Examining the Legalized Scrutiny of LGBTQIA+ Noncitizens and Gender-Based Eligibility for Status

Sorsha Huff*

Trial Attorney, Michael & Associates

ISSUE 18

FALL 2025

IMMIGRATION

I. Introduction

“I’m afraid of dying. I’m afraid of losing my freedom. Especially that—losing my freedom.”

“Yoli,” a transgender man testifying during his asylum hearing.

To see the supplementary infographic for this article, click here.

Most noncitizens seeking legal status in the United States walk a long road full of intricate forms, strict deadlines, language barriers, and intense governmental scrutiny. A noncitizen who identifies as a part of the LGBTQIA+¹ community faces an additional layer of difficulty. While their identity may be the key to obtaining legal status, they are also at an even greater risk that officials will view them with suspicion and deny them relief. This is because all noncitizens are constrained by the same rigid set of immigration laws, even as popular culture and the English language expand to recognize more distinct sexual orientations and gender identities.²

A recent poll found that a majority of Americans favor creating a new pathway to citizenship for people who are illegally residing in the U.S.³ Yet, the Immigration and Nationality Act (INA), our primary source formalizing the “structure of immigration law,” provides no such roadmap.⁴ It should come as no surprise, then, that the drafters of the 1952 immigration framework did not consider the unique interests and qualities of LGBTQIA+ people.⁵ By the time the INA came into effect, “homosexuality” was diagnosable “as a sociopathic personality disorder,” and would be listed as such in the Diagnostic and Statistical Manual of Mental Disorders (DSM) until 1973.⁶ Perhaps what is surprising, however, is that the same characteristics that make LGBTQIA+ noncitizens eligible for certain kinds of humanitarian-based immigration relief simultaneously work to their disadvantage.⁷

This article will examine this ironic tension between our current immigration framework and queer⁸ noncitizens by considering three hypothetical case studies involving asylum, marriage-based green cards, and the Violence Against Women Act (VAWA), respectively, while keeping an eye on the horizon—specifically the uncertain future of marriage equality in the U.S. Supreme Court.

To protect attorney-client privilege and comply with rules of professional conduct, please note that the names and other potentially identifying information of the clients have been changed. I have adjusted some facts in each case study to avoid disclosing any information that could identify the client. However, I have worked to alter only details that would not color the analysis or outcome. Even with these adjustments, these hypothetical case studies are based on truth and free from embellishment. Also, please be warned that this article contains some brief descriptions of sexual assault, physical abuse, and domestic violence. Finally, please note that this author recognizes that the word “alien” is now largely, and rightfully, considered offensive when referring to a noncitizen person. As such, any use of this word is limited to direct quotations, which is unavoidable given its (perhaps telling) use throughout the INA.⁹

II. Case Study 1: “Yolanda / Yoli”

A. The Basic Requirements of Asylum.

Being granted asylum offers protection against removal, the ability to obtain a work permit, and a pathway to lawful permanent residence and eventual citizenship.¹⁰ To qualify, an applicant must be a “refugee” who is physically present in the U.S.¹¹ The term “refugee” means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion….¹²

Many circuits have recognized the LGBTQIA+ community as a cognizable PSG for asylum purposes,¹³ including transgender people specifically.¹⁴ Importantly, it is not enough that a long-suffering applicant belongs to a valid PSG; the persecution must be “on account of,” or specifically due to, the applicant’s identity.¹⁵ To assert an argument for asylum, in each hearing, the Immigration Judges (IJs) make a “credibility determination,” based on the applicant’s:

demeanor, candor, or responsiveness…, the inherent plausibility of the…account, the consistency between the…oral statements…, the internal consistency of each such statement, the consistency of such statements with other evidence of record…, and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor.¹⁶

Two other rules are worth noting. First, unless an applicant shows changed or extraordinary circumstances, they must file their asylum application within one year of arriving in the U.S.; otherwise, the government will bar the application as untimely.¹⁷ Second, if an applicant knowingly submits a “frivolous” application, the government deems them “permanently ineligible” for asylum.¹⁸

