US immigration board must decide whether perception of being LGBT in home country is grounds for asylum, says US appeals court

The US Court of Appeals for the Ninth Circuit Thursday issued an opinion holding that the US Board of Immigration Appeals (BIA) must consider whether non-US citizens who are perceived in their home countries to be LGBT and persecuted for being considered part of that group can be granted asylum in the US.

The decision came from the case Antonio v. Garland, in which Rebecca Rufina Cristobal Antonio petitioned for the review of the BIA decision “upholding the denial of asylum and related relief.”

Antonio was “verbally and physically harassed and threatened her with death because [people in her home country] perceived her to be a lesbian because she wore men’s clothing to work.”

The decision suggests that people seeking asylum because they are perceived to be LGBT could be one the requirements to be granted asylum in the US. The decision makes specific mention that an individual would not be received to “prove” that they were LBGT. Rather, it would be the individual’s burden to prove that their “persecutors were ‘motivated by a belief’ that” the individual is LGBT.

The court based its decision in the criteria used for other asylum claims that the claimant must provide evidence “that the persecutor was motivated by a belief that the petitioner held the political opinion.”

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