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Chapter 5

5  Asylum

Under U.S. immigration
law, individuals who are fleeing persecution in their home countries may
be granted refugee or asylum status in the United States. To comply with
international law, most developed countries give some kind of status to
those who would face harm at the hands of their governments at home. For
those who apply from within the United States, the status is called
“asylum,” and for those who apply from abroad, it is called “refugee.”
This chapter will focus on asylum. Transgender asylum-seekers have had a
great deal of success in bringing claims for protection. This chapter will
cover the basics of asylum law with a focus on the special issues
affecting transgender applicants.[1]

5.1  Benefits and Limitations of Asylum
Status

Asylum is a very good
status to have under U.S. immigration law. Asylees are permitted to apply
for lawful permanent resident (LPR) status one year after winning asylum
status in the United States.[2]Four years
after obtaining LPR status, the asylee can apply to naturalize to become a
U.S. citizen (USC).[3]Asylees
are permitted to work lawfully in the United States without being required
to have a valid employment authorization document (EAD).[4]They also
receive “unrestricted” Social Security cards from the Social Security
Administration, meaning, they can work lawfully without needing an
EAD.[5]

As a general premise of
U.S. immigration law, once an individual has fallen out of lawful status,
he or she generally cannot make an application from within the United
States to get back into lawful status. However, the Immigration and
Nationality Act (INA) carves out a major exception for
asylum-seekers.[6]Thus, the
fact that the asylum applicant has overstayed a visa or has entered the
country without inspection (for example, by crossing the Mexican border)
will not preclude a grant of asylum. Counselors should be aware, however,
that some forms of entry—such as using a fake passport—will not hurt an
asylum application, but will require a special waiver when the asylee
applies for LPR status.[7]

Nonetheless, there are
limitations imposed by asylee status. Since the grant of asylum is based
on the asylee’s fear of his or her government and of being returned to the
home country, asylees are not permitted to travel back to their country of
origin; doing so could cause the asylee status to be revoked.[8]Likewise,
the asylee is not permitted to seek any protections or benefits from the
home country, so once he or she applies for asylum, there should be no
attempt to renew the passport from the home country. Thus, if an asylee or
LPR who was formerly an asylee wishes to travel internationally, he or she
must first obtain a Refugee Travel Document.[9]

Practice Tip: You
should be wary of an asylum-seeker who is very disturbed by the inability
to return to the home country. Of course, it is natural for the applicant
to want to visit with family in the future, but if the applicant does not
seem genuinely afraid of returning home, it may not be appropriate to file
for asylum.

5.2  Process of Applying for Asylum

Asylum is a complex
area of the law and it is important that applicants are represented by
qualified counsel in order to submit the strongest possible application.
The possibility of winning declines with each step in the litigation
process, so it is essential to prepare a strong application from the
beginning.

5.2.1  Affirmative Application

An applicant may apply
affirmatively for asylum, meaning that the applicant submits an asylum
application, Form I-589,[10]with U.S.
Citizenship and Immigration Services (USCIS) and gets scheduled for an
interview with an asylum officer. There are eight asylum offices
throughout the United States. Asylum interviews are generally scheduled
within six weeks of submission of the application, although there may be a
delay in scheduling the interview if the applicant lives far from an
asylum office and has to wait for an asylum officer to “ride circuit” in
that geographic region.

Interviews with asylum
officers are nonadversarial[11]and
informal, taking place in the office of the asylum officer. Although each
asylum officer will have his or her own individual style, in general, the
officer will ask the applicant many of the same questions that are
contained in the asylum application—one’s purpose for seeking asylum,
kinds of harm suffered in the country, how and when one first came to
realize being transgender and express this identity, and what one thinks
will happen if forced to return to the home country. The interview
generally lasts between one and two hours. Since the interview is
nonadversarial, the attorney plays a limited role, commonly only asking
questions about any significant incidents that the officer failed to
elicit and making a closing statement at the end.[12]

Asylum officers receive
special training in conducting interviews with individuals who have fled
persecution. Most asylum officers are very professional and respectful. In
the rare instance where you as an attorney feel that an asylum officer is
asking inappropriate questions, or displaying a transphobic attitude, you
should halt the interview and ask to speak to a supervisor
immediately.

Practice Tip: In some
asylum offices, the officers do not receive the asylum application packet
until the morning of the interview. Do not be disturbed if you have
submitted voluminous materials on your client’s behalf and it seems as if
the officer has barely looked at them; he or she probably hasn’t. The most
important function of the asylum interview is for the officer to assess
your client’s credibility. The officer will go back and review all the
documents as he or she prepares the decision in the case.

The officer will
explain to the applicant that he or she must return to the asylum office
two weeks after the interview to pick up the decision. There are three
possible outcomes: Recommended Approval, Notice of Intent to Deny, or a
Notice to Appear initiating removal proceedings in immigration
court.

Sometimes the decision
is not ready after two weeks and the asylum office will either call the
attorney before the scheduled pick-up date to state that it will be
mailed, or the applicant will go to the asylum office and be informed then
that the decision is not ready. There are various reasons that the
decision may not be ready after two weeks. A delay in rendering the
decision is not predictive of the result. Currently, all Mexico cases get
sent to Asylum Headquarters before a decision is rendered, so Mexico cases
almost always take several months for a decision.

5.2.1.1  Recommended Approval

If the asylum officer
believes that the case is strong enough to warrant a grant of asylum, the
decision that the applicant picks up will be a letter recommending
approval of the application. This means that the applicant has won, and
that once the criminal and terrorist background checks on the fingerprints
have cleared, one will receive a final approval notice in the
mail.

Once the applicant has
won recommended approval, he or she can apply for an EAD by filling out an
I-765, Application for Employment Authorization,[13]under the
category of “asylum pending.” When the applicant eventually receives
“final approval,” he or she is no longer required to have an EAD to work,
although one may want to apply anyway because it can serve as valid
government-issued photo identification.

Practice Tip: You
should try to apply for the EAD in your client’s corrected gender. (See
the section below on removal proceedings in immigration court for more
information on identity documents.) Some asylum offices automatically send
an EAD in the mail seven to 10 days after an applicant is granted
asylum.

Note: It is possible
that your client’s background check will take longer if your client has
used different names (i.e., a male birth name and a female name now)
because USCIS will have to run background checks on each name.

5.2.1.2  Notice of Intent
to Deny

If the applicant is
still in valid nonimmigrant status at the time the asylum officer issues
the decision on the case (for example, in the United States on a skilled
worker visa), the officer will issue a Notice of Intent to Deny (NOID) if
he or she does not feel that the application is strong enough to recommend
approval of the case.[14]The NOID
will explain in detail the reasons for the intended denial.[15]The applicant then has 16 days to submit further evidence
in an attempt to rebut the denial.[16]After
this evidence is submitted, the asylum office will either grant the
application or issue a final denial. If the application is denied, there
is no appeal.[17]However,
the applicant is in the United States lawfully and can remain in the
country until the current status expires.

Practice Tip: Although
it seems counter-intuitive, it is often advisable to wait until an
applicant is out of status to file for asylum so that if the applicant is
unsuccessful at the asylum office, he or she can continue to pursue the
application before an immigration judge (IJ) and, if necessary, on appeal.
Once an asylum application has been denied by the asylum office, it is
difficult to refile in the future.

An individual whose
asylum application has been denied should be able to maintain the current
nonimmigrant status, (for example, as a student.) As a practical matter,
however, the fact that one has applied for asylum will be seen as evidence
of one’s “immigrant intent”—that is, the intent to remain in the United
States permanently. Therefore, even if the unsuccessful asylum applicant
never technically violates the terms of the current student or tourist
visa, it is unlikely one will be permitted re-entry if one leaves the
country because U.S. officials will see one as having “immigrant
intent.”