B. Yoli’s Asylum Claim.

Yolanda entered the U.S. illegally in the late 1990’s and, except for a few brief visits to visit family in Mexico, has been living in the United States for over twenty years. In the early 2010’s, Yolanda decided to apply for asylum and submitted all necessary paperwork to U.S. Citizenship and Immigration Services (USCIS). Yolanda included a written declaration in support of the application, detailing multiple incidents of severe sexual, psychological, and physical abuse. As is required for all asylum claims, Yolanda’s initial application attributed this persecution to, and labeled her identity as, being an openly homosexual Mexican woman. Unfortunately, Yolanda submitted her paperwork after the one-year filing deadline, and USCIS denied her asylum application. Yolanda’s case was then automatically transferred to immigration court in Philadelphia, where she had to defend her asylum claim in removal proceedings.

Only after two separate meetings and several hours of preparing Yolanda for her spring of 2025 asylum hearing did she gently disclose that she was actually he: Yolanda preferred to be called “Yoli,” opted for masculine pronouns, and had felt like a man since childhood. He remembered feeling ousted by boys for being born a female and shunned by girls for dressing like a boy. At one point, he was subjected to a “corrective rape”: a sexual assault perpetrated with the intent to “‘correct’ or ‘cure’” an individual’s homosexuality or punish them “for violating traditional gender presentation.”¹⁹ Terrified that his family would blame him, he did not tell his parents or the police. Yoli endured several more years of bullying and verbal harassment, which he believes were based on his manner of dress and outwardly masculine appearance. After surviving yet another brutal attack,, he was forced to move out of his home  and ultimately escaped here to the United States.

On the day of his hearing, Yoli arrived early,  neatly dressed in what most would consider typically masculine clothing. Through tears, he told the IJ about his experiences, some of which were not originally included in his asylum application or written declaration. When cross-examined on the omission, he explained that it was difficult to remember or speak about such traumatic experiences. Moreover, it was clear that he was “coming out” a second time: not as a lesbian woman, but as a transgender man. This distinction was not only important to his identity but also critical to his case.

The Philadelphia immigration court (also called the Executive Office of Immigration Review, or EOIR) decided 923 cases in July 2025.²⁰ Of those, IJs granted relief in fifty-nine cases: in other words, noncitizens won asylum, protection from deportation, or some other kind of requested relief in just over six percent of cases.²¹ Two months after the hearing, the immigration judge ordered Yoli removed (i.e., deported). These numbers may make the loss less surprising, but the IJ’s written decision came as a greater shock. As to Yoli’s credibility, the IJ questioned why he would wait until the hearing to use male pronouns, if he supposedly knew he had been transgender since a young age, and criticized the usage of female pronouns in previous pre-trial correspondence.²²

Such an explanation begs the question: how could Yoli have avoided this degree of suspicion? If Yoli had hidden his identity as a transgender male and focused his testimony on his initial classification as a lesbian woman, he would have denied a crucial aspect of his identity and forfeited a ground for appeal. Otherwise, Yoli would have had to “come out” as transgender far earlier in the process, which in turn would have required a self-awareness that was perhaps still developing at the time of the hearing, as well as an immediate willingness to share the details of his trauma with a legal team comprised of unknown stances on LGBTQIA+ issues. Even during the hearing, and despite a pre-trial discussion confirming Yoli’s transgender identity and male pronouns, the attorney representing the Department of Homeland Security (DHS) repeatedly referred to Yoli with feminine pronouns (which are also used throughout the IJ’s written decision, as noted above). Yoli did not disclose his true identity as a transgender man until after his immigration attorney openly referred to herself as a lesbian woman and asked him what pronouns he preferred to use. He also discussed how difficult it was to speak and think in his native Spanish language, which significantly depends on a male-female gender binary.

That is the fundamental point of this article: Yoli’s identity as a transgender man directly resulted in the traumatic experiences that made him both eligible for asylum and hesitant to reveal the true nature of his sexual identity. This hesitation, frustrated by linguistic difficulties, further prompted officials to question the merits of his claim. Courts may recognize transgender people as a PSG for asylum purposes, but how can transgender people be expected to carry their burden when their “proof” is both the key and the lock?

