LGBT Immigrants and Asylum: When Being Yourself Can Be A Death Sentence

For many in the United States, living as a lesbian, gay, bisexual, or transgendered human being is an affirmation of identity, saddled with a pervasive struggle to live life in peace against a backdrop of insidious prejudice.  For some LGBT individuals in the United States, however, the very salvation of their lives is at stake, for returning to their homelands could entail a sentence to die.  To date, at least twelve countries may allow capital punishment in some form as a sentence for same sex relations: Afghanistan, Brunei, Iran, Maldives, Mauritania, SudanNigeria, Yemen, Saudi Arabia, Qatar, Somalia, and the United Arab Emirates.  In total, seventy two countries still criminalize same sex relations in some form.

Fortunately, the United States recognizes the predicament of immigrants who face persecution in their countries of origin and offers the prospect of asylum.  Following the revelations of Nazi death camps in the aftermath of World War II, the international community coalesced to create international law defining the status of refugees and the obligations of countries to offer shelter to refugees under the United Nations 1951 Convention and 1967 Protocols relating to the Status of Refugees.  The United States incorporated the United Nations’ definition of a “refugee” via the Immigration and Nationality Act of 1980  to include people in one of five protected categories who face “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”  LGBT individuals would, of course, qualify for asylum as members “in a particular social group,” provided that they can show a well-founded fear of persecution in the future or establish a past pattern of persecution.

In the United States, asylum seekers only have one year to file an affirmative application for asylum, via an I-589 application, with the United States Citizenship and Immigration Service (USCIS) from the date of entry into the United States.  This period may be extended if the asylum seeker faces changed circumstances which, “materially affect [their] eligibility for asylum or [face] extraordinary circumstances relating to the delay in filing.”  An example of “changed circumstances” could be a newfound fear of persecution by an asylum seeker who undergoes a gender transition surgery in the United States, even though he or she had not previously experienced persecution in his or her country of origin.  An asylum seeker could also establish “changed circumstances” by citing external factors, which cause the government to lose the ability to prevent persecution, as in the case of the disputed 2017 election in Honduras.  An immigrant’s change in status could also serve as a basis for filing an asylum application.  An example of this would be an LGBT immigrant who resettled to the United States after being granted temporary protected status — and subsequently loses that status — who would face persecution in their home country if required to return.  The January 8, 2018 decision to end temporary protected status for immigrants from El Salvador could also serve as a basis for an asylum application for individuals who face a well-founded fear of persecution but had not applied for asylum (due to previously being a legal resident).  The same reasoning could also apply to immigrants from Nicaragua, Haiti, Sudan, and Honduras.

An alternative to the affirmative asylum application is the defensive asylum application.  Unlike, non-adversarial affirmative applications, defensive asylum applications are adversarial proceedings, which are raised as a defense to deportation.  The removal proceedings may begin following an unsuccessful affirmative application for asylum or following the apprehension of an individual by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation.  At the conclusion of the deportation proceedings an immigration judge would make a decision as to whether the individual is eligible for asylum, which may be appealed by either party.

The asylum process affords the opportunity for immigrants who face persecution on account of their sexual or gender orientation to remain in the United States.  Following a successful application, asylum grantees can apply for asylum for their spouse and their children.  They can obtain work authorization and job seeking assistance.  They can apply for natural permanent resident (green card) status after one year.  They may also be eligible to obtain financial assistance, medical assistance, employment preparation, job placement, and English language training through local organizations funded by the Office of Refugee Resettlement (ORR).  

-Andrew Hennessy-Strahs

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