U.S. issues new guidance for LGBT asylum claims

U.S. Citizenship & Immigration Services issued new guidance on Tuesday to assist officers handling asylum and refugee claims from LGBT people seeking to escape persecution by living in the United States.

The module, called “Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugee and Asylum Claims,” addresses legal issues for weighing such cases, covers factors that must be considered when interviewing LGBT applicants and details methods to assess credibility of claims. The guidance doesn’t expand the statutory definition of a refugee.

According to Immigration Equality, the guidance is the result of a two-year collaborative process between the organization and USCIS. In a statement, Victoria Nelson, Immigration’s Equality’s legal director, called the module an “important step to better protect LGBTI asylum seekers.”

“This guidance will give officers the tools they need to gather the necessary evidence for validating an asylum claim, while respecting the often sensitive issues that potential asylees must navigate based on their past persecution,” Nelson said.

Steve Ralls, a spokesperson for Immigration Equality, said his organization has an open case load of LGBT asylum seekers that ranges from 150 to 200 cases each year. He estimated there are about 250 such cases of LGBT people seeking to come to the United State to escape persecution each year.

Many of these people come from nearby countries, such as Jamaica. While incidents of anti-gay harassment, even killings, are frequently reported in the Middle East, Ralls said the distance between those countries and the United States makes it difficult for LGBT people to seek asylum here.

According to the guidance, officers must determine if applicants are being persecuted because they have one or more of the characteristics of the definition of an LGBT refugee. The guidance instructs officers to ask applicants what a persecutor may have said to them while causing them harm as well as the context of the persecution, such as if the applicant was attacked in a gay bar or while holding hands with a same-sex partner.

Examples of harm the guidance says LGBT people overseas may encounter include criminal penalties in countries where homosexuality is illegal; rape and other sexual violence; being forced into widely discredited “ex-gay” therapy aimed to alter sexual orientation; and being forced into an opposite-sex marriage.

“These incidents of harm must be assessed in their totality,” the guidance states. “They must be analyzed in light of prevailing attitudes with regard to sexual orientation and gender identity in the country of origin.”

Additionally, officers must determine whether the harm rises to the level of persecution and if the government of the country from which the applicant hails is unable to protect the individual. Applicants may be eligible for asylum even if they weren’t persecuted in the past, but have a well-rounded fear of future persecution.

The guidance also provides techniques for interviewing LGBT asylum seekers. The module notes the presence of family members during questioning may be an impediment and reminds officers to be sensitive when asking about sexual assault.

Additionally, the guidance provides possible reasons for being exempt from the one-year filing deadline for applying for asylum. Under current rules, all asylum seekers, including those seeking asylum based on their status, must apply within one year of coming to the United States.

In the case of LGBT applicants, the guidance says possible reasons for granting an exemption from this deadline include a person recently “coming out” as LGBT; having recently taken steps to undergo gender transition; or severe family opposition to an applicant’s identity.

Grace Gomez, a straight Florida-based-lawyer who aids LGBT asylum seekers in the United States, said the guidance is a “good step” because it recognizes the issue, but more work is needed to assist LGBT people seeking asylum in the country.

“It’s good that they’re recognizing it, but it’s just guidelines,” Gomez said. “It’s not putting anything into actual law, or into effect. … It’s a step in the right direction, but it’s not enough. It’s a Band-Aid on a gushing wound, if you put it that way.”

Gomez has won cases for LGBT Jamaicans seeking asylum in the United States and refuge from violence and jail sentences that LGBT people face in their home country.