11. Challenging Asylum Cases
The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.
Some asylum applications are relatively straightforward: the applicant is filing within one year of their last arrival in the United States, they have severe past persecution with documentation to corroborate the abuse, and they have never done anything wrong in the United States or in their native country. Cases such as this are relatively easy to work on, and with careful preparation have a strong chance of winning.
Often, however, cases are not so perfect. When asylum applications include facts which seem to undermine their claim, it is important to address these facts head on. Asylum Officers, Immigration Judges, and DHS attorneys will be looking for these issues and will confront your client with them. It is therefore best to have the applicant raise difficult issues first so that they can fully explain the circumstances of the bad fact. There are some issues in particular that arise frequently in LGBTQ/H asylum issues and that require extra thought and preparation.
It is essential to remember, when preparing a sexual orientation-based asylum claim, that the first element that must be proven to the adjudicator is that the applicant really is lesbian, gay, or bisexual. This can be accomplished by including affidavits, letters and/or testimony from current and/or past romantic partners. Proof of sexual orientation can also be bolstered by including evidence that the applicant is involved in LGBTQ organizations. And, of course, the applicant’s detailed and compelling written and oral testimony about romantic feelings are crucial.
But what if the applicant was or is married to someone of a different sex? Will this be fatal to a sexual orientation-based asylum application? The answer, as with most asylum issues, is that it depends. For bisexual applicants, marriage to an opposite-sex partner is perfectly consonant with their sexual orientation—though you may need to remind the adjudicator of this fact: see Section 11.2 below. In other cases, it will be important when preparing the case to realize that this marriage will be a significant issue and to prepare the client to talk about it honestly.
11.1.1 Marriage in the Home Country
In many cases an asylum applicant will have married in their own country because their family forced them into the marriage, because they were hoping the marriage would work and could “cure” their sexual orientation, or because they believed the marriage would provide them with a “cover” allowing them to continue seeking same-sex relationships. In situations where the applicant tried to be married to someone of a different sex and the marriage failed because of the applicant’s sexual orientation, the marriage (and possible divorce) itself can become part of the evidence of the applicant’s sexual orientation. It is important, if possible, to corroborate the failure of the marriage, whether this is through a letter from the (ex-)spouse, a letter from a friend or family member in whom the applicant confided, or a letter from a therapist who tried to help save the marriage.
The longer the marriage lasted, and the deeper the commitment appeared to be (for example, if the couple had children), the more in-depth an explanation the applicant should be prepared to give. Expert testimony from a psychiatrist or psychologist can be essential to a case where the applicant appeared to lead a heterosexual life in the past. It is important to remember that the asylum adjudicator is probably heterosexual and may need to be educated about the complex psychological components that make up a person’s sexual orientation.
11.1.2 Marriage in the United States
If the applicant married a person of the opposite sex in the United States, they will be facing an even more difficult obstacle in their asylum application. It is possible that the applicant married a different-sex spouse in the United States for the same reasons they might have done so in their own country: the hope of “overcoming” their same-sex attraction or the hope that they could appease their family. Of course, without the extreme societal pressures which may come to bear on the applicant in their country of origin, it is more difficult to explain why they would feel the need to marry in the United States (where, at least in theory, people are free to pursue relationships with members of the same sex). In a situation where the applicant has married a different-sex person in the United States, it will be essential to have a mental health expert testify about the coming out process and the applicant’s motivations for entering into the marriage.
An even more difficult situation arises when the applicant married a U.S. citizen or legal permanent resident for the purpose of obtaining a “green card” without truly intending the marriage to be bona fide. In dealing with this situation it is important to remember, first, that an asylum applicant must be truthful at all times. There is no more serious wrong an applicant for immigration status can commit than to intentionally fabricate information in an asylum application, so if the applicant never intended the marriage to be real, they must be truthful about this. Admitting that the applicant committed immigration fraud will probably mean that the applicant will be ineligible for asylum and will instead be focusing on his application for withholding of removal. In addition to meeting the elements of the refugee definition, a successful asylum application requires a “favorable exercise of discretion” (See Section# 3.4), and it is unlikely that an adjudicator will exercise this discretion if the applicant admits to having committed immigration fraud.
The other danger with admitting that the applicant previously submitted a fraudulent application is that the adjudicator may find that if the applicant lied to the government in the past in an effort to receive an immigration benefit, they may be doing so again with the current asylum application. It is important to work closely with a client in this difficult situation to make sure that they testify with complete candor about the marriage and their motivations for entering into it so that the adjudicator believes their current testimony. It is also important to focus on corroborating the applicant’s sexual orientation, as well as to provide other evidence of the applicant’s good moral character so that the adjudicator can see that the fraudulent marriage was an aberration borne out of desperation rather than that the applicant is generally untrustworthy.
