## Facts

- Fidel Toboso-Alfonso, a native and citizen of Cuba, was paroled into the United States in 1980 and later placed in exclusion proceedings after termination of parole.
- He conceded excludability based on grounds including a crime involving moral turpitude, lack of a valid immigrant visa, and a controlled-substance conviction.
- He sought asylum and withholding of deportation to Cuba, claiming past and likely future mistreatment by Cuban authorities due to his sexual orientation.
- Evidence showed Cuban authorities treated homosexuals as a distinct class subject to surveillance and sanctions, including official registration as a homosexual, reporting requirements, summonses and detentions, and compulsory labor-camp assignment tied to sexual orientation.
- The immigration judge found him eligible for asylum and withholding as a member of a particular social group, denied asylum as a matter of discretion (not appealed), and granted withholding of deportation to Cuba.
- The government appealed only the grant of withholding, arguing he had not met the statutory standard and that his drug conviction barred relief.

## Issues

1. Whether homosexuals in Cuba constitute a “particular social group” for withholding of deportation under former INA § 243(h)(1).
2. Whether the applicant showed a clear probability that his life or freedom would be threatened in Cuba “on account of” membership in that group.
3. Whether the applicant’s controlled-substance conviction barred withholding, including under any “particularly serious crime” bar.

## Decision

- The Board dismissed the government’s appeal and affirmed the grant of withholding of deportation to Cuba.
- The Board held that homosexuals in Cuba constitute a cognizable “particular social group” for purposes of former INA § 243(h)(1).
- The Board concluded the applicant established that his freedom would be threatened in Cuba on account of his membership in that group, satisfying the clear-probability standard for withholding.
- The Board rejected the argument that the applicant’s cocaine possession conviction barred withholding on the record presented.
- The decision included a dissent, but the majority disposition controlled.

## Legal Principles

- Withholding of deportation under former INA § 243(h)(1) requires proof that the applicant’s life or freedom would be threatened in the country of return on account of a protected ground, including “membership in a particular social group.”
- A group may qualify as a “particular social group” where governmental practice treats members as a distinct, identifiable class subject to targeted control or punishment.
- Severe state-imposed restraints on liberty directed at a protected characteristic can constitute a threat to “freedom” sufficient for withholding.
- The “on account of” requirement is met when the adverse treatment is causally linked to the protected status rather than to generalized conditions.
- A criminal conviction does not bar withholding unless the statutory disqualifying conditions are established on the facts and applicable law.

## Conclusion

The Board affirmed withholding of deportation to Cuba after finding that Cuban homosexuals constitute a particular social group and that the applicant proved a clear probability that his freedom would be threatened in Cuba because of his sexual orientation, with no established statutory bar from his drug conviction on this record.


Matter of Toboso-Alfonso, 20 I. & N. Dec. 819 (B.I.A. 1990)