Understanding LGBTI Asylum in America

ORAM estimates the US receives about 2,000 refugees a year who are fleeing persecution based on their sexual orientation or gender identity, representing 6% of all refugees in America. Unlike other refugees, those who are LGBT or intersex often undergo the integration process alone, facing exclusion from the religious and immigrant communities that form the safety net for most newly arrived refugees and asylees. This case study is intended to help U.S. LGBT, faith-based, and welcoming communities support these refugees and asylum seekers as they build new lives in the United States.

An asylum seeker is someone who has applied for or is in the process of seeking asylum from the government of the country of resettlement (e.g., the United States), but who has not yet been granted that status. Until and unless they are granted asylum by the U.S. government, asylum seekers are usually not authorized to work and do not have access to most American public benefit programs.

Are you gay, lesbian, bisexual, transgender, intersex, queer and and you are in one of the the 76 countries in which homosexuality is criminalized. You want to leave your country and as a gay person want to go to one of the 11 relatively LGBT asylum seekers welcoming countries (Germany, Netherlands, South-Africa, Kenya, UK, Canada, Japan, France, Italy, Spain and  in our case study USA) due to one or more of the following underlying sexual orientation and gender identity cases:

• Politically persecuted, detained and tortured due to LGBT human rights activism
• A lesbian/trangender abused, raped and subjected to forced into marriage,
• Gay and HIV positive, and threatened
• A gay son, whose father threatened to kill him than be ashamed
• M-F or F-M transgender in a loving relation, feeling insecure
• Fleeing domestic violence
• Seeking equal treatment and dignity

The Basics On Gay Asylum

As a preliminary matter, many individuals eligible for asylum and married (or soon to be married) to an American citizen now have at least two immigration options now that DOMA has been struck down. Generally, it is more favorable to follow the marriage visa option than asylum, but you should discuss your particular case with an experienced immigration attorney to determine the option that most makes sense.

For those of you who remain unmarried or not in a relationship with an American citizen, asylum might be a valid immigration option. The United States has allowed asylum based on sexual orientation and/or HIV-positive status since 1994 (whether the person is in the United States legally or illegally). If successful, an asylum applicant obtains a special immigration status that allows him or her to remain in the United States legally with work authorization and a path toward citizenship.

To apply for asylum, the applicant must be in the United States (or at one of its borders). At this time, there also is a 1-year filing deadline to qualify for asylum although exceptions apply). NOTE: The 1-year filing deadline may soon be abolished, see below.

The term “persecution” for purposes of asylum is undefined but the harm at issue must rise above the level of mere discrimination, harassment or unpleasantness. Nonphysical harm can qualify as persecution if it results in severe economic disadvantages (e.g., employment discrimination) or the deprivation of liberty. And an asylum claim may be based on government laws, policies, and/or practices that compel someone to abandon or conceal his or her sexuality for fear of being publicly identified. Someone also can qualify even if he or she has never been persecuted so long as the person has a reasonable fear of future persecution if deported to his or her home country (for example, a person that came to the United States as a child).

Conditions for LGBTI individuals in most countries in the Middle East, Africa, and the Caribbean are generally severe enough to be considered persecution. Country conditions for LGBTI individuals are generally improving in some South American and Asian countries but these relatively improved conditions do not necessarily negate a valid asylum claim. For example, we have successfully represented several Brazilian nationals obtain asylum this year, and Brazil is widely but wrongly perceived to be tolerant of gays, see “Gay Life in Brazil.” Conditions for the LGBTI community also is getting worse not better in Russia and most Eastern European countries.

There are different ways to apply for asylum but all of them involve the applicant first being in the United States or at one of its borders. The affirmative application process is generally non-adversarial and quick, taking only two or so months after the application is filed (it takes a few months to prepare all the necessary materials to submit a strong and compelling application).

The asylum process requires thoughtful and careful analysis, together with supplementary materials that reinforce the strength and credibility of one’s application. Eligible applicants therefore are advised to work with an experienced asylum attorney to maximize his or her chances to obtain asylum. Organizations also exist that assist LGBTI individuals apply for asylum.

My Firm has successfully represented clients on LGBT asylum claims and worked with individuals from Brazil, Cameroon, China, Colombia, Honduras, Indonesia, Jamaica, and Uganda.

A SPECIAL NOTE ON THE 1-YEAR FILING DEADLINE. If the Immigration Reform Act now being addressed by Congress passes in its present form, the 1-year filing deadline will be abolished. This would mean that those of you who have missed the deadline or unsuccessfully applied for asylum because of the deadline will have a second opportunity to apply for asylum. Additionally, those of you who applied for asylum and granted Withholding of Removal also will have a 2-year window in which to re-file for asylum, and, if granted, you would be afforded a path toward citizenship.

