TOBOSO-ALFONSO
20 I & N Dec. 819 (1994)
Rule of Law:
Homosexuals constitute a 'particular social group' under the Immigration and Nationality Act because sexual orientation is an immutable characteristic, and an alien who faces a threat to life or freedom based on this status is eligible for withholding of deportation.
Facts:
- Fidel Armando Toboso-Alfonso, a native of Cuba, was registered by the Cuban government as a homosexual in 1967.
- For thirteen years, the government issued him regular notices to appear for examinations regarding his sexual life and frequently detained him for days without charge.
- Toboso-Alfonso was sent to a forced labor camp for 60 days as punishment for missing work, a penalty specifically levied because of his homosexuality.
- During the 1980 Mariel boatlift, the Union of Communist Youth held a demonstration against homosexuals at Toboso-Alfonso's workplace.
- A notice was posted on his home door ordering him to report to the police.
- The police chief gave Toboso-Alfonso an ultimatum: leave Cuba for the United States immediately or serve four years in the penitentiary for being a homosexual.
- On the day of his departure, neighbors assaulted him with eggs and tomatoes, forcing authorities to reschedule his departure time to the middle of the night.
Procedural Posture:
- The applicant was paroled into the U.S. in 1980, but parole was terminated in 1985, leading to exclusion proceedings.
- The Immigration Judge (IJ) found the applicant excludable based on criminal convictions and lack of a valid visa.
- The IJ denied the applicant's request for asylum in the exercise of discretion.
- The IJ granted the applicant's request for withholding of deportation to Cuba.
- The Immigration and Naturalization Service (INS) appealed the grant of withholding of deportation to the Board of Immigration Appeals.
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Issue:
Is an applicant's status as a homosexual a valid basis for establishing membership in a 'particular social group' for purposes of withholding of deportation under Section 243(h)(1) of the Immigration and Nationality Act?
Opinions:
Majority - Chairman Milhollan
Yes, individuals persecuted for their status as homosexuals are members of a particular social group entitled to protection. The Board reasoned that the applicant was targeted not for specific acts or misconduct, but strictly due to his status as a homosexual. The Board accepted the Immigration Judge's finding that homosexuality is an 'immutable' characteristic—one that the applicant cannot change. Consequently, the government's ultimatum forcing him to choose between exile and imprisonment constituted a threat to his life or freedom on account of his membership in that social group. The Board rejected the INS argument that 'socially deviant behavior' cannot form a protected group, noting that the persecution was based on status rather than specific conduct.
Dissenting - Board Member Vacca
No, the applicant failed to demonstrate a 'clear probability' that his life or freedom would be threatened upon return to Cuba. The dissent argued that the applicant's past interactions with the Cuban government were investigations or health examinations rather than persecution. Furthermore, citing the U.S. Supreme Court decision in Bowers v. Hardwick, the dissent suggested that criminal laws against homosexuality do not automatically constitute persecution. The dissent viewed the 1980 threat of imprisonment as a coercive tactic solely to force emigration during the Mariel boatlift, arguing there was no evidence this threat would still be active if he returned years later.
Concurring - Board Member Morris
Concurred with the dissenting opinion without separate written reasoning.
Analysis:
This is a landmark decision in U.S. immigration law as it established the precedent that sexual orientation constitutes membership in a 'particular social group' for asylum and withholding of deportation purposes. By accepting that homosexuality is an immutable characteristic defined by status rather than merely conduct, the Board expanded refugee protections to include LGBTQ+ individuals. Although initially an unpublished decision, the Attorney General later designated it as binding precedent in 1994, solidifying its impact on future asylum jurisprudence.
