Asylum based on sexual orientation and/or gender identity
In 1994, U.S. Attorney Janet Reno released Order 1895-94, which states that "an individual who has been identified as homosexual and persecuted by his or her government for that reason alone may be eligible for relief under the refugee laws on the basis of persecution because of membership in a social group."
Since then there have been asylum cases where the petitioner won his/her asylum or withholding of deportation based on his/her sexual orientation or gender identity. However, this is a very complicated issue and we urge you to contact a knowledgeable immigration attorney to discuss your individual situation.
Sometimes this process can take several years and can be very costly. We know one person whose asylum got approved after 15 years of fighting. Had his U.S. partner had the same rights as a straight citizen, he could have sponsored him for residency all along. Rather than being put on this intense emotional rollercoaster with an uncertain outcome for all those years, they could have moved on with their lives just like any straight binational couple.
Successful cases here in California were Hernandez-Montiel v. INS where in August of 2000 the U.S. Court of Appeals of the 9th Circuit held that the petitioner "a gay man with a female sexual identity, who may be considered a transsexual" is entitled to asylum and withholding of deportation. And in January 2007 in the case of Jorge Soto Vega asylum was secured with the help of Lambda Legal after an immigration judge denied Vega asylum because Vega didn't appear gay to him.
To read more on Asylum for LGBT People and People with HIV and/or AIDS please click here.