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3 Immigration Basics – Elements of Asylum Law-- continued

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3.2 On Account of Membership in a Particular Social Group

The applicant must prove that the persecution she fears in the future is motivated by the applicant's actual or imputed membership in the particular social group. Since 1994, when Attorney General Janet Reno designated Matter of Toboso-Alfonso as precedent, homosexual men has been recognized as a particular social group under asylum law.  More recently, the Ninth Circuit has ruled that "all alien homosexuals are members of a ‘particular social group.'"⁶⁹  In the case Amanfi v. Ashcroft, the Third Circuit held that imputed membership in the particular social group of homosexuals can also be grounds for an asylum claim. In Amanfi, the Court recognized that persecution on account of sexual orientation may be sufficient for an asylum claim even if the victim is actually not homosexual but is thought to be by the persecutor.⁷⁰  In that case, a man from Ghana engaged in homosexual activity with another man in order to be spared from being ritually sacrificed, after which he was continuously beaten by police for his perceived homosexuality.

The Ninth Circuit has also found that gay men with female sexual identities constitute a particular social group in the case of Hernandez-Montiel.⁷¹ The Court rejected the argument that Hernandez-Montiel's female identity was volitional, concluding that his presentation of self as female was immutable and inherent in his identity and that he could not be required to change it. The Court reaffirmed its holding in Reyes-Reyes v. Ashcroft.⁷²  Although those with transgender identity have not been explicitly found to constitute a particular social group, there have been many successful non-precedential cases.⁷³ 

People with HIV have not explicitly been found to constitute a particular social group for the purposes of asylum. In 1996, the INS Office of the General Counsel recommended that the social group category of people with HIV should be recognized for the purposes of asylum law.⁷⁴  Some Immigration Judges have found that HIV-positive status can form the basis of a particular social group.⁷⁵  The Board of Immigration Appeals has also recognized, in an unpublished opinion, that people living with AIDS can comprise a social group.⁷⁶  Although these decisions are significant for HIV-positive asylum applicants, the applicant will still need to individually establish that people with HIV in their countries constitute a particular social group since they are not precedential rulings.

An essential component of an asylum application for a lesbian or gay applicant will be proving that he is in fact gay. This may include testimony or documentation by past partners or friends living in the United States.

The applicant must also provide evidence, either direct or circumstantial, that the persecution is on account of his sexual orientation.⁷⁷  In an unpublished decision, Pena-Torres v. Gonzales, the Ninth Circuit reversed a decision by the Immigration Judge that a gay man from Mexico suffered from police brutality rather than persecution on account of his sexual orientation.⁷⁸ The Ninth Circuit remanded the case for a new determination regarding asylum eligibility because it found that an incident where the applicant was beaten to the point where he required medical attention and was threatened by the police after leaving a gay bar, did amount to past persecution on account of his homosexuality. The Court reached this conclusion by citing evidence that the police attacked the applicant only after they asked him whether he was gay.

Significantly, the Board of Immigration Appeals has consistently followed the doctrine of mixed motives which holds that there can be more than one motivation for the persecution, as long as the harm was motivated in part by an actual or imputed ground as shown by direct or circumstantial evidence produced by the applicant.⁷⁹

If an applicant does not clearly fit within a precedentially defined social group, she must establish that she is a member of such a social group. The major case setting forth what constitutes membership in a social group is Matter of Acosta.⁸⁰

‘Persecution on account of membership in a particular social group' mean[s] persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it 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.⁸¹

Other adjudicators have found that the attributes of a particular social group must be recognizable and discrete.⁸²  Social groups should be defined in specific terms rather than in broad, generally applicable terms such as youth and gender. For instance, the following social groups have met the requirements for asylum: young women of the Tchamba-Kunsuntu tribe who have not had female genital mutilation, as practiced by that tribe, and who oppose the practice⁸³  and HIV-positive individuals living in the Ivory Coast and Togo.⁸⁴

As noted, broad social groups, such as gender, will not satisfy the membership requirement as it is currently construed. This exclusion of women creates difficulties for those who seek asylum in order to escape domestic violence or other forms of violence within the private sphere. BIA precedent suggests that one way to construe the social group category for victims of domestic violence may be through differing political beliefs. In the case In Re S-A-, the Board of Immigration Appeals found that a woman who suffered abuse at the hands of her father established past persecution on the basis of her liberal Muslim beliefs. Her beliefs conflicted with her father's orthodox Muslim views about the proper behavior of women.⁸⁵