5.3  Immigration Court—Removal
Proceedings

If the applicant is not
in lawful status at the time the asylum officer makes a negative decision
on the case, when the applicant returns to the asylum office to pick up
the decision, he or she will be handed a Notice to Appear (NTA) in
immigration court. The NTA is the charging document in removal
proceedings, and in referred asylum cases, the United States is almost
always seeking removal because the applicant is here without lawful
status. The NTA will provide a court date and the applicant must appear in
immigration court on that date; otherwise, he or she will be ordered
removed (deported) in absentia.[18]Unlike
the asylum interview, removal proceedings are adversarial, and there will
be an attorney from U.S. Immigration and Customs Enforcement (ICE) arguing
the case against the applicant.

There are two types of
court dates in immigration court—master calendars and individual hearings.
Master calendars dispose of administrative and procedural issues such as
pleading to the charges in the NTA, submitting the asylum application to
the IJ, conferencing the case to discuss any issues, etc. Many cases will
have two or three master calendars before the individual hearing is
scheduled. Generally, IJs have very full calendars, and it can take a year
or more after the last master calendar before the applicant gets an
individual court date.

Practice Tip: There has
been significant attention lately to the high discrepancy in grant rates
of asylum applications among different IJs. It is extremely helpful to
know as much as possible about your judge before the hearing. See
http://trac.syr.edu/immigration/reports/judgereports/ for a comparison of
IJ asylum grant rates. The U.S. Department of Homeland Security (DHS) does
not keep statistics on the ground on which asylum-seekers are applying, so
there is no way to track how responsive particular judges are to
transgender claims.

5.3.1  Defensive Asylum Applications

Losing an affirmative
asylum application is just one way that a foreign national can be placed
in removal proceedings. The U.S. government also initiates removal
proceedings against noncitizens who have committed criminal
offenses,[19]who seek
to enter the United States without proper entry documents,[20]or who
are in the United States illegally and come into contact somehow with ICE
agents, such as at a work raid.[21]Even if a
noncitizen has not filed for asylum affirmatively, one may submit an
application to the immigration court as a defense to the removal
proceedings.[22]

5.3.1.1  Decision of the Immigration
Judge

After hearing the
evidence in the case, the IJ will issue a decision. If the IJ believes the
case is strong enough, he or she will grant asylum. If the IJ believes the
applicant would suffer persecution if forced to return home, but there are
other problems in the case (such as the applicant missed the one-year
filing deadline[23]or has
certain criminal convictions), the IJ may grant a lesser form of relief
such as withholding of removal or relief under the Convention Against
Torture (CAT).[24]

If the IJ does not feel
that the case is strong enough, he or she will order the applicant
removed. The applicant then has 30 days to submit an appeal to the Board
of Immigration Appeals (BIA).[25]

5.4  Appeals—The
BIA

An applicant who is
ordered removed by an IJ can appeal the decision to the BIA.[26]The BIA
has put out a very helpful practice manual that practitioners should
consult if doing a BIA appeal.[27]

The Notice of Appeal
and accompanying fee must be received within 30 days of the denial or the
right to appeal is lost.[28]The BIA
gives this rule extremely strict interpretation, so it is imperative to
file the appeal in a timely manner.

Once a BIA appeal is
filed, the removal (deportation) is automatically stayed until the BIA
renders a decision.[29]After
submitting the Notice of Appeal, it generally takes about a year to
receive the transcript in the case and a briefing schedule. Once the
attorney receives the transcript, he or she has only 21 days to submit a
brief. It is usually possible for each party to obtain one (and only one)
21-day extension.[30]

If the applicant is
detained,[31]the
appeals process is accelerated and the briefing probably will be scheduled
three or four months after the IJ’s decision.[32]For
detained cases, the applicant and DHS have the same 21-day due date for
the brief[33](in other
words, the appellee does not get to see the appellant’s argument before
defending the appeal), and only one extension is available per appeal
regardless of which party makes the request.[34]

The BIA reviews
questions of law de novo but employs a substantial evidence standard for
questions of fact.[35]The BIA
routinely rubber stamps IJ decisions either through an affirmance without
opinion or a single paragraph summary decision.

It is very important
for the party commencing the appeal to argue for a three- member panel and
explain why the case is not appropriate for summary affirmance.[36]The BIA
has a crushing backlog of appeals and will affirm the case without opinion
or writing only a summary opinion, if possible. There are six categories
of issues that require the board to utilize a three-member
panel:

The need to settle
inconsistencies among the rulings of different IJs;

The need to establish a
precedent construing the meaning of laws, regulations, or
procedures;

The need to review a decision
by an IJ or the service that is not in conformity with the law or with
applicable precedents;

The need to resolve a case or
controversy of major national import;

The need to review a clearly
erroneous factual determination by an IJ; or

The need to reverse the
decision of an IJ of the service in a final order, other than
nondiscretionary dispositions.[37]

Having a three
member-panel review the decision will greatly increase the likelihood that
the decision will be overturned. Conversely, in defending an appeal
brought by DHS, the practitioner should not seek review by a three-member
panel.

5.4.1
Appeals—Federal Court

If an applicant loses
ahttp://www.immigrationequality.org/c5.html#_Toc211075737n appeal before
the BIA, one must file a petition for review with the U.S. Court of
Appeals that would have jurisdiction[38]within 30
days of the BIA denial. Unlike the BIA appeals, there is no automatic stay
when a petition is filed in federal court. The standard for appeal in
federal court is the “substantial evidence test,”[39]meaning
that the court cannot substitute its own judgment for that of the BIA
and/or the IJ; so long as substantial evidence supports the decision, it
must be upheld. For this reason, it is difficult to win a federal appeal,
and an attorney who does not generally practice in this area of law should
consult with an organization or attorney who has experience in this area
prior to deciding whether to pursue a federal appeal.

5.5  Asylum—Sources of Law

Asylum law is governed
by statute,[40]regulations,[41]BIA
decisions, and federal court decisions. The vast majority of asylum
applications are decided by asylum officers or IJs whose decisions are not
precedential. Interviews before the asylum office are not transcribed or
recorded, and there is no substantive written decision when asylum is
recommended. Likewise, asylum hearings in immigration court are generally
closed proceedings. In most cases, the IJ issues an oral decision, which,
like the proceedings themselves, is recorded, but is only transcribed if
there is an appeal. The vast majority of BIA decisions also are
unpublished. Some commentators believe that the BIA intentionally
publishes more cases denying asylum than cases granting asylum to avoid
providing a “blueprint” for a successful asylum case.[42]

There is an increasing
number of federal court decisions on asylum matters available through
commercial legal research companies. Many of these decisions are
unpublished, but under recent changes to federal court rules, most
circuits now permit some citation to unpublished circuit court
decisions.