At least in Yoli’s case, the concept of being “transgender” is relatively well-defined. But consider, for example, an applicant seeking asylum from the violence she endured in Nigeria on account of her identity as a bisexual woman. Despite any testimony about being beaten after she was “outed” for having a romantic relationship with another woman, our existing asylum laws not only allow for, but require, the kind of scrutiny that could call her credibility into question for wearing a dress to court or being married to a man. As noted above, recognizing a greater variety of gender identities and sexual orientations means accounting for gender-fluid, intersex, and non-binary people (to name a few), whose identities are as fundamental as they are difficult to define. Certainly, bisexuality could qualify as a particular social group, but PSGs must be immutable to be recognized as a valid basis for asylum.²³ Thus, there is a concerning disparity between what immigration courts require as proof of immutability and their ability to recognize the difficulty in carrying that burden when the immutable characteristic is inherently flexible. 

III. Case Study 2: “Josefina and Paula”

A. The Basic Requirements of Spouse-Based Adjustment of Status.

A U.S. citizen can apply for their noncitizen spouse to become a lawful permanent resident (LPR).²⁴ This process of applying for LPR status (also commonly known as a “green card”) from within the United States requires that a visa be available at the time the noncitizen submits their application.²⁵ The availability of visas depends on several factors, including the time the application is submitted, the type of family relationship, and the country of origin.²⁶ Thus, many green card applicants wait years before a visa becomes available to them.²⁷ Spouse-based adjustment of status is one of the fastest ways to become an LPR because spouses count as “immediate relatives” for whom “[a] visa is always available.”²⁸

USCIS’s counterbalance to this relatively straightforward way to status is to amplify its scrutiny of the relationship. It requires that the marriage “be bona fide, that is, not entered into for the purposes of evading the immigration laws; the general test for a bona fide marriage is whether the parties intended to establish a life together.”²⁹ If USCIS determines that the couple got married “for the sole purpose of circumventing the immigration laws,” it will deny the application.³⁰ One manual on family-based immigration from 2010 warns the following:

Immigration advocates have discovered through experience that the USCIS may suspect the motives behind a marriage whenever the marriage has slightly or extremely unconventional characteristics. Couples who have large age disparities, differing ethnic or racial backgrounds, or who engage in a commuting relationship may find the USCIS closely scrutinizing their relationship to ascertain the couple’s true intentions.³¹ 

In a USCIS examiner’s guide, other “red flags” include: “language difficulties between the couple,” “family or friends unaware of the marriage,” “beneficiary is a friend of the [petitioner’s] family,” “a marriage contracted where the parties have known each other for only a short time,” “an interracial marriage,” “any marriage performed only before a justice of the peace, without even a small wedding or reception, particularly if the parties have not informed their family or friends of the marriage.”³²

To this end, the government expects applicants to submit proof that their marriage is bona fide and to attend an in-person interview where an official asks personal questions about their relationship to ensure there is no fraud. Moreover, being accused of a fraudulent marriage does not merely end in a denied application and revoked status.³³ After multiple arrests following “a nationwide marriage fraud operation,” USCIS spokesperson Matthew Tragesser lauded their “work with ICE [that] crushed a marriage fraud ring where U.S. citizens were paid to marry aliens…. [F]raudsters are walking out in handcuffs. Buying a spouse doesn’t make you a citizen.”³⁴

It is in this environment that Josefina and Paula—like so many other same-sex couples—found themselves for their green card interview in Dallas, Texas, just recently.

B. Josephine and Paula’s USCIS Interview.

Josephine and Paula met a few years ago at a party celebrating the new wife of Josephine’s ex-husband. Josephine, now in her 40s, maintained a friendly relationship with her ex-husband, with whom she shared a child. Paula, in her 20s, was the new wife’s friend, and she and Josephine fondly described the first time they met, when they saw each other from across the room. They moved in together about three months later, got engaged shortly after, and eloped at the nearby courthouse with a handful of family and friends just over a year after meeting. (Paula, who came from a religiously conservative family, did not speak much with her parents, who were too old to make the international trip to attend anyway.) Josephine, a U.S. citizen, had known early on that Paula had overstayed her visa many years before, so she said it just made sense for them to formalize their marriage and secure Paula’s status. They managed the language barrier with a translator app while Josephine watched telenovelas to recall the basic Spanish she had learned from college classes, and Paula was saving up to start English lessons at a night school. It was clear their language was improving by the time of their interview, as could only be expected when they spent all of their time together, fishing and baking as often as they could.

Josephine and Paula held hands for the first part of their joint interview, before the examiner sternly admonished them not to touch each other. When asked whether he had ever seen this happen before, a senior immigration attorney audibly gasped and reassured this author that he had not. Throughout the next hour and a half, they were questioned together and separately about the nature of Josephine’s friendship with her ex-husband, the manner of their meeting, how they communicated during arguments, whether Josephine’s child approved of their marriage, the short length of their engagement, and the absence of Paula’s family at their wedding. Josephine and Paula had brought a carefully curated scrapbook, containing photographs, ticket stubs, and congratulatory letters, in case the interviewer wanted to see any additional proof of their good intentions. The interviewer took the photo album after warning them that she could not guarantee its return, despite their attorney’s reassurances that she worked close by and could come pick it up. As of this writing, there has been no return of the album to this author’s knowledge, nor a decision on their application as of October 2025.

LGBTQIA+ readers may relate to some or many parts of this case study, but the qualities of Josephine and Paula’s relationship are not simply anecdotal. Take, for instance, the relatively short length of time between their meeting and moving in together, a trope so common to lesbian relationships specifically that it has a name:

‘U-Hauling’--packing up and moving in together after knowing each other for just three months--is perhaps the greatest tradition (and punchline) in lesbian culture. This ‘urge to merge’ had a basis in practicality in the '50s and early '60s, when gay couples had to remain in the shadows. Back then, if you had the good fortune to make a family, you held onto it. It was a marriage. In the lesbian world, serial monogamy was safe, and also fulfilling.³⁵

However, as noted above, “a marriage contracted where the parties have known each other for only a short time” has been explicitly identified as a “red flag” for marriage fraud.³⁶ In fact, Josephine and Paula’s relationship has many of the qualities described above (interracial, language barrier, small marriage ceremony, etc.) that have been highlighted as suspicious by USCIS. Yet when many of these qualities are common to or characteristic of many couples within the queer community, the additional layers of scrutiny are one more barrier they have to overcome.

IV. Case Study 3: “Manny”

A. The Basic Requirements of VAWA-Based Adjustment of Status.

One of the few ways to adjust status from inside the United States without a qualifying family member is through the Violence Against Women Act (VAWA).³⁷ By creating a way for noncitizens to apply on their own behalf, this law was meant to curtail LPR and U.S. citizen family members from using immigration status as a means of leverage and control.³⁸ For self-petitioners claiming abuse from their spouse, USCIS also explicitly requires proof that the applicant “entered into the marriage in good faith and not for the purpose of evading immigration laws.”³⁹

Although there are some specific exceptions in the INA, the general rule is that a noncitizen can only apply for status from inside the United States if they were “inspected and admitted or paroled into the United States”; that is, by presenting themselves to Customs and Border Patrol at the time of entry for questioning and inspection of documents.⁴⁰ For context, entering with inspection is the typical manner of entry for noncitizens visiting the United States with a visa. Even if that noncitizen violates the terms of their visa (e.g., by staying here past the expiration date of their visa), they will still have a lawful entry with inspection, which would preserve their ability to eventually adjust their status if otherwise eligible, despite their unlawful time here.⁴¹

For noncitizens who entered without inspection, the process becomes trickier. This is because the same law authorizing adjustment of status requires a noncitizen to be “admissible” in order to enter the United States lawfully.⁴² And one of the many ways a noncitizen can be inadmissible is if they are “present in the United States without being admitted or paroled.”⁴³ However, there is a special exception that allows noncitizens with VAWA protection to adjust their status, even if they entered illegally.⁴⁴

In fact, VAWA is one of the very few ways an illegal entrant can overcome one of the most prohibitive grounds of inadmissibility.⁴⁵ Essentially, a noncitizen can trigger a ten-year bar to applying for entry or status if, after April 1, 1997, they re-enter or try to re-enter the United States illegally (i.e., without inspection) after entering illegally in the past and either: (1) acquiring at least one year of unlawful presence since then; or (2) being deported.⁴⁶ Importantly, VAWA provides a safe harbor “if there is a connection between- (I) the alien’s battering or subjection to extreme cruelty; and (II) the alien’s removal, departure from the United States, reentry or reentries into the United States; or attempted reentry into the United States.”⁴⁷

Thus, VAWA is a valuable pathway to status for some of the most vulnerable noncitizens in the U.S., applicants who would otherwise have no lawful means to obtain immigration protection. But again, we see the counterbalance: much proof is required of the person seeking the mercy of this forgiving statute.

B. Manny’s USCIS Interview.

Manny first entered the United States hidden in the trunk of a coyote’s car in 2000 (i.e., without lawful inspection). Soon after he arrived, Manny started dating Saul, an emotionally manipulative and sometimes physically abusive man from Belize. They continued their volatile relationship until early 2002, when Manny briefly returned to Mexico to attend a close family member’s funeral. Young, grief-stricken, and terrified that his conservative family would discover that he was gay, Saul called Manny and told him that he would find a way to “out” Manny to his parents if he did not return to the U.S. to be with him. Manny rushed back across the border a few weeks later, again hidden in the trunk of a car, and resumed his troubled relationship with Saul. They continued dating for years, during which time Manny continued to suffer from regular public humiliation, physical beatings, and verbal abuse from Saul. Over a decade later, Manny and Saul separated, and Manny moved to a different city. In the early 2020’s, he met Lou, a U.S. citizen.

At first, Manny recalls Lou treating him to dinners at upscale restaurants and surprising him with gifts. They dated for about a year before getting engaged, and then married a year after that. However, just a few months after getting married, Lou’s behavior became more erratic; he was prone to explosive outbursts, breaking and throwing objects during arguments and calling Manny slurs alluding to his lack of status and gay identity. Refusing to seek couples counseling, Lou became increasingly jealous and possessive. He insisted on checking Manny’s cell phone, accused him of cheating, and intimidated him by brandishing weapons while saying he could “make him disappear” if he ever found out Manny was unfaithful. Lou also frequently threatened to call ICE on Manny, who felt less and less safe, and more and more triggered by the memories of his violent relationship with Saul.

Eventually, Manny learned about, applied for, and obtained VAWA protection. Not only did it provide him with a work permit and proof of compliance with immigration laws, but it also gave him a legal way to adjust his status despite his inadmissibility bars.⁴⁸ So Manny also submitted his green card application as his own petitioner, acknowledging his history of two unlawful entries and over a year of illegal presence here in an accompanying waiver form.⁴⁹ However, Manny came across a roadblock: how could he show that there was a connection between the abuse he had suffered from his husband and his illegal re-entry in 2002, when he did not even meet his spouse until over twenty years later?⁵⁰

This was the question discussed with Manny during the first of his two interview preparations. During this initial conversation, Manny seemed to hesitate even calling what he experienced with Saul abuse. It was only during a second pre-interview conversation that he opened up about the physical abuse he endured, and the fear of being judged by his conservative family if he was outed. He finally agreed that this prior abuse aggravated his current abuse by making him more vulnerable to a cyclical pattern of mistreatment by his partners. However, this acknowledgement came too late in the process to provide much benefit. Notably, while a mental health evaluation he had submitted to USCIS in support of his application and waiver diagnosed him with several stress-induced disorders, it did not mention his ex-boyfriend, instead focusing on his marriage.

