The United States has recognized asylum claims based upon sexual orientation since 1994. Asylum lawyers at Benach Pitney Reilly Immigration have been at the forefront of expanding opportunities for LGBTQ immigrants in the U.S. and have obtained asylum for scores of people.
What is Asylum Based on Sexual Orientation?
Asylum based on sexual orientation is a legal protection available to individuals who fear persecution in their home country due to their LGBTQ+ identity. U.S. immigration law recognizes claims where the harm is based on the applicant’s membership in a “particular social group”—a legal category under the Immigration and Nationality Act (INA).
Global Context
As of 2024, homosexuality is criminalized in 69 countries, and 11 countries impose the death penalty. LGBTQ+ individuals from these regions often face violence, imprisonment, and systemic discrimination—conditions that form the basis for many asylum claims. As a result, the U.S. is seen as a haven for homosexual, lesbian, and bisexual individuals who would otherwise face significant oppression.
Legal Basis for Asylum Claims
To qualify for asylum, individuals must demonstrate a well-founded fear of persecution based on one of five protected grounds:
- Race
- Religion
- Nationality
- Political opinion
- Membership in a particular social group (includes LGBTQ+ identity)
Asylum protects individuals who either suffered past persecution or have a credible fear of future harm due to their sexual orientation. Claims based on sexual orientation are categorized under “membership in a particular social group.”
Brief History: How U.S. Immigration Law Evolved to Recognize LGBTQ+ Asylum Claims
LGBTQ+ asylum law in the United States was shaped through landmark judicial decisions that established sexual orientation as a protected ground under asylum law. This recognition allows individuals to seek protection when targeted for who they are—regardless of whether the persecution comes from the government or private actors.
Key Legal Milestones
Matter of Toboso-Alfonso (1990):
Asylum based on sexual orientation was first established under the Matter of Toboso-Alfonso in 1990, a gay man from Cuba who suffered abuse from the government because of his sexual orientation. In that case, the Board of Immigration Appeals granted Toboso-Alonsoasylum because of a well-founded fear of persecution due to his sexual orientation. In 1994, this decision was designated as precedent, binding the immigration courts to follow its decision andopening the door to approval of asylum claims based on sexuality.
Reyes-Reyes v. Ashcroft (2004):
Claims based on sexual orientation are not limited to fear of persecution from the government of a claimant’s country of origin. For example, the case Reyes-Reyes v. Ashcroft in 2004 dealt with a gay man who had been tortured by non-government actors due to his sexual orientation, and he was granted asylum as a result. Where the government is unable or unwilling to protect LGBTQ people from persecution, asylum may be granted.
Karouni v. Gonzales (2005):
In the case Karouni v. Gonzales, it was found that “all alien homosexuals are a ‘member of a particular social group’”. This decision firmly established that if a homosexual claimant could prove either past persecution or a well-founded fear of persecution on account of their sexual orientation, their asylum application could be granted, as it had now been established as precedent that homosexuality was qualified for asylum applications under one of the five groups.
These rulings cemented LGBTQ+ identity—particularly homosexuality and bisexuality—as a recognized ground for asylum under U.S. law.
Significance: Why LGBTQ+ Individuals Qualify as a Particular Social Group
Under U.S. asylum law, LGBTQ+ individuals are considered members of a “particular social group,” one of the five protected categories that form the legal basis for asylum. This designation acknowledges the unique risks and forms of persecution faced by individuals due to their sexual orientation.
📌 Legal Recognition of Social Group Status
- U.S. courts and the Board of Immigration Appeals (BIA) have repeatedly affirmed that gay, lesbian, and bisexual individuals constitute a recognizable social group for asylum purposes.
- This classification enables applicants to meet the “nexus” requirement—linking the persecution they face directly to a protected ground under the Immigration and Nationality Act (INA § 101(a)(42)).
🔍 Persecution may be Governmental or Private
- LGBTQ+ individuals may be targeted by government entities through criminalization, police violence, or discriminatory laws.
- In cases like Reyes-Reyes v. Ashcroft, asylum was granted based on persecution by non-governmental actors, such as family members or community groups, when the state was unwilling or unable to offer protection.
🌐 Real-world Risk is High
- Widespread criminalization, discrimination, and violence create a credible basis for fear in many countries.
- Credible fear interviews and reasonable fear determinations involving LGBTQ+ applicants frequently result in positive findings, supporting asylum eligibility.
How Benach Pitney Reilly Immigration Supports LGBTQ+ Asylum Seekers
Benach Pitney Reilly Immigration brings deep experience, community-rooted advocacy, and litigation strength to every LGBTQ+ asylum case. Formerly known as Benach Collopy, the firm has long been at the forefront of advancing protections for LGBTQ+ immigrants and continues to represent individuals who fear returning to countries where their safety is at risk.
🏳️🌈 Decades of LGBTQ+ Legal Advocacy
- The firm has successfully obtained asylum for individuals from countries where homosexuality is criminalized or violently persecuted.
- Attorneys at Benach Pitney Reilly Immigration understand the evolving legal and evidentiary standards involved in asylum based on sexual orientation and gender identity.
🧠 Trauma-Informed Legal Representation
- The firm practices with cultural sensitivity and discretion, recognizing the unique challenges faced by LGBTQ+ applicants—including stigma, lack of documentation, or fear of outing.
- Services are tailored to minimize retraumatization while building a compelling legal case.
📞 A Partner in the Process
- Clients receive support through every step of the asylum process:
- Preparing Form I-589 with robust evidence
- Navigating credible fear or reasonable fear interviews
- Presenting persuasive arguments before immigration courts
- The firm also assists with derivative applications, work authorization, and eventual adjustment to permanent residency.
Benach Pitney Reilly Immigration is proud to continue its legacy of championing the rights of LGBTQ+ individuals seeking safety, freedom, and a future in the United States. Please reach out to us at 202-644-8600 with any questions, or schedule a consultation today!