An individual is eligible for asylum if he or she can prove that they were persecuted in their home country on account of their race, religion, membership in a particular social group, nationality or political opinion. In sexual orientation claims, the applicant would fall under the "membership of a particular social group" category. If the government of the applicant's home country is not directly persecuting the applicant, the applicant may still be granted asylum if he or she can show that the government is unwilling or unable to protect them from the mistreatment at the hands of non-government actors.
A recent case out of the Ninth Circuit Court of Appeals goes a long way in assisting applicants who fear persecution in their home countries based on their sexual orientation. The Ninth Circuit held in Vitug v. Holder that a gay applicant from the Philippines may proceed with his asylum/withholding of removal claim based on the fact that that the BIA committed legal error in evaluating the facts of his claim.
The facts of the claim are typical of most sexual orientation claims. The applicant knew he was "different" from the age of 3 when he exhibited "effeminate" traits and played with dolls. His family resented him for his effeminate traits. Growing up, his classmates teased him by calling him a "sissy." When he was 8 years old he was sexually abused. When in high school, the applicant's principal threatened to expel him if he did not "act accordingly." Later, his family rejected him and he was raped in a gay bar after he was drugged. The police harassed him because he was gay. The applicant was beaten and robbed on account of being gay. His attackers used slurs when they targeted him.
Although the applicant entered as a tourist in 1996, he did not file his asylum/withholding of removal claim until 2007. The Immigration Judge granted the applicant's asylum claim finding that country conditions supported the fact that the applicant would be persecuted in the Philippines on account of the applicant being a "homosexual Filipino" man. The BIA reversed the Immigration Judge's decision reasoning that the applicant had not met his burden of proof.
The federal court reversed the BIA reasoning that since the BIA accepted the fact that the applicant was credible it was obligated to give full weight to the Immigration Judge's factual findings. The federal court held that it was unreasonable to reach a conclusion contrary to the one reached by the Immigration Judge.
The Vitug decision is welcome news for sexual orientation asylum claims. Although the applicant was from the Philippines, the holding of the case may be applied to any country.
Please follow this link for the full decision: