A.M.: A Misunderstood Sexual Orientation and Missing Corroboration Required a New Hearing

A person does not have to prove past sexual relationships to establish bisexuality. In A.M. v. Blanche, No. 25-5415 (9th Cir. Oct. 23, 2026), the Ninth Circuit found that the immigration judge’s misunderstanding of sexual orientation distorted the analysis of the applicant’s proposed social group. A separate error compounded the problem: The judge first identified required corroborating evidence in the decision denying relief, after the applicant’s hearing had closed.

The published Ninth Circuit opinion supplies precedent for the circuit and required a new individualized hearing and reconsideration of asylum, withholding and Convention Against Torture protection. It did not grant any of those forms of relief.

A.M. described being beaten by classmates after a military medical examination, police telling him the attackers had done the right thing, and a complaint disappearing from the database. He reported that, after his departure, flyers labeled him an LGBT-propaganda suspect and police threatened criminal proceedings. The immigration judge found both that he had not established bisexuality and that he had not shown persecution because of his orientation. Opinion pages 6–8. The court reviewed legal questions anew and factual findings for substantial evidence, considering the judge’s reasons where the BIA adopted them. Page 9.

The judge’s premise changed how she read the evidence

A.M., a Russian applicant, testified that he was attracted to men and women and described three boyfriends and two girlfriends. The judge credited that relationship testimony. The judge discounted his claimed bisexuality because he had not had sexual relations. She also treated the record as lacking romantic involvement with a woman despite testimony describing girlfriends. Opinion pages 8–11.

The court rejected that premise. Sexual orientation is not defined solely by sexual conduct. The misunderstanding also affected how the judge treated a flyer describing A.M. as gay: A broader or inaccurate label used against someone could support evidence of anti-LGBTQ+ targeting rather than disprove the person’s particular orientation. Pages 11–12.

Because those errors affected both proposed-group membership and the assessment of whether more corroboration was needed, the court could not meaningfully review the agency’s decision. That error independently required remand. The court’s definition, drawn from the UNHCR glossary, focuses on capacity for romantic, emotional or physical attraction to more than one gender. A.M.’s credited description of attraction and relationships had to be evaluated under that definition. Page 11.

Missing corroboration had to be identified while a response was still possible

The judge made no express adverse credibility finding; the BIA assumed A.M.’s testimony was credible. Credible testimony may satisfy an applicant’s burden, but 8 U.S.C. section 1158(b)(1)(B)(ii) permits an immigration judge to require reasonably obtainable corroborating evidence. The rule developed in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011), and Bhattarai v. Lynch, 835 F.3d 1037, 1043 (9th Cir. 2016), requires the applicant to be told what is needed and have a meaningful chance either to provide it or explain why it cannot reasonably be obtained. Pages 19–22.

Here, the judge waited until the oral denial, a week after the merits hearing, to identify additional affidavits, a professional letter and social-media material she considered missing. Questions asked during the hearing did not supply the required opportunity. A.M. had said some material was on a phone he could not then access and identified another person’s posts, but was not given a chance to supply the identified evidence before denial. Pages 22–23.

The opinion also distinguished sexual orientation from gender identity. A requested mental-health letter about A.M.’s gender identity would not establish his bisexuality. Footnote 6, page 23. That distinction reinforces why a corroboration request must address the fact actually in dispute.

The BIA brief preserved the corroboration issue in context

The court separately addressed administrative exhaustion. A.M.’s BIA brief challenged the application of corroboration law and said he had not received proper notice or an opportunity to provide further evidence or explain its unavailability. Although much of the brief focused on evidentiary sufficiency and its discussion was imperfect, the context sufficiently alerted the BIA to the issue. Pages 12–16.

The panel treated the notice argument as an enlargement of the corroboration issue presented to the agency, rather than an unrelated new theory. The court required more than a general challenge but evaluated the particular argument in context. The brief expressly said that, if more corroboration was required, the judge had failed to give proper notice or an opportunity to supply it or explain its absence. That statement connected the procedural argument to the corroboration issue already before the BIA. Pages 13–16.

The opening-brief problem required a separate analysis

Whether an issue was presented to the BIA is different from whether it was properly presented in the federal opening brief. The court addressed the latter problem too. The government first raised corroboration in its response brief as part of its exhaustion argument, and A.M. answered in reply. The panel found no prejudice to the government’s defense from considering the issue. Pages 16–17.

The court also explained why it would exercise discretion even if the issue had been forfeited: The failure to provide the statutory opportunity implicated the integrity of the proceedings and the need to prevent a miscarriage of justice. Pages 17–18. That reasoning supports this disposition; it is not a dependable strategy for omitting an issue from an opening brief.

The remand instructions preserved an individualized merits decision

The court directed the BIA to vacate its dismissal and return the matter to the immigration judge. The new hearing must reexamine group membership, identify any required corroboration with an opportunity to respond, and reconsider the testimony and supporting evidence for asylum, withholding and CAT protection. The court expressly took no position on ultimate entitlement to relief. Page 24.

Judge Mendoza, who wrote the majority opinion, also wrote a separate concurrence about evidence of state-sanctioned hostility toward LGBTQ+ people in Russia, possible pattern-or-practice analysis and the unsupported suggestion that relocation to Moscow would be safe. Those observations are the concurrence’s discussion, not additional merits findings by the majority. Pages 25–27. The majority did not reach A.M.’s remaining issues because the identified errors already required remand. Page 24, footnote 7.

How to use the decision when reviewing an asylum record

Identify the fact the judge found unproved, the evidence already supplied, and the premise used to evaluate it. Then check when any additional evidence was requested and whether there was a real opportunity to provide it or explain its absence. A missing-document question, a closed record and a first demand in the denial decision can have very different procedural significance.

For a review, bring the decision, hearing record, proposed social-group formulation, supporting materials and BIA brief. Mishra X can examine whether the claimed evidentiary shortfall reflects a genuine missing fact, a mistaken premise or a denied opportunity to respond.