A federal appeals court has ruled that a U.S. immigration board must decide whether non-U.S. citizens who are perceived to be gay or lesbian in their home countries can qualify for asylum in the United States, regardless of their actual sexual orientation.
A three-judge panel of the 9th U.S. Circuit Court of Appeals has ruled that the U.S. Board of Immigration Appeals erred when it rejected the asylum bid of Rebeca Cristobal Antonio, a Guatemalan national, who fled her home country due to threats of violence and persecution stemming from possible anti-gay animus.
Antonio applied for asylum in 2014, claiming she feared she would be killed in Guatemala because of her perceived sexual orientation. Antonio says she wore men’s clothing to work, which led people to conclude she was gay.
She subsequently received death threats, was confronted by an angry mob, and beaten by members of her own family due to their belief that she was a lesbian.
To qualify for asylum under U.S. immigration law, an applicant must show a credible fear of persecution in their home country by proving they belong to a “cognizable social group.”
The Board of Immigration Appeals has held for decades that LGBTQ people from certain countries qualify as such a social group, and be entitled to asylum due to the threats they face if deported back to their home countries, reports Reuters.
But in Antonio’s case, an immigration judge ruled that Antonio’s proposed social group of “women in Guatemala who are perceived to have male tendencies and are seen as dangerous to the community” was too vague and dismissed her application for asylum.
The judge also claimed that Antonio’s asylum application had more to do with the way she dressed than her sexual orientation. The BIA upheld that decision in 2021, prompting Antonio to appeal that decision to the 9th Circuit.
Writing for the appeals court, Circuit Judge Mark Bennett ruled that the BIA erred in upholding the immigration judge’s finding that Antonio did not qualify for asylum. Bennett said both the judge, and the BIA, should have given more weight to Antonio’s claims of persecution, and that the BIA failed to correctly identify the social group to which Antonio belonged — women perceived as lesbians.
“Antonio’s manner of dress was one reason her community associated her with the relevant proposed social group, not the basis of the group itself. Thus, the agency failed to conduct its particular social group analysis with respect to the correct group — women perceived to be lesbians,” Bennett wrote in his opinion.
“Neither our Court in a published opinion nor the BIA has explicitly recognized perceived or imputed sexual orientation as a cognizable social group, though we have discussed the issue. Our precedent establishes that ‘[r]ape and sexual abuse due to a person’s gender identity or sexual orientation, whether perceived or actual, certainly rises to the level of torture for CAT purposes.’ Thus, we grant Antonio’s petition for review and remand for the agency to determine: (1) whether women in Guatemala perceived to be lesbian constitute a particular social group; and (2) if so, whether Antonio’s persecution was ‘on account of’ her membership in that group.”
In a concurring opinion, Circuit Judge Gabriel Sanchez opined that people perceived as gay would qualify as a social group, based on other court cases involving perceived characteristics, such as those where individuals seeking asylum were perceived to have certain religious or political beliefs.
“It is no leap to conclude that imputed homosexuality and homosexuality alike confer membership in the particular social group of homosexuals,” Sanchez wrote. “Indeed, as the majority recognizes, prior panels have applied BIA and circuit precedent to arrive at that conclusion in unpublished dispositions.
“The Immigration Judge in this case nonetheless concluded that because Antonio did not attest to being a lesbian, the persecution she suffered in Guatemala was ‘not a sexual orientation issue’: It was instead no more than a ‘dress issue.’ This finding focused exclusively on Antonio, assigning no weight to the perceptions of her persecutors.
“But to establish persecution on account of a protected characteristic, Antonio was not obligated to prove that she is homosexual. Rather, she was required to provide evidence that her persecutors were ‘motivated by a belief’ that she is. Faithful application of the foregoing precedent should lead the BIA to the same conclusion.”
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