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Significant Immigration Ruling: BIA Clarifies Asylum Landscape for LGBTQ+ and HIV-Positive Claimants

Updated: Dec 12, 2023

By Rachel E. Carmona, Esq.

The case of Matter of C-G-T-, 28 I&N Dec. 740 (BIA 2023) decided on September 8, 2023, is a pivotal development in immigration law, addressing crucial issues related to asylum and withholding of removal based on persecution due to sexual orientation and HIV-positive status. The respondent, a native and citizen of the Dominican Republic, appealed the denial of his asylum and withholding of removal applications.


Facts and Procedural History: The respondent testified about being abused by his father in the Dominican Republic due to his sexual orientation. While the Immigration Judge found the respondent credible and identified two particular social groups to which he belonged, the denial of asylum was based on the 1-year filing deadline and the perceived lack of past and future persecution on account of a protected ground.


Immigration Judge's Errors: The Board of Immigration Appeals (BIA) noted that the Immigration Judge's analysis fell short in considering all relevant evidence regarding the respondent's father's motive for harm before the respondent left the Dominican Republic. Consequently, the case was remanded for further consideration.


Clarifying Guidance for Immigration Practitioners:


  • Unable or Unwilling to Protect from Persecution:

The BIA addressed the Immigration Judge's reliance on the respondent's failure to report harm as a basis for determining the government's unwillingness to protect. It emphasized that failure to report mistreatment is not necessarily fatal to a claim of persecution if reporting would have been futile or dangerous.


  • Future Persecution on Account of a Protected Ground:

The BIA corrected the assumption that the respondent could avoid future harm by hiding his sexual orientation. This should not have needed to be said, but here we are. Judges must not expect individuals to conceal their sexual orientation if returned to their native country.


  • Implications for Future Immigration Cases:

The BIA's analysis in Matter of C-G-T- carries significant implications for upcoming immigration cases, particularly those involving asylum claims based on sexual orientation and HIV-positive status, or where the Respondent could not have safely reported the danger or harm to the authorities in his/her country.


  • Fact-Specific Inquiry and Reporting of Harm:

The decision underscores the importance of a fact-specific inquiry when assessing the government's ability or willingness to protect an individual. This approach allows for a nuanced understanding of the complexities involved in persecution claims. Recognizing that a failure to report mistreatment is not necessarily indicative of the government's unwillingness to protect, the BIA provides a nuanced perspective, considering the challenges individuals may face in seeking assistance, and the country conditions in which the individuals must operate.


  • Futility or Danger in Reporting:

Acknowledging that reporting private abuse may be impractical or risky, the BIA clarifies that a failure to report harm is not fatal to a persecution claim if reporting would have been futile or dangerous.


  • Future Persecution and Guidance on Nexus Analysis:

Emphasizing that individuals should not be expected to hide their sexual orientation if returned to their native country, the decision reinforces protection under asylum and withholding of removal for those fearing persecution based on particular social groups. Additionally, the decision offers guidance on conducting thorough nexus analyses, urging adjudicators to consider all relevant evidence regarding the motive for harm beyond a mere chronology of events.


In summary, Matter of C-G-T- establishes a precedent for a more nuanced, context-aware, and fact-specific approach to evaluating asylum claims based on sexual orientation and HIV-positive status. This guidance is pivotal for immigration practitioners, judges, and future cases dealing with similar grounds for persecution, contributing to a more equitable and just asylum adjudication process.


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