Home Page

Immigration Daily


Processing times

Immigration forms

Discussion board



Twitter feed

Immigrant Nation


CLE Workshops

Immigration books

Advertise on ILW

VIP Network




Connect to us

Make us Homepage



The leading
immigration law
publisher - over
50000 pages of
free information!
© 1995-
Immigration LLC.

  • Article: “lesbian, Gay, Bisexual, Transgender And Intersex” Training Module For Asylum Officers Released After A Freedom Of Information Request By David L. Cleveland

    “lesbian, Gay, Bisexual, Transgender And Intersex” Training Module For Asylum Officers Released After A Freedom Of Information Request


    A 71-page Asylum Officer Training Module titled “Guidance For Adjudicating Lesbian, Gay, Bisexual, Transgender, And Intersex Refugee And Asylum Claims,” dated November 6, 2015, was recently released after a FOIA request by Catholic Charities of Washington DC. A copy is available at the Louise Trauma Center website: www.louisetrauma.weebly.com . It is also AILA Doc. 1711 0304

    A 46-page power point presentation, dated February 21 and 22, 2017, entitled “LGBTI and HIV-Related Asylum and Refugee Issues,” by Aaron Morris, Director of Immigration Equality, was also released. A copy is available at the Louise Trauma Center website: www.louisetrauma.com. It is also AILA Doc. 1711 0330

    Here follow some interesting excerpts. I have cited and quoted mostly from the 71-page training module. When I cite the 46-page presentation by Aaron Morris, I will say “Morris at page X.”

    Decades ago, a gay man from Cuba was granted withholding of removal based on his sexual orientation. Matter of Tobo-Alfonso, 20 I&N Dec. 819 (BIA 1990) (persons identified as homosexual by the Cuban government are a cognizable particular social group).


    “Sexual orientation” is the emotional, physical, and romantic attraction a person feels towards another person. Page 14.

    “Intersex” refers to a condition in which an individual is born with a reproductive or sexual anatomy and/or chromosome pattern that does not seem to fit typical definitions of male or female. Page 14.

    Human Immunodeficient Virus [“HIV”] A person who was exposed to HIV and developed anti-bodies to the virus is “HIV-positive.”

    Acquired Immunodeficiency Syndrome [“AIDS”] A person with HIV who has experienced certain infections or whose T-cells have dropped below 200 has AIDS. Not everyone who is HIV-positive has AIDS, but everyone who has AIDS is HIV-positive.

    Pages 56-60 provide definitions of several terms, including:

    “corrected gender” “gender” “transgender” “transsexual” “intersex” “CD4 Count”

    The applicant need not “look gay or act gay.” Page 18. Does the society in question distinguish “sexual minorities from other individuals in a meaningful way”? Page 18.

    There are individuals who have had Sex Reassignment Surgery; who cross-dress, and who are “outside the norm.” A persecutor may perceive the person as doing these things. Did the persecutor want to harm the applicant because she “belongs to a sexual minority”? Page 20.

    The International Lesbian and Gay Association [“ILGA”] has published a world survey of laws prohibiting same-sex activity, at www.old.ilga. Page 23, note 38.


    “In many countries, it is virtually impossible for an unmarried person to find housing outside of his or her family home.” Page 24. In many countries, “it would be impossible for a woman to find employment on her own.” Being disowned by one’s family can result in great harm.

    Is the LGBTI person “consistently denied access to normally available services in his or her private life or workplace, such as education, welfare, health, and access to the courts”? This may amount to persecution. Page 25.

    “The existence of LGBTI-related nongovernmental organizations does not in itself provide protection from persecution.” Page 27

    What harm might a sexual minority applicant returning to Mexico face? If he plans to live openly with his same-sex partner, if he is HIV-positive, not benefiting from familial support, and being unfamiliar with the country’s contemporary customs as he had spent the bulk of his life in the United States, he may have a well-founded fear. Page 28.

    “The fact that LGBTI organizations are permitted to hold a parade once a year or the mere existence of LGBTI organizations does not mean that LGBTI people are free from ongoing violence and harm in that country.” Page 52.


