LGBTQ+ People as a Particular Social Group in U.S. Asylum Law

Date of Information: 11/08/2025

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Foundational Principles

U.S. asylum law recognizes that sexual orientation and gender identity are immutable characteristics or so fundamental to human dignity that one should not be compelled to change them. This principle—set forth in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985)—anchors LGBTQ+ PSG claims. The BIA’s landmark ruling in Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990), later designated as precedent by the Attorney General in 1994, explicitly recognized “homosexuals in Cuba” as a cognizable PSG and established that persecution on this basis satisfies the statutory definition of a refugee.

Following Toboso-Alfonso, immigration judges and the BIA consistently found that sexual orientation and sexual identity can constitute a PSG. In Matter of Tenorio (IJ Rio de Janeiro 1993; BIA 1999), the BIA affirmed asylum for a gay man from Brazil who was beaten and stabbed in anti-gay attacks, holding that persecution “on account of sexual orientation” falls squarely within INA § 101(a)(42)(A).

Circuit Court Recognition of LGBTQ+ PSGs

Ninth Circuit

The Ninth Circuit has led doctrinal development:

  • Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997) — “Cure” treatments for homosexuality are persecution regardless of intent.

  • Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) — “Gay men with female sexual identities in Mexico” form a PSG; the applicant’s gender expression and orientation were immutable traits that society perceives distinctly.

  • Karouni v. Gonzales, 399 F.3d 1163 (9th Cir. 2005) — “All alien homosexuals” constitute a PSG; no applicant can be required to conceal or suppress sexual identity.

  • Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005) — Police abuse of a gay man compelled finding of persecution; inability or unwillingness of government to protect satisfied nexus.

  • Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015) — Transgender women are a distinct PSG; record evidence of police rape and torture warranted CAT relief.

  • Bringas-Rodríguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc) — Reaffirmed that sexual orientation need only be “one central reason” for persecution; rejected prior requirement that child victims must have reported abuse to qualify for asylum.

Third and Eighth Circuits

  • Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003) — Recognized imputed homosexuality as a valid PSG; persecutor’s perception satisfies nexus.

  • Shahinaj v. Gonzales, 481 F.3d 1027 (8th Cir. 2007) — Reversed IJ’s finding that demeanor or mannerisms undermine credibility; protected against “not gay enough” stereotypes.

  • Nabulwala v. Gonzales, 481 F.3d 1115 (8th Cir. 2007) — Lesbian woman from Uganda established past persecution; unwillingness of authorities to protect met asylum standard.

Tenth Circuit

  • Razkane v. Holder, 562 F.3d 1283 (10th Cir. 2009) — Held that adjudicators cannot deny protection based on assumptions that concealment eliminates danger; requires individualized analysis of country risk.

Eleventh Circuit

  • Ayala v. U.S. Att’y Gen., 605 F.3d 941 (11th Cir. 2010) — Affirmed that homosexuality is a PSG under INA § 101(a)(42).

  • Todorovic v. U.S. Att’y Gen., 621 F.3d 1318 (11th Cir. 2010) — Credibility determinations cannot rely on gender presentation or “overt” demeanor.

  • Jeune v. U.S. Att’y Gen., 810 F.3d 792 (11th Cir. 2016) — Clarified that harassment and ostracism can amount to persecution when severe or systemic.

Fifth Circuit

  • Tairou v. Whitaker, 909 F.3d 702 (5th Cir. 2019) — Recognized PSG of “gay men in Benin”; remanded where the BIA ignored pervasive country evidence of state-condoned homophobia.

Doctrinal Clarifications

  1. Scope and Definitions — LGBTQIA+ encompasses lesbian, gay, bisexual, transgender, queer, intersex, and asexual identities. Sexual orientation and gender identity must be analyzed distinctly, but both are recognized under the PSG ground.

  2. Evolving Identity — Fluid or developing identity remains protected; immutability is satisfied because identity is fundamental to dignity.

  3. Transgender Protections — The USCIS Affirmative Asylum Procedures Manual directs adjudicators to use self-identified pronouns, treat gender identity as confidential, and recognize that no medical transition is required.

  4. Credibility Biases — ILRC warns against discrediting claims based on appearance, marriage history, or presumed “heterosexual behavior,” echoing Todorovic and Shahinaj.

  5. Practice Tip — Country laws criminalizing same-sex conduct should be used to prove both persecution and social distinction of the group, even if rarely enforced.

Practice Tip

Country laws criminalizing same-sex conduct should be used to prove both persecution and social distinction of the group, even if rarely enforced.

Intersectional and Transgender Cases

  • Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) — “Married women in Guatemala unable to leave their relationship” recognized as PSG; its reasoning on gender immutability informs transgender jurisprudence.

  • Avendano-Hernandez remains key authority for police-perpetrated sexual violence against transgender women.

  • The UNHCR Guidelines emphasize that transgender identity need not be “proven” by medical evidence and that forced conformity, denial of identity, or threat of detention constitute persecution.

Practical Advocacy Guidance

  • Explicitly Plead PSG — Always allege persecution on account of membership in a PSG defined by sexual orientation or gender identity, and include imputed status where relevant.

