Can I apply for asylum based on being lesbian, gay, bisexual, transgender, or queer?
Yes. In asylum law, a person must demonstrate a well-founded fear of persecution based on one of the five protected categories. Of the five protected categories, “membership in a particular social group” is the subject of much litigation. However, since 1994, U.S. immigration law has widely accepted LGBTQ people as a “social group” for asylum purposes. As a result, most LGBTQ individuals who apply for asylum do so under this protected category.
How do I prove that I am LGTQ?
It is essential to note that an applicant must first demonstrate that s/he is, in fact, LGBTQ to the adjudicator. Unfortunately, many adjudicators improperly rely on western stereotypes to determine if a person is really LGBTQ. Notably, LGBTQ persons coming from one of the more than 80 countries where homosexual conduct is illegal, will behave in a manner that is very different from the LGBTQ people born in the United States. Nevertheless, it is possible to provide the adjudicator with corroborating evidence of a person’s sexual identity. For instance, an applicant may submit information about his/her affiliations with gay rights groups or affidavits from former romantic partners or family members.
Even marriage to a person of the opposite sex may not be fatal to an LGBTQ claim for asylum. In particular, if the applicant is bisexual, marriage to a person of the opposite sex likely will not have an adverse impact the asylum application because it could be expected from someone who is bisexual. I have even represented a gay man, who is married to a woman with whom he shares biological children, that was successful on an LGBTQ claim for asylum. However, in such cases, the marriage will be a significant issue for the adjudicator and the applicant must be able to explain it. Often times, expert testimony or affidavits that detail the marriage practices or conditions LGBTQ face in the applicant’s home country will be necessary to help the applicant explain the marriage.
What if I simply say I am LGBTQ to get asylum?
That is a very bad idea, if your hope is to one day lawfully live in the U.S. If an immigration judge believes that you fabricated your claim for asylum, s/he will make a “frivolous finding” against you. If such a finding become final, you will essentially be barred from all immigration benefits under U.S. immigration law (except Withholding of Removal and CAT). To put it another way, you are ineligible for any non-immigrant visa, the diversity lottery, family-based petition or employment-based petition.
What kind of persecution have LGBTQ experienced in their home countries?
With the current administration, it is important to note that persecution the must have been inflicted either by the government or by private individuals that the government is either unwilling or unable to control. Wholly private conduct, no matter the severity, will not qualify and applicant for asylum.
For most asylum claims involving LGBTQ, the individuals suffered actual violence or threats of violence. Often, many governments demonize LGBTQ individuals by passing laws that make homosexual activity illegal. For instance, a recently granted asylum case I worked on involved a gay man from Ghana. He had suffered serious physical harm by a group of private individuals. However, in Ghana, homosexual activity is illegal. As a result, he feared he would be persecuted if he reported the incident to the police. In the end, the immigration judge determined my client had suffered past persecution. Nevertheless, although it is more difficult, some applicants are successful even when they have not suffered any physical violence or threats of violence.
How do I decide if filing for asylum is right for me?
The decision to file for asylum is not to be taken lightly because it can have significant consequences. Anyone considering filing for asylum should consult with an attorney that is experienced in handling asylum claims, in particular, LGBTQ claims for asylum. To schedule a consultation with an asylum immigration lawyer at Larson, Lyons & Al-Hamdani, please contact us here.