Asylum is a legal mechanism for protecting immigrants who know or believe that they will be harmed if they return to their home countries. People who are granted asylum are allowed to stay in the United States, get a work permit, have access to some public benefits, and eventually apply for a green card. In general, serious risks of harm to an individual in their home country because of sexual orientation or gender identity will be recognized by the courts and create a claim for asylum.1 Deciding whether to apply for asylum, however, is sometimes a tough decision. If the applicant is given asylum, that person would be able to stay in the U.S. and to apply for several public benefits. If the applicant does not win asylum, however, the individual might eventually be ordered to leave the U.S. and return to that person's home country. Applying for asylum if the applicant has a weak case can be very risky. For some people, it is better if they do not apply. Ideally, the decision should be made after having spoken to an immigration attorney or accredited representative.
Applying for Asylum
A person can affirmatively apply for asylum before the local asylum office or, if they are in deportation proceedings, before the immigration judge. If the person applies affirmatively and the asylum officer does not grant asylum, the person’s case is referred to an immigration court which is part of the Executive Office for Immigration Review (EOIR).2
Emilia Bardini, Director of the San Francisco Asylum Office, states that the office weighs each case on its individual merits. It handles around 3,000 cases each year, with 5-10% being claims based on sexual orientation or gender identity, 90 percent of which are from men and 70-80% from Mexico. The most frequent LGBT asylum cases involve forced psychiatric treatments, forced marriage, harms experienced as children and from family members.
There are many resources and legal service providers that can help someone assess the merits of their claims for asylum, withholding of removal, or relief under the United Nations Convention Against Torture. Some names of such providers in California, including the San Francisco Bay Area, are available on the immigration courts’ website.
To apply for asylum, applicants must prove:
(1) that she or he has well-founded fear of persecution or has suffered past persecution;
(2) that such persecution is on account of race, religion, nationality, membership in a particular social group or political opinion, and;
(3) that asylum should be granted in the exercise of discretion.3
To qualify for asylum, applicants need to prove a well-founded fear of persecution. The U.S. Supreme Court has held that a “well-founded” fear means a “reasonable” fear of actual persecution, which means that someone with only a one in ten chance of persecution may be eligible for asylum.4
In order to prove a well-founded fear of persecution, the alien must show:
(1) that she or he possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort;
(2) the persecutor is already aware, or could become aware, that she or he possesses this belief or characteristic;
(3) the persecutor has the capability of punishing the alien, and;
(4) the persecutor has the inclination to punish the alien.5
The Supreme Court has held that individuals seeking asylum “must prove specific facts through objective evidence to prove either past persecution or good reason to fear future persecution.”6 Additionally, the government of the applicant’s home country must either be the persecutor or unable/unwilling to offer protections against persecution at the hands of another. Though not defined expressly by statute, courts have defined “particular social group” to mean that the characteristic that defines the group “must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.”7 The Ninth Circuit has interpreted “social group” to extend broadly to many groups.8
Courts have determined that sexual orientation qualifies an applicant as part of a particular social group, but have not ruled on whether transgender people meet this requirement.9 Some transgender people identify as gay or lesbian, and therefore could argue that their persecution is based on sexual orientation. Those who do not identify as homosexual or gay might still present an argument based on sexual orientation, arguing that they are persecuted against because of their perceived sexual orientation. Absent either of these two arguments, transgender people still have a strong argument for proving that being transgender classifies them in a particular social group. In fact, courts have recognized that male-bodied people who sleep with men and have female gender identities constitute a social group and may be persecuted because of this identity.10
Certain factors in an application for asylum might cause a dismissal. An applicant must apply for asylum within one year of that person's last arrival in the United States.11 The DHS requires the applicant to mail in the application before the one year deadline. It is safest to mail it at least several weeks before the deadline. Under certain circumstances, an applicant may still apply for asylum even if it has been more than one year since last entry into the US. If the individual can show either the existence of changed circumstances that materially affect eligibility for asylum or extraordinary circumstances that justify the delay in filing, the applicant may still be eligible for asylum.12 However, these situations are rare. Some examples may include:
• HIV positive status as a material change in circumstances
• Turning 21 on an asylum application and losing derivative status
• Coming out as LGBT as a material change in circumstances
• Trauma and depression
• A pending immigration visa petition such as an I-140 labor certification can also be an extraordinary circumstance excusing failure to file within the one-year time period.
