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.
Last updated: November 25, 2021
Included below are federal court decisions regarding LGBTQ/HIV-positive asylum, withholding of removal and Convention Against Torture applicants, current as of November 2021.
Remember, every asylum application is unique and very dependent on the specific facts of the case, so, just because another applicant won (or lost) from a particular country does not mean that another applicant from the same country will have the same outcome
U.S. Asylum Law — LGBTQ/HIV+ Decisions
Matter of Toboso-Alfonso 20 I&N Dec. 819 (BIA 1994) — (B.I.A. 1990) — the original case, decided in 1990 and designated as precedent in 1994, which established sexual orientation as “membership in a particular social group” and paved the way for asylum based on sexual orientation. Toboso-Alfonso was a gay man from Cuba who suffered various abuses at the hands of his government, including being forced to participate in a labor camp.
Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997) — finding that even if the abuser does not intend harm to the victim, if the victim experiences the abuse as harm, this can rise to the level of persecution. In this case, the applicant was a lesbian from Russia who, among other abuses, had been forced to undergo electroshock therapy to “cure” her of her homosexuality.
Hernandez-Montiel v. INS, 225 F.3d 1088 (9th Cir. 2000) — finding that a gay man with a female sexual identity who suffered persecution in Mexico, largely because he was effeminate, qualified for asylum.
Amanfi v. Ashcroft, 328 F.3d 719 (3rd Cir. 2003) — finding that it is possible to proceed with an asylum claim based on persecution on account of imputed membership in a particular social group, in this case sexual orientation, even if the applicant is not actually gay. In this case the applicant, a man from Ghana who feared he would be ritually sacrificed, engaged in a homosexual act with another man, knowing that this would lead to his being spared the sacrifice. After he was spared, however, he was mistreated because the authorities believed he was gay. The Court recognized his imputed membership in a particular social group and remanded the case for further investigation on his claim of persecution.
Gebremaria v. Ashcroft, 378 F.3d 734 (8th Cir. 2004) — motion to reopen based on feared persecution by HIV-positive Ethiopian woman denied because she knew of her HIV-positive status at the time of the original hearing and did not raise the issue.
Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004) — reaffirming that a “gay man with a female sexual identity” belongs to a particular social group, and finding that if a government willfully turns a blind eye to severe physical abuse inflicted by non-government actors this can rise to the level of government acquiescence in torture so as to qualify for relief under the Convention Against Torture treaty. In this case Reyes-Reyes was a gay man with a female sexual identity from El Salvador who had been kidnapped, beaten and raped by non-government actors because of his sexual orientation. The Court remanded for further proceedings on his CAT and withholding claims.
Molathwa v. Ashcroft, 390 F.3d 551 (8th Cir. 2004) — holding that the federal court lacked jurisdiction to review his claimed exception to the one year filing deadline for asylum and that Molathwa had failed to demonstrate that it was more likely than not that he would be persecuted because of his gay sexual orientation in his native Botswana.
Galicia v. Ashcroft, 396 F.3d 446 (1st Cir. 2005) — denying a gay Guatemalan man’s petition for review because he failed to show government involvement or lack of protection from past mistreatment he suffered by his neighbors.
Karouni v. Gonzales, 399 F.3d 1163 (9th Cir. 2005) — holding unequivocally that “all alien homosexuals are members of a ‘particular social group’” and finding that Karouni, a gay HIV positive man from Lebanon, had established a well founded fear of future persecution.
Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005) — holding that a gay Mexican man with AIDS who was sexually and physically abused by a Mexican police officer was statutorily eligible for asylum. The case also contains good language about the applicant’s HIV status making internal relocation within Mexico impossible, as well as good language that return trips to the home country alone do not render an applicant ineligible for asylum.
Salkeld v. Gonzales, 420 F.3d 804 (8th Cir. 2005) — holding that gay man from Peru who did not personally suffer past persecution and who did not meet a one year filing deadline exception, failed to prove a clear probability of future persecution and therefore did not meet the standard for withholding of removal. The Court found it significant that Salkeld himself had never experienced physical violence, there are no laws against homosexuality in Peru, and there are some regions in Peru which are relatively safer for gay people than others.
Kimumwe v. Gonzales, 431 F.3d 319 (8th Cir. 2005) — terrible decision (with good dissent) holding that a gay man from Zimbabwe had not established past persecution although, among other things, he was jailed without charges for two months after having sex with another man at college. The Court found that he was jailed because of sexual misconduct, not homosexual identity. The Court also found that in spite of Mugabe’s statements that homosexuals have no rights, and Zimbabwe’s poor record on human rights, that Kimumwe had failed to prove a fear of future persecution.
Ornelas Chavez v. Gonzalez, 458 F.3d 1052 (9th Cir. 2006) — withholding of Removal and Convention against Torture decision remanding the case of a transgender woman from Mexico who suffered abuse from family and coworkers, because the Immigration Judge applied an impermissibly strict legal standard to both claims. The circuit court found that reporting past abuse to police was not a requirement for withholding of removal, and that the legal standard for CAT relief was not that the abuse was sanctioned by government official but that it occurred by their “consent or acquiescence” or “willful blindness.”
Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d. Cir. 2006) — terrible decision finding that in spite of the clear regulatory language that the one year filing deadline is calculated from the last date of entry, this applicant who applied within one year of entering the U.S. after receiving advance parole was untimely. Worse still, the 2nd Circuit upholds the immigration judge’s holding that Joaquin-Porras, a gay man from Costa Rica, did not suffer past persecution when he was raped by a police officer, but rather suffered a random act of violence by a corrupt officer and that an incident during his last visit to Costa Rica during which he was detained by the police and forced to pay a bribe did not rise to the level of persecution. This case serves as a cautionary tale that bad facts make bad law. Joaquin-Porras had obtained advance parole through a fraudulent marriage which may have predisposed the courts against him, and State Department reports for Costa Rica show it to be a more tolerant country than others in Latin America.
