LGBT-Related Violence

The Board of Immigration Appeals and the Federal Courts of Appeals recognize that sexual orientation and gender identity motivated violence may provide a basis for asylum.  However, there are still obstacles in these cases; in particular, it can be difficult for applicants to meet the requirement that their governments are unable or unwilling to protect them in cases where the persecutor is not the government itself.

We have supported numerous attorneys with cases in the Ninth Circuit seeking to overcome problems posed by the Court’s decision in Castro-Martinez v. Holder, 641 F.3d 1103 (9th Cir. 2011) (as amended). In Castro, the court held that the asylum seeker, a gay male, had not shown Mexico was unable or unwilling to protect him, and that country conditions in Mexico did not prove that he had a well-founded fear of persecution based on a pattern or practice of persecution of gay men.  We have significant country conditions resources available regarding violence and discrimination against LGBT individuals in several countries.

• Read more about CGRS involvement in Castro-Martinez and the decision.
• Maldonado v. Holder (pending): A lesbian woman from El Salvador was forced, at the age of 14, to marry a 68-year-old man to "cure" her of her homosexuality and bore two children as the result of rapes within the marriage. The immigration agency did not recognize these harms as persecution on account of a protected ground.  CGRS filed an amici brief on appeal to the Ninth Circuit, joined by several women's and LGBT rights organizations, arguing that forced marriage and its attendant harms, like rape, suffered by Ms. Maldonado constitute persecution that were inflicted for reasons of her sexual orientation.  The government agreed to a settlement, rescinding its order of expedited removal and allowing Ms. Maldonado to present her claim for asylum before an immigration judge. She is represented by the National Immigrant Justice Center.
• Castro v. Holder (pending): This case involves a gay man from Honduras who sought and was denied asylum on the basis of sexual assault and other violence and discrimination he suffered as a child because of his sexual orientation and gender identity.  CGRS filed an amici brief joined by the International Gay and Lesbian Human Rights commission with the Eleventh Circuit, arguing that the abuse he suffered as a child should have been considered.  The government agreed to a remand and the case is still pending at the agency.