Ultimately, despite having his VAWA application approved, Manny’s green card application for LPR status was denied because USCIS concluded that his departure and re-entry could not be tied to the spousal abuse that formed the basis of his VAWA petition. Again, it is worth noting that Manny was only able to discuss the true extent of his past abuse when he learned his immigration attorney was queer like him. But this reluctance to acknowledge the abuse he suffered from a prior relationship until just before his interview limited his ability to fully flesh out an argument for this waiver in his original filing. Now that the government has denied Manny’s green card application, he also risks being sent to immigration court, where an IJ will decide whether he stays or goes.

V. Looking Ahead

As this article has hopefully shown through the above case studies, queer noncitizens find themselves in a uniquely vulnerable intersection of identities when it comes to applying for immigration relief. If this has been the case since the U.S. Supreme Court legalized same-sex marriage, then what would happen if the Court reversed those decisions, as many fear it might?

First, the INA’s relevant definitions do not provide much guidance: “The term ‘spouse’, ‘wife’, or ‘husband’ do not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.”⁵¹ But as recently as 2010, practice manuals noted that “USCIS will not recognize same-sex marriages….”⁵² That policy changed in 2013, when USCIS extended immigration benefits to same-sex couples following the Supreme Court’s decision ruling a key provision of the Defense of Marriage Act (DOMA) unconstitutional.⁵³ “As a result, same-sex I-130 spousal petitions and same-sex marriage-based adjustment of status applications are now routinely filed and approved, and abused spouses in same-sex marriages should also benefit under VAWA where the abusive spouse was or is a [U.S. citizen] or LPR.”⁵⁴ However, that same practice advisory warned attorneys “to research and prove that your client’s same-sex marriage was valid and legal in the location in which it took place at the time of the marriage.”⁵⁵ Such an admonition became more or less moot after the Court decided Obergefell v. Hodges in 2016, ruling that same-sex marriages were now legal in all fifty states.⁵⁶

But recently, there have been murmurings questioning Obergefell’s staying power, especially in the wake of Kim Davis, the Kentucky court clerk who faced both backlash and applause for denying a gay couple a marriage license in 2015, appealing her case to the Supreme Court.⁵⁷ Although the Court decided not to hear her case, many fear Kim Davis might not be the last legal opportunity to overturn the nationwide legalization of same-sex marriage.⁵⁸

While it is difficult to envision a decision that would retroactively undo the same-sex marriages that have taken place after Obergefell for logistical reasons, it is much more plausible that the fall of Obergefell would revert USCIS policy to the status quo after Windsor, wherein the validity of a marriage seemed to depend mainly on whether it was recognized in the state in which the immigration application was filed.⁵⁹

So should queer, mixed-status couples in Texas rush to the courthouse? Well, yes and no. Yes, because in a state where our criminal code still technically contains the offense of “Homosexual Conduct,” the benefits of formalizing a same-sex relationship through marriage are a powerful form of protection.⁶⁰ But no, because it cannot be said that USCIS would look favorably upon a rush of LGBTQI+ couples getting married by justices of the peace so that they can expeditiously apply for a green card—just refer back to the “red flags” examiners are taught to suggest marriage fraud.

Unfortunately, this article does not offer a straightforward answer or a promising conclusion for the queer noncitizen community and its sympathetic allies. But what it can encourage is a greater awareness of the often-hidden nuances of a particularly vulnerable subsection of our American society, which may foster an openness to sharing the details of their experiences early enough in the process to help them, rather than hinder them.

---

Suggested Citation: Sorsha Huff, Examining the Legalized Scrutiny of LGBTQIA+ Noncitizens and Gender-Based Eligibility for Status, ACCESSIBLE LAW, Fall 2025.

Examining the Legalized Scrutiny of LGBTQIA+ Noncitizens and Gender-Based Eligibility for .

Download • 237KB

Sources:

* Sorsha Huff is a North Texas criminal defense attorney with a background in immigration law. She has represented non-citizens in USCIS interviews and removal proceedings and currently resides in Dallas with her wife.

