Matter of S-K-E- Just Raised the Bar for LGBTQ+ Asylum Cases

The Board of Immigration Appeals issued Matter of S-K-E-, 30 I&N Dec. 27 (BIA 2026), Interim Decision #4242, on July 28, 2026. The Attorney General designated the decision as precedent on September 1, 2026, through Order No. 7119-2026, making it binding on all immigration judges nationwide in cases involving the same issues. The decision reverses an immigration judge's grant of deferral of removal under the Convention Against Torture to a Guinean national who claimed persecution based on sexual orientation, and orders him removed to Guinea.

The Board's stated reason for the reversal is that the respondent did not credibly establish his sexual orientation and did not provide sufficient corroborating evidence to support the claim. That holding, combined with three procedural rulings on summary dismissal, late-filed evidence, and expert witness qualification, makes Matter of S-K-E- a decision that will shape how every LGBTQ+ asylum, withholding, and CAT case is now litigated in Immigration Court and preserved for federal appellate review.

The practical impact is significant. Any client with a pending LGBTQ+ asylum or CAT claim in Immigration Court, on appeal to the BIA, or in a petition for review before a federal court of appeals, is now operating in a materially different evidentiary environment. Under Matter of S-K-E-, corroborating evidence is what will make or break a case.

This post explains what the Board held, examines the reasoning the Board applied to the credibility and corroboration analysis, catalogs the procedural rulings on preservation and prejudice, and lays out what LGBTQ+ asylum applicants, their attorneys, and anyone with a criminal conviction affecting immigration relief should do now.

Three facts, fast

• In Matter of S-K-E-, 30 I&N Dec. 27 (BIA 2026), the BIA reversed an immigration judge's grant of CAT deferral to a Guinean national who claimed persecution based on sexual orientation, holding that he did not credibly establish his sexual orientation and did not provide sufficient corroborating evidence.
• The decision imposes an aggressive corroboration standard for LGBTQ+ asylum, withholding, and CAT claims: independent evidence of the applicant's sexual orientation is now expected in every case, and the absence of such evidence, without a documented explanation for its absence, can be dispositive.
• Three procedural holdings on summary dismissal, late-filed documents, and expert witness qualification each turn on the prejudice requirement under Matter of R-C-R-. The Board's message to practitioners is that procedural errors alone will not carry an appeal. Prejudice must be shown on the record.

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What Matter of S-K-E- held

The BIA issued four holdings:

1. The respondent did not demonstrate that summary dismissal of the Department of Homeland Security's appeal was appropriate where he showed no prejudice from electronic service.
2. The immigration judge properly declined to consider documents filed after the merits hearing when the record was left open solely for the filing of other, specified documents, and the respondent did not show prejudice from the exclusion of the late documents.
3. The respondent did not show he was prejudiced by the immigration judge qualifying the expert witness in certain areas but not others.
4. Where the respondent was not credible and did not provide sufficient corroborating evidence regarding his sexual orientation, he did not establish eligibility for protection under the Convention Against Torture on that basis.

The Board sustained DHS's appeal, dismissed the respondent's appeal, denied the motion for summary dismissal, and vacated the CAT deferral. The Board ordered the respondent removed to Guinea.

The fourth holding is the doctrinal core of the decision. The first three are procedural but consequential, and together they signal how the Board expects Immigration Court records to be built and preserved for appellate review going forward.

How Matter of S-K-E- reached the BIA

The respondent is a native and citizen of Guinea who claimed he faced harm and a fear of future harm from members of society and government officials in Guinea because of his sexual orientation and mental illnesses. On January 2, 2025, DHS commenced removal proceedings, charging him under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien convicted of two or more crimes involving moral turpitude at any time after admission.

The respondent had a conviction for criminal sexual conduct in the fourth degree in violation of Minnesota Statutes § 609.345, subdivision 1(d). The immigration judge held that this conviction constituted a particularly serious crime, which terminated his asylum status, precluded him from establishing eligibility for asylum and withholding of removal, made him ineligible to adjust status under INA § 209(b), and precluded a favorable exercise of discretion for a waiver of inadmissibility under INA § 209(c).

