This Pride Month feels different than in years past. After decades where it felt like the moral arc of the universe was bending towards Justice and tolerance, gay and trans rights–and gay and trans people–are under assault by right-leaning politicians, media personalities, and members of the community. Hard-won progress now seems under threat. Republicans are using a time-tested strategy of falsely imputing power to a vulnerable community (for example, the power to “groom” children) and then attacking that community based on the false narrative. It reminds me very much of blood libels, where Jews were falsely accused of murdering Christian children, and this became an excuse for violence against the Jewish community.
But while sexual minorities are under threat, particularly at the state and local levels, LGBT asylum cases continue to be approved by the federal Immigration Courts. What explains this discontinuity? And should we feel hopeful for society that LGBT asylum seekers are still being accepted, or fearful that the retrenchment of rights will spread to the asylum system? (more…)
This post is by the good folks at AsylumConnect, a web resource for LGBTQ asylum seekers.
There are still 70 countries, mostly in the Middle East, Africa, and Asia, where homosexual activity between consenting adults is illegal, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association’s latest State-sponsored Homophobia report. There are also currently six countries in which homosexuality is punishable by death.
According to Amnesty International, even in countries where homosexuality has been decriminalized, LGBTQ people can still face violence, arbitrary arrest, imprisonment and torture. An estimated 400 million LGBTQ people continue to face the risk of criminal imprisonment due to their LGBTQ identity.
As a result, every year, millions of people flee their home countries due to persecution based on their sexual orientation or gender identity (an estimated 5% of U.S. asylum claims are based on persecution of sexual orientation or gender identity, which suggests there are over 40,000 currently pending LGBTQ asylum cases in the United States).
AsylumConnect is a great organization. And it has a cool logo.
After fleeing violence, imprisonment, and death threats in their home countries, LGBTQ asylum seekers arrive in the U.S. in pursuit of a better life. However, many LGBTQ asylum seekers are traumatized when–nearly as soon as they arrive on U.S. soil–they are thrown into immigration detention facilities that replicate the very persecution they sacrificed so much to escape. LGBTQ asylum seekers, especially trans and gender non-conforming asylum seekers, are routinely targeted in ICE detention. For example, trans asylum seekers in detention are often denied access to hormones and gender-appropriate clothing, and some are physically and sexually assaulted.
The psychological and physical trauma endured by LGBTQ asylum seekers at the hands of their own government and families makes them especially vulnerable when they arrive in the United States. In addition to facing challenges as asylum seekers, LGBTQ asylum seekers face unique obstacles due to their LGBTQ identity:
An estimated 44 percent of LGBTQ refugees suffer from post-traumatic stress disorder (PTSD) when they arrive in the United States.
LGBTQ asylum seekers may be forced to “prove” their sexual orientation and/or gender identity to an asylum officer or immigration judge. Many are forced to face gendered stereotypes when dealing with those who are not properly trained in processing LGBTQ/SOGI (sexual orientation and gender identity) claims.
After experiencing severe levels of transphobia and homophobia in their home countries, many LGBTQ asylum seekers fear the organizations that they go to for help in the U.S. will also discriminate against them based on their LGBTQ identity. Once in the U.S., LGBTQ asylum seekers must find services that are both immigrant-friendly and LGBTQ-friendly during the lengthy asylum process.
While organizations that help LGBTQ asylum seekers do exist in this country (such as LGBTQ centers and verified LGBTQ-friendly immigration services), information on where to find these resources is difficult to access.
In 2014, a lesbian American and a gay asylum seeker co-founded AsylumConnect to fill this information gap. AsylumConnect is a nonprofit organization providing the first and only resource website and app designed for LGBTQ asylum. The AsylumConnect catalog currently helps LGBTQ asylum seekers find verified safe resources during the U.S. asylum process. LGBTQ asylum seekers can use AsylumConnect as a one-stop-shop to meet their needs in all aspects of their lives, including where it is safe to go for help with housing, hygiene and clothing, legal assistance, food, medical care, mental health treatment, community support, translation, transportation, education, and employment. Nonprofits and attorneys can also use AsylumConnect to easily gather verified resource referrals for their LGBTQ clients.
There should never be a moment when someone does not know where it is safe to go for help due to their LGBTQ identity or immigration status.
Richard Kelley is the Legal Program Coordinator for DC Center Global, an organization focused on supporting LGBTQI asylum seekers in Washington, DC. Most recently, Richard was a Senior Associate at the DC Affordable Law Firm, practicing immigration and family law. He is currently an associate at DLA Piper (USA). His full biography can be found here.
In 1996, the United States Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which fundamentally changed the landscape of asylum law. Most notably, IIRIRA created a new requirement that those entering the country had to apply for asylum within one year of arriving in the United States. This one-year bar has created exceptional challenges for individuals seeking asylum and has had a notable impact on LGBTQI asylum seekers in particular.
LGBTQI asylum seekers may miss this rigid one year deadline for several reasons: Insecurity about, discomfort with, or lack of openness about their identity; fear of being identified as LGBTQI or being “outed” as LGBTQI in their home country or in the immigrant diaspora within the United States; immense emotional and psychological trauma caused by experiences related to their LGBTQI status; or even lack of awareness that they can pursue asylum based on LGBTQI status. Individuals can often find themselves still exploring whether to apply for asylum based on sexual orientation even after one year has passed.
Those asylum seekers who are aware of the one-year bar may not know that it is not absolute. There are two ways that an asylum seeker can overcome the one year bar to asylum: (1) the existence of a changed circumstance which materially affects the applicant’s eligibility for asylum, or (2) an extraordinary circumstance related to the delay in filing the application within the first year of entry. If an asylum seeker is able to demonstrate that he or she falls into one of these two exceptions “to the satisfaction of the asylum officer,” the applicant must then show that the application was filed within a “reasonable period of time” after the changed or extraordinary circumstance. See INA § 208(a)(2)(D); 8 C.F.R. § 208.4(a).
What can be a change in circumstance?
If asylum seekers can show “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum,” then they will only have to show that they applied within a reasonable period of time after the change in circumstance. The regulations indicate that a change in circumstance may include changes in conditions of the home country; changes in the applicant’s circumstances (including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution); or, if the applicant is a dependent in another person’s pending asylum application, the loss of the spousal or parent-child relationship. See 8 C.F.R. § 208.4(a)(4).
For LGBTQI asylum seekers, this can take many forms. For example, if an asylum seeker’s home country recently passed legislation that criminalized same-sex relationships or same-sex advocacy, or otherwise targets LGBTQI individuals, this could qualify as a change in circumstance. Additionally, a major change in how the country, including its police force, treats LGBTQI individuals could be a change in conditions at home. Unfortunately, many countries have had discriminatory laws on the books for years, even decades. Some laws banning same-sex relationships are holdovers from colonial rule. Much more likely for asylum seekers is a change in personal circumstances. Potential changes in circumstance could include being “outed” as LGBTQI at home, getting actively involved in LGBTQI advocacy groups, marrying a same-sex partner, or for transgender individuals, going through transition efforts, particularly gender-affirming surgery. The important thing for asylum seekers to understand is that it is critical to explain how this change in circumstance materially affects one’s eligibility for asylum. Or stated differently, why does this new event create a reasonable fear of persecution that did not exist prior to the event occurring?
What might be an extraordinary circumstance?
A second option for asylum seekers who are not applying within one year of their entry into the United States is to demonstrate that there is an extraordinary circumstance related to the delay in filing the application. The regulations suggest several potential extraordinary circumstances that could justify a delay in filing, including serious illness or mental or physical disability, legal disability, ineffective assistance of counsel, maintenance of Temporary Protected Status or another lawful status, or a technical error. This list provided in the regulations, like the list of changes in circumstance, is not exhaustive. See 8 CFR §208.4(a)(5).
LGBTQI asylum seekers can find themselves in situations where they may be able to demonstrate extraordinary circumstances related to their delay in filing. Perhaps the biggest group of asylum seekers who miss the one-year deadline are individuals who come to the United States on student visas or other temporary visas, and during their time in the U.S. either come out publicly or engage in advocacy around LGBTQI issues that subsequently creates a reasonable fear of returning home. In addition, an individual who enters the country as a minor (under the age of 18) may be able to apply because of legal disability.
Many LGBTQI asylum seekers may also have experienced trauma in their home country due to their identity. Some advocates have argued successfully that this is an extraordinary circumstance that justifies an application outside of the first year. Matter of J-A-, A XXX-XXX-234 (Arlington Immigration Court, April 27, 2012), was an important step forward in this area. The advocates in Matter of J-A- successfully argued that extreme sexual and physical violence against J-A- because of his sexual orientation caused extreme and chronic PTSD, which justified his late application (nearly 10 years after his entry into the United States). This, combined with the fact that he entered the U.S. as a legal minor, led Judge Bryant of the Arlington Immigration Court to conclude that there was an extraordinary circumstance justifying the late filing. But it is important to note that arguments relying on PTSD or other mental health conditions are not always successful. However, rulings like the one in Matter of J-A- give hope that the law might actually catch up with the reality of the psychological impact caused by severe persecution based on LGBTQI identity. Again, the important thing for asylum seekers to focus on here is how the extraordinary circumstance directly caused the delay in filing.