  • Educate the Adjudicator — Provide expert affidavits and UNHCR, Human Rights Watch, or State Department reports demonstrating societal discrimination, police inaction, or anti-LGBTQ+ laws.

  • Prepare for Credibility Challenges — Anticipate questions about opposite-sex marriage or children; explain social pressures and concealment as survival mechanisms.

  • Collaborate with Specialist NGOs — ILRC recommends partnerships with the Center for Gender & Refugee Studies (CGRS), Immigration Equality, the National Immigrant Justice Center (NIJC), and the Transgender Law Center for country-condition packets and expert witnesses.

Practical Advocacy Guidance

  • Explicitly Plead PSG — Always allege persecution on account of membership in a PSG defined by sexual orientation or gender identity, and include imputed status where relevant.

  • Educate the Adjudicator — Provide expert affidavits and UNHCR, Human Rights Watch, or State Department reports demonstrating societal discrimination, police inaction, or anti-LGBTQ+ laws.

  • Prepare for Credibility Challenges — Anticipate questions about opposite-sex marriage or children; explain social pressures and concealment as survival mechanisms.

  • Collaborate with Specialist NGOs — ILRC recommends partnerships with the Center for Gender & Refugee Studies (CGRS), Immigration Equality, the National Immigrant Justice Center (NIJC), and the Transgender Law Center for country-condition packets and expert witnesses.

Frequently Asked Questions (LGBTQ+ Asylum in the United States)

1. What does “particular social group” mean in asylum law?
A particular social group (PSG) refers to a category of people who share a common, immutable characteristic—something they cannot change or should not be required to change because it is fundamental to their identity. U.S. law recognizes sexual orientation and gender identity as immutable characteristics protected under this definition.

2. Are LGBTQ+ individuals recognized as a protected group under U.S. asylum law?
Yes. The Board of Immigration Appeals first recognized “homosexuals in Cuba” as a PSG in Matter of Toboso-Alfonso (1990), later affirmed by the U.S. Attorney General. This case remains the foundation for asylum protection based on sexual orientation and gender identity.

3. Which U.S. courts have recognized LGBTQ+ people as a PSG?
All federal circuits have accepted sexual orientation and gender identity as qualifying characteristics. Notable cases include Hernandez-Montiel v. INS (9th Cir. 2000), Karouni v. Gonzales (9th Cir. 2005), Ayala v. U.S. Att’y Gen. (11th Cir. 2010), and Tairou v. Whitaker (5th Cir. 2019). Together they establish that persecution on account of LGBTQ+ identity satisfies asylum’s protected-ground requirement.

4. What types of persecution qualify for LGBTQ+ asylum?
Qualifying harm includes physical attacks, imprisonment, police abuse, forced “conversion therapy,” social ostracism, or criminal prosecution under morality or anti-sodomy laws. Applicants must show that such harm was motivated by their sexual orientation or gender identity and that their government is unwilling or unable to protect them.

5. Does it matter if someone kept their identity private in their home country?
No. U.S. courts have rejected any “discretion” or “concealment” requirement. Karouni v. Gonzales held that LGBTQ+ people cannot be expected to hide their identity to avoid persecution. The right to live openly is protected under U.S. asylum law.

6. Can transgender or gender-nonconforming people qualify for asylum?
Yes. Transgender people are recognized as members of a particular social group. Avendano-Hernandez v. Lynch (9th Cir. 2015) confirmed that transgender women face unique, often state-sponsored violence that constitutes persecution. The USCIS Affirmative Asylum Procedures Manual also instructs officers to respect self-identified pronouns and acknowledges that no medical transition is required for recognition.

7. What if persecution was based on being perceived as LGBTQ+ rather than being openly identified?
Asylum protection extends to people persecuted because of imputed LGBTQ+ status. In Amanfi v. Ashcroft (3d Cir. 2003), the court held that a person targeted due to the perception of being gay is protected, even if that perception is incorrect.

8. How does an LGBTQ+ applicant prove their claim?
Applicants should present credible testimony, corroborating statements, and country-conditions evidence demonstrating that LGBTQ+ individuals are targeted or criminalized. Laws banning same-sex conduct or gender expression are powerful evidence of both persecution and social distinction.

9. What if I have an opposite-sex spouse or children?
Opposite-sex relationships or parenthood do not disqualify LGBTQ+ applicants. Courts recognize that social pressure, stigma, or the need for survival may force concealment. Credibility should be evaluated in light of these realities, as emphasized in Todorovic v. U.S. Att’y Gen. and Shahinaj v. Gonzales.

10. Which organizations provide expert support in LGBTQ+ asylum cases?
Legal advocates often collaborate with the Center for Gender and Refugee Studies (CGRS), Immigration Equality, the National Immigrant Justice Center (NIJC), and the Transgender Law Center for expert declarations, country-conditions packets, and specialized training materials.

11. How can Charles International Law help?
Our firm has extensive experience representing LGBTQ+ asylum seekers worldwide. We provide confidential consultations, detailed country-specific legal analysis, and evidence-based advocacy before USCIS, the Immigration Court, and federal appellate tribunals.

Schedule a confidential consultation to discuss your situation and the protections available under U.S. law.

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