THE ASYLUM PROCESS IN THE UNITED STATES AND HOW IT WORK

In today’s public discourse the terms “refugee” and “asylum seeker” are
sometimes used in ways that are confusing, and too often the narratives that
are told about these populations are misleading or outright false. For over 30
years, the Center for Victims of Torture (CVT) has rebuilt the lives and restored
the hope of both refugees and asylum-seekers – who have survived torture or
similarly serious forms of trauma – at healing centers in the United States and
across the globe. CVT staff knows from first-hand experience what they have
endured, and the myriad challenges they face.
To obtain either refugee status or asylum, a person who has fled their home
needs to demonstrate that they have a well-founded fear of persecution on
the basis of race, religion, nationality, political opinion or membership in a
particular social group. The biggest difference between refugees and asylum
seekers is where and how this determination is made. Refugees often cross
into neighboring countries where they wait, at designated areas such as camps
or cities, for their status to be determined and their cases to be processed by a
government or the United Nations. On many occasions, they may live in camps
or cities for several years (and often many years) until they can return home or
until they are resettled as refugees into a third country.
Asylum seekers also flee in search of sanctuary in another country but do not
go through the third-country resettlement process. Instead – before their legal
status has been determined – they reach the country where they hope to
obtain refuge. Once physically present there, they apply to be legally
recognized as “refugees” – in other words, to be granted asylum.
Although international law recognizes that countries have the sovereign power
to regulate their borders, they cannot implement policies or practices that
block people from seeking asylum. Those fleeing persecution in search of
safety have the right not be returned to, or forced to remain in, dangerous
foreign territory: a principle known as non-refoulement. As soon as an asylum
seeker arrives at a border, the country must make an independent and fair
inquiry into their need for protection. This includes providing them with access
to relevant information in a language that they can understand, a meaningful
opportunity to make their asylum claim, and the ability to contact the United
Nations High Commission for Refugees.
These rights and obligations are especially important in the context of the
COVID-19 pandemic. Countries are permitted to take steps to manage risks to
public health in connection with people arriving at their borders, such as
testing, screening, and appropriate forms of quarantine. But all such measures
must be non-discriminatory as well as necessary, proportionate and
reasonable to the aim of protecting public health, and none may result in
refoulement or otherwise denying asylum seekers an effective opportunity to
make their claim.
Regardless of the differences in the process to gain lawful immigration status
in a country, refugees and asylum seekers share the experience of having to
escape, often without warning, and embark on a difficult and dangerous search
for safe haven. Of those who make it out alive a shocking percentage are
torture survivors.
Each step of the way – from the persecution and violence that causes people
to make the heart-wrenching decision to flee, to the arduous journey they
then endure, to the process of seeking asylum that follows for those who
cannot secure refugee status abroad – asylum seekers and refugees suffer
devastating and compound trauma.

Asylum seekers and refugees leave their countries because they have no
choice. CVT’s clients – and survivors who receive rehabilitative care at other
torture rehabilitation programs – whether they are refugees or asylum-
seekers, have survived torture, persecution and/or war atrocities in locations
around the world. They speak of what it was like to make the excruciating
decision to flee from home, like the Hadad* family and Jon, who knew they
would be killed if they remained in their war-torn countries. Others
experienced the murder or disappearance of a close family member at the
hands of government perpetrators, or were persecuted by private individuals
operating with impunity in countries where police or the courts could not or
would not prevent or punish those responsible. Still others were targeted
because of their profession, such as journalists like Youssef*, or medical
professionals like Manal*. Some, like Rosa*, had been kidnapped amid violent
attacks by outlaw groups or militias and held in captivity—they fled from their
abductors, having no home to return to. According to CVT clinicians in St. Paul,
Maria* fled Central America because her family was forced to pay a war tax to
a local gang. Since her family could not afford to do so, the gang repeatedly
beat her husband and eventually threatened to take her oldest son. The family
fled to avoid losing their son to the gang.
Startling numbers of asylum seekers and refugees are survivors of torture. Per
CVT’s own research study, as many as 44 percent of refugees living in the U.S.
are survivors. Other studies indicate a similar torture prevalence rate among
forced migrants in high income countries. From over 30 years working closely
with torture survivors, CVT understands the dire conditions that cause people
to run from their homes, their loved ones, their professions and their
communities. Many clients tell us that as agonizing as that decision was, the
will to live – and to protect any loved ones they could – prevailed.
Clients carry with them the trauma from all they survived before fleeing.
Regardless of the country responsible for the torture, the effects of torture are
similar, chronic and predictable:
 Long-term physical effects include the scars and musculoskeletal pains
that result from beatings, being bound or confined to cages, as well as
from being hung or suspended. Feet are a common target for torturers,
resulting in pain from beatings on the soles, and injuries and abuse to
the head result in hearing loss, dental pain and visual problems. Torture
wreaks havoc across the body, resulting in chronic abdominal pains,
cardiovascular/respiratory problems, sexual difficulties and neurological
damage.
 Long-term psychological effects include intense and incessant
nightmares or insomnia, severe anxiety, and difficulty concentrating for
even short amounts of time. Suicidal ideation is not uncommon. Many
survivors meet the full criteria for Posttraumatic Stress Disorder and
Major Depressive Disorder.
Without rehabilitative care, these symptoms remain a difficult, painful, and
often-debilitating part of survivors’ lives.

What does it mean to seek asylum in the U.S.?

That’s when people from other countries come to the U.S. and ask to remain
permanently because they fear being persecuted if returned home. Asylum
seekers are similar to refugees. The main difference is that refugees apply for
immigration status before they arrive in the U.S., while those seeking asylum
usually just show up at a point of entry or enter with a temporary visa and
apply for protected status. And although there’s a cap on the number of
refugees admitted each year, the number of asylum grants is left open-ended.
How does someone qualify for asylum?
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Asylum seekers must first prove that they have a “credible fear” of being
persecuted if sent back home. In a pre-screening with an asylum officer, they
have to prove they have a well-founded fear of being harmed or detained
because of their race, religion, nationality, political opinion or membership in a
particular social group. Those who pass this first step then make their case
before an immigration judge, who either grants or denies asylum. Applicants
who are denied asylum typically get deported. But those granted asylum can
live and work legally in the U.S., and apply for a green card after a year.
Why is asylum being talked about so much now?
