LGBT and HIV Positive Asylum Seekers

Special Considerations for LGBT and HIV Positive Persons Applying for Asylum

It is recommended that you first read “Questions to Ask Yourself Before Applying for Asylum” prior to reading this article.

In order to present a successful asylum claim, one must demonstrate a well founded fear of persecution on account of one of five factors: race, religion, nationality, political opinion, or membership in a particular social group.  If you are an LGBT (lesbian, gay, bisexual or transgender) or HIV positive person applying for asylum, and you have been persecuted or fear persecution in your home country solely because you are an LGBT or HIV positive person, you will be applying on the basis of your membership in a particular social group.

 Because you are applying for asylum due to the fact that you are LGBT or HIV positive, any past persecution that you have experienced in your home country will have to have happened becauseyou are LGBT or HIV positive.  Similarly, if you fear returning to your home country, it will have to be owing to the fact that you fear physical harm as a result of your status as an LGBT or HIV positive person.

 The section below describes some of the evidence you should gather to prove your inclusion in your particular social group (lesbian, gay, bisexual, transgender or HIV positive – please note that some of these groups may overlap; for example, you can file on the basis of being both gay and HIV positive).  In addition to such evidence, you should write a document describing in detail the circumstances surrounding your sexual orientation or HIV status and what, if anything, happened to you as a result in your home country.  You should also present as much evidence as possible corroborating what happened to you because of being an LGBT person or HIV positive.  If nothing bad has happened to you, you can still write about the fear you experienced living secretly as a LGBT or HIV positive person.  Published reports of conditions in your native country are essential for corroborating that there would be reason to fear returning home.

 TYPES OF CORROBORATING EVIDENCE

 A.  Proving Your Sexual Orientation

An important part of your asylum claim will be proving your membership in a particular social group.  In other words, you must provide evidence that you are, in fact, an LGBT person or HIV positive.  The fact that you are required to prove your sexual orientation may be surprising and distasteful, but unfortunately, asylum offices have seen instances of asylum applicants pretending to be LGBT for the purpose of receiving asylum.

 If you are a lesbian, gay or bisexual person, one of the best methods of proving your sexual orientation is through the affidavit of your current partner/spouse.  Your partner or spouse will write a letter affirming that you are in a relationship, along with some details of the relationship to show that it is bona fide.  Examples of this would be detailing how you met, how long you have been together, what your daily lives together are like, etc.  Additionally, photographs of you and your partner can be useful, especially if taken on special events such as holiday gatherings with your family.  If you live in a state that allows gay marriage, and have married your partner, submitting a marriage certificate is also a very good idea.

 If you are not currently in a relationship, you can still prove your sexual orientation by requesting any of your former partners to write an affidavit on your behalf.  Your former partner would submit an affidavit similar to that that a current partner/spouse would submit, with the obvious difference that your former partner would disclose that you are no longer in a relationship.

 Perhaps you identify as lesbian, gay or bisexual, but have never had a same-sex relationship.  This situation is more common than you might think, as many people from countries where being lesbian, gay or bisexual is dangerous are not free to engage in relationships that would arise suspicion of their sexual orientation.  You can still prove your sexual orientation, through other means, such as through an affidavit from anyone in your life who knows your sexual orientation.  Therefore, if you ever confided your sexuality to a friend, co-worker, medical professional, or anyone in your life, you should ask if they would submit an affidavit on your behalf detailing this information.

 Another method of proving your sexual orientation is your level of involvement in the lesbian, gay, bisexual or transgender community.  While it may have been very difficult to be active in your home country (and, in fact, if you were able to be very active in the gay scene in your home country this could potentially harm your claim), if you are a member of any LGBT organizations where you currently reside or have resided while in the United States, the submission of any kind of evidence proving your membership would be very useful.  This evidence can range from a certificate of group membership to an affidavit from a fellow group member or director stating that you belong to the particular group and detailing your involvement in that group.  If you are not a member of any formal lesbian, gay or bisexual groups, simply the fact that you frequent gay places, such as clubs, bars, coffee shops, or even known gay neighborhoods can be included in your claim.

 B.   Proving Your HIV Status

 If you are HIV positive, the most important piece of corroborating evidence you can obtain are medical records demonstrating your HIV positive diagnosis.  Additionally, any medical records relating to your treatment will be beneficial to your claim.  If you are unable to obtain your medical records for whatever reason, your treating physician may submit a letter confirming that you are HIV positive along with such details as your diagnosis date, prognosis, current medications you are on, frequency of your visits, etc.  Additionally, prove of your membership in an organization for people with HIV or a letter from a therapist who has been helping you deal with your HIV diagnosis will be advantageous in further proving your claim.