Below are Ten Frequently Asked Questions that may further assist you in determining whether you are eligible for asylum.

TEN FAQ’s REGARDING APPLYING FOR U.S. ASYLUM:

1. What Are The Benefits of Asylum?

There are many benefits to obtaining asylum. Foremost, you will be able to stay in the United States legally with work authorization and a path toward citizenship. You are eligible to apply for a green card (lawful permanent resident) within one year of being granted asylum, and you are eligible to apply for United States citizenship four years after you obtain your green card. As an asylee, you also may be eligible for government benefits and services, including, but not limited to, Medicaid insurance, federal tuition assistance for college, and career development workshops.

2. What Materials Are Required For Purposes of An Asylum On an affirmative asylum application, you will need to submit materials and documents to the U.S. Citizenship and Immigration Service (“USCIS”) that will establish that you have been persecuted and/or that you have a reasonable basis to fear future persecution if you are forced to return to your home country. A well-supported application, therefore, should include several supplemental materials, including, but not limited to, a statement that effectively tells your story in your voice in a compelling, consistent, and credible fashion, together with an Appendix containing reports, articles, and newspaper clippings regarding LGBT country conditions. A solid application generally takes 50 – 70 hours of legal work.

3. How Long Does The Process Take Once I Have Filed My Application?

Once you have completed all the necessary and/or supplemental materials, you are ready to file your application. Once filed, the process generally takes about eight (8) weeks to complete. In that time, you will have to schedule a fingerprint screening test and prepare for an interview with an Asylum Officer at the USCIS. The Interview is non-adversarial and provides an opportunity for you to further tell your story while the USCIS assesses your credibility. Applicants generally find out whether they have obtained asylum two weeks from the date of their asylum interview.

4. Should I Apply For Asylum If I Am In Status (e.g., F-1, H1-B, J Visas)?

It depends. You are generally not under the 1-year filing deadline (though exceptions may exist), but applying while in a valid immigration status may afford you some peace of mind because your visa status will remain as is even if the application is denied so long as you do not travel outside the United States (again, some exceptions may apply). Anyone in a valid immigration status should discuss their options with an experienced asylum attorney.

5. What Happens If My Asylum Application Is Denied by the USCIS?

If your affirmative asylum application is initially denied, the USCIS generally will recommend your case to Immigration Court where you will have a hearing before an Immigration Judge who will independently decide whether you are eligible for asylum. Many applicants initially denied are subsequently granted asylum (or afforded other forms of immigration relief) by an Immigration Judge. The hearing is usually scheduled about a year from the date of initial denial, and you are allowed to remain in the United States until your asylum case is fully resolved, including subsequent appeals. You also will be eligible to apply for temporary work authorization 150 days from the day you initially filed your application with the USCIS.

6. Is There A Government Application Fee To File For Asylum?

No. Unlike other immigration matters, there is no application or administrative fee to file for asylum. Most attorneys, however, will charge for their services, and the range for legal fees on an affirmative asylum application to the USCIS tends to range anywhere between $3,000 to $7,500 depending on a host of factors.

7. Is Obtaining Asylum Automatic?

No. Immigration issues are generally discretionary in nature. This means that there are no automatic or guaranteed results but an experienced asylum attorney should be able to assess whether you have a strong or weak asylum claim. In other words, an experienced asylum attorney should provide you with enough information to allow you to make an informed decision on whether applying for asylum is appropriate.

8. Am I Eligible To Travel If I Am Granted Asylum?

Yes. An asylee may ask permission to travel outside the United States, which is generally granted. However, this Firm does not generally recommend traveling outside the United States until an asylee obtains his or her green card.

9. Will My Asylum Application Be Made Public?

No. Applying for asylum is strictly confidential and the United States will neither publicize the details of your asylum application nor notify your home country of your application. Additionally, anything you reveal to an attorney in the course of preparing your asylum application should be kept strictly confidential and is generally protected by the attorney-client privilege.

10. Will I Be Detained By ICE if I Apply For Asylum Because I Am In The United States Illegally?

No. Unless you have a criminal record or are otherwise a security risk, you will not be detained during the entire period while your asylum application is being processed even during appeals, if that is applicable. In fact, once you file for asylum, you will be allowed to remain in the United States legally and will be eligible for temporary work authorization in six (6) months, assuming your application was not already approved before then.