Since 2014, a major surge of immigrants, including many unaccompanied
children, from Honduras, El Salvador and Guatemala--among the most
dangerous countr0ies in the world--have shown up at the U.S.-Mexico border
to request asylum. Many are fleeing rampant gang violence and crippling
poverty. But the Trump administration has aggressively tried to crackdown on
the number of undocumented immigrants entering the country.
Administration officials claim that many asylum-seekers are gaming the system
by making up stories to find an easy way in.
In an effort to make the asylum process more difficult, the administration has
instructed immigration officials to reject more claims. They also briefly ordered
immigration agents to detain adult applicants and separate them from their
children while awaiting asylum hearings. This controversial policy was abruptly
ended after a massive public outcry, but many children still remain separated
from their parents.
COMPARING IT TO OTHER COUNTRIES
In order to be eligible for asylum, an applicant must meet the definition of
refugee in the Immigration and Nationality Act (INA). The INA defines refugee
as:
“Any person who is outside any country of such person’s nationality or, in the
case of a person having no nationality, is outside any country in which such
person habitually resided, and who is unable or unwilling to avail himself or
herself of the protection of that country because of persecution or a well-
founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 1
The elements of an asylum claim based on sexual orientation, gender identity,
and/or HIV status are (1) a well-founded fear of persecution (2) based on past
persecution or risk of persecution in the future if returned to the country of
origin (3) because of the applicant’s membership in a particular social group
(PSG) wherein (4) the persecutor is a government actor and/or a non-
governmental actor that the government is unwilling or unable to control. 2
The applicant bears the burden of proof of establishing that they fall under this
definition of refugee. 3 The applicant is required to testify under oath regarding
the truth of their application in order to meet this burden of proof. 4 The Board
of Immigration Appeals (BIA) “not only encourage[s], but require[s] the
introduction of corroborative testimonial and documentary evidence, where
available.” 5 Testimony, however, can be sufficient to sustain the applicant’s
burden of proof if the testimony is credible. 6
3.1 Well-founded Fear of Persecution
3.1.1 Definition of Persecution
Although persecution is not specifically defined within the INA, the courts have
held that “a threat to life or freedom on account of race, religion, nationality,
political opinion or membership of a particular social group is always
persecution.” 7 The United Nations High Commission on Refugees (UNHCR) has
endorsed a similar standard in its Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol
Relating to the Status of Refugees. 8 Persecution has also frequently been
defined as “the infliction of suffering or harm upon those who differ in a way
regarded as offensive.” 9 Persecution is usually physical but can also be
emotional or psychological. 10
Recognizing persecution is extremely fact-dependent and fact-specific.
Although asylum adjudicators will determine what constitutes persecution on a
case-by-case basis, they have consistently recognized certain types of behavior
as persecution. The following five broad categories describe abuse that
adjudicators may find rise to the level of persecution:
1. serious physical harm;
2. coercive medical or psychological treatment;
3. invidious prosecution or disproportionate punishment for a criminal
offense;
4. severe discrimination and economic persecution, and
5. severe criminal extortion or robbery.
As explored below, successful applicants must demonstrate that the
persecution was motivated by one of the five protected grounds (race, religion,
nationality, membership in a PSG or political opinion).
3.1.1.1 Serious Physical Harm
The most recognized form of persecution is the infliction of serious physical
harm, including confinement, kidnapping, torture, and beatings. 11 Rape, sexual
assault and other forms of gender-based violence are also persecution. 12
The rape and beating of an LGBTQ/H person on account of their sexual
orientation, gender identity, and/or HIV status constitutes persecution. Many
LGBTQ individuals have been raped or sexually assaulted as “punishment” for
their sexual orientation or gender identity. In the case of Hernandez-Montiel,
the Ninth Circuit found that there was persecution when a “gay man with a
female sexual identity” was detained, strip-searched, sexually assaulted, and
raped by police officers on more than one occasion and sexually assaulted and
attacked by a group of men. 13
Threats of violence will generally not be sufficient to establish past persecution
unless the threats themselves cause significant harm. “Threats standing
alone…constitute persecution in only a small category of cases and only when
the threats are so menacing as to cause significant actual suffering or harm.” 14
Threats will be more likely to establish future persecution if the applicant can
demonstrate that the group who is making the threats has the will and ability
to carry them out. 15
Female genital mutilation (FGM) is also a form of persecution. 16 Although the
threat of FGM in the future can demonstrate a well-founded fear of
persecution, a recent Ninth Circuit case has held that genital mutilation is an
ongoing act of persecution “which cannot constitute a change in circumstances
sufficient to rebut the presumption of a well-founded fear.” 17 Thus, both past
FGM and the threat of having the procedure can be the basis for a well-
founded fear of persecution.
Violence against an applicant’s family members can also support a case for
asylum. 18
3.1.1.2 Coercive Medical and Psychological Treatment
Certain types of medical and psychological treatment will demonstrate a well-
founded fear of persecution. The Board of Immigration Appeals has found that
“forced institutionalization, electroshock treatments and drug injections could
constitute persecution.” 19 The coercive family planning practiced by the
Chinese government may also constitute persecution. 20
The most significant holding in this area is the Ninth Circuit decision in
Pitcherskaia v. INS. 21 Pitcherskaia, a lesbian from Russia, was arrested and
imprisoned on several occasions for protesting violence and discrimination
against gays and lesbians in Russia. The militia threatened her with forced
institutionalization and required her to attend therapy sessions. She was
prescribed sedative medication which she successfully refused. In addition, an
ex-girlfriend of hers was institutionalized against her will and was subjected to
electric shock treatment and other treatments meant to ‘cure’ her of her
sexual orientation. The Ninth Circuit ruled that it is not necessary for the
persecutor to intend harm in order for unwanted medical or psychological
treatment to amount to persecution, as long as the victim experiences the
treatment as harmful. The proper test is whether or not a reasonable person
would have found the suffering inflicted as offensive. 22
Lack of access to adequate medical treatment, however, is generally not
considered persecution. HIV-positive asylum applicants will have difficulty
securing asylum status on this basis. Nevertheless, at least two international
human rights law tribunals have recognized that a country’s failure or inability
to provide life-sustaining medical treatment can allow for protection under
refugee law. 23 In addition, lack of adequate medical treatment for HIV/AIDS
has been one of several factors that have been considered when a claim is
made based on HIV status. 24 The discrepancy within the cases may be
attributed to the difference between not receiving the best quality medical
care and government refusal to provide basic medical care to people with
HIV/AIDS.