A criminal record is another factor that might stand in the way of a successful application for asylum. The government will deny asylum to anyone who has been convicted of an “aggravated felony.”13 In this case, the applicant should talk to a lawyer to see if the person still qualifies for asylum or the person qualifies for other relief, such as withholding of removal or relief under the UN Convention Against Torture. Ideally, in this situation, the immigration lawyer will communicate with the criminal defense attorney who helped with the criminal case. It is important that the applicant be as forthcoming about his or her criminal past as possible. The lawyer needs to know about every arrest in order to provide the most accurate advice to the individuals. If the attorney is unaware of an arrest, this can negatively impact an asylum case. If the immigration judge denies an application for asylum, the person has the right to appeal this decision to the Board of Immigration Appeals, whose members are also appointed by the Justice Department. In addition, DHS can appeal an immigration judge’s decision granting asylum. If the BIA holds that the person is not eligible for or does not merit asylum (or other immigration relief), the person can appeal to a U.S. court of appeals.
To apply for an Employment Authorization Document (EAD), individuals must use Form I-765. It is difficult for applicants to get a temporary work permit during their asylum application period.14 If an applicant has not received a decision after 150 days from the date of filing, the individual can apply for a work permit.15 Most applicants do not get any kind of work permit until after winning asylum. After winning asylum, an individual no longer needs a special Employment Authorization Document to work, and may obtain a social security number that will serve as proof of legal status for work.16
Getting Legal Help
Because asylum law is confusing and because everything an applicant says or gives to the DHS may become a part of her or his asylum record, it is strongly encouraged that an applicant talk to a lawyer before sending anything to DHS. If the one year filing deadline for asylum is coming up or has already passed, the applicant should get legal help immediately.
Applicants should be aware that some people who say they are immigration experts are not experts and may not even be lawyers. Sometimes asylum applicants will pay a notario or paralegal to help them apply for asylum. Using these kinds of services is often a mistake. Many times these people can ruin a person's chances for asylum. If you want to use one of these businesses or think you were harmed by one of them, call the Anti-Fraud Unit of the Immigrant Legal Resource Center at (415) 255-9499, extension 6263.
The most important thing a person can do for his or her attorney is to be as honest as possible. If an applicant meets with someone from the Asylum Program at the Immigrant Legal Resource Center or hires a private lawyer on his or her own, anything he or she says to that lawyer is confidential. That means that this lawyer is not allowed to tell this information to the U.S. government or to anyone else without the permission of the applicant. Speaking with an attorney is also a good way to calm fears about the risk of applying for asylum. It is very helpful for an applicant to collect documents for the case. Some helpful documents include pictures from when the applicant lived in his or her home country, a birth certificate or identity card, and letters from relatives or friends that will help prove the case. These documents are not necessary, but can be helpful. The Asylum Program at the Immigrant Legal Resource Center is a good resource for obtaining “country packets.” These packets contain information about different countries’ persecution of people based on sexual orientation and/or HIV status.
Hernandez-Montiel v. INS, 225 F.3d 1084, 1099 (9th Cir. 2000). ↩
INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A). ↩
Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987). ↩
Id. at 457. ↩
Id. at 421. ↩
Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985). ↩
Sanchez-Trujillo v. Immigration and Naturalization Service, 801 F.2d 1571, 1576 (Ninth Cir. 1986). ↩
Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 822 (BIA 1990). ↩
Hernandez-Motiel v. Immigration and Naturalization Service, 225 F.3d 1084 (9th Cir. 1997); see also Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004). ↩
8 U.S.C. § 1158(a)(2)(B). ↩
8 C.F.R. §208.4(a)(2)(ii). ↩
8 U.S.C. § 1158(b)(2)(B)(i). Whereas the term "aggravated felony" may sound as if it includes only the most serious violent crimes, under the definition provided by the Immigration and Nationality Act, even theft offenses with a penalty of more than one year in prison, illegal gambling, and fraud are generally considered aggravated felonies. 8 U.S.C. § 1101(a)(43). ↩
Asylum Eligibility and Applications Frequently Asked Questions (FAQ), USCIS - U.S. Citizenship and Immigration Services. Last visited June 13, 2013. ↩