by André Olivie -
Special to the SGN
In recent years the U.S. has seen tremendous progress in LGBT rights, from the fall of Section 3 of the Defense of Marriage Act and Prop 8 to the series of court rulings against anti-Gay marriage bans throughout the nation. Full marriage equality may be at our doorstep this summer as the U.S. Supreme Court has agreed to rule on the matter, but these domestic successes for LGBT rights have come at a time when increasingly homophobic laws are being enacted in other parts of the world.
Russia and Uganda have been the countries most prominent in the news with anti-Gay laws inhibiting not only one's right to marry but to exist. Many other nations continue government-sanctioned persecution of Gays and Lesbians. In 77 countries, to be homosexual is a criminal act. In some nations, LGBT individuals face beatings, rape, and killings by the government or members of society on a daily basis. Many LGBT Americans have been asking what they can do as individuals or what the U.S. can do as a nation to help.
In one way, the U.S. has been helping to provide a safe haven for persecuted Gays and Lesbians for over 20 years through the process of asylum (essentially, refugee status obtained inside the United States). As a local Gay immigration attorney who focuses on LGBT immigration and asylum matters, I have had the privilege of helping many individuals obtain asylum in the U.S. on account of their sexual orientation, including my first case out of law school.
Asylum is granted to individuals who have suffered persecution, or have a well-founded fear of persecution, by the government or individuals the government is unable or unwilling to control, on account of their race, religion, nationality, political opinion, or membership in a particular social group. In 1994, the U.S. government decided that homosexuals would be eligible for asylum as members of a particular social group, following the case of a Gay Cuban man seeking refuge in the U.S. Since then, individuals who identify as Gay, Lesbian, Bisexual, or Transgender have had the opportunity to seek asylum in the U.S. if they have suffered persecution or have a well-founded fear of persecution on account of their sexual orientation.
Generally, asylum is sought after entering the U.S., so an individual must first make it to the U.S. either through legal means such as obtaining a visa or by finding his or her way to the U.S. border. Processes exist for obtaining refugee status while outside the U.S., but they can be infinitely more difficult for most LGBT foreign nationals and are beyond the scope of this article.
The U.S. immigration system is extremely complex and the laws and regulations dealing with asylum are no different. The following narrative is an example of how one might obtain asylum in the U.S. It is not based on a particular case but on an amalgamation of many of my LGBT asylum clients:
Aleksandr is a 19-year-old college student from a former Soviet Republic nation. He has known he was different since he was six years old. He was more effeminate than most boys in his culture and was constantly bullied by classmates even before he knew what 'Gay' meant. Classmates would call him the Russian language equivalent of 'faggot' on a daily basis, throw stones at him, and on occasion physically beat him. If he sought help from his teachers, they would merely suggest that he act less feminine.
When he was 16, Aleksandr was raped by a police officer; it happened again when he was 17. Because it was the police who violated him, there was no one else to go to. There were no LGBT non-profits in his country - no Gay clubs, no community or support system. The president of Aleksandr's country had stated on television that there was no place for Gays in their country. Aleksandr had even heard of individuals who pretended to be Gay online only to find Gays and beat or steal from them. Aleksandr did his best to survive, he studied hard despite the harassment and persecution, and he eventually got a scholarship to study English abroad in the U.S.
After arriving in the U.S. Aleksandr felt a little relief, but it did not last long. He didn't feel comfortable coming out to his host family and some of his classmates were other individuals from his country or neighboring countries. Ten months passed, and while he did not face the same type of suffering as he did in his home country, he continued to feel the internal pain. He suffered from depression and what would later be diagnosed as post-traumatic stress disorder.
Eventually, Aleksandr began to feel comfortable enough to seek out other Gay individuals. After some initial casual experiences, he met a more serious boyfriend, an American man named Ryan. Ryan initially had never even heard of Aleksandr's small country of origin. As their relationship progressed, Aleksandr felt comfortable telling Ryan about his past, which helped him deal with some of the internal pain.
