Asylum
In the U.S. one becomes eligible for asylum when he/she can exhibit a well-founded fear of being persecuted on the basis of race, religion, nationality, membership of a particular social group, or political opinion.
Membership of a particular social group
US courts have developed three tests to help determine whether applicants are members of a particular social group:
(1) the immutability rule (the characteristics defining an applicant's membership in a particular social group cannot be changeable)
(2) the association rule (courts look for association with other individuals who belong to this social group and share the characteristic that is the basis of the asylum application)
(3) the recognizability rule (individuals in the social group in question must possess characteristics recognizable to others)
Particular social groups which have been included under the above tests include the following:
- Sexual Orientation: In the 1994 decision in Matter of Toboso-Alfonso, the Board of Immigration Appeals (BIA) stated that the petitioner was not persecuted "in response to specific conduct on his part (e.g., for engaging in homosexual acts) but rather from his status as a homosexual." In other words, the persecution tied to his sexual identity made him eligible for asylum in the United States. Judges often look for material proof of sexual identity in an asylum applicants' answers. Proof may entail subscriptions to gay or lesbian publications, membership in relevant organizations, or an effeminate or masculine appearance that indicates homosexual identity.See also Immigration Equality and Midwest Immigrant and Human Rights Center. 2006. Winning Asylum, Withholding and CAT Cases Based On Sexual Orientation, Transgender Identity And/Or HIV-Positive Status.