The “particular social group” requirement: How they asylum process is consistently failing LGB applicants and how an evidentiary standard of “self-attestation” can remedy these failures

Every year, tens of thousands of individuals flee their home nation for the United States to seek asylum. In 2015 alone, 26,124 individuals were granted asylum to the United States. Asylum is requested and, for the lucky, granted for a variety of reasons. People seek asylum in the United States on the basis of their race, religion, nationality, relationship to certain social groups, political opinion, and more. This Comment focuses on those individuals who seek asylum because they have faced, or will face, persecution in their home country because of their sexual orientation. Lesbian, gay, and bisexual (LGB) asylum seekers face unique challenges throughout the process of seeking asylum. These challenges are pervasive within the field of immigration. Sexual orientation is not a characteristic that is readily observable, and because of the pervasive stigma experienced by LGB individuals in many countries, these asylum applicants do not have access to the evidence required to adequately prove their claims. This Comment argues that, in the absence of reasonably available evidence, an evidentiary standard of “self-attestation” for sexual orientation is sufficient for proving that an LGB asylum seeker is a member of a protected social group. Part I gives the reader an overview of the asylum process in place today and what requirements an asylum seeker must meet in order to be granted asylum. Part II discusses a recent Seventh Circuit decision that illustrates the prevalence of the difficulties faced by LGB asylum seekers when having to prove the legitimacy of their sexual orientation. Part III begins with an overview of how LGB individuals have been treated in asylum cases throughout American history. It then discusses the administrative and social barriers an LGB asylum seeker faces when having to outwardly “prove” their sexuality, an internal characteristic. Finally, Part IV sets forth the standard of selfattestation and how it would apply to the asylum process. Part IV concludes with acknowledging and addressing the potential concerns of an evidentiary standard of self-attestation.