The immigration judge nonetheless granted deferral of removal under the CAT regulations on the basis of the respondent's sexual orientation, finding that he had established he was more likely than not to be tortured in Guinea because of that orientation. The immigration judge did not find that the respondent had established a likelihood of torture on the basis of his mental health.

Both parties appealed. DHS challenged the CAT deferral. The respondent challenged the particularly serious crime determination, the termination of his asylum status, the denial of asylum and withholding, and various evidentiary rulings. The respondent proceeded pro se on appeal and filed a motion for summary dismissal on April 10, 2026, arguing that DHS had improperly served its notice of appeal through the Executive Office for Immigration Review's electronic Courts & Appeals System (ECAS) rather than by mail on an unrepresented respondent.

The BIA denied the motion for summary dismissal, dismissed the respondent's appeal, sustained DHS's appeal, and vacated the CAT deferral. The immigration judge's decision to grant CAT protection was reversed, and the respondent was ordered removed to Guinea.

The new corroboration standard for LGBTQ+ asylum, withholding, and CAT claims

The fourth holding of Matter of S-K-E- is the practical heart of the decision, and it changes how every LGBTQ+ asylum, withholding, and CAT case must now be developed.

The Board applied two overlapping standards. First, under Matter of Dass, 20 I&N Dec. 120, 124 (BIA 1989), an applicant must present testimony that is "believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his alleged fear." Second, under Garland v. Ming Dai, 593 U.S. 357, 371 (2021), and Matter of L-A-C-, 26 I&N Dec. 516, 518 (BIA 2015), even a credible applicant bears the burden to corroborate material elements of the claim where evidence is reasonably obtainable.

The Board held that the respondent's testimony about his sexual orientation was not credible, and that even setting credibility aside, the record lacked sufficient corroborating evidence. Because sexual orientation was the sole basis for the CAT claim, the failure of proof on orientation defeated the CAT claim entirely. The Board cited Fesehaye v. Holder, 607 F.3d 523, 528 (8th Cir. 2010), for the proposition that a separate CAT analysis is not required where the claim rests on the same testimony underlying the asylum and withholding claims.

What this means as a practical matter is that any LGBTQ+ asylum, withholding, or CAT claim now needs to be built around a corroboration package, and the applicant's attorney needs to be prepared to explain on the record why any missing category of evidence is not reasonably obtainable.

The corroboration package should include, wherever possible:

• Sworn declarations from partners, past and present, describing the nature of the relationship, the duration, and any shared history.
• Sworn declarations from friends, roommates, classmates, colleagues, or family members who knew the applicant as an LGBTQ+ person, describing when and how they learned, and how the applicant lived openly (or hid) within their community.
• Documentary evidence of participation in LGBTQ+ community life: memberships in LGBTQ+ organizations, pride event attendance, LGBTQ+ community center records, LGBTQ+-affirming religious congregation records, or membership rolls of LGBTQ+ advocacy groups.
• Photographs with partners, at LGBTQ+ events, or in LGBTQ+ spaces, with dates and context declared.
• Communications with partners, dating app records with proper foundation, or archived social media content showing LGBTQ+ identity.
• Medical or mental health records where the applicant disclosed sexual orientation to a provider, with clear dates predating the immigration proceedings where possible.
• Expert declarations on the applicant's country of origin, addressing the specific individuals or groups likely to persecute the applicant, and, critically, addressing why LGBTQ+ people from that country often cannot produce the standard corroboration Western courts expect.
• A separate, detailed declaration from the applicant explaining precisely why any category of corroborating evidence is not reasonably obtainable, addressing safety, family estrangement, cultural stigma, prior closeting, and any documented history of secrecy.

The last item is the litigation posture that Matter of S-K-E- now forces on every LGBTQ+ asylum case. If a category of evidence is missing, the record must contain a specific, credible explanation for why. Silence on that question, or general assertions about stigma, will not be enough under the standard the Board applied.

A closer look at the credibility analysis

The Board's credibility analysis in Matter of S-K-E- deserves scrutiny, and it is the analysis that immigration advocates and LGBTQ+ asylum practitioners will most sharply challenge on petitions for review going forward. Understanding what the Board actually said, and where the reasoning is contested, is essential for practitioners building the record in future cases.

