim.
  39. INA §242(b)(4)(B); 8 USC §1252(b)(4)(B).
  40. INA §208; 8 USC §1158 et. seq.
  41. 8 CFR §208 et. seq.
  42. ee E. Ramanathan, “Queer Cases: A Comparative Analysis of Global Sexual Orientation-Based Asylum Jurisprudence,” 11 Geo. Immigr. L.J. 1, 1, n. 2 (1996).
  43. 8 CFR §1003.1(b).
  44. 8 CFR §1003.1(g).
  45. INA §242(a)(1), 8 USC §1252(a)(1).
  46. Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000).
  47. Id. at 1087.
  48. Id. at 1088. Note: This manual uses the male pronoun for Hernandez-Montiel because that is the pronoun used in the decision and in his own briefs to the court.
  49. Id. at 1089.
  50. Id. at 1094.
  51. Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004).
  52. Id. at 785. Again, this manual uses the male pronoun in describing Reyes-Reyes because that is the pronoun used in the decision.
  53. Id. at 787. Note: This interpretation by the Ninth Circuit U.S. Court of Appeals is much more liberal than that of other circuits.
  54. Id. at 789.
  55. Id. at 785.
  56. Ornelas-Chavez v. Gonzalez, 458 F.3d 1052 (9th Cir. 2006).
  57. Id. at 1054.
  58. Id. at 1058.
  59. orales v. Gonzalez, 478 F.3d 972 (9th Cir. 2007).
  60. Id. at 976.
  61. Id. at 984.
  62. INA §101(a)(42)(A); 8 USC §1101(a)(42)(A).
  63. 8 CFR §208.12.
  64. 8 CFR §§208.4(2), 208.4(5).
  65. 20 I&N Dec. 819 (BIA 1990).
  66. See Hernandez-Montiel v. INSReyes-Reyes v. Ashcroft, and Ornelas-Chavez v. Gonzalez sections supra in this chapter.
  67. Matter of Acosta 19 I&N Dec. 211 (BIA 1985).
  68. Id. at 233.
  69. For further information on formulating the particular social group claim for transgender applicants, see “Uncharted Territory: Choosing an Effective Approach in Transgender‑Based Asylum Claims,” by Victoria Neilson, originally published at 32 Fordham Urb. L.J. 265 (2005).
  70. 65 Fed. Reg. 76588 (Dec. 7, 2000).
  71. Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003).
  72. 8 CFR §208.13.
  73. See In re S–A–, 22 I&N Dec. 1328, 1335 (BIA 2000); In re Kasinga, 21 I&N Dec. 357, 358 (BIA 1996); Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. 1997).
  74. In the case of In Re S–A–, 22 I&N 1328 (BIA 2000), the BIA found persecution where an abusive father beat, severely burned, and refused to allow his daughter to leave the home because she did not adhere to his strict religious beliefs. The BIA agreed with the applicant that reporting this abuse to the Moroccan government would have been futile.Id. at 1333.
  75. Matter of Villalta, 20 I&N Dec. 142 (BIA 1990) (death squads); Arteaga v. INS, 836 F.2d 1227, 1232 (guerillas); Singh v. INS, 94 F.3d 1353, 1359 (9th Cir. 1996) (gangs); In Re S–A–id (family members).
  76. Matter of Toboso-Alfonso 20 I&N Dec. 819 (BIA 1990).
  77. Pitcherskaia v. INS 118 F.3d 641, 645 (9th Cir. 1997).
  78. Hernandez‑Montiel v. INS, 225 F.3d 1088 (9th Cir. 2000).
  79. Reyes‑Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004).
  80. 8 CFR §208.13(b)(1).
  81. 8 CFR §208.13(b)(1)(ii).
  82. 8 CFR §208.13(b)(1)(i)(A)–(B).
  83. 8 CFR §208.13(b)(3)(ii); see also Matter of D–I–, I&N Dec. 448, 450 (BIA 2008).
  84. INS v. Cardoza‑Fonseca, 480 U.S. 421, 430 (1987).
  85. 8 CFR §208.13(2).
  86. See, e.g., Hernandez‑Montiel v. INS, 225 F.3d 1088, 1089 (9th Cir. 2000).
  87. Pub. L. No. 109-13, 119 Stat. 231.
  88. INA §208(b)(1)(B)(i); 8 USC §1158.
  89. 8 CFR §208.14.
  90. 8 CFR §208.4.
  91. See Withholding of Removal and Convention Against Torture Act sections infra this chapter.
  92. 8 CFR §208.4.
  93. 8 CFR §208.4(a)(4)(ii).
  94. 8 CFR§208.4(a)(4)(i).
  95. 8 CFR §208.4(a)(5).
  96. 8 CFR §208.4(a)(5)(i).
  97. Id.
  98. 8 CFR §208.4(a)(5)iii.
  99. 8 CFR §208.4(a)(5)iv.
  100. See generally L. Piwowarczyk, “Seeking Asylum: A Mental Health Perspective,” 16 Geo. Immigr. L.J. 155 (2001).
  101. See Favorable Exercise of Discretion section supra this chapter.
  102. 8 CFR §208.3(a).
  103. 8 CFR §208.16(d)(1).
  104. 8 CFR§208.16(d)(1).
  105. 8 CFR§208.16(c)(2).
  106. 8 CFR §208.16(b)(1)(i).
  107. 8 CFR §208.16(b)(1)(i).
  108. 8 CFR §274a.12(a)(5).
  109. INA §212(a)(9)(A)(ii); 8 USC §1182.
  110. INA §212(a)(8)(A); 8 USC §1181.
  111. In re Frentescu, 18 I&N 2906 (BIA 1982).
  112. 8 CFR §208.16(d)(2).
  113. n Re S–S–, 22 I&N Dec. 458 (BIA 1999).
  114. United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment, G.A. Res. 39/46, Annex, U.N. Doc. A/39/51 (1984) (June 26, 1987).
  115. 8 CFR §208.16(C)(2).
  116. Cf. Neghes v. Mukasey, 2008 WL 905347 (6th Cir. Apr. 4, 2008) (man convicted of an aggravated felony argued unsuccessfully that the BIA failed to give appropriate weight to the evidence in denying his Convention Against Torture (CAT) claim.) CAT claims have been central in two applications by transgender women. See Reyes‑Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004) (granting CAT protections to a transgender applicant from Mexico who failed to meet the one-year filing deadline for asylum); Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007) (finding both that the IJ erred in the consideration of whether Morales was convicted of a particularly serious crime and that the IJ applied the incorrect legal standard in denying CAT relief).
  117. See www.immigrationequality.org/issues/law-library/lgbth-asylum-manual.
  118. See Appendix I, Form I-589, Application for Asylum and Withholding of Removal (with instructions).
  119. See Appendix J, Form G-28, Notice of Entry of Appearance as Attorney or Representative.
  120. See Appendix K, Form EOIR-28, Notice of Entry of Appearance as Attorney or Representative.
  121. See www.usdoj.gov/eoir/vll/OCIJPracManual/Chap%202.pdf for Immigration Court Practice Manual chapter 2.3(e). To purchase a print copy, visit www.ailapubs.org.
  122. Pub. L. No. 109-13, 119 Stat. 231.
  123. 8 CFR §1003.33.
  124. See INS v. Cardoza‑Fonseca, 480 U.S. 421 (1987); Francois v. INS, 283 F.3d 926, 930 (8th Cir. 2002). (“The objective element requires a showing of credible, direct, and specific evidence that a reasonable person in the alien’s position would fear persecution if returned to the alien’s native country.”)
  125. Department of State reports are available at www.state.gov/g/drl/rls/hrrpt.