11.2 Bisexual Claims
One reason that an applicant may be married now or may have married in the past may be that they identify as bisexual rather than gay or lesbian. There are no precedential asylum claims recognizing bisexual people as a particular social group (PSG). As with any other asylum claim, whether or not the claim of a bisexual applicant will succeed will be very dependent on the particular facts of the case.
If the applicant suffered past persecution because of their bisexuality, there is a rebuttable presumption that they will suffer future persecution. If they are currently married to a different-sex partner who would return with them to their country if they are removed, this change in circumstances may be sufficient for ICE to rebut the presumption of future persecution. On the other hand, if the applicant was known to have had same-sex relationships in their country, and will be presumed to be gay or lesbian and face future persecution as a result, they could argue that the fact that they have had some relationships with a different-sex partner would not protect them from the abuse they would face in the future.
Asylum adjudicators often want the issues in cases to be black and white. It is not hard to imagine an asylum adjudicator taking the position that if the applicant is attracted to both sexes, they should simply “choose” to be with members of the opposite sex to avoid future persecution. In a case which is based on bisexual identity, it will be very important to include the testimony of a mental health expert who can describe for the adjudicator that bisexual individuals do not “choose” whether to fall in love with men or women any more so than anyone else “chooses” whom they fall in love with.
11.3 The Applicant Does Not “Look Gay”
While it is always necessary for an asylum applicant to prove that they actually are a member of the claimed PSG, it is especially important to focus on this element of the case if the applicant does not fit the stereotype of an “effeminate gay man” or a “masculine lesbian woman.” Every adjudicator approaches an asylum application with his or her own biases. If the applicant “looks gay” to the adjudicator based on whatever stereotypes or “gaydar” the adjudicator brings to the interview or hearing, it is probably more likely that the applicant will win the case. There are several reasons for this.
First, most LGBTQ applicants cannot prove their membership in a PSG as clearly as other asylum applicants can prove, for example, their affiliation with a political party or their ethnic group. Asylum adjudicators are often fearful that an applicant has completely fabricated their claim simply to remain in the United States. If, on a gut level, the adjudicator believes the applicant is LGBTQ, it is much more likely that the adjudicator will believe other aspects of the case.
Second, even if the adjudicator does believe that the applicant is LGBTQ, the adjudicator will also question how the applicant’s government or other members of society will know the applicant’s sexual orientation or gender identity such that they will be likely to suffer harm in their country. If the applicant is a “flaming queen,” it may be easier for the adjudicator to picture the applicant being gay-bashed on the street or abused by policemen than if the applicant looks like a professional athlete. If the adjudicator can’t tell that the applicant is LGBTQ, the adjudicator may question how the applicant’s compatriots could tell.
In cases where the applicant does not fit the U.S. stereotype of an LGBTQ person, the applicant’s representative must make sure that the record contains as much corroborating evidence as possible that the applicant really is LGBTQ. (See Section # 20.2.1). The applicant must also be prepared to prove that they would be recognized as LGBTQ in their country of origin and would face persecution as a result. Obviously, if they have already been persecuted in the past, this should be compelling evidence both that they were previously recognized as LGBTQ and that their sexual orientation or gender identity would be known in their country of origin if they return. Testimony from a country conditions expert that the applicant, for example, “looks homosexual” according to the cultural norms of their country can also be very important to the success of the case. It is also important to include other evidence of how the applicant’s sexual orientation or gender identity would become known. For example, in many cultures it is unheard-of for a 30-year-old man to be unmarried. In other societies, the fact that two adults of the same gender are living in the same household would immediately subject them to scrutiny from their neighbors and the government. It is essential to get this evidence into the record, both through country condition reports and expert testimony.
11.4 Multiple Return Trips to the Country of Origin
The classic factual scenario for an asylum-seeker is that they suffer some terrible incident of persecution in their country, flee their country as soon thereafter as possible, and seek asylum in the United States shortly after arriving here. Cases with this fact pattern are certainly not uncommon, but frequently the realities of asylum-seekers’ lives don’t fit so neatly with this paradigm.
Often LGBTQ/H individuals have no idea that their sexual orientation, gender identity, and/or HIV-positive status could be grounds for seeking asylum in the United States Thus, many LGBTQ/H individuals who visit the United States are careful to return to their countries before their authorized stay expires so that they won’t lose the ability to return to the United States in the future. This is often especially true for individuals who are living with HIV and visiting the United States regularly to obtain medication that is unavailable in their home countries.