There have also been successful non-precedential Convention Against Torture
claims for individuals living with HIV who were able to demonstrate that they
would be incarcerated in sub-standard conditions if returned to their home
countries. Finding that such incarceration would like lead to death, at least two
Immigration Judges (IJs) have granted CAT under these circumstances. 25
3.1.1.3 Invidious Prosecution or Disproportionate Punishment for a
Criminal Offense
Asylum status will not be granted for criminal prosecution as a result of a
violation of a fairly administered law. 26 Prosecution may be considered
persecution, however, if there is either severe punishment or pretextual
prosecution. 27 Asylum adjudicators will focus on whether the punishment
under a country’s laws is disproportionately severe or whether the law or
punishment is contrary to international human rights standards. 28 In
determining whether a particular law is considered to be in violation of human
rights standards, asylum adjudicators may use U.S. law as comparison. 29 Since
Lawrence v. Texas, private consensual same-sex activity cannot be prohibited
by law in the United States. 30 This ruling helps demonstrate that sodomy laws
in other countries are in violation of rights explicitly recognized by the United
States.
Many countries still prohibit homosexual acts in their criminal codes. The
existence of such a law, however, may not be sufficient to demonstrate
persecution. Several unpublished decisions emphasize the importance of
evidence that the laws are actually enforced. 31
3.1.1.4 Economic Persecution and Other Forms of Severe
Discrimination
Generally, harassment and discrimination will not constitute persecution.
Persecution is regarded as an extreme concept that differs from general
discrimination against minority groups, 32 which requires “more than a few
isolated incidents of verbal harassment or intimidation, unaccompanied by any
physical punishment, infliction of harm, or significant deprivation of liberty.” 33
Severe forms of discrimination may however amount to persecution in some
instances. Discrimination will amount to persecution “if measures of
discrimination lead to consequences of a substantially prejudicial nature for
the person concerned, e.g. serious restrictions on his right to earn his
livelihood, his right to practice his religion, or his access to normally available
educational facilities.” 34 Cumulative discrimination that is increasing in severity
will have a higher chance of being considered persecution. 35 For instance, the
inability to travel safely within a country and forced expulsion from the country
amount to persecution.3 36
One form of severe discrimination recognized by the courts is in the form of
economic persecution. Economic persecution requires a probability of
deliberate imposition of substantial economic disadvantage based on a
protected ground. 37 In a non-precedential case, the Ninth Circuit found that a
lesbian from the Philippines had not experienced economic persecution when
she could not continue working as a dentist because no patients would
patronize her after they learned of her sexual orientation. The Court found
that the inability to pursue one’s chosen profession, as opposed to the
complete inability to find any livelihood, did not rise to the level of
persecution, particularly considering that there was no showing that the
government was unable or unwilling to address the problem. 38
Severe discrimination may be a ground for applicants living with HIV to claim
asylum. The discrimination, however, must go beyond inadequate medical
treatment. In one unpublished decision, an IJ found that a married woman
living with HIV would be subject to persecution on account of severe
discrimination. 39 In making this decision, the IJ considered documentary
evidence that people living with HIV lost their jobs when employers learned of
their status and that hospitals turned away HIV-positive patients. Additionally,
the IJ determined that the woman could face criminal prosecution for being
married despite a law barring people with HIV from marrying.
In another non-precedential case, a man living with HIV from Togo was granted
asylum by an IJ. The IJ considered evidence that drugs for treating HIV/AIDS
were scarce or nonexistent in Togo, that a cousin of the applicant had been
sent home to die when he was sick from AIDS-related illnesses, and that the
applicant would be ostracized by the community and would be unable to
secure work. 40 In contrast, the BIA, in an unpublished decision, affirmed a
denial of withholding of removal based on future persecution based on HIV
status. In the decision, the BIA suggested that the evidence needs to
demonstrate social stigma and not just an increasing infection rate in a
particular country. The BIA also noted the importance of showing that poor
treatment of those suffering from AIDS is due to severe discrimination against
those living with AIDS rather than a reflection of widespread poverty and
unemployment. 41
3.1.1.5 Severe Criminal Extortion or Robbery
Extortion can constitute persecution when the extortion clearly and selectively
occurs on account of one of the five statutorily listed grounds (including PSG
membership). 42 Threatening to disclose one’s sexual orientation to a hostile
community may constitute persecution if the applicant can put forth evidence
that makes it reasonable to believe that the extortion was at least partially
based on the fact that the individual is gay or imputed to be gay. 43
Crime alone will most likely not reach the level of persecution. 44 If, however,
the applicant can demonstrate that a robbery or assault was motivated by a
protected characteristic and that the police failed to provide protection, it may
constitute persecution.
A gay man from Mexico failed to gain asylum because the BIA found that
incidents where police had called him immoral and extorted money from him,
thieves had robbed him while calling him gay, and a group of men had beat
him up while yelling ‘faggot’ did not constitute persecution, but were rather
only harassment and discrimination. The case illustrates how robbery and
extortion will generally have to reach a certain level of extremity in order to
amount to persecution.
Proving that robbery and extortion amount to persecution will be difficult if
the country in question is experiencing civil unrest and economic strife,
conditions which greatly increase the incidence of both forms of crime against
the general population.
Establishing a Well-Founded Fear
In order to demonstrate a well-founded fear of return, an asylum applicant
must establish that they have both a subjective and objective fear of returning
to their country of origin. 48 The subjective component requires that the
applicant demonstrate a genuine fear of persecution. 49 “An asylum applicant’s
candid, credible, and sincere testimony demonstrating a genuine fear of
persecution satisfies the subjective component of the well-founded fear
standard.” 50 The UNHCR stated that “an evaluation of the subjective element
is inseparable from an assessment of the personality of the applicant, since
psychological reactions of different individuals may not be the same in
identical conditions.” Although not binding on U.S. asylum applications, the
Handbook is persuasive authority.