    -some applicants will prefer a certain gender of interviewer/adjudicator.

    -some applicants like having a relative in the room; some do not. Ask! Page 31

    -ask the transgender what pronoun she prefers, for herself; ask what name she prefers. Page 32

    “proof of sex reassignment surgery is not required.” [emphasis in original] Page 33.

    Some rape victims feel shame and responsible for their harm; their ability to “discuss or even mention such experiences” can be “seriously limited.” Page 34.

    Some cultures have no word for “homosexuality or transgender identity.” Page 35.

    “Some countries do not even have words for different sexual orientations other than homophobic slurs.” Page 44.

    “If the application form states in one place that the applicant is bisexual, but he or she testifies that he or she is homosexual, do not assume this is a contradiction.” Page 47.

    Some applicants may not know that being a sexual minority can be the basis for asylum, and some sexual minorities may have additional bases for asylum. Ask the applicant about religion and political opinion! Page 36.

    Several questions are suggested at pages 37-38, including:

    -tell me about your first relationship;

    -when did you first realize you were gay?

    -does your family know you are gay?

    -how did you meet your partner?

    -are you involved in any LGBTI organizations here in the United States?

    Questions to ask from page 47:

    -when did you first begin to feel attracted to members of the same sex?

    -when did you first engage in a romantic or sexual relationship with a member of the same sex?

    -how did this make you feel?

    -did you tell others about your orientation, or did you keep it secret?

    Morris, at page 6, suggests questions:

    -how did these relationships/sexual encounters come about?

    -did you know other LGBTI people there?

    -how do LGBTI people find each other in their country?

    -what was your family’s reaction to you?

    -how do other people learn they are LGBTI?

    Do not ask: “What do you do in bed?” Page 38.

    Page 39 offers a list of questions for the transgender applicant, including “What steps have you taken to transition from one gender to the other?”

    Morris, at page 14, suggests: What plans in the future do you have to transition?

    Do not ask: “Are you gay” or “What are you?”

    Some genuine applicants will not “look” or “act” gay. Page 44 [quotations in original]

    Page 42 offers a list of questions for the intersex applicant, including: “What did your doctor tell you about your condition?”


    “The fact that little or no corroboration of mistreatment against LGBTI individuals is included in reports that generally address human rights violations does not render the applicant’s claim of past harm or fear of future harm implausible in light of or inconsistent with country of origin information.” Page 45, emphasis added].

    Information about LGBTI issues in some countries can be “more difficult to find than on other issues.” Page 48. “You should not conclude that if these issues are not mentioned that no problems exist.” Authors of reports may lack access to, or lack contacts with, LGBTI organizations in a country; or do not have the resources to investigate and monitor this issue.

    “Often the countries where homosexuality is most taboo have the least country conditions information available.” Page 48. Some countries do not allow LGBTI groups to exist. [September 25, 2007: President Ahmadinejad told an audience at Columbia University that “We don’t have any gays in Iran.”]

    = = =

    An applicant may not initially assert her claim, but does so later on, because she was fearful. The Seventh Circuit excused an applicant from Liberia who did not disclose being gay at an airport interview and at a credible fear interview. Page 46. The Court said that perhaps the applicant feared disclosing this fact “could cause further persecution…”

    Ask the applicant for corroboration, such as a letter from a current or ex-partner, letter from a friend with whom the applicant discussed his orientation; a letter from a family member, proof that he is involved in an LGBTI organization, or a psychological evaluation. Page 49.

    Several cases are set forth at page 61-64. The most recent is Avendano-Hernandez v. Lynch,

    800 F.3d 1072, 1081 (9th Cir. 2015) (the Immigration Judge failed to recognize the difference between gender identity and sexual orientation; applicant said, “she used to think of herself as a ‘gay boy’ but now considers herself to be a woman.”)


    Being diagnosed with HIV can be a “changed circumstance.” Applicant should apply for asylum within a “reasonable period” after the event. This could help the applicant who otherwise is barred by the one-year deadline. Page 67.

