The Admission of Lesbians and Gay Asylum Seekers to the USA: From Victory (Ejusdem Generis) to Complications (Social Visibility)

Abstract

Under US asylum law, lesbians and gay men are considered members of a particular social group as established by the case of Toboso-Alfonso. The phrase’ membership in a particular social group’ was effectively defined in Matter of Acosta, based on the doctrine of ejusdem generis. The ejusdem generis approach was utilised until 2006, when the Board of Immigration Appeal (BIA) introduced a new interpretation of membership in a particular social group, known as the social visibility test, which requires lesbians and gay men to be visible and recognizable in their societies to be eligible for asylum. Unlike the BIA’s social visibility test, the ejusdem generis approach grants asylum to lesbians and gay men on the basis that their sexuality is innate and fundamental to their identity. This article presents arguments to suggest that the social visibility test should be rejected by all US courts, and the ejusdem generis approach should be the only adopted test in interpreting membership in a particular social group, and used to adjudge refugee claims based on sexual orientation.

Keywords: sexual orientation, same-sex oriented refugees, asylum