The test for the objective component is whether a reasonable person in the
applicant’s circumstances would fear persecution. The objective element
requires credible, direct, and specific evidence that supports a reasonable fear
of persecution. 52 According to the Supreme Court, a chance of persecution
that is as low as ten percent may result in a well-founded fear sufficient for
asylum. 53 54 As long as the objective component is established by the evidence,
it need not be shown that the situation will probably result in persecution. It
“is enough that persecution is a reasonable possibility.” 55
Past Persecution
An applicant may be granted asylum based on past persecution alone. If an
applicant sufficiently demonstrates past persecution, they are presumed to
have a well-founded fear of persecution. 56 The presumption of a well-founded
fear of persecution, however, can be rebutted if a preponderance of the
evidence demonstrates that there has been a fundamental change in
circumstances or that the applicant could reasonably relocate to another part
of the country of origin. 57
Even without a demonstration of a well-founded fear of persecution, the
applicant may be granted asylum if there are compelling reasons that they are
unwilling or unable to return based on the severity of the past persecution of if
the applicant has established that there is a reasonable possibility that they
may suffer other serious harm. 58
Making a case for a well-founded fear of persecution based on past
persecution may be weakened if the applicant remained in their country of
origin for a lengthy period of time after the initial persecution without any
additional incidents. 59 Adjudicators may also find it damaging to a case if the
applicant has returned to the country of origin since arriving in the United
States. 60 Return trips without incident may be one factor that can contribute
to a rebuttal of the presumption of future persecution established by past
persecution. 61 In one unpublished Ninth Circuit opinion, the Court found that
return trips alone do not rebut a presumption of well-founded fear. 62 The
case, Pena-Torres v. Gonzales, involved a gay applicant who took several trips
back to his native Mexico after he was the victim of persecution by the police.
The Court found that the return trips alone did not rebut the presumption of
well-founded fear, particularly since the State Department report corroborated
violence against gay men.
If the applicant’s fear of future persecution is unrelated to the past
persecution, the applicant bears the burden of demonstrating that the fear is
well-founded. 63 Establishing past persecution generally provides the strongest
case for an asylum claim because it puts the burden on DHS to demonstrate
that the fear is not well-founded.
3.1.4 Pattern and Practice of Persecution against Similarly Situated
Persons
An applicant can demonstrate a well-founded fear of persecution by showing
that there is a pattern or practice in their country of persecution of LGBTQ/H
individuals. The applicant must establish that they are LGBTQ/H and that their
fear upon return is reasonable. 64 Persecution against a specific group must be
systemic, pervasive, or organized in order to amount to a pattern or practice
sufficient for establishing a fear of future persecution. 65 An applicant will not
have a well-founded fear of persecution if it would be reasonable for them to
relocate to another part of their country of origin. 66
Fear of future persecution tends to be the more difficult route for
demonstrating asylum eligibility. The applicant will need to provide
documentation from compelling, accurate, and clearly identified sources in
order to establish a pattern of mistreatment. Helpful documents include
reports by recognized and respected human rights and LGBTQ/H international
rights organizations, such as Amnesty International, Human Rights Watch, the
OutRight Action Internatoinal, and the International Lesbian and Gay
Association. The applicant should also include newspaper articles regarding
violence against LGBTQ/H individuals in the country of origin. Testimony by
experts on conditions in the country in question will also be considered. U.S.
State Department Reports on country conditions will by highly influential in the
absence of contradictory evidence. 67
3.1.5 Individualized Fear of Future Persecution
An individual who has not suffered persecution can nevertheless demonstrate
a well-founded fear. In Matter of Mogharrabi, the BIA set forth the following
four elements that an applicant for asylum must show in order to establish a
well-founded fear of persecution:
 6. the applicant possesses a belief or characteristic a persecutor seeks to
overcome in others by means of punishment of some sort;
7. the persecutor is already aware, or could become aware, that the
applicant possesses this belief or characteristic;
8. the persecutor has the capability of punishing the applicant; and
9. the persecutor has the inclination to punish the applicant. 68
Karouni v. Gonzales is a significant precedential case for sexual-orientation
based asylum claims because it is based only on a finding of a well-founded
fear of future persecution. Karouni, a gay man living with AIDS from Lebanon,
had satisfied the requirements for both a subjective and objective fear based
on future persecution by providing evidence that Hizballah militants frequently
persecuted gay men, that his cousin had been killed on the basis of his sexual
orientation, and that his own sexual orientation had been disclosed to the
police by other gay men who had been beaten by authorities. 69
3.2 On Account of Membership in a Particular Social Group
The applicant must prove that the persecution they fear in the future is
motivated by their actual or imputed membership in a PSG. Since 1994, when
Attorney General Janet Reno designated Matter of Toboso-Alfonso as
precedent, “homosexual men” has been recognized as a PSG under asylum
law. More recently, the Ninth Circuit has ruled that “all alien homosexuals are
members of a ‘particular social group.’” 70 In the case Amanfi v. Ashcroft, the
Third Circuit held that imputed membership in the PSG of gay men can also be
grounds for an asylum claim. In Amanfi, the Court recognized that persecution
on account of sexual orientation may be sufficient for an asylum claim even if
the victim is actually not gay but is thought to be by the persecutor. 71 In that
case, a man from Ghana engaged in homosexual activity with another man in
order to be spared from being ritually sacrificed, after which he was
continuously beaten by police for his perceived homosexuality.
The Ninth Circuit has also found in the case of Hernandez-Montiel that “gay
men with female sexual identities” constitute a PSG. 72 The Court rejected the
argument that Hernandez-Montiel’s female identity was volitional, concluding
that his presentation as female was immutable and inherent in his identity and
that he could not be required to change it. The Court reaffirmed its holding in
Reyes-Reyes v. Ashcroft. 73 Although transgender persons have not been
explicitly found to constitute a PSG, there have been many successful non-
precedential cases. 74
People living with HIV have not explicitly been found to constitute a PSG for
the purposes of asylum. In 1996, the legacy INS Office of the General Counsel
recommended that the PSG of people with HIV be recognized for the purposes
of asylum law. 75 Some IJs have found that HIV status can form the basis of a
PSG membership. 76 The BIA has also recognized, in an unpublished opinion,
that people living with AIDS can comprise a PSG. 77 Although these decisions
are significant for applicants living with HIV, because the rulings are not
precedential, such applicants will still need to individually establish that people
living with HIV in their countries constitute a PSG.
An essential component of an asylum application for a lesbian, gay, or bisexual
applicant will be proving that they are in fact lesbian, gay, or bisexual. Relevant
proof may include testimony or documentation by past partners or friends
living in the United States.
The applicant must also provide evidence, either direct or circumstantial, that
the persecution is on account of their sexual orientation, gender identity, or
HIV status. 78 In an unpublished decision, Pena-Torres v. Gonzales, the Ninth
Circuit reversed an IJ’s decision that a gay man from Mexico had suffered from
police brutality rather than persecution on account of his sexual orientation. 79
The Ninth Circuit remanded the case for a new determination regarding
asylum eligibility because it found that an incident where the applicant was
beaten to the point where he required medical attention and was threatened
by the police after leaving a gay bar, did amount to past persecution on
account of his sexual orientation. The Court reached this conclusion by citing
evidence that the police had attacked the applicant only after they asked him
whether he was gay.
