To be eligible for asylum, an alien must be physically present in the United States and meet the definition of refugee in the Immigration and Nationality Act (INA):
“Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
So, the following elements must be proved: well-founded fear of persecution by the government, protected ground, and the nexus between the two. The well-founded fear of persecution is presumed when past persecution has been established. The persecutor must be the government or a group or individual(s) that the government is unwilling or unable to control.
The elements for an asylum claim based on LGBTQ are a well-founded fear of persecution based on past persecution or risk of persecution in the future if returned to the country of origin based on his/her membership in a particular social group. The case law has established that fear or inability to “come out” may be deemed persecution.
The applicant bears the burden of proof of establishing that s/he falls under this definition of refugee. The alien is required to testify under oath regarding the truth of his/her application on order to meet this burden of proof. Corroborative testimony and documentary evidence is not only strongly encouraged, but is also required, where available. Testimony alone, however, may be sufficient to sustain the applicant’s burden of proof if the testimony is credible.