Morales v. Gonzalez, 472 F.3d 689 (9th Cir. 2007) — Asylum decision remanding the case of a transgender woman from Mexico whose case had been denied because the IJ improperly found her misdemeanor conviction to be a crime of moral turpitude rendering her ineligible for asylum or withholding of removal. The Circuit Court found that the IJ erred in denying her Convention against Torture claim by ignoring “willful blindness” on the part of government officials, and found that suffering sexual assault in prison under the watch of prison guards met the legal standard for CAT relief.
Nabulwala v. Gonzales, 481 F.3d 1115 (8th Cir. 2007) — good decision from the 8th Circuit, noting that the government’s unwillingness or inability to control a private actor may apply in a lesbian asylum case. The Court also reprimands the BIA for erroneously making a finding of fact on that issue, and remands.
Shahinaj v. Gonzales, 481 F.3d 1027 (8th Cir. 2007) — another good decision from the 8th Circuit finding that an Immigration Judge’s findings that a gay applicant from Albania was not credible because his mannerisms and speech did not indicate that he was homosexual, and because he had not reported instances of abuse to the authorities or an LGBT Qrights organization, were clearly erroneous and tainted the entire decision. The case was remanded with an advisement that it should be referred to a different immigration judge.
Lavira v. Att’y Gen of U.S., 478 F.3d 158 (3d. Cir. 2007) — good Convention against Torture decision finding that an HIV-positive, pro-Aristide, double amputee who would face imprisonment under atrocious conditions in Haiti had proven that it was more likely than not that he would face torture because of his specific, severe circumstances. (Note this case may no longer be good law.)
Moab v. Gonzales, 500 F.3d 656 (7th Cir. 2007) — good asylum decision remanding the case of a gay man from Liberia whose application had been denied because the judge and BIA found that his claim had become “increasingly egregious.” Court found it reasonable that he would not disclose sexual orientation at airport credible fear interview and remanded for further proceedings.
Jean-Pierre v. U.S. Attorney General, 500 F.3d 1315 (11th Cir. 2007) — Good Convention against Torture decision finding that an HIV-positive man who faced imprisonment in Haiti had proven that he would be singled out for abuse amounting to torture by prison guards because of his AIDS-related mental illness.
Ixtlilco-Morales v. Keisler, 507 F.3d 651 (8th Cir. 2007) — Denying asylum to a gay man from Mexico because the abuse he suffered at the hands of his family as a child did not rise to the level of past persecution and his age was a changed circumstance rebutting his fear of future persecution. The circuit court also upheld the BIA’s finding that attacks against gay men and HIV-positive individuals in Mexico were not widespread enough to constitute a well-founded fear of persecution.
Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008) — withholding of removal case denying claim by Nigerian man who claims to be gay. Denial is based on applicant’s credibility — he made contradictory statements about fathering children and being married and in no way corroborated his homosexuality. Good dicta however, accepting IJ’s acknowledgement that there is a pattern and practice of persecution against gay people.
Bosede v. Mukasey, 512 F.3d 946 (7th Cir. 2008) — Withholding of Removal decision remanding the case of an HIV-positive man from Nigeria who faced imprisonment and torture if deported due to his drug convictions in the United States and HIV status. The circuit court remanded the case to a different Immigration Judge, finding that the IJ in this case “cared little about the evidence” that the petitioner would be imprisoned and be tortured and had suggested that petitioner bribe Nigerian officials to get out of jail.
Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir. 2008) — good case finding that there is a pattern and practice of persecution against homosexuals in Jamaica. The court remanded the case to determine whether the persecution meets the heightened standard for withholding of removal. This is the only published gay case to find a pattern and practice of persecution against gay people.
Kadri v. Mukasey, 543 F.3d 16 (1st Cir. 2008) — good case remanding the asylum claim by a gay Indonesian man for the BIA to articulate the standard for economic persecution. Kadri had been unable to make a living as a medical doctor and the IJ had granted asylum, the BIA reversed without having explained what standard it used.
Ali v. Mukasey, 529 F.3d 478 (2nd Cir. 2008) — good decision which remanded a decision due to a judge’s reliance on offensive homosexual stereotypes. When a gay Guyanese man made a CAT claim based upon his status as a criminal deportee and homosexual, the lower court immigration judge stated that “violent dangerous criminals and feminine contemptible homosexuals are not usually considered to be the same people” as a basis of proving that evidence for one status contradicted evidence for the other and therefore weakened his claim. This was only one of several homosexual stereotypes that the judge relied upon, resulting in his review being determined to be so grounded in bias or hostility such that it could not be granted meaningful review.
Razkane v. Holder, 562 F.3d 1283 (10th Cir. 2009) — good decision which reversed and remanded a decision that relied on gay stereotypes in order to prove that a Moroccan man did not appear gay enough for persecution to occur. The lower court immigration judge relied on the fact that a gay Moroccan man did not appear to adhere to homosexual stereotypes as the basis on which it denied him withholding of removal. This court reversed the case, stating that the stereotyping prevented meaningful review of the case.
Manani v. Filip, 552 F.3d 894 (8th Cir. 2009) — denial of asylum to HIV-positive Kenyan woman is upheld. Manini entered the U.S. in October 2001, was diagnosed with HIV in January 2003 and filed for asylum in May 2004. Although the Chicago asylum office found that there was a “changed circumstance” it also found that the 16 month delay in filing after her HIV diagnosis was not a “reasonable period of time.” The BIA upheld and the 8th Circuit found that it lacked jurisdiction to review the one year issue since there was not a constitutional or question of law raised. The federal court upheld the IJ and BIA’s findings that she did not meet the higher withholding standard because “has not shown a clear probability that the Kenyan government, or private actors that the Kenyan government is unable or unwilling to control, would deliberately deprive her of access to life-saving medical care. Nor has Manani shown that any inadequacies in Kenya’s health care system result from an effort to persecute persons diagnosed with HIV.” The silver lining in the case is that it implicitly accepts HIV as a particular social group and accepts an HIV diagnosis as a changed circumstance.