    Morris suggests at page 39 these areas of inquiry:

    - “coming out” as LGBTI: to self, and to others. When did this happen?

    -were there recent steps in gender transition?

    A, a transgender male from Honduras, entered the United States in 2003 and did not file for asylum until 2009. He said he felt “isolated and was afraid to come forward sooner because he was ashamed and fearful of ostracism by friends and colleagues and society in general.” He suffered from PTSD. Held: his 5-year delay could be considered reasonable. Pages 68-69.

    “Being surrounded by family or community members [in the United States] may make it impossible for the LGBTI applicant to timely file for fear that if the family member learns of the applicant’s LGBTI identity, he or she would be thrown out of the home, the applicant’s family [in the home country] will be told, and/or the applicant and his or her family will be disgraced.” Page 69.

    Morris suggests at page 40 these possible issues:

    -did you have PTSD? Did you have difficulty coming out or coming to terms with LGBTI identity?

    -was there severe family or community opposition or isolation?

    -was there a recent HIV diagnosis, leading to severe depression?

    Comments by the author

    Some recent cases:

    Agonafer v. Sessions, 859 F.3d 1198 (9th Cir. 2017) In 2012, the BIA found “there is no evidence in the record of any violence directed against homosexuals in Ethiopia,” and ruled against applicant. About 16 months later, he filed a motion to reopen with the BIA, attaching new evidence. The BIA ruled against him again. However, the 9th Circuit reversed and remanded, finding that the BIA had ignored evidence showing violence toward homosexuals.

    Jasmin v. U.S. Att’y Gen., 2017 WL 3530 881 (3d Cir. 2017) a gay man from Haiti was denied all relief, where the IJ concluded that: “ (1) while there was evidence of discrimination and violence against gay people in Haiti, Jasmin did not produce any evidence that he would more likely than not be targeted for violent attacks that would rise to the level of torture; (2) the record indicates that “well-off Haitians have access to gay-friendly places,” and Jasmin would likely be considered “well-off,” given that his father has his own medical practice in the United States and owns two houses in Haiti, (3) Jasmin could relocate to a gay-friendly area; and (4) the record did not support the conclusion that the Haitian government is willfully blind to violence against gay people, given that there were no reports of police being involved in or condoning violence against gay people, and there was evidence that police have intervened to protect gay people from violence and are trained about issues relating to the gay community.”

    Dias v. Sessions, 688 Fed. Appx. 66 (2d Cir. 2017) a gay man from Brazil was denied all relief. He did present some evidence of homophobic violence there. However, “in light of Brazil’s gay rights groups, gay marriage, gay pride parade, and city ordinances banning anti-gay discrimination, the agency found that Dias failed to show the Brazilian government would be unwilling or unable to control those responsible for the violence and discrimination.”

    Velasquez-Banegas v. Lynch, 846 F.3d 258, 266 (7th Cir. 2017) Mr. V-B, a bachelor from Honduras, testified that he was not gay, but that he was HIV positive. He testified that a great many Hondurans believe that any man with HIV is gay, and that gays deserve violence. The IJ rejected his claims, but the 7 th Circuit reversed and remanded.

    The following evidence was uncontradicted: if he went to a hospital to be treated for his HIV, he would be “outed” as a “presumed homosexual.” Honduras “as the highest homicide rate in the word.” Dr. Suyapapa Portillo testified as an expert, and stated that: 1] HIV positive people have trouble getting employment; 2] the police are complicit in murders of LGBT people; 3] laws purporting to protect gays are rarely enforced.

    Dissenting Judge Ripple cited testimony from the applicant to the effect that he knew three people in Honduras with HIV, but that none of them had suffered anti-gay violence. This judge found the evidence to be merely anecdotal, and not based on reports or studies. The Honduran government has prohibited companies from denying or terminating employment due to HIV status, and has mandated the right to medical care for those with HIV.

    Reprinted with permission.

    About The Author

    David L. Cleveland. David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 46 countries.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: