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sexual orientation.  That finding conforms with the original

intent of asylum--to grant refuge to people who are perse-

cuted by their government or a group the government is

unable or unwilling to control because of (among other

things) their membership in a social group.  The assumption

behind the criticism is that the grant of asylum in those

cases was based solely on the applicant's assertion on

sexual orientation.  But that assumption is wholly misguid-

ed.  People who have been granted asylum on the grounds of

sexual orientation include those who were tortured, sexually

abused, or otherwise persecuted either because of their

sexual orientation or activism for homosexual rights.

One Brazilian man who was granted asylum on the basis

of sexual orientation explained during his immigration

hearing that he and friends had been conversing in a public

square when the police arrested them for no apparent rea-

son.59  They were then forced into a jail cell with six

criminals who were told by the commanding officer, "Here

come your girlfriends.  Rape them and do what you want with

them."  The criminals then descended on the men, forcing

them to perform oral sex and raping them.  On another occa-

sion, the applicant was forced at gunpoint to perform oral

sex on two uniformed police officers.  He explained at his

immigration hearing that "the police had allowed if not

encouraged the criminals to sexually abuse [him and his

friends] as punishment for [their] actual and suspected

homosexuality."60  Because the police were his persecutors,

fear of reprisal made him feel helpless to seek redress.  If

those asylum seekers and colleagues have been persecuted or

tortured because of their sexual orientation, then their

claims fit into the scope of persecution, as defined by

international and domestic law.

How the Problems Can Be Solved

Throughout this paper the legislative changes in U.S.

asylum law have been likened to unnecessary surgery follow-

ing an outdated diagnosis and performed with an ax rather

than a scalpel.  To review, the legislative changes were

redundant and therefore unnecessary: The 1995 INS regulatory

reforms mended many of the perceived problems with the

system.  The changes were designed on a diagnosis made

before the effect of the 1995 regulations could be evaluat-

ed, and by the time the changes were made the diagnosis was

outdated.  Thus, when the surgery was finally performed, it