Martinez v. Holder, 557 F.3d 1059 (9th Cir. 2009) — a bad decision which found that an asylum applicant from Guatemala who initially made a false claim based on political opinion was not credible in the sexual orientation-based claim he subsequently put forth. He added his sexual orientation-based claim very soon after homosexuality was first acknowledged as a valid basis for asylum. The effect of the majority basically establishes that an initial lie renders any supplemental claim not credible. There was also a good dissent about fear of sexuality-based persecution possibly being the reason why one pursuing asylum based on one’s sexuality would initially withhold that information from immigration officials.
Pangilinan v. Holder, 568 F.3d 708 (9th Cir. 2009) — a good case that protected an immigrant representing herself pro se in asylum and Convention Against Torture claims. The case remanded an immigration judge’s case because a Filipino transsexual woman representing herself pro se had her right to due process violated when she was simply asked if she had “anything to add in support of [her] claim” instead of being probed about the details and facts of her case. She was not given the chance to describe the past persecution she faced as a transgender person as support for her asylum and CAT claims. Since many immigrants representing themselves pro se lack a comprehensive knowledge about immigration law, and their failure to do so can result in removal, immigration judges have a duty to inquire about all the relevant facts.
N-A-M v. Holder, 587 F.3d 1052 (10th Cir. 2009) – decision affirming denial of withholding of removal to a Salvadorian male-to-female transsexual. The Immigration Judge determined that she had a “viable persecution claim,” but denied her application for withholding of removal because she had been convicted a “particularly serious crime” as defined in 8 U.S.C. §1231 (felony menacing). On appeal to the BIA, N-A-M argued that (1) felony menacing is not a “particularly serious offense” under §1231 because (a) it is not an aggravated felony, and (b) §1231 requires a separate “danger to the community assessment”; and (2) she was denied due process of law when the IJ considered evidence outside the record of conviction. The BIA affirmed. The 10th Circuit affirmed the BIA’s decision, stating that the BIA’s interpretation of “particularly serious crime” was reasonable and that N-A-M had suffered no denial of due process. One judge filed a concurrence regarding, among others, the term “particularly serious offense” being a “fickle standard.”
Eneh v. Holder, 601 F.3d 943 (9th Cir. 2010) – A good Convention Against Torture (“CAT”) decision involving an application for deferral of removal under CAT by a Nigerian man living with AIDS. Lawrence Eneh, a parolee from Nigeria, was convicted of a federal offense, sentenced to 36 months imprisonment, and placed in removal proceedings. Eneh testified that he would be imprisoned upon return and intentionally deprived of necessary medications while in prison as a form of punishment for having AIDS. The sole issue on appeal to the Ninth Circuit was whether the BIA erred in denying Eneh deferral of removal under CAT. The Ninth Circuit vacated and remanded the BIA’s decision, stating that both the IJ and the BIA had failed to acknowledge and analyze testimony and documentary evidence that Eneh would be individually and intentionally targeted for mistreatment because of his HIV status and associated medical problems.
Ayala v. U.S. Attorney General, 605 F.3d 941 (11th Cir. 2010) — A good decision in which the 11th Circuit Court of Appeals vacated the BIA’s decision because it had failed to give reasoned consideration to an asylum application. Ayala was a Venezuelan gay, HIV-positive applicant for asylum, withholding of removal, and CAT relief in removal proceedings. He had experienced discrimination, threats, harm and mistreatment by co-workers, neighbors, radical Chavez supporters, and police. The IJ found that Ayala did not experience past persecution because, among others, the Venezuelan government did not motivate or acquiesce in the actions of Ayala’s neighbors, co-workers, or those of the radical Chavez supporters, and the actions of the police officers were not motivated by prejudice towards gay men or toward him individually. The IJ also found that Ayala had no well-founded fear of future persecution, since he had failed to relocate to another part of the county, and since conditions for gay people had improved since Hugo Chavez came to power. The BIA affirmed the IJ’s decision. On appeal, the 11th Circuit determined that the BIA and the IJ failed to give reasoned consideration to Ayala’s application. For this reason it vacated the BIA’s decision and remanded to the BIA for further proceedings.
Aguilar-Mejia v. Holder, 616 F.3d 699 (7th Cir. 2010) — decision finds that it was not error for Immigration Judge and BIA to not consider the possibility of individualized harm to an HIV-positive asylum seeker who also advanced an imputed gay male claim. The Court acknowledged that in the past it has found error when lower courts did not consider a “pattern and practice” of persecution claim, even if that was not raised by the applicant. However, here, where the applicant advanced only a pattern and practice claim and specifically stated that there was no individualized harm claim, the Court found no error in the Immigration Judge’s failure to consider individualized harm. The asylum seeker had citizenship in Mexico, Guatemala and Colombia. There is good dicta from the Court asking the government to consider humanitarian relief because of the applicant’s advanced AIDS-related illnesses.
Todorovic v. U.S. Atty. Gen., 621 F.3d 1318 (11th Cir. 2010) — good decision remanding the case of a gay Serbian man after the immigration judge had relied on improper stereotyping.
Castro-Martinez v. Holder, 641 F.3d 1103 (9th Cir. 2011) — terrible decision denying asylum to gay, HIV-positive Mexican man, in part because he never reported childhood sexual abuse to authorities. The decision also held that, on the record before the immigration judge, the respondent did not establish a pattern and practice of persecution. After a petitioner for rehearing en banc, the decision was re-issued in late 2011, and some language regarding reporting requirements for children were softened, but the result remains the same.
Lopez-Amador v. Holder, 649 F.3d 880 (8th Cir. 2011) — affirmed denial of asylum claim by Venezuelan lesbian. Ridicule by police in park did not amount to persecution, other harm she alleged to have suffered based on political opinion (being in a crowd that was shot at and going through government vehicle check points) was not found to be targeting her specifically. Motion to reopen based on worsening conditions for lesbians was also denied, in part because documents focused on worsening conditions for transgender people not lesbians.
Omondi v. Holder, 674 F.3d 793, 797 (8th Cir. 2012) —The crux of the case was that Omondi, a citizen of Kenya, and his then-boyfriend Kamau had been imprisoned and mistreated by guards (including being forced to perform sexual acts.) After a prior appeal, the case was heard by a second immigration judge. The IJ required corroboration from Omondi of this central incident. Kamau submitted a letter corroborating the relationship and detention by the police, but not discussing the beating or sexual abuse. The IJ denied the application and the BIA upheld this because of the lack of corroboration. The 8th Circuit remanded, finding that while it was reasonable for the IJ, after a case-by-case analysis, to require this corroboration, there were so many deficiencies in the transcription of the record (236 “indiscernible”) that respondent was not able to appeal the IJ’s decision regarding respondent’s explanation of why Kamau was no longer available to provide further corroboration.
Desai v. Attorney Gen. of U.S., 695 F.3d 267, 268 (3d Cir. 2012) — this case concerns an HIV-positive man from India’s claim under the Convention against Torture. However, there are not legal issues in the appeal which go to the substance of his claim; the appeal only concerns the post-departure bar on a sua sponte motion to re-open and the Third Circuit upheld the BIA’s decision that it lacked jurisdiction to consider this motion.
Neri-Garcia v. Holder, 696 F.3d 1003, 1006 (10th Cir. 2012) — decision denies case for withholding of removal or Convention against Torture relief of gay man from Mexico who was statutorily ineligible for asylum. Although the applicant was found to be credible and established past persecution (mostly from thirty years prior), the Court upheld the immigration court and BIA’s findings that DHS rebutted the presumption of future persecution based on improving conditions in Mexico. This appears to be another unfortunate case where the primary evidence in the record was the DOS report on human rights abuses and where there was no expert testimony proffered, so no way to address the issue of current country conditions and the presumption of future persecution.
Matter of M-H-, 26 I. & N. Dec. 46 (BIA 2012) — case denying asylum, withholding and CAT relief to a gay man from Pakistan who feared removal, in part, based on his sexual orientation. The Immigration Judge denied asylum and withholding of removal but granted withholding under CAT. On appeal, the sole legal issue was whether, within the Third Circuit, a foreign national can be found to have been convicted of a “particularly serious crime” if the crime was a misdemeanor under state law and not a felony. The BIA concluded that it could be a PSC and remanded to the immigration court for further proceedings.
Vrljicak v. Holder, 700 F.3d 1060 (7th Cir. 2012) — this decision upholds the denial of an asylum application by a gay man from Serbia. His appeal was based solely on a challenge to the regulations governing the “extraordinary circumstances” exception to the one year filing deadline, which was denied because the Court found that even if he succeeded in his challenge to the term “reasonable period of time” the outcome in his case would not have been different. In any event, there is little guidance to glean from this case because there are so few facts. The BIA decision on appeal, however, did find that he was entitled to withholding of removal.
R.K.N. v. Holder, 701 F.3d 535 (8th Cir. 2012) — this is a case involving an HIV-positive claimant from Kenya. He had been found not credible on an unrelated claim, and he argued that the BIA had not adequately addressed his HIV claim. However, on appeal, the Court found that the BIA had also addressed his lack of credibility on this issue as well and the appeal was denied.
Vitug v. Holder, 723 F.3d 1056 (9th Cir. 2013) — here the 9th Circuit reverses the BIA for engaging in improper fact-finding. The Court states, “In its original decision, the BIA ignored factual findings of the IJ that were key to the IJ’s holding: (1) that Vitug was beaten five times on the street, and two of these beatings were “severe”; (2) that Vitug was harassed and threatened by the police because of his perceived sexual orientation; (3) that Vitug was unable to obtain employment in the Philippines; and (4) that “police [in the Philippines] will not do anything to help gay men who report abuse.” The BIA did not reject these findings as clearly erroneous, so its disregard of this evidence was not only a failure to apply clear error review but also an abuse of its discretion. Id.”
Gutierrez v. Holder, 730 F.3d 900 (9th Cir. 2013) — Although this case never uses the word “transgender” this is clearly a case involving a transgender woman from Mexico (the applicant is identified by a male name in the caption but is referred to as “Ms.” throughout the opinion.) In any event, there is no discussion of her protection claim; instead the case focuses on the procedure for revoking withholding of removal and upholds without discussion the denial of her CAT claim.
Rosiles-Camarena v. Holder, 735 F.3d 534 (7th Cir. 2013) — Holding that the BIA applied the wrong standard of review in reversing the IJ’s grant of withholding of removal and CAT relief to a gay, HIV positive man from Mexico. The IJ granted relief on the basis of expert testimony that the applicant would probably be killed or injured in Mexico and on statistics pointing to approximately 12-13 anti-gay killings in the country per year. The BIA accepted the IJ’s findings of historical facts but disagreed with the IJ’s assessment of the risks faced by the applicant as implied by those facts. The BIA considered the IJ’s predictions to be a legal question subject to de novo review and reversed the IJ’s decision. The Seventh Circuit disagreed with the BIA’s reasoning and held that the IJ’s predictions were findings of fact. The court remanded the case and instructed the BIA to review the IJ’s predictions about the risks of harm as factual findings subject to a clearly erroneous standard of review.
Doe v. Holder, 736 F.3d 872 (9th Cir. 2013) — Holding that a gay man from Russia who had been persecuted by nongovernmental actors did not need to establish that (1) the persecution he suffered was sponsored or condoned by the government because he was gay or (2) that the government was unwilling to control those actors because he was gay. While there must be a nexus between nongovernmental persecution and a protected ground, there is no nexus requirement between that protected ground and the government’s inability or unwillingness to control private actors. The court found that Doe established past persecution and remanded to allow DHS to present evidence to overcome the presumption of future fear. The court also found that it was error for the BIA to consider the ethnic discrimination faced by Doe when he had previously moved within the country as a basis for a separate asylum claim. Instead, the Ninth Circuit instructed the BIA to consider that ethnic discrimination in determining whether it would be reasonable to expect Doe to be able to safely relocate within Russia.
