(Reuters) - A U.S. immigration board must decide whether non-U.S. citizens who are perceived to be gay in their home countries can qualify for asylum in the U.S. regardless of their actual sexual orientation, a federal appeals court said on Thursday.
A three-judge panel of the 9th U.S. Circuit Court of Appeals revived an asylum bid by Rebeca Cristobal Antonio, a Guatemalan citizen who says she received death threats and was confronted by an angry mob and beaten by family members because they believed she is a lesbian based on the way she dressed.
To be eligible for asylum under U.S. immigration law, an applicant must show a credible fear of persecution in their home country based upon membership in a "cognizable social group."
The U.S. Board of Immigration Appeals (BIA) has for decades held that gay people from certain countries qualify as such social groups.
The BIA was wrong to find that Antonio's asylum application had more to do with the way she dressed than her sexual orientation, Circuit Judge Mark Bennett wrote for the panel.
"This finding focused exclusively on Antonio, assigning no weight to the perceptions of her persecutors," Circuit Judge Gabriel Sanchez wrote in a concurring opinion.
The U.S. Department of Justice and a lawyer for Antonio did not immediately respond to requests for comment.
Antonio applied for asylum in 2014, claiming she feared that she could be killed in Guatemala because of her perceived sexual orientation. Antonio says she wore men's clothing to work, which led relatives and neighbors to conclude that she was gay.
An immigration judge ruled that Antonio's proposed social group of "women in Guatemala who are perceived to have male tendencies and are seen as dangerous to the community" was too vague and dismissed her application.
The judge also said the asylum bid was based on "a dress issue" and not on her actual sexual orientation. The BIA upheld that decision in 2021.
Antonio appealed and the 9th Circuit on Thursday granted her petition for review.
Sanchez in his concurring opinion said he believed that people perceived as gay would qualify as a social group based on other court cases that involved perceived or imputed characteristics.
Sanchez cited past 9th Circuit decisions in which people perceived as holding certain political opinions or religious beliefs were considered cognizable social groups.
The panel also included U.S. District Judge Elizabeth Foote of the Western District of Louisiana, who sat by designation.
The case is Antonio v. Garland, 9th U.S. Circuit Court of Appeals, No. 21-70624.
For Antonio: Marco Jimenez of Jimenez Law Office
For the government: John Stanton of the U.S. Department of Justice