[1] This acronym will be used throughout this article to refer to “lesbian, gay, bisexual, transgender, queer, questioning, intersex, [and] asexual” people, as well as those who identify with a non-listed sexual orientation other than heterosexual or “straight.” LGBTQIA+ 101, Princeton Gender + Sexuality Res. Ctr., https://monroeuniversity.libguides.com/LGBTQIA (last visited Aug. 22, 2025) [hereinafter 101].

[2] Id. (“the + holds space for the expanding and new understanding of different parts of the very diverse gender and sexual identities.”).

[3] Linley Sanders, Associated Press, Poll shows how U.S. views of immigration have changed since Trump took office, PBS News (July 11, 2025), https://www.pbs.org/newshour/politics/poll-shows-how-u-s-views-of-immigration-have-changed-since-trump-took-office.

[4] See, e.g., 8 U.S.C. § 1182(a)(6)(A)(i) (“An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.”); see also id. § 1255(a) (allowing “an alien who was inspected and admitted or paroled into the United States” to adjust their status to lawful permanent residency but requiring that they be “eligible to receive an immigrant visa and…admissible to the United States….”) (emphasis added).

[5] Immigration and Nationality Act, U.S. Citizenship and Immigr. Serv. (July 10, 2019), https://www.uscis.gov/laws-and-policy/legislation/immigration-and-nationality-act.

[6] Being Gay Is Just as Healthy as Being Straight, Am. Psych. Ass’n (May 28, 2003), https://www.apa.org/topics/lgbtq/mental-health.

[7] See "Special Considerations for LGBTQ Immigrants," Immigrant Legal Res. Ctr. (Dec. 2016), https://www.ilrc.org/sites/default/files/resources/lgbt_immigrants.pdf ("LGBTQ immigrants enjoy the same rights under immigration law as all other non-citizens. However, there are some areas where LGBTQ immigrants might face unique challenges.").

[8] While sensitive to its problematic history, this article will use the word “queer” interchangeably with LGBTQIA+ to refer to the same group of identities, in what the author hopes to be a respectful exercise in reclamation. See Cory Collins, Is ‘Queer’ OK to Say? Here’s Why We Use It, S. Poverty L. Ctr. (Feb. 11, 2019), https://www.learningforjustice.org/magazine/is-queer-ok-to-say-heres-why-we-use-it.

[9] “The term ‘alien’ means any person not a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3).

[10] Asylum, U.S. Citizenship and Immigr. Serv. (last visited July 22, 2025), https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum [hereinafter Asylum].

[11] Id.; see also 8 C.F.R. § 1208.13(a) (2025). (“The burden of proof is on the applicant for asylum to establish that he or she is a refugee as defined in section 101(a)(42) of the [INA]”).

[12] 8 U.S.C. § 1101(a); INA § 101(a)(42) (2025).

[13] See, e.g., Kadri v. Mukasey, 543 F.3d 16, 21 (1st Cir. 2008); Amanfi v. Ashcroft, 328 F.3d 719, 730 (3d Cir. 2003); Moab v. Gonzales, 500 F.3d 656, 661 n.2 (7th Cir. 2007); Nabulwala v. Gonzales, 481 F.3d 1115, 1117 (8th Cir. 2007); Hernandez-Montiel v. INS, 225 F.3d 1084, 1094 (9th Cir. 2000), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc); Ayala v. Att’y Gen. U.S., 605 F.3d 941, 949 (11th Cir. 2010).

[14] Hernandez-Montiel, 225 F.3d at 1094.

[15] 8 U.S.C. § 1101(a), INA § 101(a)(42); see also INS v. Elias-Zacarias, 502 U.S. 478 (1992). R12, R10

[16] 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added).

[17] Id. § 1158(a)(2)(B).

[18] Id. § 1158(d)(6).

[19] Sarah Doan-Minh, Corrective Rape: An Extreme Manifestation of Discrimination and the State’s Complicity in Sexual Violence, 30 Hastings J. Gender & L. 167 (2019).

