Under current U.S. immigration law, LGBTI aliens may seek asylum in the United States.
LGBTI Asylum Background
Under current U.S. immigration law, LGBTI aliens may seek asylum in the United States. In order to establish eligibility for asylum, a homosexual, bisexual, transgender, or intersexed alien must establish that he or she is the member of a "particular social group," on the basis of which he or she either was persecuted or faces a reasonable fear of persecution in his or her home country. The Board of Immigration Appeals (BIA) established in the Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990) that homosexual asylum applicants can establish membership in a "particular social group" based on sexual orientation for purpose of seeking asylum in the United States.
Establishing Eligibility for Asylum as LGBTI Asylum Applicant
In order for an LGBTI alien to establish membership in a particular social group (for purpose of applying for asylum on the basis of persecution in one of those categories), the asylum applicant must generally demonstrate, to the satisfaction of USCIS, that he or she is in fact gay, lesbian, bisexual, transgender, or intersexed. However, the Third Circuit has held that an alien may also demonstrate membership in a particular social group if he or she faced persecution or faces a reasonable fear of persecution on the basis of being perceived as being a homosexual in his or her home country. If an LGBTI asylum applicant is able to demonstrate both that he or she is in a particular social group and that he or she was either persecuted or faces a reasonable fear of persecution on the basis of membership in that particular social group in his or her home country, the applicant will still be required to meet all of the other requirements for asylum eligibility. For example, such an asylum applicant will be required to demonstrate that the conditions in his or her home country are hostile to members of his or her particular social group. LGBTI asylum applicants are also subject to the generally applicable bars to applying for asylum and bars to eligibility for asylum.
Applying for Asylum and General Advice for LGBTI Applicants
In order to file an asylum application, one must file the Form I-589 with the appropriate USCIS processing center within one year of arriving in the United States. Any asylum applicant should retain immigration counsel for assistance through the asylum application process, and there are many attorneys who are willing to take on certain asylum cases pro bono. In addition, LGBTI individuals seeking asylum in the United States may seek assistance from one of the various nonprofit organizations specifically geared toward helping such individuals gain immigration protections.
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