The Gay Bar: The Effect of the One-Year Filing Deadline on Lesbian, Gay, Bisexual, Transgender, and HIV-Positive Foreign Nationals Seeking Asylum or Withholding of Removal

We find the respondent’s testimony and the documentary evidence of widespread violence directed against bisexual and homosexual individuals living in Jamaica troubling. Based upon the evidence before us, were the respondent eligible for asylum, we might well be inclined to find that the burden of proof for that form of relief had been met. However, a higher standard of proof is imposed for withholding and deferral of removal, and we must agree that the respondent has failed to establish a clear probability of persecution or torture upon his return to Jamaica. When the Board of Immigration Appeals (BIA) wrote these words, it was pointing out the harsh human reality of changes made by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), a 1996 Congressional law which substantially altered the Immigration and Nationality Act (INA). One of the provisions of IIRIRA changed the INA by requiring asylum seekers to file their applications within one year of their last entry into the United States unless they could prove that their case fell within certain narrow exceptions to the rule. While a primary rationale behind the change in the law was to reduce the number of fraudu-