5.5.1  Published Decisions
Concerning Transgender Applicants

Under immigration law,
the BIA is the administrative body that hears appeals from final decisions
of IJs.[43]Precedential BIA decisions are binding across the country
unless the federal circuit in which the applicant lives has issued a
conflicting opinion.[44]Appeals
from the BIA in asylum, withholding, and CAT cases are taken directly to
the U.S. Court of Appeals.[45]

5.5.1.1  Hernandez-Montiel v. INS

To date, there has not
been a published BIA decision that directly addresses a claim for asylum
based on transgender identity. There have, however, been several federal
court decisions that deal with transgender or otherwise
gender-nonconforming asylum-seekers. The first published decision that
dealt with a transgender applicant was Hernandez-Montiel v. INS.[46]Geovanni
Hernandez-Montiel is identified as a “gay male with female sexual
identity”[47]from
Mexico. Hernandez-Montiel was detained, sexually assaulted, and threatened
by the Mexican police because they considered him homosexual and because
he was wearing female clothing.[48]The IJ
framed Hernandez-Montiel’s particular social group as “‘homosexual males
who wish to dress as a woman [sic]’” and found that the applicant’s choice
to sometimes wear female clothing was “volitional” and, therefore, not
immutable.[49]Fortunately, the U.S. Court of Appeals for the Ninth
Circuit recognized that Hernandez-Montiel’s outward expression of his
gender identity through his attire was a manifestation of his fundamental
identity, and as such, persecution for this reason qualified him for
asylum. The court wrote, “Gay men with female sexual identities outwardly
manifest their identities through characteristics traditionally associated
with women, such as feminine dress, long hair and fingernails … Their
female sexual identities unite this group of gay men, and their sexual
identities are so fundamental to their human identities that they should
not be required to change them.”[50]Thus, in
the Ninth Circuit, it was established that a gender-nonconforming
individual who could frame one’s transgender identity in terms of sexual
orientation would fit into a recognized particular social
group.

5.5.1.2  Reyes-Reyes v. Ashcroft

In Reyes-Reyes v.
Ashcroft, the Ninth Circuit again recognized that “gay men with female
sexual identities” formed a particular social group, this time in the
applicant’s native El Salvador.[51]Reyes-Reyes had dressed like a woman for 16 years prior to
his application for immigration relief. He wore make-up, a woman’s
hairstyle, and female clothing.[52]As a
teenager, Reyes-Reyes was kidnapped by a gang, beaten, and raped on
account of his homosexuality. Because Reyes-Reyes had missed the one-year
filing deadline, he was not eligible for asylum. However, the Ninth
Circuit remanded the case for further review of his withholding and CAT
claims. Importantly, the court determined that even though there was no
allegation that members of the Salvadoran government had themselves
tortured Reyes-Reyes, the court found that if the government was willfully
blind to the type of harm Reyes-Reyes suffered, this could be sufficient
to meet the CAT standard.[53]The court
further remanded to determine whether the harm Reyes-Reyes had suffered
qualified as past persecution, or, in the alternative, whether he had
demonstrated a likelihood of future persecution.[54]

In Reyes-Reyes, the
court again grappled with an applicant’s gender identity and its
connection to sexual orientation. In a footnote, the court
wrote:

It is not clear from
the record whether Reyes’s female sexual appearance was fully manifest at
this age [16]. We note, however, that Reyes’s sexual orientation, for
which he was targeted, and his transsexual behavior, are intimately
connected. As we have recognized, it is well-accepted among social
scientists that ‘sexual identity is inherent to one’s very identity as a
person …. Sexual identity goes beyond sexual conduct and manifests itself
outwardly, often through dress and appearance.[55]

It is important to bear
in mind that some applicants will view their transgender identity as an
outgrowth or manifestation of their sexual orientation, as, apparently,
Reyes-Reyes did. Other applicants may identify as heterosexual and see
their gender identity as an issue entirely distinct from sexual
orientation. Because this area of law and human experience is so
complicated, it is important for the practitioner to be an educator as
much as an advocate in putting forward these claims.

5.5.1.3  Ornelas-Chavez v.
Gonzalez

In Ornelas-Chavez v.
Gonzalez, the Ninth Circuit again considered the case of a gay male with
“female sexual identity” from Mexico.[56]Ornelas-Chavez also framed his claim as being based on his
homosexuality and female sexual identity. He had suffered various harms
including beatings and rapes at the hands of private actors.[57]The IJ
and BIA found that Ornelas-Chavez had failed to establish persecution
because the government was not directly involved other than one minor
police detention. The BIA further faulted Ornelas-Chavez for failing to
report the harms that he had suffered to the police. The Ninth Circuit
again remanded, finding that an individual who has faced persecution is
not required to report the persecution if doing so would be futile or
would subject one to further harm.[58]This
holding is important for the many transgender asylum-seekers who are
afraid to even set foot in the police stations of their home countries
because cross-dressing is illegal or because they know that the police
themselves may harm them without any repercussions.

5.5.1.4  Morales v.
Gonzalez

In 2007, the Ninth
Circuit issued another decision concerning a transgender asylum-seeker. In
Morales v. Gonzalez, the Ninth Circuit again remanded the case to
determine whether the applicant met the standard for withholding of
removal or CAT.[59]This is
the only published decision in the asylum realm that uses the term
“male-to-female transsexual” rather than the awkward “gay man with female
sexual identity” employed in prior cases. Morales was a native of Mexico
who began dressing as a woman and working at a bar at the age of
15.[60]She was
arrested for working in a bar as a minor on two occasions, and on one of
these occasions, was raped while in jail, with her cries for help going
unanswered.[61]

While much of the
decision analyzes Morales’s statutory eligibility for asylum and
withholding because of a crime she committed in the United States, the
court also found that the IJ and BIA had employed the wrong standard in
her CAT claim. The court remanded for consideration of all claims,
particularly the fact that the IJ’s decision had made no reference to the
police’s role in failing to protect Morales while she was in jail, and
instead actually laughing and ignoring her screams while she was
raped.[62]The
decision is significant because transgender prisoners are often subjected
to violence and rape, and here the court holds the Mexican government
accountable for the police’s failure to intercede. The case also is
important in that Morales’s claim for protection was based directly on her
transsexual identity, without the court finding any need to tie the harm
she suffered explicitly to her sexual orientation. Notably, too, this is
the first in the line of Ninth Circuit transgender cases where the
female-identified applicant is referred to in the decision by the female
pronoun.

5.6  Elements of an Asylum
Claim

To prevail on an asylum
claim, an applicant must prove that he or she meets the definition of
“refugee”:

[A]ny person who is
outside any country of such person’s nationality … and who is unable or
unwilling to return to, and is unable or unwilling to avail himself … of
the protection of, that country because of persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion ….[63]

Thus, an applicant can
establish refugee status by showing that: (i) one was persecuted in the
past; or (ii) one has a well-founded fear of present or future persecution
upon return to the home country; and (iii) the past and/or future
persecution is on account of one of the statutory grounds.[64]An
applicant for asylum also must show that he or she applied within one year
of his or her last arrival in the United States or meets one of the
exceptions to the one-year filing deadline.[65]

5.6.1  Membership in a Particular Social
Group

An applicant must first
prove that the fear of persecution is on account of a ground protected by
refugee law. While the most common ground for asylum is probably political
opinion, the “particular social group” category has expanded greatly in
recent years. This category encompasses many nontraditional areas of
asylum law, including female genital cutting, domestic violence, sexual
orientation, and gender identity-based claims.

In 1994, former
Attorney General Janet Reno designated as precedent the BIA decision
Matter of Toboso-Alfonso.[66]Toboso-Alfonso involved a gay Cuban man who had suffered
numerous abuses at the hand of the Cuban government, including regular
check-ins with a government official and forced labor. In this case, the
board held that sexual orientation could constitute a particular social
group for purposes of asylum or withholding of removal.

Although there has not
been a precedential decision directly addressing the question of whether
transgender identity constitutes a particular social group, there have
been several Ninth Circuit cases involving transgender applicants, three
of which have framed the applicant’s social group as “gay man with female
sexual identity.”[67]

Practice Tip: Although
the above‑mentioned wording may sound awkward, “gay man with female sexual
identity” may be a useful way to frame your client’s claim since it has
been specifically recognized by the federal court. For example, it might
be an appropriate social group formulation if you are working with a
transgender woman who had romantic relationships with men in her country
of origin and identified and continues to identify at least in part as a
gay man.

