Asylum claims can be based on "membership in a particular social group," one of five such grounds. The standard view interprets this criterion as requiring an "immutable" characteristic, one that cannot, or should not be required to be changed in order to be secure in one's person, and which offers an objective standard. The U.S. Bureau of Immigration Affairs has, however, begun to include an additional subjective element of "social visibility," which applies to members rather than to social perception of the group. Marouf asserts that this reading is contrary to the norms of interpretation in international law, and risks "incoherent, inconsistent decisions." The harm will fall especially hard on those seeking refugee status on claims relating to sexual orientation and gender. "With respect to sexual orientation, the United States and international authorities have rejected the notion that gays and lesbians who remain "discreet" - and therefore "invisible" - are not protected by the refugee definition. Under the "social visibility" test, however, their claims may well be denied. Indeed, even claims brought by "out" gays and lesbians may be rejected if they come from societies that do not recognize homosexuals as a group or homosexuality as a social identity.... [The] Refugee Convention protects certain rights because of their intrinsic importance. Such protection is not made contingent on whether those rights can be hidden."

The author intends this new piece to supplement an earlier work (32 Nova L. Rev. 357 (2008)) that discussed the problems of U.S. asylum law as it touches on gay men and lesbians. Here he employs those insights to propose corrective legislation, including five amendments to the Immigration and Nationality Act that will "better provide justice to victims of persecution based on sexual orientation." Those amendments would (1) define "persecution" as "The objective infliction of suffering or harm which is subsequently experience upon those who differ, including, but not limited to threats to life, confinement, torture and economic restrictions so sever that they constitute a real threat to life or freedom" (a combination of Ninth and Tenth Circuit holdings); (2) adopt the Seventh Circuit's evidentiary standard that "'Persecution' may be demonstrated by either showing the persecutor's motivation to punish or, more generally, the infliction of harm on account of the five statutory grounds"; (3) define "particular social group" in line with Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000); (4) allow consideration of "gender-based violence that is non-state sponsored"; and (5) require the publication of "opinions of each asylum case wherein claim is of asylum are granted on grounds of sexual orientation, gender-based violence and coercive population control measure."

An interesting section on this article documenting the treatment of transgender aliens seeking asylum in the United States asks whether, on the basis of the U.S. criteria, an American transgender would be entitled to asylum in a foreign country. According to those criteria, an applicant must prove that he or she was: (1) outside his or her home country; (2) a member of a particular social group, or had such a membership imputed onto them by his or her persecutor; and (3) persecuted in the past or has a well-founded fear of persecution in the future. A fourth criterion is that past or future persecution must be the basis of the applicant's real or perceived membership in the particular social group. The point is to test "United States asylum ideals against the reality of its domestic society," a test on which the U.S. is not likely score well, with a likely result that "another country applying United States asylum law would grant asylum to a transgender applicant based on his or her persecution in the United States."

HRW provides a comprehensive report of U.S. immigration law and its effects on same-sex couples in the U.S., illustrated through compelling personal stories. Same-sex binational couples do not have the right to marry in the U.S.; consequently, such relationships do not enjoy the same privileges of immigration as their heterosexual counterparts. HRW, while it supports marriage equality, sees immigration equality as a separate issue, and advocates for the passage of the Uniting American Families Act (UAFA), which would add the category “permanent partner” to the classes of family members entitled to sponsor a foreign national for U.S. immigration. This report explores the history of exclusion from immigration in the U.S. based on gender and sexuality from McCarthyism to the HIV ban, and then reports on the lack of progress that has been made with respect to obtaining visas and immigration status for same-sex binational couples. Appendices to the report include the text of the UAFA, a list of countries protecting same-sex couples’ immigration rights, census information on binational same-sex couples in the United States, and a list of organizations that work with LGBT immigrants, asylum seekers, and binational couples.

Drawing on a Critical Race Theory analysis, this article examines the role that racial and sexual stereotypes play in sexual orientation asylum cases. The asylum process is outlined, and the racism and homophobia inherent in the requirement of proving one’s homosexuality are exposed. Suggestions on improving the asylum system are provided.

In the case of Boer-Sedano v. Gonzales [418 F.3d 1082 (9th Cir. 2005)] the ninth circuit ruled that a gay asylum seeker’s HIV or AIDS status could make return to his country of origin unreasonable. This brief article examines the Boer-Sedano case and explores its significance for asylum seekers with HIV or AIDS.