Ninth Circuit: Bisexual Asylum Seeker Denied Fair Hearing
A bisexual Russian man fled violence, police threats, and forced resignation in Russia — then had his US asylum case denied because an immigration judge ruled he hadn't proven his sexual orientation. In October 2026, the Ninth Circuit Court of Appeals reversed that decision, finding the judge fundamentally misunderstood bisexuality and denied the applicant a fair chance to present his evidence.
What if an immigration judge denied your asylum case because she didn't understand what your sexual orientation actually means? That is exactly what happened to A.M., a bisexual man from Russia — and in October 2026, the Ninth Circuit Court of Appeals ruled that the immigration judge (IJ) got it fundamentally wrong.
The IJ denied A.M.'s asylum application partly because he had never had sexual relations with either a man or a woman. She used that fact to conclude he had not proven he was bisexual. The Ninth Circuit called this reasoning "deeply erroneous and arbitrary." A person's sexual orientation is not defined solely by their sexual history. The court found the IJ's misunderstanding of bisexuality infected the entire case — making it impossible to properly evaluate whether A.M. belonged to a protected social group such as "queer Russian men" or "the LGBT community."
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The court also found a separate, serious procedural violation. Under U.S. law (8 U.S.C. § 1158(b)(1)(B)(ii)), if an IJ decides your testimony alone is not enough and needs corroborating evidence, she must tell you that before she rules — not announce it for the first time in the denial decision. A.M.'s IJ did exactly that: she listed missing evidence only when she announced her denial. A.M. never got a chance to gather or explain that evidence. The Ninth Circuit ruled this violated his right to a fair hearing and sent the case back to the immigration court for a new review. In a separate concurrence, Judge Mendoza noted that A.M. had submitted substantial evidence of state-sanctioned homophobia in Russia, and that the record showed no safe internal relocation option within Russia for LGBTQ+ individuals.
Why this matters for LGBTQ+ asylum seekers
This ruling sets a clear standard: immigration judges must use the correct legal definition of sexual orientation when evaluating asylum claims. They cannot require proof of sexual activity as evidence of identity. The decision also reinforces that applicants must receive advance notice — and a real opportunity to respond — before an IJ can deny a case for lack of corroborating evidence. A.M. was represented by Elena L. Gutiérrez of Casa Cornelia Law Center in San Diego.
What to do
- If you are an LGBTQ+ asylum seeker and your case was denied partly because an IJ questioned your sexual orientation or gender identity, speak with an immigration attorney about whether the reasoning in your denial reflects a similar legal error.
- Before your asylum hearing, ask your attorney or accredited representative what corroborating evidence the IJ may require — do not wait for the denial to find out.
- Document your identity and experiences as fully as possible: letters, medical records, witness statements, news articles about conditions in your home country. The more you prepare in advance, the stronger your position if the IJ asks for more proof.
- If you cannot afford a lawyer, contact a nonprofit immigration legal services organization in your area — many offer free or low-cost help to asylum seekers.
A full breakdown of this topic — in our guide “Immigration Court Rulings”.
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This Ninth Circuit decision is a direct reminder that immigration judges must apply the correct legal standard when evaluating sexual orientation — credible testimony about identity can be sufficient, and a judge cannot demand proof of sexual activity. If you received a denial where the IJ questioned your membership in an LGBTQ+ social group without giving you advance notice of what corroborating evidence was needed, you may have grounds for an appeal to the Board of Immigration Appeals. Deadlines to appeal a BIA decision are strict — typically 30 days — so consult an immigration attorney as soon as possible after any adverse ruling.
Frequently Asked Questions
Can I apply for asylum in the US based on being bisexual or LGBTQ+?
Yes. US law allows asylum claims based on membership in a "particular social group," and courts have long recognized that sexual orientation and gender identity qualify. You must show you were persecuted — or have a well-founded fear of persecution — because of that identity.
What if an immigration judge says I haven't proven my sexual orientation?
The Ninth Circuit ruled in October 2026 that a judge cannot require proof of sexual activity to establish sexual orientation. If a judge denied your case using that reasoning, it may be a legal error that can be challenged on appeal to the Board of Immigration Appeals (BIA).
What is the notice-and-opportunity rule for corroborating evidence?
Under US asylum law, if an immigration judge decides your testimony alone is not enough, she must tell you what additional evidence is needed before she rules — not announce it in the denial. You have the right to either provide that evidence or explain why you cannot. A denial issued without that notice can be overturned on appeal.
Does this ruling help LGBTQ+ asylum seekers from Russia specifically?
The ruling does not automatically grant asylum to anyone. But it sends the case back to the immigration court with instructions to apply the correct definition of bisexuality and to consider the substantial evidence of state-sanctioned homophobia in Russia. It also signals that courts will scrutinize IJ decisions that misapply LGBTQ+ identity standards.