If the applicant has returned to their home country after leaving the United States, the adjudicator will certainly want to know why the applicant fears for their safety in returning now when they returned of their own volition in the past. In many cases, there was one final incident that occurred to the applicant or to someone the applicant knows and that made the applicant realize once and for all that it would be unsafe to remain in their country. The representative should always discuss with the client what compelled them to flee to the United States permanently this last time.
The Ninth Circuit has addressed the issue of return trips to the home country after having been persecuted and reiterated that that Circuit has “never held that the existence of return trips standing alone can rebut th[e] presumption [of future persecution.]” 1 In Boer-Sedano, the applicant was a gay man living with AIDS from Mexico who had suffered past sexual and physical abuse by a police officer because of his sexual orientation. The Court found that Boer-Sedano’s several return trips to Mexico to gather enough income to relocate permanently in the United States did not render him ineligible for asylum.
As with most issues in asylum cases, whether or not an applicant’s return trips to their country of origin are fatal to their asylum application will depend on the specific facts of the case. It is important for the representative to explore this topic fully with the client and prepare the applicant to explain the reason for the trips to the adjudicator. The applicant should also be prepared to explain (and if possible corroborate) any ways in which they modified their behavior while back in their country. For example, if they remained in their country for a brief time, avoided LGBTQ meeting places, and rarely left their home, these facts may help an adjudicator understand why the applicant was able to escape harm on the trip home.
Be careful, however, that these facts don’t backfire into an adjudicator determining that if the applicant does not “flaunt” their LGBTQ status, they can avoid harm in their country. The applicant (and representative) should be prepared to argue that it is one thing to spend a couple of weeks avoiding the public eye and potential harm, but it is quite another thing to be forced into a life of celibacy to survive. In another Ninth Circuit case, Karouni v. Gonzales, the Court addressed this issue, finding that it was unacceptable to saddle Karouni, a gay man living with HIV from Lebanon, with the “Hobson’s choice of returning to Lebanon and either (1) facing persecution for engaging in future homosexual acts of (2) living a life of celibacy.” 2 Thus, the applicant should be able to explain why they would fear having to live in their country again, including their fear of persecution if they had a romantic partner or tried to find a romantic partner, even if they were able to escape harm on a brief visit.
Likewise, an applicant living with HIV may be able to demonstrate that they avoided harm on a brief trip to their home country by bringing enough medication to last for the trip. The applicant could argue that by avoiding seeking medical care (something that would be impossible to do if they returned to their country permanently) they were able to conceal their HIV-positive status.
11.5 Criminal Issues
The interplay between criminal law and immigration law is one of the most complicated areas in the complicated area of immigration law. As such, it is generally beyond the scope of this manual. However, anyone who is representing an asylum-seeker must know a few basics about how criminal convictions can affect eligibility for asylum and withholding of removal (applicants who meet the heightened standard for relief under the Convention Against Torture cannot be removed to the country where they would face torture regardless of their criminal history in the United States, though they can face indefinite detention here if they are deemed to be a threat to the community).
The asylum applicant must answer questions on the I-589 about criminal convictions and arrests, so the representative must impress upon the applicant the importance of discussing past criminal activity openly. All asylum applicants are fingerprinted multiple times during the application process, and if the applicant was arrested in the United States, it is extremely unlikely that DHS would not know about the arrest.
Applicants for both asylum and withholding of removal are considered statutorily ineligible for such relief if they have been convicted of a “particularly serious crime.” For purposes of asylum applications, any conviction for an aggravated felony 3 will render the applicant statutorily ineligible. 4 For purposes of withholding of removal, if the applicant has been convicted of one or more aggravated felonies for which the aggregate term(s) of imprisonment are five years or more, they will be statutorily ineligible for having committed a “particularly serious crime.” 5 Even if the applicant’s aggregate prison term was under five years, the adjudicator can still make an individualized inquiry as to whether or not the conviction rose to the level of a “particularly serious crime” to determine whether or not the applicant is statutorily eligible.
Even if the applicant’s conviction was for a crime that did not rise to the level of an aggravated felony, the conviction can lead to the denial of an asylum application. The leading case on determining whether or not a criminal conviction is a “particularly serious crime” is Matter of Frentescu. 6 Additionally, to qualify for asylum, an applicant must merit a favorable exercise of discretion. Thus, even if an asylum applicant’s conviction is not found to be a “particularly serious crime” and does not render them statutorily ineligible for asylum, an adjudicator may still deny the application on discretionary grounds. If the applicant committed a crime, it will be crucial to the case for the applicant to fully explain the circumstances of the conviction and (if possible) to express remorse and demonstrate rehabilitation.