Even presuming that the
Ninth Circuit cases are not accepted in other circuits, or that they do
not conclusively state that transgender identity constitutes a particular
social group, strong arguments can be made that transgender identity does
form the basis for membership in a particular social group. The leading
BIA case on defining particular social group is Matter of Acosta.[68]In
Acosta, the BIA determined that the qualifying characteristic “must be one
that the members of the group either cannot change, or should not be
required to change because it is fundamental to their individual
identities or consciences.”[69]A
practitioner could certainly argue that there is almost no other
characteristic more fundamental to one’s identity than his or her gender
identity and that transgender identity therefore clearly falls within this
definition.[70]

Practice Tip: It is
important to bear in mind that as an attorney working on transgender
issues, your role is not just to advocate for your client, but also to
educate the adjudicator about what it means for your client to be
transgender. For example, in Hernandez-Montiel, the BIA was willing to
accept that Hernandez-Montiel’s sexual orientation could be grounds for
asylum, but was unconvinced that the persecution Hernandez-Montiel
suffered for dressing as a woman was on account of a protected
characteristic. Fortunately, the Ninth Circuit recognized
Hernandez-Montiel’s attire as directly related to gender identity. It is
important to bear in mind that an adjudicator may not make this
connection, and you should be prepared to do so.

Moreover, since
precedent in transgender asylum cases is so much more limited than
precedent in sexual orientation-based cases, it is often a good strategy
to include a claim based on perceived sexual orientation as well as
transgender identity. For example, if a female-to-male (FTM) applicant was
perceived as a masculine female growing up and now has romantic
relationships with women, he would likely be perceived as a lesbian if
forced to return to his home country, even though he identifies as a man.
In 2001, legacy INS issued proposed regulations governing the particular
social group category that recognize the possibility of “perceived
membership in a particular social group.”[71]To date,
those regulations have not been promulgated. However, one federal court
has explicitly stated that imputed sexual orientation can serve as the
basis for an asylum claim.[72]In Amanfi
v. Ashcroft, a heterosexual man from Ghana engaged in a homosexual act to
escape a ritual sacrifice and thereafter feared persecution as a perceived
homosexual. Thus, if it is factually possible to frame the applicant’s
claim based on imputed sexual orientation, it is generally a good idea to
include this as an alternative theory of the case.

Practice Tip: Remember,
it is fine to put forward more than one potential ground of asylum
simultaneously. Thus, it is acceptable for an applicant to frame the claim
as, for example, belonging to the particular social groups of “transgender
women and perceived gay men.”

Practice Tip: Asylum
cases are always based on the facts presented. If you have a client who
does not identify as gay or lesbian and has never identified this way,
don’t try to frame the case in a way that makes one uncomfortable or that
will be inconsistent with one’s testimony. That being said, you may be
able to help your client to understand that a claim based on “imputed
sexual orientation” does not mean that one is actually gay or
lesbian.

5.6.2
Persecution

To succeed in an
application for asylum, the burden of proof rests on the asylum applicant
to demonstrate either that he or she has suffered persecution in the past,
or that there is a well-founded fear of future persecution.[73]The term
“persecution” is not defined in the INA, but a definition has evolved
through case law. Generally, “persecution” encompasses physical harm,
including, physical assaults, female genital mutilation, and
torture.[74]To rise
to the level of persecution, the harm must be perpetrated directly by the
government or by private individuals that the government is unable or
unwilling to control.[75]Police
officers, the military, and government-run schools generally are
considered to be arms of the government. Private individuals including
armed militia, death squads, gangs, and family members also may qualify as
persecutors if the government is unable or unwilling to protect the
applicant from them.[76]

In the lesbian, gay,
bisexual, and transgender (LGBT) context, harm that has risen to the level
of persecution has included: being forced to report all sexual activities
to a government official, being detained, and being confined in a labor
camp for 60 days;[77]being
forced to undergo electroshock therapy in an effort to “cure” the
applicant of her lesbianism;[78]being
raped at gunpoint by a police officer;[79]and being
raped by nongovernment actors whom the government is unable or unwilling
to control.[80]

5.6.2.1  Past
Persecution

Establishing an
applicant’s past persecution creates a rebuttable presumption that one
will be persecuted in the future.[81]Thus, if
an applicant establishes past persecution, the burden of proof shifts to
DHS to prove that the applicant should not be granted asylum.[82]The
regulations list two grounds for rebutting the presumption of future
persecution: (a) a fundamental change in circumstances such that the
applicant no longer has a well-founded fear of persecution in his or her
country; or (b) the applicant could relocate to another part of the
country to avoid persecution, and such relocation would be reasonable
under all of the circumstances of the case.[83]If the
past persecution was at the hands of the government, there is a
presumption that internal relocation is unreasonable.[84]

Practice Tip: As a
practical matter, it is much easier to win an asylum case where there was
past persecution than to win a case based wholly on future persecution.
For obvious reasons, it is easier to prove that something already happened
in the past than to prove its likelihood of happening in the
future.

5.6.2.2  Well-Founded Fear of Future
Persecution

Even if an applicant
has not experienced harm in the past, he or she may still prevail on the
case by demonstrating that there is a “well-founded fear” of persecution.
The U.S. Supreme Court has held that to meet this standard, a showing of a
10 percent likelihood of future persecution may be sufficient.[85]Although
10 percent sounds like a fairly low threshold, as the regulations spell
out, cases based on future persecution alone can be difficult to win. The
regulations explain that an applicant can prevail based on future
persecution if he or she can demonstrate either that he or she will be
singled out for persecution or that there is a pattern and practice of
persecution of a group that is similarly situated to the applicant of
which the applicant is a member.[86]

Thus, in a typical
claim by a transgender applicant, he or she could succeed without showing
past persecution if he or she could demonstrate some reason to be singled
out and persecuted in the future. For example, if one is now taking
hormones and is presenting and living as a male, or if one has appeared in
a newspaper article about transgender issues and has thus, been “outed,”
these outward manifestations and proclamations could make one newly
susceptible to persecution. If there is no way to show that the applicant
would be singled out, one could still prevail if one can demonstrate a
pattern and practice of persecution against transgender individuals in the
home country—a fact pattern that is often easy to show for transgender
applicants.[87]

Note: One IJ speaking
on a continuing legal education panel stated that she uses an imaginary
sliding scale in her mind in order to determine future persecution—the
worse the country conditions, the less individualized harm an applicant
needs to show; the better the country conditions, the worse the
individualized harm must be.

Practice Tip: One
reason that future persecution cases may be more difficult than past
persecution cases is that the adjudicator may reasonably ask the
applicant, “If you weren’t persecuted in the many years you lived in your
country before, why should I believe you’d be persecuted now?” If your
client had not yet begun to live in his or her corrected gender, or had
not done so full time, the fact that he or she is now doing so and would
thus be more of a target may be a compelling answer.

5.6.3
Nexus

The asylum applicant
also must demonstrate that there is a nexus between the harm suffered and
the protected ground. Under the REAL ID Act that was enacted in
2005,[88]an
applicant must prove that one of the five protected grounds “was or will
be at least one central reason for persecuting the applicant.”[89]Thus, an
applicant must establish not only that he or she is transgender and that
he or she has been harmed or fears future harm, but also that the harm is
“on account” of his or her membership in a recognized particular social
group.

