Sexual Orientation and Asylum

On April 4, 1996, INS General Counsel David Martin responded to Rep. Barney Frank’s concerns about INS consideration of sexual orientation in asylum cases. Following are David Martin’s letter and guidance sent to the field:

Dear Congressman Frank:

As a follow-up to your recent conversations with the Commissioner and our telephone call today, I wanted to inform you of what we are doing to assure that INS briefs and arguments make proper use of the BIA’s precedent decision in Matter of Toboso-Alfonso. I am sending out the enclosed guidance to the field, clarifying how attorneys representing the INS should interpret and apply that case.

This guidance memorandum restates INS policy in an effort to assure that the INS interprets Matter of Toboso-Alfonso appropriately and consistently in forming its positions in asylum cases based on sexual orientation. I will be monitoring carefully to assure that this guidance is followed.

Clearly, under this guidance, arguments of the kind found on pages 22-23 of the Pitcherskaia brief are not appropriate. That case, as you know, has already been decided by the BIA. The case is now pending before the Court of Appeals for the Ninth Circuit, and the INS brief is currently due on April 17, 1996. I have arranged personally to review the brief to be filed on behalf of the INS by the Office of Immigration Litigation of the Civil Division. Before it is filed, I will make certain that the INS position is fully consistent with the guidance memorandum.

I apologize for the earlier confusion. As I mentioned on the phone, if you have further questions on these issues or others related to asylum litigation, please feel free to call me directly (202-514-1270).

David A. Martin MEMORANDUM
HQCOU 120/11.9-P

Subject: Membership in a Particular Social Group Defined by Sexual Orientation

Date: April 4, 1996

To: All Regional Counsel
All District Counsel

From: Office of the General Counsel

As you know, in Matter of Toboso-Alfonso, 20 I&N 819 (BIA 1990), the Board of Immigration Appeals (BIA) upheld an Immigration Judge’s determination that a Cuban asylum applicant had established his membership in a particular social group defined by the status of being homosexual. In 1994, the Attorney General designated this BIA decision “as precedent in all proceedings involving the same issue or issues.” Attorney General Order No. 1895-94, dated June 19, 1994. Therefore, briefs and arguments on behalf of the INS are to follow the reasoning in this decision in all cases where homosexuality is claimed as establishing membership in a particular social group. The INS position is that homosexuals do constitute a particular social group. Accordingly, our briefs should not pursue arguments that homosexuality fails to define a particular social group because it is not an immutable characteristic. Nor should the INS argue that homosexuals are too diverse and non-cohesive a group to quality as a particular social group.

Of course, this does not mean that homosexuals automatically qualify for asylum. As the BIA stated in Matter of Toboso-Alfonso, an “initial finding that a particular social group existed in Cuba was not “tantamount to awarding discretionary relief to that group. Individuals in a particular group are not eligible for relief based on that fact alone [;] among other things they must establish facts demonstrating that members of the group are persecuted, have a well-founded fear of persecution, or that their life or freedom would be threatened because of that status.” Thus in cases of homosexual applicants, as in all asylum cases, the INS should carefully evaluate the facts of each case in determining the INS position on issues such as the well-foundedness of an applicant’s fear, the motive of the alleged persecutor, and the availability of internal flight options and state protection.

Please be certain that all briefs filed in asylum cases are consistent with this guidance.

David A. Martin