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Options for LGBTQ Asylum Seekers

Jun 12, 2019 12:34:27 PM / by Staff Attorney

LGBTQ persons afraid to return to their country because it would be dangerous to be open about LGBTQ identity or because of past trauma, may have a strong claim for asylum in the United States.

 

A person is eligible for asylum if they can prove that they suffered past persecution or have a well founded fear of future persecution.  Past persecution means that you (1) suffered extreme harm, such as rape, sexual assault, beatings, death threats, severe emotional trauma, forced medical procedures, and in some cases forced conversion therapy, (2) on account of a protected characterstic--which includes LGBTQ identity, (3) by the government or by persons that the government was unable or unwilling to control.   If you establish these elements, there is a rebuttable presumption that you have a well founded fear of future persecution such that you cannot return to your country. This can only be rebutted by a showing that you could be safe residing somewhere else in your country and that it would be reasonable for you to move, or that conditions have changed dramatically in your country for the better.   

 

If you did not suffer harm in the past, you can establish eligibility for asylum if you are afraid of being persecuted due to your LGBTQ identity in the future and that fear is supported by objective evidence.  This can include evidence of threats you sustained in the past, country conditions evidence showing a pattern or practice of persecution of LGBTQ persons, or evidence of LGBTQ friends or family members suffering persecution.

 

Generally, LGBTQ based claims for asylum are strong due to the unfortunate circumstances that many LGBTQ persons face in Mexio, Central America, the Middle East, Africa, and in some European and Asian countries like Turkey, Russia, and Chechnya.   Additionally, the United States Court of Appeals for the Ninth Circuit has held that LGBTQ identity is always a cognizable particular social group, and thus, that it is a protected characteristic in all cases.

 

However, LGBTQ cases can have some particular challenges.  Usually, the most difficult aspect in an asylum case is proving that the abuse or harm suffered was due to LGBTQ identity.  Sometimes the case is straight forward, because perhaps an abuser called the victim a derogatory name during, before, or after the abuse. Other times proving that the harm was due to LGBTQ identity will require a more nuanced analysis of the timing and circumstances of the abuse.  An additional challenge can be that often the abuse was perpetrated by a private actor, and thus, the applicant needs to show that the government was unable or unwilling to stop the abuse. You can meet this element with evidence that you alerted the authorities about the abuse and were ignored or mistreated.  If you did not report the abuse to the authorities, you can demonstrate that the government is unable or unwilling to protect you through substantial country conditions evidence showing that the authorities do not properly handle crimes against LGBTQ persons and/or that they discriminate against LGBTQ persons themselves.  Usually, this type of evidence is not difficult to obtain, as sadly, most countries do not do a good job of handling hate crimes and discrimination.

 

It can also be challenging for asylum applicants to remember the details of the trauma they faced, which can lead to missing key facts that establish the case or to inconsistencies during testimony.  Because so many asylum seekers have faced unthinkable trauma, and because the asylum process itself can be draining, we always recommend that our client seek therapy at the same time that they seek humanitarian protection.  

 

Finally, it should be noted that you must file asylum within one year of your last entry to the United States.  There are two main exceptions to this filing deadline: 1) Changed circumstances -- this can be changed country conditions (for example, if your country recently enacted discriminatory laws) or changed personal circumstances (perhaps you recently came out or discovered your identity); and 2) Exceptional circumstances excusing the delay in the filing of the application for asylum -- this can include suffering from mental illnesses like PTSD, maintaining a lawful status (such as an F1 or B1/B2 status), or ineffective assistance of counsel.  You must then file the application within a reasonable time (generally six months) of that exception. Even if it is over a year after you entered the United States, you should consult with an immigration attorney to see if an exception applies to your case. If the filing deadline does apply to you and if you are currently in removal proceedings, you may be eligible for alternative forms of humanitarian protection that do not have a filing deadline, such as Withholding of Removal and Protection under the Convention Against Torture.

(1)Notably, if the government was the persecutor it is presumed you could not move within the country and be safe.  

If you are an LGBTQ person seeking to remain in the United States, you should contact our office to discuss your options for the humanitarian protection that you deserve.  We handle each case with passion, empathy, and a determination to win because we understand that obtaining asylum can be a matter of life and death. Call our office today at 800-792-9889.

Staff Attorney

Written by Staff Attorney

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