Practice Tip: The
“nexus” requirement is another reason that it may be helpful to posit an
alternative particular social group of “perceived sexual orientation.” For
example, if your client grew up in her country perceived as an effeminate
gay man before beginning to transition, the harm she suffered may have
been based on the persecutor’s belief that she was a gay man. In retelling
the story of an incident of harm, your client may explain that the
assailant called her “faggot” or a similar term, so it is important to
demonstrate the connection between this harm and your client’s current
identity.

5.6.4  Favorable Exercise of Discretion

In addition to meeting
the legal standard for asylum, an applicant also must demonstrate that he
or she merits a favorable exercise of discretion.[90]Thus, the
applicant must convince the adjudicator that, viewing all the relevant
facts, he or she “deserves” asylum. Issues that could prevent a favorable
exercise of discretion include criminal convictions or prior fraud in
immigration matters, such as a “fake” marriage-based application or use of
fraudulent documents. Conversely, it is important for the practitioner to
highlight any favorable discretionary factors, such as close family
members who are USCs or LPRs, work history, school attendance, attendance
at a place of worship, public service, etc.

Practice Tip: If your
client’s background includes any negative factors, such as a prostitution
conviction, it is best to include this information in the declaration and
testimony. It is always best to let your client explain anything negative
in his or her own words, and to put the most favorable light on a
difficult situation. For example, your client may have engaged in
prostitution for a brief period of time after being thrown out of her
family’s home once she started dressing as a woman. If you can demonstrate
that this is something she did in the past out of desperation and that she
has since turned her life around, it probably will not prevent a favorable
exercise of discretion.

5.7  One-Year Filing Deadline

An asylum applicant
also must prove that he or she filed an asylum application within one year
of his or her last entry into the United States or qualify for an
exception to this rule.[91]The
burden of proof is on the applicant to establish that he or she is filing
within one year of his or her last arrival. Unless one can do so, one is
ineligible for asylum but may be eligible for withholding of removal or
relief under the CAT.[92]

Practice Tip: In most
instances, an applicant will have entered with a visa and the stamp in the
passport will be proof of the entry date. If, however, your client crossed
the border without inspection, he or she will need to prove his or date of
entry. This is easiest to do if there is any documentary proof that one
was outside of the United States such as employment records, medical
records, proof of sale of property, etc. Often, individuals seeking to
cross the Mexican border are caught, fingerprinted, and released into
Mexico before they ultimately succeed in crossing. If this happened to
your client, you may be able to obtain records of the earlier crossing
attempt to help corroborate the date of entry.

5.7.1
Changed Circumstances Exception

There is an exception
to the filing deadline if the applicant can demonstrate changed
circumstances.[93]This
exception is intended to cover an applicant who, during his or her first
year in the United States did not fear persecution in his or her country,
but because of recent changes, now does fear persecution. In addition to
demonstrating a changed circumstance, the applicant must show that he or
she is filing within a reasonable period of time following the
change.[94]“Reasonable period of time” is not defined and is analyzed
on a case-by-case basis. However, the application should be filed within
six months of the changed circumstances whenever possible and should not
be filed more than one year after the change unless there is no other
option, for example, if the applicant is already in removal
proceedings.

This exception
encompasses both changed country conditions and individual changed
circumstances.[95]Thus, an
exception could be found if the foreign government recently enacted a law
criminalizing cross‑dressing. It is more likely that a changed
circumstances exception for a transgender individual will be based on
personal circumstances. For example, if the applicant has only recently
begun to live full-time as a man, or if the applicant has recently had a
mastectomy, an adjudicator could find that these events constitute changed
circumstances. Even if the applicant’s past experience of harm based on
transgender identity is insufficient to meet the asylum standard, it may
be possible to argue that recent medical steps in transitioning would now
make it impossible for him to “pass” as his birth gender in his home
country.

A recent HIV diagnosis
also could constitute a changed circumstances exception if the applicant
is able to demonstrate that he or she also fears persecution on this
basis. Often, such claims can help bolster the LGBT claim and vice versa,
in that an applicant who is HIV-positive may be assumed by medical
providers and community members to be LGBT, thus subjecting him or her to
greater future harm.

5.7.2
Extraordinary Circumstances Exception

The other exception to
the one-year filing deadline is for extraordinary circumstances.[96]The
purpose of this exception is to excuse late filing if something prevented
the applicant from filing within one year. Examples of this exception
include: serious medical problems such as recurring
hospitalizations,[97]serious
mental health problems,[98]ineffective assistance of counsel that prevented timely
filing,[99]and
maintaining lawful immigration status.[100]

Probably the most
common exception to the one-year filing deadline is a claim based on
mental health-related extraordinary circumstances, for example, post
traumatic stress disorder (PTSD), severe depression, or mental
illness.[101]Since so
many asylum-seekers have suffered severe trauma in their home countries,
it is hardly surprising that many asylum-seekers suffer from PTSD or other
mental health issues. In order to prove a mental health exception to the
filing deadline, it is imperative to have a detailed affidavit from a
psychiatrist or psychologist. If the case is in immigration proceedings,
it is best if the mental health professional can testify at the
hearing.

Practice Tip: It is
sometimes possible to combine a changed circumstances exception with an
extraordinary circumstances exception. For example, a changed circumstance
may be that the applicant only began to live full-time as a woman two
years ago, but doing so may have caused her family to disown her, and
thus, may have caused her to spiral into a deep depression.

Another common
“exceptional circumstance” is maintaining lawful nonimmigrant or immigrant
status. Thus, a student who attends college in the United States is not
required to file during his or her first year of study. One can wait until
one is graduating, and if afraid to return to his or her country at that
point, one need only file within a reasonable period of time after his or
her lawful status expires. Likewise, a long-term LPR who is placed in
removal proceedings for having committed a crime may be able to apply for
asylum if he or she maintained lawful status here, although the crime that
leads to the loss of LPR status also may result in a denial of the asylum
application.[102]

5.8  Withholding of
Removal

The same form that is
used to apply for asylum, Form I-589, is used to apply simultaneously for
withholding of removal.[103]As with
asylum, an applicant for withholding must prove that he or she will face
persecution on account of one of the five protected grounds.[104]Unlike
asylum, a grant of withholding is mandatory, not discretionary, if the
applicant meets the higher standard.[105]To
prevail on a claim of withholding of removal, an applicant must
demonstrate that it is “more likely than not,” that is, at least 51
percent likely that one will face persecution in one’s country.[106]As with
asylum, proof of past persecution carries a presumption of future
persecution.[107]There is
no one-year filing deadline for withholding applications.

Withholding of removal
can be granted only by an IJ.[108]Thus,
for example, if an applicant who has missed the one-year filing deadline
files affirmatively for asylum and the asylum office does not believe
there is an exception to the filing deadline, he or she will be placed in
removal proceedings in immigration court. There, the applicant will
present his or her asylum application de novo, along with the application
for withholding of removal. If the IJ finds that the applicant did not
demonstrate a one-year exception, the best the applicant can hope for is
withholding of removal. Winning withholding means that the IJ orders the
applicant removed (deported) but “withholds” enforcement of that order as
to the country of feared persecution. This means that an individual with
withholding has lawful status in the United States, can work legally (with
DHS work authorization),[109]and
receive certain federal financial benefits (such as welfare), but also
will have a final order of removal against him or her, and thus, can never
apply for legal permanent residence or citizenship.[110]Likewise, one cannot ever travel outside the United States,
because with a final order of removal, one will not be permitted
reentry.[111]

For many individuals,
the ability to work lawfully makes withholding of removal a much better
status to have than being here unlawfully, but it is very important for
applicants who obtain this status (or accept this status through “plea
bargaining” with ICE attorneys) to understand its limitations.