Konou v. Holder, 750 F.3d 1120 (9th Cir. 2014) — Holding that a gay man from the Marshall Islands had not established eligibility for CAT based on past mistreatment by police and the potential enforcement of an anti-sodomy law. The IJ found Konou eligible for CAT relief, but the BIA and Ninth Circuit reversed, largely relying on the 2007 State Department country report, which stated that the sodomy law is categorically not enforced. The Ninth Circuit also held that credible testimony of past torture does not lead to a presumption of fear of future torture and that an individualized analysis is required to determine whether a future fear has been established. Finally, the Ninth Circuit held that the IJ did not abuse his discretion in finding Konou’s assault and battery conviction to be a particularly serious crime. While judges may not consider a sentencing enhancement in determining whether a crime is an aggravated felony, the court found that judges may consider sentencing enhancements in determining whether an offense rises to the level of a particularly serious crime.
Malu v. United States AG, 764 F.3d 1282 (11th Cir. 2014) — Affirming denial of asylum to a lesbian from the Democratic Republic of Congo after concluding that she did not show she would suffer persecution upon return to the DRC. The Court concluded that the complete absence of anti-discrimination laws to protect sexual orientation was insufficient to show that Congolese citizens were incited to harm lesbians. The Court also held that the IJ did not err in concluding that Malu could not show that the government was unwilling or unable to protect her. In doing so, it pointed to a single instance in which the police in DRC prevented mob from lynching a lesbian.
Gonzalez-Posadas v. AG of the United States, 781 F.3d 677 (3d Cir. 2015) — Holding that the BIA did not err in denying asylum to a gay man from Honduras, where the agency found that being gay was not a “central reason” for the persecution he endured at the hands of a criminal gang. Instead, the court found that the gang was interested in him primarily because he had money and was a potential recruit.
Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015) — The BIA erred when it held that petitioner, a transgender woman from Mexico, would be protected from future persecution due to Mexico’s passage of laws purporting to protect the gay and lesbian community. The Court found that the BIA failed to consider that “transgender persons are often especially visible, and vulnerable, to harassment and persecution due to their often public nonconformance with normative gender roles.” Having concluded that the BIA improperly conflated the experience of non-trans gay people with that of transgender people, the Court ruled that petitioner was entitled to a grant of CAT relief, given that Mexico experiences high levels of violent crime against transgender persons.
Jeune v. United States AG, 810 F.3d 792 (11th Cir. 2016) — Court affirmed the BIA’s denial of withholding of removal by a transgender native of Haiti. The Court explained that the BIA gave reasoned consideration when it determined that Jeune had not established a likelihood of future persecution. While there was evidence indicating some instances of violence against gay and transgender people in Haiti, the Court concluded that this reflected “only instances of discrimination, harassment, and ostracism of homosexuals and transgender persons,” which did not qualify as persecution.
Fuller v. Lynch, 833 F.3d 866 (7th Cir. 2016) — The Seventh Circuit upheld an IJ’s denial of asylum, and deferral of removal under the CAT for a bisexual man from Jamaica due to an adverse credibility finding (the IJ had doubted that Fuller was actually bisexual). There is a dissent noting that the IJ’s reasons for doubting Fuller’s credibility regarding his sexual orientation were flawed, as she noted his marriage to a woman and other heterosexual relationships as reasons to doubt his bisexuality. Please also see the Seventh Circuit’s 2019 decision regarding the same respondent, Fuller v. Whitaker, 914 F.3d 514 (7th Cir. 2019).
Lopez v. Lynch, 810 F.3d 484 (7th Cir. 2016) — The Court affirmed the BIA’s denial of asylum, withholding of removal, and deferral of removal under the CAT for a gay man from Mexico who was HIV-positive. The Court held that the petitioner had been convicted of a particularly serious crime due to his conviction for an aggravated felony with a sentence of more than five years, and was therefore ineligible for asylum and withholding of removal. Reviewing the BIA’s decision to deny deferral of removal under the CAT, the Court held that substantial evidence supported the conclusion that he was not more likely than not to be tortured in Mexico, as there was evidence in the record that medical treatment for HIV was available in Mexico, and that petitioner had not presented sufficient evidence to prove that he is now at risk for violence in Mexico as the violent incident he experienced took place 25 years ago.
Velasquez-Banegas v. Lynch, 846 F.3d 258 (7th Cir. 2017) — Decision remanding the case of an HIV-positive man from Honduras whose withholding-of-removal claim was denied because the IJ and BIA overlooked key aspects of the asylum seeker’s claim of fear of future persecution. The court held that an applicant is entitled to withholding if there is a “substantial, albeit unquantifiable, probability that if deported he will be persecuted” and that this threshold need not always exceed a 50% likelihood of persecution. The court also held that the law does not require asylum seekers to hide their HIV status (and in dicta, extended that principle to sexual orientation) to avoid persecution. Finally, the court discussed at length and in favorable terms the validity of asylum and withholding claims based on the imputation of gay identity to unmarried, HIV-positive, straight, cis-gender men.
Barragan-Ojeda v. Sessions, 853 F.3d 374 (7th Cir. 2017) — The Seventh Circuit denied a petition for review for a Mexican national who had applied for asylum in immigration court based on a fear of persecution from government-connected gangs. While the applicant also testified that he had been discriminated against because he was perceived as effeminate, he told the judge that he was not gay. The judge denied the application for asylum, first finding that being mistreated by the gangs was not connected to a protected ground under the law, and then finding that the applicant had not sufficiently demonstrated a fear of persecution based on an imputed sexual orientation claim. On appeal before the BIA, the applicant asserted a fear of persecution based on being gay for the first time. He argued that he had not disclosed his sexual orientation previously because he was only 18, he was representing himself pro se, and he was afraid to admit his sexual orientation in court. The BIA construed the new claim as a motion to remand, and then denied the motion, finding that the applicant had not provided sufficient evidence to demonstrate why his sexual orientation claim was not previously available.