Political opinion may be an additional ground that LGBT/H individuals can claim asylum. LGBT/H people who are involved with gay rights groups may use political opinion as a supplemental ground for asylum claims. In addition, the BIA has found that persecution can be based on an imputed political opinion.⁸⁶  

3.3 Imposed by the Government or by a Group which the Government is Unable or Unwilling to Control

The applicant must have suffered persecution by the government or by a group which the government is unable or unwilling to control. The government generally includes the police, the military, and government-run schools. Groups that the government is unable or unwilling to control encompasses guerrilla and paramilitary groups and gangs.⁸⁷  The government, for the purposes of asylum law, also includes government-sponsored groups.⁸⁸

Generally, beatings by other citizens will not constitute persecution if there is no showing that there was government involvement or that the government refused to assist in prosecuting the abusers or protecting the victim. For instance, in the case of Galicia v. Ashcroft, a Guatemalan gay man's petition for review was denied because beatings and verbal abuse by his neighbors were committed only by non-governmental actors.⁸⁹  He never contacted the authorities and therefore was unable to claim that the government was unwilling or unable to protect him or prosecute his abusers.

Adjudicators have broadly interpreted what constitutes a group that the government is unable or unwilling to control. Some decisions find that crime committed against the applicant by family members may constitute persecution if the government is unwilling or unable to protect the victim or prosecute the violator. For instance, in the case of In re Kasinga, the applicant established a well-founded fear of persecution based on threats by her husband and other family members that they would perform female genital mutilation on her. Although the state itself would not have participated in the act of mutilation, the BIA found that the government would not have prevented her family from acting.⁹⁰

The BIA has also found that domestic violence can constitute persecution in some instances. In In re S-A, the BIA found that there was persecution in a case where a father was beating and abusing his daughter because she did not conform to his strict Muslim beliefs and practices.⁹¹ She was beaten once a week, often times severely, was burnt on the insides of her thighs, and twice attempted suicide when she was forbidden to leave the house, including to attend school. Although she never approached the government for aid, the BIA was convinced by evidence presented that Moroccan authorities would not have protected her.

The decisions of In re Kasinga and In re S-A- are significant for gay and lesbian asylum applicants who may have been the victims of violence directed at them by family members. The decisions have particular significance for lesbian applicants who, because they are women and are largely kept within the private sphere, may be victims of domestic violence.⁹²  An asylum claim will be more likely to be successful if the violence is continuous and reaches a level of severity and if there is evidence that the government would not protect the victim.

Although these cases provide some hope for victims of domestic violence, violence or sexual assault at the hands of family members generally will not be sufficient unless the applicant had approached police regarding the problem and the police refused to assist the applicant or the applicant can clearly demonstrate through compelling documentary evidence that seeking government protection would have been futile or dangerous.  Several unpublished decisions find that sexual assaults and beatings inflicted by family members are private conduct when not brought to the attention of government.⁹³

3.4 Meriting a Favorable Exercise of Discretion

Even if an applicant meets all of the requirements to qualify as an asylee, the adjudicator may deny a grant of asylum if she feels that the applicant does not merit a favorable exercise of discretion.⁹⁴     It is therefore advisable to provide evidence that the applicant "deserves" asylum.  If there are no significant negative factors in the case, and the applicant has met the standard for asylum, she generally wins.  
 
If there are negative factors, such as a criminal conviction, it will be important to explain the circumstances of the conviction, and, if possible demonstrate rehabilitation.  Likewise, if the applicant entered the United States by using fraudulent documents, he should be prepared to explain why this was necessary in order to flee the situation in his country.

3.5 Frivolous Asylum Applications

Knowingly filing a frivolous asylum application is one of the most serious wrongs that an applicant for immigration status can commit.  The regulations define an asylum application as frivolous "if any of its material elements is deliberately fabricated."⁹⁵    Thus an application is not considered "frivolous" simply because it is denied or because it is obviously weak; a "frivolous" finding requires "deliberate fabrication." 