An individual who has
been convicted of a “particularly serious crime”[112]is
statutorily barred from receiving withholding of removal or
asylum.[113]In
determining whether a crime is “particularly serious,” the court will look
to: the nature of the crime; the circumstances surrounding the crime; the
length of the sentence; and whether the crime indicates dangerousness to
the community.[114]

5.9  Convention Against Torture
Relief

Another form of relief
related to asylum and withholding is relief under CAT.[115]As with
withholding, only an IJ can grant CAT relief, and it also is applied for
on Form I-589. There is no criminal bar to receiving CAT but the standard
is very difficult to meet. An applicant must demonstrate that if he or she
is returned to his or her country, it is more likely than not that he or
she will be tortured either directly by the government or with the
government’s acquiescence.[116]There is
no requirement to demonstrate that the torture will be on account of one
of the protected grounds, and there is no one-year filing
deadline.

Because the standard is
so high in these cases, CAT applications are generally claims of last
resort for applicants with such serious criminal convictions that they are
barred from asylum or withholding.[117]

5.10
Elements of an Asylum Application

Most asylum
applications consist of several hundred pages worth of materials that
include the asylum application itself (Form I-589), a detailed declaration
from the applicant, corroborating documents specific to the applicant’s
case, country conditions materials, and, sometimes, a legal brief. A
comprehensive guide to preparing these documents is beyond the scope of
this manual; again, the reader is directed to the LGBT/H asylum manual
available on Immigration Equality’s website.[118]

5.10.1  Form
I-589

In order to apply for
asylum, an applicant must submit Form I-589.[119]Although
it is important to submit all of the documents discussed below in order to
succeed in an application for asylum, technically, all that is required to
file is the I-589. Thus, if an applicant is close to the one-year filing
deadline, it is sometimes advisable to file a barebones I-589 and submit
the remaining documentation on the date of the asylum
interview.

The practitioner must
be careful to complete every box in the background sections of the
application form, or the entire submitted application may be returned as
incomplete. It also is important to put enough information in the “essay
questions” in the second-half of the form for the adjudicator to
understand the nature of the claim.

Practice Tip: Often,
the asylum officer literally reads the “essay” questions aloud as the
substantive questions at the interview. It is thus best practice to
greatly condense the answers to these questions to fit in the space
provided on the form and then give a fuller explanation of the applicant’s
story in the declaration. If the answers spill over onto the additional
pages provided with the form, it is harder for the adjudicator to follow
along. Likewise, the answers should be succinct but complete; it is never
advisable to simply fill in “see attached declaration.”

5.10.2
Notice of Appearance Form

In order to be
recognized as the attorney of record, counsel must submit a Notice of
Appearance Form. For applications filed affirmatively, this is Form
G-28,[120]which
should be submitted on blue paper, if possible. If the case is in
immigration court already and the applicant is filing a defensive
application, the representative must file Form EOIR 28,[121]preferably on green paper.

Practice Tip: In the
past, DHS has only recognized one attorney of record at a time on a case.
Thus, if a “team” of attorneys was working on the case, only one attorney
would be permitted to file a Notice of Appearance form on behalf of the
client. The Executive Office for Immigrant Review recently issued the
Immigration Court Practice Manual that became effective July 1, 2008.
According to this manual, each of the attorneys working on a case must
file Notices of Entry of Appearance annotated to reflect which attorney is
the primary attorney, and only the primary attorney should expect to
receive correspondence about the case from the court. [122]

5.10.3  Declaration

The declaration is the
applicant’s opportunity to tell the story in his or her own words. This is
probably the single most important piece of evidence in the case, and the
attorney’s primary role in preparing the application is to work with the
applicant until the declaration reaches its best possible form. The
declaration should be paragraph-numbered and should generally be anywhere
from 15 to 30 pages, depending on the applicant’s age and life
history.

The declaration should
detail the applicant’s entire life, including, but not limited
to:

Childhood—any difficulties the
applicant faced if he or she was perceived as gender nonconforming,
i.e., too masculine or too feminine as a child. It is important to
relate any difficulties to this gender identity and, if any mistreatment
was at the hands of private individuals, to explain why the authorities
were unable or unwilling to protect him or her.

Adolescence—this is the age
when most people start to come to terms with their sexuality and their
adult gender identity. For many transgender people, this is a
particularly difficult age. To win asylum, the applicant first must
prove membership in the particular social group (of transgender
individuals and/or perceived homosexuals), so the practitioner must be
sure to fully describe the applicant’s experience of coming to terms
with his or her gender identity to establish membership in a particular
social group as well as establishing any harm suffered.

Past incidents of harm to the
applicant—the most important aspect of the asylum claim will be proving
harm that the applicant suffered as a result of his or her transgender
identity. The clearest examples of persecution are those where the
government was directly involved, such as arbitrary arrests or violence
by the police or military. It also is important to detail harm at the
hands of private actors such as family, schoolmates, community members,
gang members, etc., provided that the applicant can show the government
was unable or unwilling to protect him or her.

Past incidents of harm to
others—because asylum is based on an applicant’s fear of future harm, it
also is relevant to include incidents that happened to other transgender
people since these will affect the applicant’s own fear of return. If
the applicant personally knows transgender individuals who suffered
violence or harm, he or she should include these stories in the
declaration. Likewise, if the applicant has read or seen media reports
of harm to other transgender people, these should be included in the
declaration as well. It is always better to include specific accounts as
opposed to generalized statements. For example, it is better to say, “I
remember in 2005 I read in The Daily Journal about a transgender woman
who was found murdered outside the capital,” than to say, “Everyone
knows that if you’re transgender they can kill you.”

Incident that led to applicant
deciding to flee the home country—for most asylum applicants who have
suffered for much of their lives, there is some reason, some incident or
threat, which propels them, finally, to flee their country. It is
important to detail this in the declaration, especially if the applicant
has made multiple return trips to his or her country. The applicant must
be able to explain why he or she is now too afraid to return if he or
she has made return trips in the past.

Negative facts—the declaration
is the applicant’s best opportunity to explain everything about the case
in his or her own words and in the most positive light. The practitioner
should not make the mistake of trying to gloss over negative facts;
asylum officers and IJs will spot “thorny issues” and it is much better
to address them head on. So if the applicant has missed the one-year
filing deadline; has committed a crime; has lied to immigration
officials in the past; has returned repeatedly to his or her home
country; or has any other negative factor, it is best to explain the
issue fully in the declaration.

5.10.4
Corroborating Documents

Under the REAL ID Act
of 2005,[123]rules
regarding corroborating evidence in asylum cases have become more strict.
Essentially, all documents that the adjudicator would reasonably want to
see must be provided, or the applicant must explain the steps taken to try
to get them and why he or she has been unable to obtain them. For example,
if the applicant states that he or she was arrested and charged for
“lascivious behavior” for hanging out in a park with other transgender
people, he or she will need to either obtain the arrest record or provide
a detailed account of why doing so is impossible. Maybe in his or her
country only family members can obtain such records, and he or she is
estranged from his or her family because of his or her transgender
identity, or maybe the friends a_Toc211075769re too afraid to ask for such
records because they would be perceived as transgender or gay
themselves.

In any event, one of
the first steps an attorney should take in meeting with a potential asylum
applicant is to brainstorm about corroborating documents that can be
submitted. These can and should include affidavits or letters from other
people (friends, family, partners, etc.) who were present during past
instances of harm or who saw the applicant shortly thereafter and can
confirm injuries or distress that they observed that the applicant had
suffered. Likewise, if the applicant describes being forced to sell his or
her home after receiving threats, it would be very helpful to have a copy
of the deed of sale that confirms the date.