The Board's stated reasons for rejecting the respondent's sexual orientation claim were:

(1) his only past male relationship was with a cellmate;
(2) his other past relationships were with women;
(3) he had an arrest for criminal sexual conduct involving a woman;
(4) his self-description of his orientation shifted between "homosexual," "bisexual," and "gay";
(5) his father, who testified, was unaware of his sexual orientation; and
(6) he did not produce letters or affidavits from friends or fraternity brothers, and his psychological reports were based on his own testimony to providers rather than on independent observation.

Each of these observations is, on its face, part of the record the Board reviewed. But the way the Board strung them together to defeat credibility is subject to significant critique from LGBTQ+ asylum practitioners, and that critique matters because it identifies the arguments that must now be made affirmatively in the Immigration Court record and preserved for petition for review.

On opposite-sex relationships. Immigration advocates have long documented that many LGBTQ+ people, especially those from countries with severe criminal or social penalties for same-sex conduct, have opposite-sex relationships before coming out or as protective cover. Compulsory heterosexuality is a documented phenomenon in the LGBTQ+ studies literature. The existence of prior opposite-sex partners does not, standing alone, undercut a bisexual or gay identity, and treating it that way risks importing a bright-line binary understanding of sexuality that the medical and social-science evidence does not support.

On the criminal sexual conduct arrest. Advocates have observed that a criminal arrest involving a woman is not a datum about consensual sexual orientation. The arrest reflects alleged criminal conduct, not consensual relationship history. Framing an arrest as evidence undercutting a claimed sexual orientation conflates two categorically different kinds of evidence.

On the terminology of "homosexual," "bisexual," and "gay." These terms overlap in ordinary usage, vary by generation and by regional and cultural convention, and are frequently used interchangeably by non-native English speakers describing themselves. A respondent from Guinea using different English terms to describe the same underlying identity is not, in the LGBTQ+ advocacy literature, understood as inconsistency about identity. It is more often understood as an artifact of translation and of the limited English vocabulary many asylum applicants have for describing intimate identity concepts.

On the father's lack of awareness. In Guinea, same-sex sexual acts between men are criminalized under Article 274 of the Criminal Code, and social stigma against LGBTQ+ people is severe. It is unremarkable that an LGBTQ+ person from Guinea would not have disclosed sexual orientation to his father. Treating parental awareness as an expected form of corroboration in an LGBTQ+ asylum case involving a country of origin with severe penalties runs against the record on how LGBTQ+ people from such countries typically live.

On the absence of affidavits from fraternity brothers. Similar critique applies. LGBTQ+ people in fraternity settings historically have not disclosed their orientation to fraternity brothers. Absence of such affidavits reflects the closet the respondent was living in, not the absence of the underlying identity.

On the psychological reports. Every psychological evaluation relies on the patient's own narrative. That is the nature of clinical practice. Treating the derivation of psychological findings from patient testimony as a weakness in the corroboration package effectively excludes psychological evidence from all sexual orientation asylum cases, because such evidence is always, by its clinical nature, patient-narrative-based.

None of this is offered as legal advocacy that the credibility finding in Matter of S-K-E- was wrong on the specific record the Board reviewed. The Board reviewed a specific record with specific gaps, and the fact-specific determination in this particular case is not our to relitigate. What this critique does establish is the arguments that must now be built affirmatively into every LGBTQ+ asylum case record going forward. Every one of the analytical moves the Board made in Matter of S-K-E- can be met, but only if the record is built with the anticipatory response in place.

The particularly serious crime holding and Minnesota criminal sexual conduct

Matter of S-K-E- also affirms, without extended discussion, the immigration judge's holding that a conviction under Minnesota Statutes § 609.345, subdivision 1(d), for criminal sexual conduct in the fourth degree constitutes a particularly serious crime. The Board adopted and affirmed under Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994), citing Bejet-Viali Al-Jojo v. Gonzales, 424 F.3d 823, 827 (8th Cir. 2005).

