Asylum law in the United States, especially the Particular Social Group (PSG) ground for asylum, has several problems that pose significant risks for LGBT asylees. The nature of the PSG designation leaves it ill-defined, provides too many elements of analysis to adequately meet these asylum seekers’ needs, and provides too many opportunities for their claims to be denied based on minor procedural quirks of the PSG ground. This Note argues that the best method for meeting the needs of LGBT asylees is not through the PSG ground but through a new ground for asylum that covers gender-based persecution. Much of the existing literature on LGBT asylum focuses on contextualizing the PSG ground in a way that better protects asylees but tends to stick with the traditional “five grounds.” Rather than forcing an unworkable standard to fit an asylee’s needs, this Note argues that lawmakers should add a sixth ground for asylum that would bypass the issues with the PSG analysis.

By adding a sixth ground for asylum, the PSG ground would be unnecessary for LGBT asylees who claim their gender/sexual identity as their primary reason for persecution. A sixth ground would address gaps in existing case law about LGBT asylum, provide a more workable system for analyzing claims, and be less prone to executive meddling. Furthermore, a sixth ground for asylum would reinforce the United States’ commitment to being a leader in LGBT rights.

Continue Reading The Sixth Ground: Why Adding Gender/Sexuality to the Grounds for Asylum Would Better Serve the Needs of LGBT Asylum Seekers