Any documents that are
not in English must be translated into English along with a notarized
certificate of translation by someone other than the applicant that
attests to the translator’s proficiency in both languages and that the
translation is true and accurate. Both the original and the translation
must be submitted.[124]

5.10.4.1
Medical Records

If the applicant has
taken any medical steps to begin transitioning, medical records or a
letter from the treating physician should be included. This will help
confirm the applicant’s membership in the social group of transgender
individuals. Also, the more permanent the transition steps are, the easier
it is to refute any notion that the applicant could “pass” as his or her
birth sex if returned to his or her country.

5.10.4.2  Mental Health Expert

Submitting a report by
a mental health expert can be crucial to the asylum case, especially if
the applicant missed the one-year filing deadline and is claiming an
“extraordinary circumstances” exception. A mental health expert can
explain in an affidavit (and via live or telephonic testimony if the case
is in court) any mental health difficulties the applicant has suffered,
such as PTSD or depression, as a result of the harm endured in his or her
country. A mental health expert also can be very helpful to confirm the
applicant’s transgender identity, especially if the client is in the early
stages of transitioning.

Practice Tip: Make full
use of your mental health expert. Have the expert review as many documents
that you have submitted as possible. For example, if your client has a
history of mental illness, have the expert review all of your client’s
medical records. It can even be helpful to have the school records,
letters from friends and family, and, of course, the applicant’s
declaration reviewed. The broader the range of evidence the expert can
cite in writing a report or giving live testimony, the more weight that
evaluation will be given. Also, if the mental health expert concludes that
your client suffers from PTSD, severe depression, or has another mental
health diagnosis, it is important that your client seek ongoing treatment
for these issues and document compliance with the treatment.

5.10.5  Country Conditions

An applicant for asylum
must prove that his or her fear of return to his or her country is
objectively reasonable, in addition to proving a subjective fear of
return.[125]Thus, it
is essential to submit documentation of country conditions for transgender
individuals in the applicant’s country of origin. These conditions should
include the most recent DOS Report on Human Rights for the applicant’s
country.[126]These
reports are often given great weight by the adjudicator, though
frequently, they have little or no information about the treatment of
transgender individuals. Reports from human rights organizations such as
Human Rights Watch, Amnesty International, and the International Gay and
Lesbian Human Rights Commission, also are very helpful. The application
also should include newspaper articles either from local press or from
international press (including the LGBT press) about any incidents of
mistreatment of LGBT individuals.

Practice Tip: Remember,
your job is to make it as easy as possible for the adjudicator to grant
the asylum case. Asylum officers and IJs are dealing with several asylum
applications a day, so it is crucial that all country conditions be
well-organized (generally in reverse chronological order) and indexed with
the most relevant sections of the articles excerpted in the index and/or
highlighted with a highlighter on the documents themselves.

5.10.6  Expert Witness
Report

If there are few or no
country conditions materials available for the country, or if the case is
in immigration court, it can be extremely helpful to have a country
conditions expert. The expert can prepare a written report about the
conditions and may be able to testify live or telephonically in
immigration court. This testimony will often make the difference in a
case, especially if the judge has a particular concern, such as whether
some regions in the country are safer than others or whether conditions
overall are improving. Most experts are affiliated with academic
institutions. Some charge a fee, while others will provide reports or
testimony for free, particularly for pro bono cases.

5.10.7  Legal Brief

In some cases, it can
be helpful to provide the adjudicator with a legal brief. Many asylum
officers are not attorneys, and all asylum officers are very familiar with
the general standards for asylum, thus a brief that accompanies an
affirmative application should really focus on the facts of the case,
including country conditions, and how these facts meet the asylum
standard. Briefs for affirmative cases are most useful if there is a
specific legal issue to be addressed, such as a one-year filing deadline
exception.

If the case is in
immigration court, the stakes are higher since a loss will mean that the
applicant will be ordered deported. Since these proceedings are more
formal and there is a judge and opposing counsel involved, it is generally
best practice to submit a legal brief. Again, the judge will be most
interested in why the specific facts of the case meet the standard for the
relief requested. If there are any negative factors in the case, it is
best to set forth the legal arguments for why the applicant is still
eligible for relief.

Back to Table of Contents

[1]For a more comprehensive manual on LGBT/HIV asylum,
see Immigration Equality’s manual at
www.immigrationequality.org/manual_template.php.

[2]INA §209(a)(1); 8 USC §1159(b)(2).

[3]INA §316(a); 8 USC §1422(a). Applications can actually be
submitted three months prior to the four-year
anniversary.

[4]INA §208(c)(1)(B); 8 USC
§1158(c)(1)(B).

[5]8 CFR §208.7(a)(1).

[6]INA
§208(a); 8 USC §1158(a).

[7]INA §274C(d)(7); 8 USC
§1324c(d)(7).

[8]INA §208(c)(2)(D); USC
§1158(c)(2)(D).

[9]INA §208(c)(1)(C); 8 USC
§1158(c)(1)(C).

[10]See Appendix I, Form I-589, Application for Asylum
and for Withholding of Removal (with instructions).

[11]8 CFR §208.9(b).

[12]8 CFR §208.9(d).

[13]8 CFR §208.7(a)(1).

[14]8 CFR §§208.14(c)(2), 1208.14(c)(2).

[15]See www.uscis.gov (follow “Services &
Benefits” hyperlink; then follow “Humanitarian Benefits” hyperlink; then
follow “Asylum” hyperlink; then follow “Types of Asylum
Decisions”).

[16]8 CFR§103(b)(8)(iv).

[17]Supra n. 15.

[18]INA §240(b)(5)(A); 8 USC §1229a(b)(5)(A).

[19]INA §212(a)(2); 8 USC §1182(a)(2).

[20]INA §212(a)(7); 8 USC §1182(a)(7).

[21]INA §212(a)(6); 8 USC §1182(a)(6).

[22]INA §240(c)(6)(A); 8 USC §1229a(c)(6)(A).

[23]See in this chapter, One-Year Filing Deadline
section infra.

[24]See in this chapter, Convention Against Torture
Relief section infra.

[25]INA §240(c)(6)(B); USC §1229a (c)(6)(B).

[26]INA §240(c)(5); 8 USC §1229a (c)(5).

[27]See the manual at
www.usdoj.gov/eoir/bia/qapracmanual/BIA_Practice_Man_FullVer.pdf.

[28]INA §242(b)(1); 8 USC §1252(b)(1).

[29]8 CFR §208.2(3)(c)(iii).

[30]BIA Practice Manual at 56.

[31]See Relief for Detained Foreign Nationls
section infra chapter 6 for more information about
detention.

[32]8 CFR §235.3(b)(5)(iv).

[33]BIA Practice Manual at 55.

[34]8 CFR §1003.3(c)1.

[35]8 CFR §§1003.1(d)(3)(ii) and (iii).

[36]The grounds for requesting a three-member panel are laid
out in the BIA Practice Manual at 3.

[37]Id.

[38]Some foreign nationals with serious felony convictions may
not be able to bring a direct appeal of the removal order. A discussion of
these types of cases is beyond the scope of this manual, but be aware that
if the applicant is only eligible for Convention Against Torture relief,
he or she may have to file a habeas type appeal, arguing substantial
constitutional violations in order for the federal court to have
jurisdiction over the claim.

[39]INA §242(b)(4)(B); 8 USC §1252(b)(4)(B).

[40]INA §208; 8 USC §1158 et. seq.

[41]8 CFR §208 et. seq.

[42]See E. Ramanathan, “Queer Cases: A Comparative
Analysis of Global Sexual Orientation-Based Asylum Jurisprudence,” 11
Geo. Immigr. L.J. 1, 1, n. 2 (1996).