The particularly serious crime bar under INA § 208(b)(2)(A)(ii) and INA § 241(b)(3)(B)(ii) makes an applicant ineligible for asylum and withholding of removal. It also, as the immigration judge held below, supports termination of previously granted asylum status. The bar does not, however, foreclose CAT deferral of removal, which is what the immigration judge granted before the BIA reversed on the corroboration grounds discussed above.

For any client with a Minnesota conviction under § 609.345 who has an immigration case pending or contemplated, Matter of S-K-E- is now binding precedent that the fourth-degree criminal sexual conduct offense qualifies as a particularly serious crime. Practitioners will still argue the specific facts of the underlying conviction and any relevant record of the sentence and circumstances, but the categorical determination has now been made at the precedent level.

Preserving the record: prejudice, late filings, and expert qualification

The three procedural holdings in Matter of S-K-E- are a Board-level instruction manual on record preservation. Each one turns on the prejudice requirement under Matter of R-C-R-, 28 I&N Dec. 74, 77 (BIA 2020), which holds that "to establish that his due process rights were violated, the respondent must prove that there was a deficiency or violation and that he was prejudiced by it." See also Matter of D-, 20 I&N Dec. 827, 831 (BIA 1994).

The lesson is uniform across the three procedural holdings: identifying an error is only half the argument. The other half is developing the record, in the Immigration Court in the first instance, to show precisely how the error changed the outcome.

On summary dismissal for improper service (holding 1). Assuming arguendo that DHS should have served the notice of appeal by mail on an unrepresented respondent, the Board held there was no prejudice because the respondent had been put on notice by the Board's briefing schedule and could have requested a copy or explained the service issue in his own brief. The preservation lesson is that when an improper-service argument is raised, the movant must document with particularity how the deficient service materially affected the ability to respond. General assertions of service error do not suffice.

On the late-filed documents (holding 2). The immigration judge left the record open after the merits hearings for the limited purpose of filing additional criminal records. The respondent filed Exhibits 31, 33 Tab B, and 34, which were country conditions reports, call logs, witness affidavits, and employment records, none of which were criminal records. The immigration judge permissibly declined to consider these filings under 8 C.F.R. § 1003.31(h) and Matter of Interiano-Rosa, 25 I&N Dec. 264, 265 (BIA 2010). Even if the exclusion had been error, the Board held there was no prejudice because the respondent did not indicate on appeal how these specific pieces of evidence would materially affect the outcome. The preservation lesson is twofold. First, when a record is left open, file only what the immigration judge specifically authorized. If additional evidence has come in that was not contemplated when the record was left open, file a separate motion to reopen the record with a specific offer of proof. Second, when documents are excluded and the ruling is challenged on appeal, the brief must specifically identify what each excluded document would have shown and how that showing would have changed the outcome.

On the expert witness qualification (holding 3). The immigration judge qualified Dr. Fitzgerald as an expert in some areas but not in human rights conditions, LGBTQ issues, and health systems in Guinea. The Board held the respondent had not demonstrated prejudice, citing Matter of M-A-M-Z-, 28 I&N Dec. 173, 177 (BIA 2020), and Matter of J-G-T-, 28 I&N Dec. 97, 106 (BIA 2020), for the proposition that expert testimony is weighed like any other evidence and does not receive special deference. The preservation lesson is that when an expert is qualified in a narrower scope than the offering party requested, the record must contain a specific offer of proof describing exactly what the expert would have said in the excluded areas and how that testimony would have affected the outcome.

The overarching preservation lesson from Matter of S-K-E- is this. Every discretionary ruling by an immigration judge, every evidentiary exclusion, every scope limitation, every service issue, must be met with a specific record entry that (1) preserves the objection, (2) proffers what the excluded evidence or fuller scope would have shown, and (3) explains how that evidence or scope would have changed the outcome. Without those three elements on the record, the Board's default holding under Matter of R-C-R- is that no prejudice was shown and no relief is warranted on appeal.

Preserving the record for federal circuit review

Matter of S-K-E- is a final order of removal by the BIA. It is now subject to petition for review under 8 U.S.C. § 1252 in the federal court of appeals for the circuit where the immigration judge completed the proceedings. Because the underlying conviction was under Minnesota law and the removal proceedings appear to have been in the Bloomington, Minnesota Immigration Court, the natural forum for a petition for review in this case is the Eighth Circuit. That is the same circuit that issued Fesehaye v. Holder, 607 F.3d 523 (8th Cir. 2010), which the BIA cited in support of its conclusion that a separate CAT analysis was not required where the same testimony underlies asylum, withholding, and CAT claims.