[20] Outcomes of Immigration Court Proceedings by State, Court, Hearing Location, Year, Charge, Nationality, Language, Age, and More, TRAC Immigr., https://tracreports.org/phptools/immigration/closure/. (Sept. 3, 2025). 

[21] Id. 

[22] [citation removed for confidentiality purposes].

[23] [citation removed for confidentiality purposes].

[24] Green Card for Immediate Relatives of U.S. Citizen, U.S. Citizenship and Immigr. Serv. (July 8, 2025), https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-immediate-relatives-of-us-citizen [hereinafter Immediate Relatives].

[25] Id.

[26] See Visa Availability and Priority Dates, U.S. Citizenship and Immigr. Serv. (Jan. 24, 2025), https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-and-priority-dates; see also Visa Bulletin for September 2025, U.S. Dep’t of State — Bureau of Consular Aff. (Aug. 4, 2025), https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2025/visa-bulletin-for-september-2025.html.

[27] See id.

[28] Immediate Relatives, supra note 24.

[29] Ignatius, S., Stickney, E. S., & Compernolle, S. § 4:2, Immigr. L. and the Fam. (2010).

[30] Id. § 4:19–4:20.

[31] Id. § 4:20.

[32] Id. § 4:24.

[33] USCIS Assists with ICE Investigation that Dismantled a Nationwide Marriage Fraud Operation, U.S. Citizenship and Immigr. Serv. (Apr. 28, 2025), https://www.uscis.gov/newsroom/news-releases/uscis-assists-with-ice-investigation-that-dismantled-a-nationwide-marriage-fraud-operation.

[34] Id.

[35] Beyond the U-Haul: How Lesbian Relationships Are Changing, The Atl. (July 3, 2013), https://www.theatlantic.com/sexes/archive/2013/07/beyond-the-u-haul-how-lesbian-relationships-are-changing/277495/.

[36] Ignatius, et al., supra note 29, § 4:24.

[37] See Abused Spouses, Children and Parents, U.S. Citizenship and Immigr. Serv. (Jan. 24, 2025), https://www.uscis.gov/humanitarian/abused-spouses-children-and-parents (“Congress provided aliens who have been abused by their U.S. citizen or lawful permanent resident relative the ability to independently petition for themselves (self-petition) for immigrant classification without the abuser’s knowledge, consent, or participation in the immigration process.”).

[38] See id.

[39] Id.

[40] 8 U.S.C. § 1255(a).

[41] See id.

[42] Id.

[43] Id. § 1182(a)(6)(A)(i).

[44] Id; id. § 1255(a).

[45] 8 U.S.C. § 1182(a)(9)(C)(i).

[46] Id. 

[47] Id. § 1182(a)(9)(C)(iii) (emphasis added).

[48] See id.

[49] I-601, Application for Waiver of Grounds of Inadmissibility, U.S. Citizenship and Immigr. Serv. (July 8, 2025), https://www.uscis.gov/i-601.

[50] 8 U.S.C. § 1182(a)(9)(C)(iii).

[51] INA § 101(a)(35) (2025).

[52] Ignatius et al., supra note 29, at § 4:5 (citing Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982); Sullivan v. INS, 772 F.2d 609 (9th Cir. 1985)).

[53] Evangeline Abriel et al., The VAWA Manual 79, 8th ed. 2020 (citing United States v. Windsor, 570 U.S. 744 (2013)).

[54] Id. at 79.

[55] Id.

[56] Obergefell v. Hodges, 576 U.S. 644 (2015).

[57] Devin Dwyer, Supreme Court formally asked to overturn landmark same-sex marriage ruling, ABC News (Aug. 11, 2025), https://abcnews.go.com/Politics/supreme-court-formally-asked-overturn-landmark-same-sex/story?id=124465302.

[58] Id.

[59] Evangeline Abriel et al., supra note 53.

[60] Tex. Penal Code § 21.06 (“A person commits [a class C misdemeanor] offense if he engages in deviate sexual intercourse with another individual of the same sex.”).