What is a reasonable period of time?
If asylum seekers are able to show that there has been a change in circumstance or an extraordinary circumstance, they are permitted to file the asylum application within a reasonable period of time. There is no specified reasonable time in IIRIRA, but the simple answer is that one should file as soon as possible.
So, while the one year bar can be concerning to asylum seekers and has been particularly harmful to LGBTQI asylum seekers, there is hope. While other options, like Withholding of Removal, may be available to individuals outside the one year bar, it is incumbent upon asylum seekers and advocates to make every effort to help the adjudicator understand the complexities faced by the LGBTQI community and to build effective justifications for filing for asylum outside the one-year period. The exceptions provide some hope to an otherwise devastating change in the immigration law.
Sexual orientation is all about identity: Are you gay or straight or bi or trans or questioning or something else? It seems that the United Nations has some identity issues of its own when it comes to LGBT rights.
This past September, a “traditional values” resolution sponsored by Russia passed in the UN Human Rights Counsel, 25-15, with seven abstentions (the U.S. voted against). The text of the resolution and a list of countries and their votes can be found here. The resolution reaffirms that “everyone is entitled to the rights and freedoms… without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The basic problem is that this list purposefully omits the reference to sexual orientation. Thus (as usual), the term “traditional values” is code for “anti-gay.”
The UN has a split personality when it comes to gay rights.
While this particular resolution will probably have little effect, I fear it is an unfortunate bellwether of member states’ positions on LGBT rights and protecting LGBT refugees. As an aside, my first job as a practicing lawyer was at Catholic Community Services in New Jersey. I remember being surprised that the Catholic Church–which generally opposes gay rights–was assisting gay asylum seekers. When you think about it, this is not entirely inconsistent: While the Church opposes gay rights, it also opposes persecution of gay people. My concern with the UN resolution is that it might be a harbinger of something more sinister–the contraction of protection for people facing persecution on account of their sexual orientation (in 2008, the UN recognized that sexual orientation was a basis for protection under the Refugee Convention).
But as you might have guessed from the title of this piece, the news from the UN is not all bad.
Late last month, UNHCR issued new guidelines concerning claims to refugee status based on sexual orientation and gender identity. The guidelines state:
A proper analysis as to whether a LGBTI applicant is a refugee under the 1951 Convention needs to start from the premise that applicants are entitled to live in society as who they are and need not hide that. As affirmed by the position adopted in a number of jurisdictions, sexual orientation and/or gender identity are fundamental aspects of human identity that are either innate or immutable, or that a person should not be required to give up or conceal.
The guidelines recognize persecution by governments, society, and family members, and also note that laws criminalizing homosexuality can rise to the level of persecution.
The guidelines also make recommendations concerning refugee status determinations for LGBT applicants. Most of the recommendations seem like common sense, but I think they are helpful and–given the sentiments of many UN member states concerning LGBT people–worth repeating. The recommendations include:
– An open and reassuring environment is often crucial to establishing trust between the interviewer and applicant – Interviewers and decision makers need to maintain an objective approach so that they do not reach conclusions based on stereotypical, inaccurate or inappropriate perceptions of LGBTI individuals – The interviewer and the interpreter must avoid expressing, whether verbally or through body language, any judgement about the applicant’s sexual orientation, gender identity, sexual behavior or relationship pattern – Specialized training on the particular aspects of LGBTI refugee claims for decision makers, interviewers, interpreters, advocates and legal representatives is crucial – Specific requests made by applicants in relation to the gender of interviewers or interpreters should be considered favorably – Questioning about incidents of sexual violence needs to be conducted with the same sensitivity as in the case of any other sexual assault victims
The U.S. government is ahead of the game in this matter. In January 2012, USCIS (with help from Immigration Equality) issued a training module to help Asylum Officers with LGBT cases.
So it seems that the UN is of two minds about LGBT rights. There is no doubt that many countries and societies violently oppress and murder people just because of their sexual orientation. For their sake, I hope the progressive states continue to pressure the UN to move forward on LGBT issues.
