Reported / Citable
Background
A.M., a bisexual man from Russia, applied for asylum, withholding of removal, and protection under the Convention Against Torture. He proposed a particular social group of "the LGBT community" or "queer Russian men." He testified that his mother's partner struck him after finding a letter in which he came out, that classmates taunted and hit him, and that two bosses pressured him to resign, one throwing a mug that hit his ribs. After a compulsory military medical exam in which a doctor threatened psychiatric treatment, classmates beat him and left scars. Police told him the attackers "did the right thing," and a later complaint could not be found. After he left Russia, he received threats, and flyers and police visits referred to "LGBT propaganda."
The immigration judge made no adverse credibility finding, but found no credible evidence that A.M. is bisexual. She relied on his disclosure that he had never had a sexual relationship with a man or a woman, even though she credited his testimony that he had dated three men and two women. In her oral decision, issued a week after the hearing, she listed evidence that could have corroborated his claim: affidavits verifying his sexual orientation, a letter from a mental health professional about gender identity, or social media posts. The Board of Immigration Appeals affirmed, finding the evidence insufficiently persuasive, and the Ninth Circuit noted that the Board assumed his testimony was credible.
The Court’s Holding
The Ninth Circuit granted the petition and remanded. It reviewed the Board's decision, examining legal questions de novo and facts for substantial evidence. The court held that the judge misunderstood how sexual orientation is defined, calling her reliance on the absence of sexual relations a "deeply erroneous and arbitrary understanding of bisexuality." Bisexuality describes the capacity for romantic, emotional, or physical attraction to more than one gender, and A.M.'s testimony about attraction and romantic relationships with both men and women fit that description. The misunderstanding produced further factual errors, including the statement that nothing indicated romantic involvement with a woman. Because meaningful review was impossible, this error alone required remand.
The court separately held that the judge violated the notice-and-opportunity requirement of 8 U.S.C. section 1158(b)(1)(B)(ii). It rejected the government's exhaustion argument, treating the notice claim as a permissible sub-argument of A.M.'s Board challenge to the judge's handling of corroboration. On forfeiture, it noted that the government first raised corroboration in its own brief and identified no prejudice, and it independently exercised discretion to reach the issue to prevent a miscarriage of justice. A judge may not announce for the first time in a decision denying relief that key corroboration is missing. Questions at the hearing about social media did not amount to notice, and the record suggested A.M. might have produced some evidence given time. The lack of corroboration therefore could not sustain the denial of past persecution, future persecution, or torture claims. The court added that a letter about gender identity would not have corroborated sexual orientation anyway.
The Board must vacate its order and remand to the immigration judge to reopen the hearing, reexamine A.M.'s group membership, give notice of any needed corroboration with a chance to produce it or explain its unavailability, and reexamine his claims. The court took no position on whether he merits relief and did not reach his other arguments.
Key Takeaways
- An immigration judge may not treat the absence of sexual relations as disproof of bisexuality; orientation turns on the capacity for attraction, and misapplying that concept requires remand.
- A judge who wants corroboration of credible testimony must say so in time for the applicant to produce the evidence or explain why it is unavailable, rather than announcing the gap in the decision.
- A petitioner can exhaust a notice-and-opportunity claim by challenging the judge's corroboration analysis before the Board, because the court does not apply exhaustion formalistically.
- The remand is not a ruling for A.M. on the merits; his eligibility for asylum, withholding of removal, and Convention Against Torture protection remains open.
Why It Matters
The decision is published and binding in the Ninth Circuit. It applies established notice-and-opportunity precedent to a sexual-orientation claim and makes clear that an agency's misunderstanding of a protected social group warrants remand.
The author's concurrence stresses that the misunderstanding hamstrung the entire case. It reasons that, had the judge found A.M. bisexual, she might have found a well-founded fear, a pattern or practice of persecution, or Convention Against Torture eligibility, and that nothing in the record supported the view that Moscow would be more accepting. It urges the agency to weigh the extensive evidence of state-endorsed homophobia on remand. Those views are not part of the majority's holding.