For LGBTQ+ asylum practitioners whose cases will be reviewed in other circuits, the record-building implications of Matter of S-K-E- are the same, but the circuit-specific precedent on standards of review and on the standards for adverse credibility findings will differ. The Ninth Circuit's precedent on adverse credibility determinations, on corroboration standards for LGBTQ+ claims, and on the level of specificity required for particularized-risk findings, is materially more protective than the Board's default. The Tenth Circuit's precedent is more mixed.

At Novo Legal, we handle federal petitions for review before multiple circuits, including the Ninth and Tenth. The point for practitioners considering the record-building implications of Matter of S-K-E- is that circuit choice matters, that the record must be built in the Immigration Court to preserve the most protective circuit standard available, and that the specific arguments the critique above identifies must be on the record before the immigration judge, not raised for the first time on petition for review.

What Matter of S-K-E- does not change

Matter of S-K-E- is a significant decision, and its scope has limits worth stating.

It does not foreclose LGBTQ+ asylum, withholding, or CAT protection. LGBTQ+ applicants remain eligible for each form of relief. What the decision changes is the corroboration standard the applicant must satisfy. Applicants who build the record around the corroboration package described above, and who address anticipatory arguments on missing evidence, can and do still prevail.

It does not overrule Matter of L-A-C- or Matter of Dass. These remain the governing cases on corroboration and credibility, and Matter of S-K-E- is best understood as a specific application of the standards those decisions announced.

It does not eliminate withholding of removal or CAT deferral as forms of relief for applicants with particularly serious crime convictions. The particularly serious crime bar under INA § 208(b)(2)(A)(ii) and INA § 241(b)(3)(B)(ii) does not apply to CAT deferral. Applicants with such convictions remain eligible for CAT deferral if they can establish the likelihood of torture. What Matter of S-K-E- demonstrates is that the underlying claim must be corroborated with the same rigor as any other CAT claim.

It does not bind circuit courts. The Board's holdings on corroboration and credibility are subject to review under the substantial evidence standard on petition for review. Circuit precedent may materially alter how any given case is analyzed on appeal.

It does not eliminate the sua sponte reopening authority of the immigration judge or the BIA. In appropriate circumstances, particularly where new corroborating evidence has become available, motions to reopen may be filed under 8 C.F.R. §§ 1003.2, 1003.23.

What we don't know yet

Several important questions remain open:

• How the Eighth Circuit will treat Matter of S-K-E- if a petition for review is filed. Circuit review is the natural next step in any case where the BIA relies on Matter of S-K-E- to deny protection.
• How immigration judges will apply the corroboration standard to LGBTQ+ applicants from countries with severe criminalization of same-sex conduct, where corroborating evidence is often functionally impossible to obtain.
• Whether the Attorney General will certify additional LGBTQ+ asylum cases under 8 C.F.R. § 1003.1(h) and issue further guidance.
• Whether the current administration will formalize corroboration standards through regulation or policy guidance.
• How practitioners will develop expert testimony on the impossibility of corroboration in specific country conditions, and how immigration judges will weigh such expert testimony under Matter of J-G-T-.

We will publish updates as material developments occur.

What clients should do this week

The most important thing any client with a pending LGBTQ+ asylum, withholding, or CAT case can do this week is to schedule a case review with counsel. Matter of S-K-E- changes the evidentiary environment for every pending case. Below is a framework for that review.

If you have a pending LGBTQ+ asylum, withholding, or CAT case in Immigration Court:

Ask your attorney to build a comprehensive corroboration package now, before the next hearing. Every category identified in the corroboration section above should be either developed or affirmatively documented as unavailable, with a specific reason on the record.

Ask your attorney to develop expert testimony that addresses the specific reasons corroboration may not be reasonably obtainable in your country of origin, and how LGBTQ+ people from that country typically live and document their identities.