Soon enough, the couple's relationship was threatened by the reality of Aleksandr's situation. Aleksandr's permission to stay in the U.S. was tied to his school program, which ended in one month. The type of visa he was on also did not allow for obtaining a green card through marriage and he could not afford the international tuition to pay for more school. He would be forced to return to his country that would not accept him for who he was. The thought of returning to that life of oppression caused his depression to relapse.
When his school ended, Ryan convinced him to stay despite his immigration status. Aleksandr agreed and moved in with Ryan. Neither Ryan nor Aleksandr knew about asylum in the U.S. or how to apply for it, but with some Internet searching they found the Northwest Immigrant Rights Project, a Seattle non-profit that helps low-income immigrants in immigration-related legal matters. With thousands of individuals seeking help, there was a several-weeks wait, but eventually Aleksandr was able to get an appointment and a referral to a pro-bono immigration attorney.
Aleksandr came to me in 2013 after having been referred by the Northwest Immigrant Rights Project. I agreed to take his case free of charge. At our first meeting, I asked Aleksandr to tell me why he had stayed in the U.S., why he did not want to return to his home country. He recounted the childhood bullying, the harassment, the rape, and the general homophobic climate in his country. While he felt safe in the U.S., it was clear that he was not happy. He lacked a valid immigration status, he had no work authorization, and he was all alone in the U.S. By this time his relationship with Ryan was strained, as Ryan had to fully support Aleksandr who could not find work. Their relationship would only last another month. Even if it meant staying on his own, though, Aleksandr felt strongly that he needed to stay in the U.S. for his personal safety and well-being.
When Aleksandr came into my office, I explained to him the process for applying for asylum in the United States. He could apply for asylum through the mail to the asylum office. Following an interview, if the officer granted him asylum then he could remain in the U.S. After one year, he would be eligible to adjust his status to that of a lawful permanent resident and thus would not have to return to his home country. Four years later he would be eligible for U.S. citizenship.
If the asylum officer did not grant him asylum, I explained, he would be referred to Immigration Court where he would have the opportunity to apply for asylum again, but this time in front of an Immigration Judge and with a government attorney arguing that he should be deported. The goal would be to win at the first level with the asylum officer so that we would not have to go to court.
I also explained to Aleksandr that because thousands of immigrants apply for asylum each year, the process is not quick. Sometimes it can take years. If no decision is made in six months, he would be eligible for a work-permit while his case is pending, but not before. On top of this, we had to work quickly. Asylum must be applied for within one-year of entering the country unless country conditions had recently changed or within a reasonable time after one's lawful status has expired. It had been about three months since Aleksandr's student status ended. Together, we decided on a goal of applying within the next two months.
The U.S. would likely grant Aleksandr asylum if we could show that he was persecuted for being Gay and had a well-founded fear of future persecution if he were to return. The persecution had to have been caused by the government or people the government would not control. Aleksandr and I both knew all this to be true, but it is not enough to just state this to the asylum officer. We would need evidence.
We knew that it was a fact that Aleksandr was persecuted by his government because police officers are members of the government and rape is considered a form of persecution. Aleksandr told me that the officer expressed that he had heard that Aleksandr was Gay and that is why he initiated the rape. Unfortunately, there was no documentary evidence of the rape and no remaining physical damage several years later. How could we prove to the officer that this had even happened or that something similar would be likely to happen again? In addition, how could we convince the officer that Aleksandr was even Gay and not posing as a homosexual to obtain asylum?
Since there was no paper record of the rape or any of the beatings, we needed to use secondary sources of evidence. Aleksandr had only one close friend, Dimitri, who knew that he was Gay and knew about the abuse. Aleksandr contacted him by email to ask if he would write a letter confirming Aleksandr's story. At first, Dimitri felt uncomfortable. He had heard that his government sometimes opened mail before it left the country and he did not want to be outed as he too felt unsafe in his country. However, after thinking about it and realizing his friend needed help, Dimitri agreed to write a letter and mail it to Seattle. This would be helpful for Aleksandr's case, but still more evidence was needed. Aleksandr no longer had any physical scars from the attacks so we would not be able to get any proof of the rape or beatings from a medical examination. However, it was clear that he had emotional scars. I asked Aleksandr to meet with a mental health counselor. After a few sessions she was able to diagnose him with post-traumatic stress disorder and depression related to the harm he had suffered in his country. Psychological harm can also be a form of persecution. This diagnosis would also be helpful to prove his case to the asylum officer.
