On May 31, Fox News reported that Selah Dine Habib, a Mauritanian native who entered illegally in 2023 and was released, had claimed to fear persecution based on his sexual orientation but was recently arrested by ICE. The interesting part is that notwithstanding his claim, he had married the daughter of the sheriff of Jay County, Ind., and was working for his father-in-law’s office as a corrections officer. The facts are difficult to fathom, but such apparent abuses of our nation’s complicated asylum laws are much more common than most would believe — and Habib’s case may not be over yet.
Asylum, in Brief
By way of background, section 208(b)(1) of the Immigration and Nationality Act (INA) gives the attorney general and the DHS secretary authority to grant asylum to any alien who has applied for that protection if either “determines that such alien is a refugee within the meaning of section 101(a)(42)(A)" of the INA.
Section 101(a)(42)(A) of the INA, in turn, defines the term “refugee” as:
[A]ny person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
Section 208(b)(1)(B)(i) of the INA, as amended by section 101(a)(3) of the REAL ID Act of 2005, sets forth the requirements asylum applicants must meet to be granted that protection:
The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 101(a)(42)(A). To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.
The relationship between the persecution alleged and the “protected characteristic” is referred to as the “nexus” and, as the foregoing reveals, while harm could be inflicted for several reasons (i.e., perceived wealth, simple animus, common criminality, etc.), the characteristic identified must be at least one of the “central ones”, not a secondary or tertiary factor.
“Membership in a Particular Social Group”
Three of those protected characteristics (race, religion, and nationality) are straightforward, but “political opinion” is less so in practice.
As the Ninth Circuit (unhelpfully) explained in 2007, “political opinion encompasses more than electoral politics or formal political ideology or action”, adding, for example, that “an applicant's statements regarding the unfair distribution of food in Iraq resulted in the imputation of an anti-government political opinion”.
But what constitutes a “political opinion” for purposes of asylum is as clear as freshly polished glass on a clear day compared to the fifth protected characteristic, “membership in a particular social group”.
In Fatin v. INS, a 1993 Third Circuit opinion that remains a leading precedent on what is and isn’t a “social group”, then-Judge (now Justice) Samuel Alito noted that at the 1951 UN Refugee Convention — the international agreement at the foundation of our domestic asylum laws — “the phrase ‘membership [in] a particular social group’” was added to the refugee definition as an "afterthought”.
He continued: “Read in its broadest literal sense, the phrase is almost completely open-ended. Virtually any set including more than one person could be described as a ‘particular social group.’”
Asylum isn’t intended, however, to give immigration status to every alien who has suffered harm, even harm we would consider abhorrent for reasons we would deem unacceptable.
Persecution Based on “Sexual Orientation”
That said, for more than 36 years, the Board of Immigration Appeals (BIA) — the administrative tribunal that reviews immigration decisions and issues precedential opinions — has recognized persecution on account of an applicant’s “sexual orientation” as satisfying harm based on membership in a particular social group.
The applicant in Matter of Toboso-Alfonso, a 1990 BIA case, asserted he was “a homosexual who has been persecuted in Cuba and would be persecuted again on account of that status should he return to his homeland”.
As an aside, before you grab that cool revolutionary t-shirt before heading out for a day of protesting “oppression”, you may want to read an article headlined “Che Was a Racist, Homophobe and Mass Murderer. Gay? Che Guevara would have sent you to a concentration camp”, which appeared in Human Progress in December 2017.
In any event, the BIA in Matter of Toboso-Alfonso rejected the then-Immigration and Naturalization Service’s argument that “homosexuals were not a particular social group contemplated under” the INA, and I will leave it to you (if you are interested) to read the arguments they made in support of that point.
Let’s just say the INS didn’t do itself any favors on appeal.
As an immigration judge, such claims were among the most common I considered, and among the most common ones I granted.
The two problems for any adjudicator in an asylum case involving persecution on account of the alien’s sexual orientation is that (1) by definition, human sexuality is among our most intimate actions and therefore the least public; and (2) such claims are therefore easy to make and difficult for the government to rebut.
“ICE Detains Correctional Officer After E-Verify Cleared His Hire”
Which brings me to Habib, whose case was initially a local story in Portland, Ind., before the facts of his entry and his claim became public.
On May 27, 93.1 WIBC, “Indianapolis’ trusted source for breaking news, weather, traffic, and engaging talk radio”, ran an article, “ICE Detains Correctional Officer After E-Verify Cleared His Hire”, focused on the fact that Habib had been “working as a Correctional Officer at the Jay County Jail” prior to his arrest by immigration officers.
As per the outlet:
Jay County Sheriff Larry Ray Newton verified Habib’s employment, clarifying that Habib served as a non-armed Correctional Officer at the county jail. Sheriff Newton noted that Habib is his step-son-in-law, married to his daughter, however, Newton stated that Habib began his employment with the department before marrying into the family.
According to Sheriff Newton, local officials had no reason to suspect Habib’s legal status was compromised. He noted that Habib presented a driver’s license and a Social Security card upon hire, adding that the department relied on the Jay County Auditor’s office to process and vet the legal paperwork.
What followed thereafter were “who shot John” disputes between Sheriff Newton and the auditor’s office over which was responsible for checking Habib out, but one interesting point was that Habib had apparently been cleared for employment after one or the other ran him through E-Verify, USCIS’s online employment-authorization vetting database.
Another curious tidbit as reported by 93.1 WIBC was the following: “Habib is fighting active, final deportation orders to remove him from the United States.”
“ICE Arrests Illegal Alien Who Allegedly Faked Asylum Claim Based on Homosexuality”
Which brings me to the May 31 Fox News article, captioned “ICE arrests illegal alien who allegedly faked asylum claim based on homosexuality, became Indiana jail officer”.
It was therein that the facts of Habib’s initial entry (“in March 2023 near Lukeville, Arizona”), his asylum claim (“he applied based on homosexuality in 2023”), and his purported fraud in making that claim (“he ... married a woman in 2025”) were first disclosed.
Putting these facts together, and premised on my nearly 34 years of practicing immigration law, my guess is Habib came illegally through Lukeville (a popular crossing point for illicit migrants in 2023, for reasons I explained that year); claimed persecution or was simply released by Border Patrol (as most illegal migrants were under Biden); was placed in removal proceedings; filed an asylum application alleging he was persecuted based on sexual orientation to obtain the work authorization he used to gain employment at the Jay County Security Center; and then either failed to appear (as more than 48,000 asylum applicants have in FY 2026 alone) or was denied asylum and failed to appeal his case to the BIA.
Case Closed? Maybe Not
At this point you, like Fox News (apparently), may think Habib’s case is closed, and that he is headed back to Mauritania, assuming he’s from there (false claims to Mauritanian nationality aren’t uncommon).
I would not be so quick to render such a judgment, however.
He may yet argue that his marriage to the stepdaughter of Jay County Sheriff Larry Ray Newton doesn’t mean he lied about his sexual orientation, or about the persecution he allegedly suffered in Mauritania.
He may claim to have married his wife simply to stay in the sheriff’s good graces, or that his orientation is more complicated that a simple binary choice, or that he was perceived to be gay back home, and that his Indiana marriage won’t protect him from harm based on that perception if he were deported.
If accepted, any of those claims could yet result in an asylum grant.
Persecution claims based on sexual orientation aren’t always clear cut, and it’s often difficult to get to the truth. Some aliens do legitimately fear harm on such grounds, but when fraudsters concoct bogus asylum claims, it makes it much more difficult for real ones to be believed. Regardless, something’s up in Indiana — and we may not have heard the last of the illegal Mauritanian corrections officer in Jay County.