Editor's Comments of the Day

In Hernandez-Montiel v. INS, No. 98-70582 (9th Cir. August 24, 2000), the court ruled that as a matter of law gay men with sexual identities in Mexico constitute a "particular social group." The court found that Petitioner's having been raped twice by police constituted past persecution and so granted the application for withholding and remanded to the Attorney General for the exercise of her discretion to grant asylum. Finding sexual orientation can be the basis of establishing a "particular social group" for asylum purposes is not new. In Toboso-Alsonso, 20 I & N Dec. 810 (BIA 1990), a Cuban man was granted asylum after showing that that country's government had registered and tracked gay men for investigation over the years. In Matter of Tenorio No. A72-0930558 (BIA 1999) the Board of Immigration Appeals (BIA) upheld a grant of asylum to a gay Brazilian man who had been beaten and stabbed by a group of people using anti-gay epithets. In this case the 9th Circuit ruled the BIA erred in defining the social group as "homosexual males who dress as females." The court stated that the case was "about sexual identity, not fashion," and as a matter of law the social group was "gay men with female sexual identities." The court then found the evidence "susceptible of no other conclusion" then that the Petitioner "was persecuted on account of his membership in the 'particular social group.'"