Significantly, the BIA has consistently followed the doctrine of “mixed motives”
which holds that there can be more than one motivation for the persecution,
as long as the harm was motivated in part by an actual or imputed ground as
shown by direct or circumstantial evidence produced by the applicant. 80
If an applicant does not clearly fit within a precedentially defined PSG, they
must establish that they are a member of a PSG. The major case setting forth
what constitutes membership in a PSG is Matter of Acosta. 81
‘Persecution on account of membership in a particular social group’ mean[s]
persecution that is directed toward an individual who is a member of a group
of persons all of whom share a common, immutable characteristic. The shared
characteristic might be an innate one such as sex, color, or kinship ties, or in
some circumstances it might be a shared past experience such as former
military leadership or land ownership. The particular kind of group
characteristic that will qualify under this construction remains to be
determined on a case-by-case basis. However, whatever the common
characteristic that defines the group, it must be one that the members of the
group either cannot change, or should not be required to change because it is
fundamental to their individual identities or consciences. 82
PSGs should be defined in specific terms rather than in broad, generally
applicable terms such as youth and gender. For instance, the following PSGs
have met the requirements for asylum: young women of the Tchamba-
Kunsuntu tribe who have not suffered FGM, as practiced by that tribe, and who
oppose the practice, 83 and HIV-positive individuals living in the Ivory Coast and
Togo. 84 85
As noted, broad PSGs, such as gender, will not satisfy the membership
requirement as it is currently construed. This exclusion long created difficulties
for those who sought asylum in order to escape domestic violence or other
forms of violence within the private sphere, before the BIA’s precedential
decision in Matter of A-R-C-G-. 86 Even today, PSGs must be defined with
sufficient particularity that its boundaries are discrete and definable. 87 The
group must also be socially distinct—that is, the society in question must
distinguish individuals who share the defining characteristic of the PSG from
those who do not. 88 This “visibility” does not mean ocular or literal visibility, or
explicit, outward identification by the applicant with the PSG. 89
Political opinion may be an additional ground that LGBTQ/H individuals can
claim asylum. LGBTQ/H people who are involved with gay rights groups may
use political opinion as a supplemental ground for asylum claims. In addition,
the BIA has found that persecution can be based on an imputed political
opinion. 90
3.3 Imposed by the Government or by a Group which the Government is
Unable or Unwilling to Control
The applicant must have suffered persecution by a governmental actor, or by a
non-governmental actor that the government is unable or unwilling to control.
The government generally includes the police, the military, and government-
run schools. The government, for the purposes of asylum law, also includes
government-sponsored groups. Groups that the government is unable or
unwilling to control often encompass guerrilla and paramilitary groups and
gangs. 91 92
Generally, beatings by other citizens will not constitute persecution if there is
no showing that there was government involvement or that the government
refused to assist in prosecuting the abusers or protecting the victim. For
instance, in the case of Galicia v. Ashcroft, a gay Guatemalan man’s petition for
review was denied because beatings and verbal abuse by his neighbors were
committed only by non-governmental actors. 93 He never contacted the
authorities and therefore was unable to claim that the government was
unwilling or unable to protect him or prosecute his abusers.
Adjudicators have broadly interpreted what constitutes a group that the
government is unable or unwilling to control. Some decisions find that crime
committed against the applicant by family members may constitute
persecution if the government is unwilling or unable to protect the victim or to
prosecute the violator. For instance, in the case of In re Kasinga, the applicant
established a well-founded fear of persecution based on threats by her
husband and other family members that they would perform FGM on her.
Although the government itself would not have participated in the act of
mutilation, the BIA found that it would not have prevented her family from
acting. 94
The BIA has also found that domestic violence can constitute persecution in
some instances 95 In In re S-A, the BIA found that there had been persecution
where a father was beating and abusing his daughter because she did not
conform to his strict Muslim beliefs and practices. 96 She was beaten once a
week, often times severely, was burnt on the insides of her thighs, and twice
attempted suicide when she was forbidden to leave the house, including to
attend school. Although she never approached the government for aid, the BIA
was convinced by evidence presented that Moroccan authorities would not
have protected her.
The decisions of In re Kasinga and In re S-A- are significant for LGBTQ/H asylum
applicants who may have been the victims of violence directed at them by
family members. The decisions have particular significance for female
applicants who identify as lesbian or bisexual and who, because they are
women and are largely kept within the private sphere, may be victims of
domestic violence. 97 An asylum claim will be more likely to be successful if the
violence is continuous and reaches a level of severity and if there is evidence
that the government would not protect the victim.
Although these cases provide some hope for victims of domestic violence,
violence or sexual assault at the hands of family members generally will not be
sufficient unless the applicant had approached police regarding the problem
and the police refused to assist the applicant or the applicant can clearly
demonstrate through compelling documentary evidence that seeking
government protection would have been futile or dangerous. Several
unpublished decisions find that sexual assaults and beatings inflicted by family
members are private conduct when not brought to the attention of
government. 98
3.4 Meriting a Favorable Exercise of Discretion
Even if an applicant meets all of the requirements to qualify as an asylee, the
adjudicator may deny a grant of asylum if they feel that the applicant does not
merit a favorable exercise of discretion. 99 It is therefore advisable to provide
evidence that the applicant “deserves” asylum. If there are no significant
negative factors in the case, and the applicant has met the standard for
asylum, they generally win.
If there are negative factors, such as a criminal conviction, it will be important
to explain the circumstances of the conviction, and, if possible demonstrate
rehabilitation. Likewise, if the applicant entered the United States by using
fraudulent documents, they should be prepared to explain why this was
necessary in order to flee the situation in their country of origin.
3. 5 Humanitarian Asylum
Once an applicant has established past persecution, thus generating a
presumption that their fear of future persecution is well-founded, DHS has the
opportunity to rebut this presumption. It may try to do so by demonstrating
that circumstances in the home country have changed such that the applicant
would no longer be at risk of persecution if returned. If DHS does successfully
rebut the presumption of future persecution, the burden reverts back to the
applicant to demonstrate eligibility for a humanitarian grant of asylum
pursuant to 8 C.F.R. § 1208.13(b)(1)(ii). The BIA and Courts of Appeals have
often stressed that an applicant must still demonstrate past persecution in
order to be eligible for humanitarian asylum. See, e.g. Mambwe v.Holder, 572
F.3d 540, 549 (8th Cir. 2009), Ben Hamida v. Gonzales, 478 F.3d 734, 741 (6th
Cir. 2007), Matter of L-S-, 25 I&N Dec. 705, 710 (BIA 2012).
