Background
A.M., a bisexual man and Russian citizen, sought asylum, withholding of removal, and protection under the Convention Against Torture. He testified that relatives, classmates, employers, medical personnel, and police mistreated or threatened him because of his sexual orientation. Among other incidents, classmates severely beat him after a compulsory military medical examination, and police allegedly praised his attackers and failed to preserve his complaint. After he left Russia, acquaintances threatened him, anti-LGBTQ+ flyers bearing his photograph appeared near his home, and police allegedly threatened prosecution and physical harm.
The immigration judge did not expressly find A.M. incredible but concluded that he had not proved he was bisexual or suffered persecution because of his sexual orientation. The IJ relied heavily on his lack of sexual relationships, notwithstanding his testimony that he had romantic relationships with three men and two women. In the decision denying relief, the IJ also identified additional evidence that could have corroborated his sexuality, including affidavits and social-media posts. The Board of Immigration Appeals affirmed, finding his evidence insufficiently persuasive, and A.M. petitioned for review.
The Court’s Holding
The Ninth Circuit granted the petition and remanded because the agency fundamentally misunderstood bisexuality. Sexual orientation is not defined solely by sexual activity; it may rest on romantic, emotional, or physical attraction. That misunderstanding caused the IJ to disregard relevant testimony about A.M.’s relationships and to misread evidence that he had been targeted as “gay.” The resulting factual errors prevented meaningful appellate review of whether he belonged to his proposed social group and whether additional corroboration was necessary.
The court also held that the IJ violated 8 U.S.C. § 1158(b)(1)(B)(ii) by identifying allegedly necessary corroborating evidence only when denying relief. Because A.M. received no advance notice, he lacked a meaningful opportunity to produce the evidence or explain why it was unavailable. The panel concluded that he adequately exhausted the issue before the BIA and exercised its discretion to review it despite the government’s forfeiture argument. It directed the BIA to vacate its order and remand for a reopened hearing, proper consideration of A.M.’s social-group membership, appropriate notice concerning any required corroboration, and reconsideration of all three forms of relief. The court expressed no view on whether A.M. ultimately qualifies for relief.
Key Takeaways
- Bisexuality does not depend on having had sexual relations; romantic, emotional, or physical attraction to more than one gender may establish that sexual orientation.
- When an IJ finds otherwise credible testimony insufficient without corroboration, the applicant must receive specific notice and a meaningful opportunity to produce the evidence or explain its unavailability.
- An IJ cannot satisfy the statutory notice requirement by identifying missing corroboration for the first time in the decision denying relief.
Why It Matters
The decision reinforces that immigration adjudicators must evaluate LGBTQ+ identities accurately rather than relying on sexual-history stereotypes. A basic misunderstanding of an asserted identity can distort the analysis of social-group membership, past persecution, future danger, internal relocation, and CAT protection.
It also confirms that corroboration requirements carry a procedural safeguard: applicants must know what evidence the agency expects while they can still respond. Judge Mendoza separately emphasized the extensive evidence of state-endorsed homophobia in Russia and urged the agency to consider that evidence on remand, including when assessing a pattern or practice of persecution and the feasibility of internal relocation.