In addition to a detailed declaration by Alexander, the letter from Dimitri, and the psychological evaluation, we supplemented his case with country conditions. The U.S. State Department Human Rights Report, Amnesty International reports, Human Rights Watch reports, and various New York Times and BBC articles supported Alexander's claims that in his country it is not safe to be Gay and that the police routinely harassed and physically abused LGBT citizens. With this evidence and the U.S. government-required form I-589 Application for Asylum, we filed Alexandr's case.
About two weeks after filing, Alexandr received a receipt notice from the San Francisco Asylum Office and a biometrics appointment to give his fingerprints at the Seattle USCIS (United States Citizenship and Immigration Services) office. Now that his case had been filed, he would be allowed to remain in the U.S. until a decision was made. While this provided Alexandr with some sense of security, he still was not eligible to work and the uncertainty of his fate continued to cause him stress and exacerbated his depression.
The U.S. receives thousands of asylum applications a year and has limited resources to address them. Five months had passed and there was still no word from the asylum office as to when Aleksandr's interview would be held. Fortunately, after five months had passed Aleksandr was eligible to apply for work authorization so that he could work legally in the U.S. I called him back into my office to file the paperwork. He would need two passport-sized photos, a copy of his asylum receipt notice, and an I-765 Application for Employment Authorization. A month and a half later, Aleksandr received his work permit. With that he was able to apply for a social security number and hopefully find work more easily. He took a job at a fast food restaurant as it was the easiest to get hired. The steady employment helped but another four months passed and still he did not know if he would be granted asylum and be safe or be forced to return to his home country.
When 10 months had passed after he first filed his application, Aleksandr received an interview notice. It had been so long since we filed. Aleksandr had spent months trying to forget everything about his past life, but now I needed to ask him to recall every painful detail. The interview took place at 8 a.m. at the U.S. Citizenship and Immigration Services office in Tukwila, in a small office. The asylum officer had flown in from San Francisco earlier that week. He spent a few minutes taking Aleksandr's fingerprints digitally and a photograph. He then asked if we had any corrections to make on the application we had filed. Aleksandr had recently moved into a new apartment so we gave the officer the new address.
The officer began by asking why Aleksandr was seeking asylum. He asked if Aleksandr had ever been harmed and by whom. Aleksandr had told me his story several times, but now he had to tell it to a complete stranger who had the power to grant him asylum. He was very nervous, but the officer was kind and patient. Recalling his history to the officer was quite difficult because the officer needed to type his notes the entire time. He had to ask Aleksandr several times to stop or slow down so he could finish typing. At the end of the interview, I asked Aleksandr a few questions that the officer did not, but that which I felt would support his case. We thanked the officer and were told that a decision would arrive in the mail after the officer had had more time to review his notes and the evidence we provided.
It would be another month before Aleksandr received a letter from the asylum office with the decision. I felt the interview went well, but I did not know what would be inside the envelope. It had been almost two years since Aleksandr left his country and only now would he find out if the U.S. would be his refuge. Aleksandr opened the envelope carefully, pulled out the letter and unfolded it.
It started with his address and case number. Then he read the first line of the body: You have been granted asylum.
Individuals who have suffered persecution on account of their sexual orientation face an uphill battle. Only a tiny percentage will have the opportunity to get to the U.S. or other LGBT friendly nation. Getting here is just the first step to gaining asylum.
Attorney, André Olivie is a graduate of Seattle University School of Law and practices immigration and asylum law with a focus on same-sex marriage visas and LGBT asylum. His office is located in Capitol Hill and online at www.olivielaw.com.
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