The applicant may show that they have compelling reasons, based on the
severity of the past persecution, for being unable or unwilling to return to their
country of origin. 8 C.F.R. § 1208.13(b)(1)(ii)(A). Applicants will be eligible for
humanitarian asylum on these grounds when they have suffered “an atrocious
form of persecution that results in continuing physical pain and discomfort.”
Matter of L-S-, at 712. Put another way, the applicant must establish that the
“past persecution was so severe that repatriation would be inhumane.” Abrha
v. Gonzales, 433 F.3d 1072, 1076 (8th Cir. 2006). The focus of the inquiry is on
the degree of harm suffered, the length of time over which the harm was
inflicted, and the lingering physical and/or psychological effects of the harm.
Id. In Matter of S-A-K- & H-A-H-, 24 I&N Dec. 464 (BIA 2008) the BIA found that
a mother and daughter who had been subjected to FGM that had severe and
lasting consequences were eligible for humanitarian asylum. In Matter of B-, 21
I&N Dec. 66, 72 (BIA 1995) humanitarian asylum was granted to an Afghani
applicant who had been imprisoned for 13 months where he was subjected to
torture and kept from knowing the fate of his missing father. By contrast, an
applicant who had been detained for 1 month and had knowledge of his
missing father’s ultimate death was not eligible for humanitarian asylum.
Matter of N-M-A-, 22 I&N Dec. 312, 326 (BIA 1998).
Alternatively, the applicant may qualify for humanitarian asylum based on a
reasonable probability of other serious harm upon removal to the country of
origin. 8 C.F.R. § 1208.13(b)(1)(ii)(B). This provision was added in 2001 to
expand the availability of humanitarian asylum by broadening the standards
from the overly restrictive “compelling reasons” standard. Executive Office for
Immigration Review; New Rules Regarding Procedures for Asylum and
Withholding of Removal, 63 Fed. Reg. 31,945, 31,947 (proposed Jun. 11, 1998)
(Supplementary Information). This standard is forward looking, rather than
backwards looking. The serious harm need not be inflicted on account of a
Convention ground, or even in connection with the past persecution, but it
must be so serious that it equals the severity of persecution. Matter of L-S-, 25
I&N at 714. The BIA has held that determinations of when other serious harm
rises to this level are best made on a case-by-case basis. In a recent decision on
humanitarian asylum, the BIA provided a litany of examples of situations that
might reach that level. The Ninth Circuit also held in 2005 that internal
relocation was not available to a gay Mexican man living with HIV who would
face “unemployment, a lack of health insurance, and the unavailability of
necessary medications in Mexico to treat his disease,” because he would likely
experience other serious harm. Id. (citing Boer-Sedano v. Gonzales, 418 F.3d
1082, 1090-91 (9th Cir. 2005)). Other examples of serious harm could include:
extreme circumstances of inadequate health care, Pllumi v. Att’y Gen. of U.S.,
642 F.3d 155, 162 (3d Cir. 2011); mental anguish of a mother who was a victim
of FGM having to choose between abandoning her child or seeing the child
suffer the same fate, Kone v. Holder, 596 F.3d 141, 152-53 (2d Cir. 2010); or
unavailability of psychiatric medication necessary for the applicant to function,
Kholyavskiy v. Mukasey, 540 F.3d 555, 577 (7th Cir. 2008).
3.6 Frivolous Asylum Applications
Knowingly filing a frivolous asylum application is one of the most serious
wrongs that an applicant for immigration status can commit. The regulations
define an asylum application as frivolous “if any of its material elements is
deliberately fabricated.” 100 Thus an application is not considered “frivolous”
simply because it is denied or because it is obviously weak; a “frivolous” finding
requires “deliberate fabrication.”
If an IJ or the BIA determines that the applicant filed a frivolous application,
and that the applicant has received the required notice of the penalties for
filing a frivolous application, “the alien shall be permanently ineligible for any
benefits under the [Immigration and Nationality] Act.” However, a finding of a
frivolous asylum application “shall not preclude the alien from seeking
withholding of removal.”
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.
10.An asylum claimant must demonstrate persecution based on one of the
five protected grounds (race, religion, nationality, membership in a
particular social group or political opinion). While LGBT/H status-based
cases most often fall under the “social group” category, the facts may
support other theories of protection as well. A gay political leader, for
example, may have a mixed social group and political opinion asylum
case.
11.The Office of the United Nations High Commissioner, The Handbook on
Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol Relating to the Status of Refugees,
(Geneva, 1979), HCR/1P/Eng./Rev.2, paragraph 51 (hereinafter
“Handbook”).
12.Korablina v. INS, 158 F.3d 1038, 1043 (9th Cir. 1998); Miranda v. INS, 139
F.3d 624, 626 (8th Cir. 1998).
13.Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004); Duarte de
Guinac v. INS, 179 F.3d 1156, 1163 (9th Cir. 1999).
14.Ndom v. Ashcroft, 384 F.3d 743, 752 (9th Cir. 2004)(two detentions
without formal charges for a combined total of 25 days in a dark
crowded cell where he was shackled in cuffs preventing him from
straightening his legs and forcing him to urinate on his clothes constitute
persecution); Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995) (detention
and physical torture); Tarubac v. INS, 182 F.3d 1114, 1118 (9th Cir. 1999)
(being kidnapped, beaten, held without food, and threatened is
persecution); In Re V-T-S, 21 I. & N. Dec. 792 (BIA 1997)(kidnapping).
15.Lopez Galarza v. INS, 99 F.3d 954, 958 (9th Cir. 1996)(rape or sexual
assault); Abay v. Ashcroft, 368 F.3d 634, 641-41 (6th Cir. 2004 )(mother
and daughter share a well-founded fear of persecution when the
daughter is under the threat of female genital mutilation); In Re S-A-, 22
I. & N. Dec. 1328 (BIA 2000)(domestic abuse inflicted on a daughter by
her father).
16.Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000).
17.Li v. AG of US, 400 F.3d 157, 164 (3d Cir. 2005), quoting Lim v. INS, 224
F.3d 929, 936 (9th Cir. 2000).
18.Marcos v. Gonzales, 410 F.3d 1112 (9th Cir. 2005)(finds well-founded
fear of persecution substantiated when applicant had previously
received death threats from the New People’s Army (NPA) in Philippines
for his work in the Civilian Home Defense Forces of the Philippine
military. The State Department Country Report, by recognizing the
danger posed by the NPA, served to support the existence of a well-
founded fear of persecution).