Agonafer v. Sessions, 859 F.3d 1198 (9th Cir. 2017) — In reviewing the BIA’s denial of a lawful permanent resident’s motion to reopen removal proceedings based on change of conditions in the home country, the Court found that the BIA abused its discretion by denying the motion, and remanded the case. Agonafer, a gay man from Ethiopia, demonstrated that conditions in Ethiopia had materially changed for the worse for LGBT people, including an uptick in violence. Noting the absence of evidence of violence against the LGBT community in Agonafer’s first application, the Court held that the BIA “clearly disregarded or failed to give credit to” the new evidence of violence. Additionally, the Court held that the petitioner need not demonstrate “individual relevancy” with regards to evidence of violence. Rather, Agonafer’s status as a gay man, coupled with the evidence presented of torture of gay men in the country, meant that Agonafer had established “prima facie eligibility for deferral of removal under the CAT.”
Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) — A gay man from Mexico appealed the denial of asylum based on a finding that he had provided insufficient evidence to demonstrate that the Mexican government was unable or unwilling to control private acts of persecution. The Court reiterated that an applicant is not required to report abuse to the police if doing so would be futile. It then held that Bringas had demonstrated futility (and possibly that reporting was dangerous), where his friends had reported instances of persecution based on sexuality and were laughed at by the police. The petitioner was therefore entitled to the presumption of a well-founded fear of future persecution, and the Court remanded to the BIA for consideration of whether the presumption has been rebutted.
Barragan-Ojeda v. Sessions, 853 F.3d 374 (7th Cir. 2017) —The Seventh Circuit denied a petition for review for a Mexican national who had applied for asylum in immigration court based on a fear of persecution from government-connected gangs. While the applicant also testified that he had been discriminated against because he was perceived as effeminate, he told the judge that he was not gay. The judge denied the application for asylum, first finding that being mistreated by the gangs was not connected to a protected ground under the law, and then finding that the applicant had not sufficiently demonstrated a fear of persecution based on imputed sexual orientation. On appeal before the BIA, the applicant asserted a fear of persecution based on being gay for the first time. He argued that he had not disclosed his sexual orientation previously because he was only 18 years old, he was representing himself pro se, and he was afraid to admit his sexual orientation in court. The BIA construed the new claim as a motion to remand, and then denied the motion, finding that the applicant had not provided sufficient evidence to demonstrate why his sexual orientation claim was not previously available.
Bernard v. Sessions, 881 F.3d 1042 (7th Cir. 2018) — The Seventh Circuit denied a petition for review for a bisexual man from Jamaica who had applied for withholding of removal and deferral of removal under the CAT. The petitioner had been convicted of domestic battery. The IJ and BIA denied his claims, finding he had been convicted of a particularly serious crime disqualifying him from withholding of removal, and that he had not demonstrated that he would be tortured in Jamaica. The Court found it lacked jurisdiction to review whether Bernard’s offense was a particularly serious crime, as this assessment would be based on factual issues outside the scope of the Court’s review. In considering the deferral of removal under the CAT, the Court found that substantial evidence supported the BIA’s denial of CAT deferral because neither Bernard’s decades-old experiences nor general reports of violence showed that he specifically would be targeted for torture in the future. The Court did note that where the IJ seemed to believe that Bernard could conceal his sexual orientation due to his bisexuality, the Court disagreed with that analysis as sexual orientation should not be required to be concealed.
Sama v. U.S. Att’y Gen., 887 F.3d 1225 (11th Cir. 2018) — The Eleventh Circuit denied a petition for review for a man imputed to be gay from Cameroon who had applied for asylum, withholding of removal, and relief under the CAT, fearing persecution related to his political opinion and imputed sexual orientation. Sama had fled the country to escape from an arrest warrant issued by police after he wrote a message about gay rights in a university publication, and was physically attacked by an anti-gay group and harrassed because he was thought to be gay. The Court found substantial evidence supporting the BIA’s denial. Specifically, it found that the evidence showed his instances of “past persecution” were not “more than a few isolated incidents of . . . harassment or intimidation.” Further, it found that the evidence showed Sama did not have a well-found fear of future persecution, because Sama never alleged he was physically harmed by the police or suggested he was afraid to speak to them, admitted the police never questioned him about his sexuality or support for LGBT rights, and country conditions reports showed improving conditions for gay persons.
Tairou v. Whitaker, 909 F.3d 702 (4th Cir. 2018) — The Fourth Circuit granted a petition for review for a bisexual man from Benin who had applied for asylum and withholding of removal after being assaulted, harassed, and threatened with death on several occasions after his family and community discovered his romantic relationship with a man. The applicant was married to a woman and had children, but also had a relationship with a man—he identified as both bisexual and homosexual. The judge denied his application for asylum and withholding of removal, finding he had not established past persecution or a well-founded fear of persecution if he returned to Benin. The BIA issued its own opinion also finding he had failed to establish past persecution or a well-founded fear of future persecution. Reviewing the BIA’s conclusions for substantial evidence, the Court held that the BIA’s finding that he had not established past persecution was “manifestly contrary to the law” as “the threat of death alone constitutes persecution” and the petitioner had been threatened with death more than once. Holding that the petitioner had established past persecution, the Court remanded the case for the BIA to consider whether the government could rebut the presumption that he therefore had a well-founded fear of future persecution.