If an Immigration Judge or the BIA determines that the applicant filed a frivolous application, and that the applicant has received the required notice of the penalties for filing a frivolous application, "the alien shall be permanently ineligible for any benefits under the [Immigration and Nationality] Act."⁹⁶   However, a finding of a frivolous asylum application "shall not preclude the alien from seeking withholding of removal."⁹⁷

^{69 Id. at 1172.}

^{70 Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003).}

^{71 Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000).}

^{72 Reyes-Reyes v. Ashcroft, 284 F.3d 782 (9th Cir. 2004).}

^{73 See Victoria Neilson, Uncharted Territory: Choosing an Effective Approach in Transgender-Based Asylum Claims, 32 Fordham Urban Law Journal 265 (2005) available at http://immigrationequality.org/template.php?pageid=206; see also Melissa Castillo-Garsow, An Odyssey to Asylum, Gay City News, December 30, 2004- January 5, 2005 available at http://www.gaycitynews.com/gcn_353/anodysseytoasylum.html .}

^{74 Memorandum from INS Office of the General Counsel, David A. Martin, General Counsel, to all Regional Counsel, Legal Opinion: Seropositivity for HIV and Relief from Deportation (Feb. 16, 1996), reported in 73 Interpreter Releases 901 (July 8, 1996).  Available at http://immigrationequality.org/uploadedfiles/HIV%20asylum%20memo.pdf .} 

^{75 Matter of [   ], (IJ Dec. 20, 2000) (Baltimore, MD) (Gossart, IJ), reported in 78 Interpreter Releases 233 (Jan. 15, 2001) (HIV-positive married woman wins asylum as a member of the social group of HIV-positive married women in India based on evidence of ostracism and lack of appropriate medical care if she returned to her native country); Matter of [   ], A71-498-940 (IJ Oct. 31, 1995) (New York, NY), reported in 73 Interpreter Releases 901 (July 8, 1996) (man from Togo granted asylum on the basis of his membership in the particular social group of individuals infected with HIV).}

^{76 In Re Oscar Alberto Argueta, A91-051-087 (BIA Nov. 14, 2003)(Arlington, VA) citing 8 U.S.C. § 1101(a)(42(A)(1994); Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985); Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987); Matter of H-, 21 I. & N. Dec. 337 (BIA 1996); Fatin v. INS, 12 F.3d 1233, 1249 (3d Cir. 1993); Gomez v. INS, 947 F.3d 660, 664 (2d Cir. 1991).}

^{77 See INS v. Elias-Zacharias, 502 U.S. 478 (1992).}

^{78 Pena-Torres v. Gonzales, No. 03-72680, 2005 U.S. App. LEXIS 7153 (9th Cir. 2005).}

^{79 Matter of S-P-, 21 I. & N. Dec. 486 (BIA 1996); Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir. 1994); Girma v. INS, 283 F.3d 664, 667 (5th Cir. 2002).  Note, the recently passed Real ID Act now requires that the protected characteristic be at least one central motivation for the persecutor.  See Sections #5.1 and #5.9 on the Real ID Act.}

^{80 Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985).}

^{81 Id. at 233-234.}

^{82 Gomez v. INS, 947 F.2d 660 (2d. Cir 1991).}

^{83 In Re Kasinga, 21 I. & N. 357 (BIA 1996).}

^{84 See Matter of [name not provided] A 71-498-940 (IJ Oct. 31, 1995)(New York, NY), reported in 73 Interpreter Releases 901 (July 8, 1996).}

^{85 In Re S-A-, 22 I. & N. 1328 (BIA 2000).}

^{86 In Matter of S-P-, 21 I. & N. Dec. 486 (BIA 1996).}

^{87 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).}

^{88 Montoya-Ulloa v. INS, 79 F.3d 930, 931 (9th Cir. 1996).}

^{89 Galicia v. Ashcroft, 396 F.3d 446 (1st Cir. 2005).}

^{90 In Re Kasinga, 21 I. & N. Dec. 357 (BIA 1996).}

^{91 In Re S-A-, 22 I. & N. 1328 (BIA 2000). Notably, the persecution in this case was found to be based on political belief, not based on membership in a particular social group that included abused women.}

^{92 See Victoria Neilson, Homosexual or Female: Applying Gender-Based Asylum Jurisprudence to Lesbian Asylum Claims, 16 Stanford Law and Policy Review 417 (2005).}

^{93Cornejo-Merida v. Ashcroft, No. 03-73601, 116 Fed. Appx. 900 (9th Cir. 2004); Uribe v. Ashcroft, No. 03-70606, 105 Fed. Appx. 941 (9th Cir. 2004).}

^{94 8 C.F.R. § 1208.14.}

^{95 8 CFR §208.20.}

^{96 INA §208(d)(6).}

^{97 8 CFR §208.20.}

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.