 C.  Proving You Are Transgender

If you are transgender, it will be necessary to acquire any medical records relating to your process of transitioning.  If you cannot obtain medical records, you should provide a letter from your treating physician confirming that you are in the process of transitioning, along with such details as when you began transitioning, what medications you are taking, and how often you see your physician.

D.  Proving Persecution in Your Native Country

 If possible, you should submit evidence showing that you have been persecuted in your native country because you are LGBT or HIV positive.  Such evidence could take many forms, such as an affidavit submitted by a witness or medical records documenting your injuries.  But even if you have no corroborating evidence, you still may be able to obtain asylum if the asylum officer or immigration judge believes that you are credible when you describe the persecution you suffered.

 E.  Proving Conditions in Your Home Country

 Part of your claim’s strength will depend on the reputation of your home country with respect to the rights of LGBT and HIV positive persons.  By locating government reports, such as the annual United States Department of State Country Report, which documents the current status of LGBT and HIV positive treatment in your home country, you will show the asylum officer that you have reason to fear returning.  You may also submit reports from non-governmental sources or general news articles detailing any crimes against LGBT or HIV persons, as well as articles evidencing a general attitude of hate and intolerance.  Keep in mind that the hate and intolerance your country has towards LGBT or HIV positive persons must rise to a certain level beyond what would be found in this country.  For example, the fact that your home country does not allow you to marry your partner would not be sufficient because most gay people in the United States also do not have this right.

 ONE-YEAR BAR

An asylum applicant is required to file for asylum within one year of his or her last entry into the United States.  Many people do not file for asylum within this timeframe, however, but are still able to maintain a successful asylum claim through one of the various exceptions to the one-year bar.  If you can show that there you experienced a changed circumstance or extraordinary circumstance leading to the delay of your asylum application, you will still be eligible for asylum despite the one-year bar as long as you apply a “reasonable time” after the changed or extraordinary circumstance has occurred.  The term a “reasonable time” has not been formally defined, but is generally considered to be two or three months after the circumstance has occurred.

While there are a number of changed circumstances that will warrant a waiver of the one-year bar, there are a few specific circumstances that are uniquely applicable to LGBT and HIV positive persons.  These circumstances include such events as coming out as a lesbian, gay or bisexual person, being diagnosed as HIV positive, or beginning the process of transitioning in the case of a transgender person.

 LGBT and HIV positive persons may also demonstrate extraordinary circumstances such as a serious physical illness or physical or mental disability.  While these may be unrelated to your sexual orientation, often these types of circumstances can be related.  Most obviously, if you are HIV positive and have suffered severe health problems that kept you from applying for asylum earlier, you would most likely not be subject to the one-year bar.  Another example may be any physical or mental disability that you suffer from due to persecution in your home country.  Many people who have experienced physical attacks in their home country suffer from severe mental distress, along with possible post traumatic stress.  Any of these circumstances, provided you can prove them, would likely be sufficient to demonstrate the existence of extraordinary circumstances and an exception to the one-year bar.

 If you have not filed for asylum within one year of your last entry to the United States due to changed or extraordinary circumstances, you will have to prove the existence of these circumstances in order to have a viable asylum claim.  For example, if you claim that you did not file for asylum within one year of your arrival because you suffered from severe depression, you will have to submit treatment records from any professional you saw regarding your mental illness.  You will also have to detail your severe depression in your own affidavit.  Additionally, any letters from mental health professionals you saw during this time will be crucial.  The more severe your physical or mental illness, the greater the chance you will not be subject to the one-year bar.  Similarly, the more recent your changed circumstance, such as coming out, being diagnosed as HIV positive or transitioning, the more likely it is that your claim will not be barr

CONCLUSION

As detailed above, there are many considerations unique to LGBT and HIV positive individuals who seek asylum in the United States.  While the list above includes some of the more common issues facing LGBT and HIV positive asylum seekers, there are almost certainly other issues that you will need to think about when considering applying for asylum — some of which we have detailed in “Questions to Ask Yourself Before Applying for Asylum.”  To increase your chances of being granted asylum, consult an immigration attorney with asylum experience to assist you with your case.  The process can be confusing, and a professional can guide you in what documents to submit and how best to handle the interview.

Copyright 2012 Brophy & Lenahan P.C.

All rights reserved.

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