19.In Re Fauziy Kasinga, 21 I&N 357 (BIA 1996)(noting that FGM is
extremely painful, temporarily incapacitating, and exposes the girl or
woman to the risk of serious, potentially life-threatening complications).
20.Mohammed v. Gonzales, 400 F.3d 785, 800 (9th Cir. 2005).
21.Baballah v. Ashcroft, 367 F.3d 1067, 1074-1075 (9th Cir. 2004); Salazar-
Paucar v. INS, 281 F.3d 1069, 1075 (9th Cir. 2002).
22.Sagermark v. INS, 767 F.2d 645, 650 (9th Cir. 1985).
23.INA §101(a)(42)(B), 8 USC §1101(a)(42)(B)(2005).
24.Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997).
25.Id. at 647. Also see 65 Fed. Reg. 76588-98 (Dec. 7, 2000).
26.ECHR and Inter-American Court.
27.See Matter of [name not provided] A 71-498-940 (IJ Oct. 31, 1995)(New
York, NY), reported in 73 Interpreter Releases 901 (July 8, 1996)(HIV-
positive applicant wins asylum claiming that drugs were nonexistent or
scarce, others had not been treated, and that he would experience
ostracization from family, community, and work opportunities); Matter
of [name not provided], (IJ Dec. 20, 2000)(Baltimore, MD)(Gossart, IJ),
reported in 78 Interpreter Releases 233 (Jan. 15, 2001)(married HIV-
positive woman from India granted asylum on the grounds that she
would be ostracized and would not receive appropriate medical care if
returned to India).
28.See “On the Positive Side: Using a Foreign National’s HIV-Positive Status
in Support of an Application to Remain in the United States“, 19 AIDS and
Public Policy Journal (2004).
29.Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004).
30.Fisher v. INS, 79 F.3d 955, 962 (9th Cir. 1996).
31.Abedini v. INS, 971 F.2d 188, 191 (9th Cir. 1992); Senathirarajah v. INS,
157 F.3d 210, 221 (3d Cir. 1998);Chang v. INS, 119 F.3d 1055 (3d Cir.
1997).
32.Handbook at ¶59.
33.Lawrence v. Texas, 539 U.S. 558, 578 (2003).
34.Abdul-Karim v. Ashcroft, No. 02-74468, 102 Fed. Appx. 613, 2004 U.S.
App. LEXIS 13541 (9th Cir. 2004) (there is not well-founded fear on
account of homosexuality when the U.S. State Department Report states
the criminal prohibitions on homosexual activity were unenforced).
35.Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996); Bucur v. INS, 109 F.3d 399
(7th Cir., 1997).
36.Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998); See also
Kvartenko v. Ashcroft, No. 00-71076, 33 Fed. Appx. 262 (9th Cir. 2002)
(two encounters with police, one when officers arrested him and
 another when the applicant and a group of gay men were stopped,
searched, and beaten with night sticks, only amounted to harassment).
37.Handbook at ¶54.
38.Handbook at ¶55.
39.Ouda v. INS, 324 F.3d 445, 454 (6th Cir. 2003).
40.Baballah v. Ashcroft, 335 F.3d 981, 988 (9th Cir. 2003); Li v. Attorney
General of the US, 400 F.3d 157 (3d Cir. 2005)(finding economic
persecution where a man, trained in government work, could not get
government employment, had to work in temporary jobs without health
benefits, and had a tax imposed on him for his extra children when he
violated Chinese population policies).
41.Burog-Perez v. INS, No. 03-70520, 95 Fed. Appx. 886, 2004 U.S. App.
LEXIS 8003 (9th Cir. 2004).
42.Matter of [name not provided], (IJ Dec. 20, 2000)(Baltimore, MD)
(Gossart, IJ), reported in 78 Interpreter Releases 233 (Jan. 15, 2001).
43.See Matter of [name not provided] A 71-498-940 (IJ Oct. 31, 1995)(New
York, NY), reported in 73 Interpreter Releases 901 (July 8, 1996).
44.In Re: Oscar Alberto Argueta, A91-051-087 (BIA Nov. 14, 2003)(Arlington,
VA).
45.Yazitchian v. INS, 207 F.3d 1164, 1168 (9th Cir. 2000); See also Desir v.
Ilchert, 840 F.2d 723, 727 (9th Cir. 1988).
46.See Borja v. INS, 175 F.3d 732, 736 (9th Cir. 1999)(the applicant must
“produce evidence from which it is reasonable to believe that the harm
was motivated, at least in part, by an actual or implied protected
ground.” The Ninth Circuit finds persecution for a woman who is
threatened with death if she does not pay ‘taxes’ to an anti-government
group she does not support.). Also relevant is the doctrine of mixed
motives, adopted by many circuits, that recognizes that persecution
need only partially be motivated by a protected ground.

47.Surita v. INS, 95 F.3d 814 (9th Cir. 1996)(the repeated robbery of an

Ethnic Indian citizen of Fiji and repeated threats of rape if she reported
the robberies, in addition to the fact that the police refused to help her
stop the robberies, amounts to past persecution on account of race).
48.In Re A-M-, 23 I. & N. Dec. 737 (BIA 2005)(Chinese Christian applicant
from Indonesia does not meet future persecution requirements because
he stayed two years after looting incident with no additional incidents
and because the record does not demonstrate persecution that is so
systemic or pervasive as to amount to a pattern of persecution). But in
Karouni v. Gonzalez, 399 F.3d 1163 (9thCir. 2005), the Ninth Circuit
found that Karouni’s decade-long wait to apply for asylum did not
undermine his claim when he was previously unaware that sexual
orientation could be a basis for asylum and when he had pursued
employment-based options to legalize his status instead.
49.n Karouni v. Gonzalez, see id., the Ninth Circuit found that two return
trips to Lebanon which coincided with the death of each of Karouni’s
parents did not render him ineligible for asylum, especially when he took
steps to avoid the notice of the government while he was there.
Likewise, in Boer-Sedano v. Gonzalez, 418 F.3d 1082 (9th Cir. 2005), the
Ninth Circuit rejected the Immigration Judge’s finding that Boer-
Sedano’s return trips to Mexico rebutted the presumption of future
persecution.
