RAICES Bulletin: BIA Imposes Invasive New Evidentiary Burden for LGBTQ+ Claims

By RAICES Public Affairs Director Javier Hidalgo, Esq.

TL;DR In a new precedent-setting decision, the Board of Immigration Appeals' (BIA) establishes a highly invasive and nearly insurmountable burden of proof of sexual orientation for LGBTQ+ individuals. The BIA now seems to require tangible corroboration and penalizes the use of fluid identity terminology.

WHAT TO KNOW

• Issue: On September 1, 2026, the U.S. Attorney General designated the BIA’s July 28, 2026, decision in  Matter of S-K-E- as precedent. The BIA established a highly invasive inquiry for proving credibility regarding sexual orientation. This creates a nearly insurmountable hurdle for securing Convention Against Torture (CAT) protection based on sexual orientation.     

• Rationale: The BIA based this adverse credibility finding on perceived inconsistencies, such as using "homosexual," "bisexual," and "gay" interchangeably, and providing less detailed testimony about male partners than past female partners. Furthermore, the BIA penalized the lack of independent corroboration (e.g., letters, photos, or psychological evaluations not based on self-reporting). The BIA concluded someone with a same-sex preference living in the U.S. should have evidence of their orientation.   

• RAICES Impact: RAICES routinely secures immigration protections for LGBTQ+ clients facing persecution or torture. While BIA precedent establishes sexual orientation is an immutable (unchangeable or so fundamental to identity that a person should not be required to change it) characteristic, this ruling forces advocates to rethink case strategies to avoid causing clients further harm. The BIA’s heightened corroboration requirements introduce case-specific risks. To protect clients from invasive inquiries that would compare an individual to stereotypes about how a non-heterosexual person looks or acts, advocates should consider how they might leverage experts and country conditions to corroborate claims. 

• Community Impact: This ruling endangers LGBTQ+ asylum seekers who often survive by concealing their identities. Demanding tangible "proof" places an unreasonable burden on future applicants. Furthermore, penalizing fluid terminology ignores how identities are culturally and personally processed. The BIA fails to grasp that even privileged individuals may not feel safe disclosing their sexual orientation or detailed sexual histories.   

• Related Legal Battles: Federal courts consistently accept self-identification rather than demanding proof of actual sexual orientation, focusing instead on the perpetrator's bias. Historically, federal courts have applied similar logic in immigration cases. Courts have also ruled that adverse credibility findings must be based on substantial evidence, not stereotypes or conjecture about a gay person's appearance or behavior. 

• Broader Immigration Strategy: Matter of S-K-E- exemplifies the administration's agenda to weaponize evidentiary standards against humanitarian relief. By demanding impossible "proof" for concealed identities, the administration uses strict legal rigor to deny protection and close lawful pathways. This BIA decision not only risks deporting individuals to face torture or death, but it also exposes the administration's broader views on sexual orientation, regardless of immigration status.