[43]8 CFR §1003.1(b).

[44]8 CFR §1003.1(g).

[45]INA §242(a)(1), 8 USC §1252(a)(1).

[46]Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir.
2000).

[47]Id. at 1087.

[48]Id. at 1088. Note: This manual uses the
male pronoun for Hernandez-Montiel because that is the pronoun used in the
decision and in his own briefs to the court.

[49]Id. at 1089.

[50]Id. at 1094.

[51]Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir.
2004).

[52]Id. at 785. Again, this manual uses the male
pronoun in describing Reyes-Reyes because that is the pronoun used in the
decision.

[53]Id. at 787. Note: This interpretation by the Ninth
Circuit U.S. Court of Appeals is much more liberal than that of other
circuits.

[54]Id. at 789.

[55]Id. at 785.

[56]Ornelas-Chavez v. Gonzalez, 458 F.3d 1052 (9th Cir.
2006).

[57]Id. at 1054.

[58]Id. at 1058.

[59]Morales v. Gonzalez, 478 F.3d 972 (9th Cir.
2007).

[60]Id. at 976.

[61]Id.

[62]Id. at 984.

[63]INA §101(a)(42)(A); 8 USC §1101(a)(42)(A).

[64]8 CFR §208.12.

[65]8 CFR §§208.4(2),
208.4(5).

[66]20 I&N Dec. 819 (BIA 1990).

[67]See Hernandez-Montiel v. INS,
Reyes-Reyes v. Ashcroft, and Ornelas-Chavez
v. Gonzalez sections supra in this
chapter.

[68]Matter of Acosta 19 I&N Dec. 211 (BIA
1985).

[69]Id. at 233.

[70]For further information on formulating the particular
social group claim for transgender applicants, see “Uncharted Territory: Choosing an Effective Approach in
Transgender‑Based Asylum Claims,” by Victoria Neilson, originally
published at 32 Fordham Urb. L.J. 265 (2005).

[71]65 Fed. Reg. 76588 (Dec. 7, 2000).

[72]Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir.
2003).

[73]8 CFR §208.13.

[74]See In re S–A–, 22 I&N Dec. 1328, 1335 (BIA
2000); In re Kasinga, 21 I&N Dec. 357, 358 (BIA 1996);
Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. 1997).

[75]In the case of In Re S–A–, 22 I&N 1328 (BIA
2000), the BIA found persecution where an abusive father beat, severely
burned, and refused to allow his daughter to leave the home because she
did not adhere to his strict religious beliefs. The BIA agreed with the
applicant that reporting this abuse to the Moroccan government would have
been futile. Id. at 1333.

[76]Matter of Villalta, 20 I&N Dec. 142 (BIA 1990) (death squads); Arteaga
v. INS, 836 F.2d 1227, 1232 (guerillas); Singh v. INS, 94 F.3d
1353, 1359 (9th Cir. 1996) (gangs); In Re S–A–, id.   (family
members).

[77]Matter of Toboso-Alfonso 20 I&N Dec. 819
(BIA 1990).

[78]Pitcherskaia v. INS 118 F.3d 641, 645 (9th Cir.
1997).

[79]Hernandez‑Montiel v. INS, 225 F.3d 1088 (9th Cir.
2000).

[80]Reyes‑Reyes v. Ashcroft, 384 F.3d 782 (9th Cir.
2004).

[81]8 CFR §208.13(b)(1).

[82]8 CFR §208.13(b)(1)(ii).

[83]8 CFR §208.13(b)(1)(i)(A)–(B).

[84]8 CFR §208.13(b)(3)(ii); see also Matter of D–I–,
I&N Dec. 448, 450 (BIA 2008).

[85]INS v. Cardoza‑Fonseca, 480 U.S. 421, 430
(1987).

[86]8 CFR §208.13(2).

[87]See, e.g., Hernandez‑Montiel v. INS, 225 F.3d 1088,
1089 (9th Cir. 2000).

[88]Pub. L. No. 109-13, 119 Stat. 231.

[89]INA §208(b)(1)(B)(i); 8 USC §1158.

[90]8 CFR §208.14.

[91]8 CFR §208.4.

[92]See Withholding of Removal and Convention Against
Torture Act sections infra this chapter.

[93]8 CFR §208.4.

[94]8 CFR §208.4(a)(4)(ii).

[95]8 CFR§208.4(a)(4)(i).

[96]8 CFR §208.4(a)(5).

[97]8 CFR §208.4(a)(5)(i).

[98]Id.

[99]8 CFR §208.4(a)(5)iii.

[100]8 CFR §208.4(a)(5)iv.

[101]See generally L. Piwowarczyk, “Seeking Asylum: A Mental Health Perspective,” 16
Geo. Immigr. L.J. 155 (2001).

[102]See Favorable Exercise of Discretion section
supra this
chapter.

[103]8 CFR §208.3(a).

[104]8 CFR §208.16(d)(1).

[105]8 CFR§208.16(d)(1).

[106]8 CFR§208.16(c)(2).

[107]8 CFR §208.16(b)(1)(i).

[108]8 CFR §208.16(b)(1)(i).

[109]8 CFR §274a.12(a)(5).

[110]INA §212(a)(9)(A)(ii); 8
USC §1182.

[111]INA §212(a)(8)(A); 8 USC §1181.

[112]In re Frentescu, 18 I&N 2906 (BIA
1982).

[113]8 CFR §208.16(d)(2).

[114]In Re S–S–, 22 I&N Dec. 458 (BIA
1999).

[115]United Nations Convention Against Torture and Other Cruel,
Inhuman and Degrading Treatment and Punishment, G.A. Res. 39/46, Annex,
U.N. Doc. A/39/51 (1984) (June 26, 1987).

[116]8 CFR §208.16(C)(2).

[117]Cf. Neghes v. Mukasey, 2008 WL 905347 (6th
Cir. Apr. 4, 2008) (man convicted of an aggravated felony argued
unsuccessfully that the BIA failed to give appropriate weight to the
evidence in denying his Convention Against Torture (CAT) claim.) CAT
claims have been central in two applications by transgender women.
See Reyes‑Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004)
(granting CAT protections to a transgender applicant from Mexico who
failed to meet the one-year filing deadline for asylum); Morales v.
Gonzales, 478 F.3d 972 (9th Cir. 2007) (finding both that the IJ erred
in the consideration of whether Morales was convicted of a particularly
serious crime and that the IJ applied the incorrect legal standard in
denying CAT relief).

[118]See www.immigrationequality.org/manual_template.php.

[119]See Appendix I, Form I-589, Application for
Asylum and Withholding of Removal (with instructions).

[120]See Appendix J, Form G-28, Notice of Entry of
Appearance as Attorney or Representative.

[121]See Appendix K, Form EOIR-28, Notice of
Entry of Appearance as Attorney or Representative.

[122]See www.usdoj.gov/eoir/vll/OCIJPracManual/Chap%202.pdf
for Immigration Court Practice Manual chapter
2.3(e). To purchase a print copy, visit
www.ailapubs.org.

[123]Pub. L. No. 109-13, 119 Stat. 231.

[124]8 CFR §1003.33.

[125]See INS v. Cardoza‑Fonseca, 480 U.S. 421
(1987); Francois v. INS, 283 F.3d 926, 930 (8th Cir. 2002). (“The
objective element requires a showing of credible, direct, and specific
evidence that a reasonable person in the alien’s position would fear
persecution if returned to the alien's native country.”)

[126]Department of State reports are available at
www.state.gov/g/drl/rls/hrrpt/.

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