Fuller v. Whitaker, 914 F.3d 514 (7th Cir. 2019) — The Seventh Circuit reversed and remanded the BIA’s decision refusing to reopen a case for consideration of deferral under the CAT. Fuller, a bisexual man from Jamaica, had lost his case for CAT deferral before the IJ due to an adverse credibility finding when the IJ disbelieved his sexual orientation, citing among other factors that he had been married to a woman and had other heterosexual relationships, and the BIA had agreed with the IJ’s credibility determination. Fuller filed short pro se motions to reopen to present new evidence to the BIA with three new letters from friends supporting past incidents of violence due to his sexual orientation. The BIA held that Fuller had not directly challenged the agency’s finding he was not bisexual, and the letters would not change the outcome of his claim. The Court held that the BIA had misapprehended the basis for Fuller’s motion (that he clearly sought to challenge not just the adverse credibility determination but also the resulting conclusion that he was not bisexual), and that the BIA had not provided adequate analysis regarding the materiality of the evidence. The Court remanded the case to the BIA to reconsider Fuller’s motion to reopen.
Lesum v. Barr, 915 F.3d 1189 (8th Cir. 2019) — The Eighth Circuit denied a petition for review for a gay man from Bangladesh. Lesum sought review of the BIA’s dismissal of his appeal of the IJ’s denial of asylum, withholding of removal, and CAT relief. The Court held that it did not have jurisdiction to review the IJ’s determination that, despite his father’s death, waiting nine months after his non-immigrant status had expired to file his asylum application was unreasonable. The Court also affirmed the BIA’s decision denying withholding of removal and CAT relief, though noting that there was evidence of harassment and discrimination against LGBTQ people in Bangladesh. The Court found that Lesum’s failure to contest the IJ’s finding that sexual abuse from his cousin did not constitute persecution meant that it was not preserved for appeal. The Court agreed with the BIA that Lesum’s being harassed and locked in his dorm room for several days also did not constitute persecution. Given these findings, the Court found that the evidence did not compel a grant of withholding of removal. Further, Lesum had failed to appeal his CAT claim to the BIA, and so that claim was deemed abandoned.
Barry v. Barr, 916 F.3d 666 (7th Cir. 2019) — The Seventh Circuit denied a petition for review by a bisexual man from Guinea who had sought deferral of removal under the CAT after DHS issued an administrative removal order based on his felony conviction. The Court found substantial evidence supported the IJ’s determination that Barry failed to meet his evidentiary burden of proving “a substantial risk” of torture in Guinea because he primarily relied upon his and his mother’s testimony based on their experiences more than twenty years ago; unauthenticated summonses purportedly issued by Guinean officials seeking his parents; and a generalized U.S. State Department report describing conditions for homosexual people in Guinea as politically violent and hostile. The Court held that the offered evidence failed to prove that the government tortures men based on sexual orientation or systematically turns a blind eye toward such treatment, despite hearsay accounts of violence toward homosexuals – or “street justice” – being regularly carried out. The Court agreed with the agency that the country conditions report showed “only generalized findings insufficient to satisfy Barry’s burden of showing he is personally subject to a particularized risk of torture.”
Wanjiku v. Barr, 918 F.3d 215 (1st Cir. 2019) — The First Circuit denied a petition for review from a woman from Kenya who sought review of the BIA’s denial of her motion to reopen removal proceedings due to changed country conditions since her 2013 removal order. It is not clear from the opinion whether the petitioner identified as a lesbian, or whether she was rumored to be a lesbian and therefore sought asylum on the basis of an imputed sexual orientation. The Court found that the BIA did not abuse its discretion in determining that the evidence of “changed country conditions” that Wanjiku submitted were “continuing conditions,” as land disputes, anti-LGBT discrimination, and violence by al-Shabaab against Christians were all taking place in 2013 and the evidence submitted did not sufficiently demonstrate a material change.
Nantume v. Barr, 931 F.3d 35 (1st Cir. 2019) — The First Circuit denied a petition for review of the BIA’s decision to deny a Ugandan lesbian woman’s second motion to reopen her removal proceedings. Nantume submitted family correspondence, country reports, and other documents to support materially changed conditions in Uganda since her removal order in 2014. The Court found that country reports “reflect an ongoing animus toward LGBTQ individuals in Uganda (manifested through harassment, violence, and the like)” but no significant changes. Thus, according to the Court, the BIA had not abused its discretion when it found that Nantume failed to establish changed country conditions that would meet her burden for reopening and excuse the untimeliness of her second motion to reopen. The Court did note that conditions in Uganda for LGBTQ people remained “dreadful.”
Sow v. U.S. Att’y Gen., 949 F.3d 1312 (11th Cir. 2020) — The Eleventh Circuit vacated the BIA’s decision denying a motion to reopen made by a gay man from Guinea based on ineffective assistance of counsel in his prior hearing. Sow had immediately applied for asylum upon his entry to the United States because of the “stigma against homosexuals” in his Muslim community, with the assistance of an attorney who did not speak Sow’s language and who did not review with Sow much of the evidence he submitted. After inconsistencies between the submitted evidence and Sow’s testimony at the hearing, the IJ denied Sow’s asylum application based solely on an adverse credibility finding. Sow appealed, and with new counsel filed a motion to remand to the BIA based on ineffective assistance, but the BIA denied the motion. Two months later, Sow also filed a motion to reopen based on new evidence of a warrant for his arrest in Guinea, which was also denied by the BIA. Sow appealed to the Eleventh Circuit, which consolidated the two BIA motions and held that the BIA had abused its discretion. Specifically, the Court found that Sow’s attorney’s performance was deficient because the attorney failed to effectively communicate with Sow about the evidence and failed to sufficiently familiarize himself with the case, resulting in prejudice to Sow. The Court remanded the case to the BIA with instructions to remand it to the IJ for a new asylum hearing.
Doe v. Att’y Gen. of the U.S., 956 F.3d 135 (3d Cir. 2020) — A great decision from the Third Circuit finding a pattern or practice of persecution against the LGBTQ community in Ghana and stating that the petitioner established both past persecution and a well-founded fear of future persecution. Doe, a gay man from Ghana, applied for asylum, withholding of removal, and protection from removal under the CAT. Doe fled Ghana after his father and neighbors assaulted him and threatened his life when they discovered he was in a same-sex relationship. The IJ denied his applications, finding that Doe did not establish past persecution or a well-founded fear of future persecution and noting “there [was] no reason to believe that [Doe] would not be able to live a full life, especially if he were to continue to keep his homosexuality a secret.” The BIA dismissed Doe’s appeal. The Third Circuit rejected the BIA’s dismissal of the appeal and held that the BIA’s findings were based on mischaracterizations, unreasonable inferences, and an incomplete assessment of the record.