If the applicant committed a “serious nonpolitical crime” in their own country or any other country outside the United States, they are also statutorily ineligible for asylum or withholding of removal. 7 Again, it is important to question the applicant thoroughly about any criminal activity before they arrived in the United States In many cases, the applicant may have faced arrest or conviction because of their sexual orientation or gender identity. If the applicant is being prosecuted for engaging in a protected activity, such as having private, consensual sexual relations, such an arrest would not render the applicant ineligible for asylum and would actually be an important part of their claim.
11.6 Prior Government Employment
Another issue that a representative should explore with the applicant is whether or not they were employed by the government in their country of origin. In the classic paradigm of an asylum case, where an applicant was a political activist against a dictatorial government, it was reasonable to conclude that employment by that same government would undermine the claim. In most LGBTQ/H asylum cases, the primary problem that applicants have experienced from the government has been abuse by the police or military, or failure by the police to protect against harm from private individuals. Given this fact pattern, employment as a government clerk or the like should not render an applicant ineligible for asylum, but it may still be an issue that an adjudicator pursues. After all, if the applicant’s claim is that the entire country is intolerant of sexual minorities, and sexual minorities face abuse and discrimination, why would the government have hired them? If the answer to this question is that the applicant kept their sexual orientation, gender identity, and/or HIV status hidden from their employer, then an adjudicator might reasonably question how the police, individuals on the street, or other potential persecutors would be aware that the applicant was LGBTQ/H when those as close to him as his employer remained unaware. Again, the answers to these questions will be specific to the facts of the case, but it is an issue which the representative must prepare the applicant to discuss with the adjudicator.
11.7 Visa Waiver Program
If an applicant entered the United States without a visa under the Visa Waiver Program (VWP), 8 they are not entitled to an interview with an Asylum Officer. Instead, their application will be heard by an Immigration Judge in “asylum-only” removal proceedings. 9 Most entrants under the VWP, a program that allows foreign nationals from low-risk visa violating countries to enter the United States for up to 90 days without first applying for a tourist visa, come from Western Europe and would therefore not be seeking asylum in the United States The issue does arise at times, however, when the applicant has dual citizenship with a VWP country and enters the United States using the passport of the VWP country. Also, while Argentina has been removed from the VWP list, there are Argentine nationals who entered the United States under the VWP as it existed several years ago who may wish to seek asylum because of their sexual orientation.
11.8 Dual Nationality
If an asylum applicant has dual nationality—that is, they are a citizen of more than one country and have the legal right to reside in and enjoy full citizenship rights in both countries—this can be a reason to deny the asylum application (depending upon the countries in question). The principle behind asylum applications in the United States is not that the application is a way to choose to live legally in the United States but rather that it is an application of last resort to avoid persecution. Thus, if the applicant has a safe alternative in another country, the United States can remove the applicant to that country. If an applicant is a dual citizen of the Dominican Republic and Spain, it will be very difficult to win an asylum case in the United States since Spain now grants equal rights to LGBTQ/H citizens. On the other hand, if the applicant is a dual citizen of the Dominican Republic and Haiti, the applicant may be able to prevail on an application based on persecution in the Dominican Republic, but will also have to prove, through country conditions documentation, that Haiti is also an unsafe country for LGBTQ/H people.
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.
- Boer-Sedano v. Gonzalez, 418 F.3d 1082, 1091 (9th Cir. 2005).
- Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005).
- For a definition of aggravated felonies see § 101(a)(43). Aggravated felonies include but are not limited to: murder; rape; drug trafficking; certain firearms offenses; money laundering or crimes of fraud for amounts over $10,000; crimes of violence for which the term of imprisonment is at least one year; theft or burglary for which the term of imprisonment is at least one year; chid pornography offenses; racketeering and gambling certain prostitution offenses; and certain alien smuggling offenses. INA §101(a)(43). It is important to understand that even crimes which are not considered felonies under state law can be considered aggravated felonies for immigration purposes.
- INA § 208(b)(2)(B)(i),. 8 U.S.C. § 1158 (b)(2)(B)(i) (2005).
- INA § 241(b)(3)(B), 8 U.S.C. § 1231 (b)(3)(B) (2005).
- 18 I. & N. Dec. 244 (BIA 1982).
- INA § 208(b)(2)(A)(iii), 8 U.S.C. § 1158 (b)(2)(A)(iii) (2005) and §241(b)(3)(B)(iii), 8 U.S.C. § 1231 (b)(3)(B)(iii) (2005).
- For more information on the VWP see http://travel.state.gov/visa/temp/without/without_1990.html.
- 8 C.F.R. § 217.4(a)(1) (2005).
The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.
This handbook is intended for use by pro bono attorneys and immigration attorneys working on LGBTQ/HIV asylum cases.
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