50.Belaynah v. INS, 213 F.3d 488, 491 (9th Cir. 2000)(no reasonable fear of
persecution when there were three return trips, more than ten year gap
between past persecution and the time of application, and evidence of
improved conditions in the government). See also Hakeem v. INS, 273
F.3d 812, 816-17 (9th Cir. 2001).
51.Pena-Torres v. Gonzales, No. 03-72680, 2005 U.S. App. LEXIS 7153 (9th
Cir. 2005).
52.8 C.F.R. § 1208.13(b)(1).
53.8 C.F.R.. § 1208.13(b)(2)(iii).
54.Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004); Lie v. Ashcroft, 396
F.3d 530, 537 (3d Cir. 2005); In Re A-—, 23 I. & N. Dec. 737 (BIA 2005).
55.8 C.F.R. § 1208.13(b)(2)(ii). See also Galicia v. Ashcroft, 396 F.3d 446 (1st
Cir. 2005)(Guatemalan gay man did not demonstrate an objective basis
of fear of future persecution because he did not demonstrate that he
could not live safely in another part of Guatemala).
56.Gonahasa v. United States INS, 181 F.3d 538, 542 (4th Cir. 1999)(“A State
Department report on country conditions is highly probative evidence in
a well-founded fear case”); Abdul-Karim v. Ashcroft, No. 02-74498, 102
Fed. Appx. 613 (9th Cir. 2004)(the applicant, who provided both relevant
 sources and irrelevant sources from unidentified sources, was unable to
rebut the State Department’s 1998 advisory opinion that prohibitions on
homosexual behavior in Lebanon went unenforced); Orlando-Parker v.
Ashcroft, No. 03-4265, 112 Fed. Appx. 860 (3d. Cir. 2004)(citing the 2002
Country Report indicating that the Jamaican Public Defender’s Office has
criticized violence against gays as a factor in whether there is substantial
evidence that the government will not control violence against gays.
Court ultimately denies petition for review by gay Jamaican man).
57.Matter of Mogharrabi, 19 I&N Dec. at 446; INS v. Elias-Zacarias, 112 U.S.
812 (1992).
58.Karouni v. Gonzales, 399 F.3d 1163 (9th Cir. 2005).
59.Id. at 1172.
60.Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003).
61.Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000).
62.Reyes-Reyes v. Ashcroft, 284 F.3d 782 (9th Cir. 2004).
63.See Victoria Neilson, Uncharted Territory: Choosing an Effective
Approach in Transgender-Based Asylum Claims, 32 Fordham Urban Law
Journal 265 (2005); see also Melissa Castillo-Garsow, An Odyssey to
Asylum, Gay City News, December 30, 2004- January 5, 2005 available at
www.gaycitynews.com/gcn_353/anodysseytoasylum.html.
64.Memorandum from INS Office of the General Counsel, David A. Martin,
General Counsel, to all Regional Counsel, Legal Opinion: Seropositivity
for HIV and Relief from Deportation (Feb. 16, 1996), reported in 73
Interpreter Releases 901 (July 8, 1996). Available here.
65.Matter of [ ], (IJ Dec. 20, 2000) (Baltimore, MD) (Gossart, IJ), reported in
78 Interpreter Releases 233 (Jan. 15, 2001) (HIV-positive married woman
wins asylum as a member of the social group of HIV-positive married
women in India based on evidence of ostracism and lack of appropriate
medical care if she returned to her native country); Matter of [ ], A71-
498-940 (IJ Oct. 31, 1995) (New York, NY), reported in 73 Interpreter
Releases 901 (July 8, 1996) (man from Togo granted asylum on the basis
of his membership in the particular social group of individuals infected
with HIV).
66.In Re Oscar Alberto Argueta, A91-051-087 (BIA Nov. 14, 2003)(Arlington,
VA) citing 8 U.S.C. § 1101(a)(42(A)(1994); Matter of Acosta, 19 I. & N.
Dec. 211, 233 (BIA 1985); Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA
 1987); Matter of H-, 21 I. & N. Dec. 337 (BIA 1996); Fatin v. INS, 12 F.3d
1233, 1249 (3d Cir. 1993);Gomez v. INS, 947 F.3d 660, 664 (2d Cir. 1991).
67.See INS v. Elias-Zacharias, 502 U.S. 478 (1992).
68.Pena-Torres v. Gonzales, No. 03-72680, 2005 U.S. App. LEXIS 7153 (9th
Cir. 2005).
69.Matter of S-P-, 21 I. & N. Dec. 486 (BIA 1996); Osorio v. INS, 18 F.3d
1017, 1028 (2d Cir. 1994); Girma v. INS, 283 F.3d 664, 667 (5th Cir.
2002). Note, the recently passed Real ID Act now requires that the
protected characteristic be at least one central motivation for the
persecutor. See Sections #5.1 and #5.9 on the Real ID Act.
70.Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985).
71.Id. at 233-234.
72.In Re Kasinga, 21 I. & N. 357 (BIA 1996).
73.See Matter of [name not provided] A 71-498-940 (IJ Oct. 31, 1995)(New
York, NY), reported in 73 Interpreter Releases 901 (July 8, 1996).
74.Gomez v. INS, 947 F.2d 660 (2d. Cir 1991).
75.Matter of A-R-C-G- et al., 26 I&N Dec. 388 (BIA 2014)
76.See Matter of M-E-V-G-, 26 I&N Dec. 227, 234 (BIA 2014); Matter of W-
G-R-, 26 I&N Dec. 208, 216 (BIA 2014)
77.See id
78.See id
79.In Matter of S-P-, 21 I. & N. Dec. 486 (BIA 1996).
80.Matter of Villalta, 20 I. & N. Dec. 142 (BIA 1990)(death squads); Arteaga
v. INS, 836 F.2d 1227, 1232 (guerillas); Singh v. INS, 94 F.3d 1353, 1359
(9th Cir. 1996)(gangs).
81.Montoya-Ulloa v. INS, 79 F.3d 930, 931 (9th Cir. 1996).
82.Galicia v. Ashcroft, 396 F.3d 446 (1st Cir. 2005).
83.In Re Kasinga, 21 I. & N. Dec. 357 (BIA 1996).
84.As noted above, the BIA also found in Matter of A-R-C-G- et al., 26 I&N
Dec. 388 (BIA 2014) that domestic violence may lead to PSG membership
in some circumstances.
85.In Re S-A-, 22 I. & N. 1328 (BIA 2000). Notably, the persecution in this
case was found to be based on political belief, not based on membership
in a particular social group that included abused women.
86.Victoria Neilson, Homosexual or Female: Applying Gender-Based