Ask your attorney to prepare a detailed declaration from you that addresses, item by item, why any missing category of corroboration is not reasonably obtainable in your specific circumstances.

If you have a pending case on appeal to the BIA:

Ask your attorney to assess whether supplemental briefing under Matter of S-K-E- is warranted, and whether the record on appeal sufficiently addresses corroboration and the reasons for any absent evidence.

If you have a pending petition for review before a federal court of appeals:

Ask your attorney to assess whether the record from the Immigration Court sufficiently preserved the corroboration arguments and the reasons for any absent evidence. Circuit precedent on corroboration standards may provide substantial protection depending on the forum.

If you have a criminal conviction that may implicate the particularly serious crime bar:

Ask your attorney to specifically assess whether your conviction is analogous to the Minnesota criminal sexual conduct in the fourth degree conviction addressed in Matter of S-K-E-, and whether the specific facts of your conviction and sentence may support a different analysis.

If you are considering filing an LGBTQ+ asylum case:

Do not file without developing the corroboration package in advance. The 1-year filing deadline still applies, but the case must be presented with the corroboration record intact. A rushed filing with an underdeveloped record is now materially riskier than it was before Matter of S-K-E-.

In every case:

Do not proceed pro se. The pro se posture in Matter of S-K-E- itself demonstrates how procedural preservation failures can defeat otherwise viable claims. Every one of the four holdings in Matter of S-K-E- rests on a preservation gap the respondent, unrepresented on appeal, did not fill.

Frequently asked questions

Does Matter of S-K-E- mean LGBTQ+ asylum is no longer possible?

No. LGBTQ+ applicants remain eligible for asylum, withholding of removal, and CAT protection. Matter of S-K-E- raises the corroboration standard the applicant must satisfy. Applicants who build the case with a comprehensive corroboration package and who address anticipatory arguments on missing evidence can and do still prevail.

Does Matter of S-K-E- affect people who already have asylum status?

Not directly on the CAT holding, which addresses adjudication rather than termination. But the particularly serious crime analysis in the decision is relevant to any asylum termination proceeding involving a Minnesota criminal sexual conduct conviction under § 609.345, subdivision 1(d), and by analogy to other criminal sexual conduct convictions the government argues are particularly serious crimes.

What if I can prove my sexual orientation but not persecution?

The corroboration analysis in Matter of S-K-E- is about the sexual orientation predicate. Once orientation is established, the analysis moves to persecution and, for CAT, to the likelihood of torture. Both are separate showings and each has its own body of law. Do not conflate them in your case-development strategy.

Can I get a second chance with new evidence?

In appropriate circumstances, yes. Motions to reopen based on new material evidence that was not available at the prior hearing are available under 8 C.F.R. §§ 1003.2, 1003.23. These motions have strict deadlines and specific standards, and they should be developed with counsel.

What if my persecutor is a private actor rather than the government?

For CAT, the applicant must show that the torture would be "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." 8 C.F.R. § 1208.18(a)(1). Country conditions evidence about official acquiescence in private violence against LGBTQ+ people is a distinct evidentiary undertaking, and it should be built into the record.

Where can I find Matter of S-K-E-?

Matter of S-K-E-, 30 I&N Dec. 27 (BIA 2026), is a precedential BIA decision issued on July 28, 2026, as Interim Decision #4242. It was designated as precedent by the Attorney General on September 1, 2026, under Order No. 7119-2026. It is available here.

Why Novo Legal

Novo Legal Group is a bilingual, community-rooted human rights firm. Every attorney on our team is fluent in English and Spanish. We publish same-day analysis when federal decisions shift the ground under our clients, because we know our clients need to make decisions with the current state of the law in view.

Our litigation team handles removal defense in Immigration Court, appeals to the Board of Immigration Appeals, and petitions for review before multiple federal courts of appeals, including the Ninth and Tenth Circuits. We also handle federal habeas corpus petitions. Matter of S-K-E- is exactly the kind of decision where litigation posture in the Immigration Court determines whether the appellate record is intact enough to be reviewed on its merits. If you have an LGBTQ+ asylum, withholding, or CAT case in any posture, bring the situation to us. We will tell you what we would do.

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