Xochihua-Jaimes v. Barr, 962 F.3d 1175 (9th Cir. 2020) — The Ninth Circuit granted a petition for review for a lesbian woman and citizen of Mexico and held the evidence compelled the conclusion that she would more likely than not be tortured if returned to Mexico. Xochihua-Jaimes’ claim for deferral of removal under the CAT was predicated on her ejection from her parents’ home and repeated sexual abuse due to her sexual orientation. Xochihua-Jaimes also received death threats from the family of a member of a major Mexican cartel for reporting that individual to law enforcement for raping her twelve-year-old daughter. The IJ found that Xochihua-Jaimes did not satisfy her burden of proof that it was more likely than not that she would face future torture if she returned to Mexico with the consent or acquiescence of the Mexican government, and the BIA affirmed. The Court reversed and remanded, finding that the BIA had misapplied precedent regarding acquiescence—which does not require actual knowledge or willful acceptance of torture; awareness and willful blindness are sufficient—and also made factual determinations that were clearly contrary to the record. Specifically, the BIA erred by relying on national efforts to combat drug cartels to conclude that Xochihua-Jaimes failed to establish acquiescence. In fact, the Court found there was a demonstrated history of government acquiescence to crimes committed by the cartel in question in Mexico, including in Xochihua-Jaimes’ personal circumstances.
Escobedo Marquez v. Barr, 965 F.3d 561 (7th Cir. 2020) — The Seventh Circuit denied a petition for review filed by a gay woman from Mexico, and her twelve-year-old daughter, Diana. Escobedo Marquez feared persecution in her home country on account of her sexual orientation. Escobedo Marquez had previously received written threats from unknown sources. Escobedo Marquez communicated the fears to the police but received no assistance. The IJ found, and the BIA agreed, that the threats arose from a personal dispute rather than due to Escobedo Marquez’s sexual orientation; that there was no actual or imminent physical harm; and that persecution and violence against the LGBTQ community in Mexico did not constitute a pattern or practice to warrant asylum. The Court denied the petition for review, finding that substantial evidence supported the BIA’s decision, as the anonymous threats did not compel a finding of past persecution; the Mexican government has taken substantial positive steps to support the LGBTQ community; and that Escobedo Marquez did not establish a well-founded fear of economic persecution.
Santos-Alvarado v. Barr, 967 F.3d 428 (5th Cir. 2020) — The Fifth Circuit denied a petition for review filed by a gay man from El Salvador who had applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied Santos’s application, concluding that he failed to establish a credible claim due to inconsistencies between his written and oral testimonies, and ordered his removal. The Board of Immigration Appeals (BIA) found that the IJ’s credibility finding was not clearly erroneous. Santos subsequently appealed, and the Fifth Circuit denied the petition. The Fifth Circuit held that, even though Santos offered explanations for the inconsistencies between his testimony and other documents in the record, the evidence did not compel a finding that any reasonable fact-finder would have found him credible and thus, the BIA’s adverse credibility determination was supported by substantial evidence. Santos also brought a due process claim on the basis that exclusion of his psychologist’s testimony prejudiced him. The Court held there was nothing to which his psychologist would have testified that was not already in his written statement, and none of Santos’s proffered reasons for allowing the testimony suggested the outcome of the case would have been different.
Igiebor v. Barr, 981 F.3d 1123 (10th Cir. 2020) — The Tenth Circuit denied a petition for review for a gay man from Nigera who had applied for deferral of removal under the CAT. Even though he was a lawful permanent resident, the Department of Homeland Security (“DHS”) began removal proceedings against Igiebor after he pleaded guilty to felonies which also left him ineligible for asylum and withholding of removal. The Immigration Judge (“IJ”) did not find Igiebor’s testimony that he would be tortured in Nigeria because of his identity as a gay man to be credible due to inconsistencies between his testimony and the evidence submitted. Even though Igiebor provided documents regarding past torture, the IJ found those documents to be unreliable. Igiebor appealed, and the Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision. While his appeal to the Tenth Circuit was pending, Igiebor was removed to Nigeria. Though DHS argued that his removal caused his petition to be moot, the Court held that DHS’s policy was to facilitate return if a petition for review was granted and so the petition was not moot. However, the Court found that the adverse credibility finding was supported by substantial evidence.
Iraheta-Martinez v. Garland, —F.4th— (9th Cir. 2021) — The Ninth Circuit denied a petition for review by a man imputed to be gay from El Salvador who had been physically abused on that basis by his father. The Court held that: (1) because Iraheta’s prior removal order was reinstated, he had no right under the Immigration and Nationality Act (“INA”) to seek asylum, and no constitutional right to have the Department of Homeland Security consider whether as a discretionary matter to decline to reinstate that removal order; (2) for withholding of removal purposes, while Iraheta had shown past persecution on the basis of his imputed sexual orientation, the IJ and BIA’s findings that the government had demonstrated changed circumstances were supported by the record; and (3) the BIA correctly considered Iraheta’s risk of torture in the aggregate.
Murry v. Garland, —F.4th— (7th Cir. 2021) — The Seventh Circuit found that substantial evidence supported the BIA’s decision to deny withholding of removal, and deferral of removal under the Convention Against Torture to a gay man from Jamaica. Murry had been physically attacked once in Jamaica due to his sexual orientation, but without any substantial injury or police involvement. The Court then held that there was no past persecution, and that it was an “uphill battle” for him to show a clear probability of future persecution. The Court held some of the country conditions evidence showed that anti-sodomy laws were not being enforced, that the police were willing to protect gay people, and that country conditions had improved for gay men. Therefore, the Court found that the IJ and BIA decisions were proper.
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.Visit