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Asylum Options for LGBT/Queer Community

Asylum for the Transgender, Gay and Lesbian Community

by Michael Serrano

 According to the UCLA Williams Institute, there are approximately 267,000 undocumented LGBT immigrants in the US.  The National Center for Transgender Equality estimates that between 15,000 and 50,000 or more of those 267,000 are transgenders.  A transgender individual, if not a US citizen, may have a claim for asylum and protection in the U.S.  Proving that one needs asylum to an immigration officer and judge is difficult.  If they are unsure on how to convey their persecution their claim can be declined.

 Prospective asylees need to prove: that in their country of nationality they have suffered persecution, or have a well-founded fear of future persecution based on their race, religion, nationality, membership in a particular social group, or political opinion, and the government is unable or unwilling to protect them.  The five protected groups can be combined if the persecution arises from the asylee's identification with multiple groups. 

 LGBT prospective asylees would fit within the membership in a particular social group classification.  Types of persecution varies amongst the LGBT community.  Transgenders have higher rates of persecution and may include: forced sterilization and/or castration, forced sex work, domestic violence, "corrective" rapes, etc.  Transgenders will also have a more difficult time of explaining their transition depending on what phase they are currently in, or if they are seeking that transition after hiding it their entire life.  Depending on the prospective asylees route, proving persecution based on their sexual orientation/gender identification will be a long road.

 If the prospective LGBT asylum applicant is not yet in the US, they should immediately inform the border agent when attempting to cross the border.  They will be detained so that a Department of Homeland Security (DHS) agent can conduct a credible fear interview.  Here, it is important for the detained to be as truthful, candid and detailed about past persecution, or fear of future persecution, based on their sexual orientation.  The results of this interview will be placed in their permanent file. 

 The detained should never sign any documents they do not understand.  If there are no previous crimes the agent may then order the detained to be released into the US and give them a future court date with an immigration judge to prove their asylum case.  If there is a crime or other issue, the agent will put the applicant on the detained docket to see a Judge.  The process would be quicker but more difficult to prepare for without easy access to legal assistance.

 If the prospective asylum applicant is already in the US, they have one year from the time they entered to file an asylum claim.  They can be undocumented or in the US based on another unrelated visa.  Although they will not go through the credible fear interview initially, they will still have to prove to an administrator that their case should be heard by an agent and immigration judge.

 It is imperative that individuals that think they are being persecuted based on their sexual orientation/gender identification to seek advice from an immigration attorney.  Non-profit organizations that assist the LGBT community should also have contact information for legal assistance for individuals suffering poverty/indigence. Since each individual case is unique, prospective asylum applicants that are within the one year window should not wait until the last weeks to seek a claim because of the time it takes to submit a well documented case.  Although the Obama administration has improved specialized training to DHS agents so they can better identify LGBT asylum case issues, prospective asylum applicants are still responsible in conveying their story through candid and truthful discussion.

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