Can LGBT people apply for asylum?
The short answer is yes. Those who are LGBT or perceived as LGBT can be defined as a “social group” for asylum purposes. Applicants must still meet the general requirements. Asylum is for people who have suffered past persecution or who fear future persecution based upon a protected category. LGBT is a social group that counts as such a category.
What kind of LGBT asylum cases have you worked on?
LGBT individuals, and those perceived as LGBT, are persecuted in many countries of the world. Even people from countries with which the U.S. has friendly relations may have been persecuted, or may fear persecution. An example of this is Jamaica, an English-speaking democracy with excellent relations with the United States, and which receives thousands of U.S. tourists every year, but which brutally persecutes its LGBT and HIV+ populations.
Immigration lawyers with Lightman Law Firm have worked on asylum cases for LGBT and HIV+ asylum cases for individuals from across the globe. We have worked with gay/LGBT individuals from the Caribbean (Jamaica, Trinidad & Tobago, etc.), Russia / former Soviet Union, Central America, and Africa.
Persecution against LGBT people is the norm in many parts of the world, unfortunately, and with the recent emergence of authoritarian governments in some countries, the situation for LGBT people is getting worse. The attorneys at Lightman Law Firm are constantly keeping abreast of human rights situations around the world and the asylum procedures, and can help you if you fear returning to your country because of your sexual orientation or identity.
What kind of harm and mistreatment have LGBT people suffered at the hands of their persecutors?
For most of the cases involving LGBT asylum that our firm has worked on, the harm has been actual violence or threats of violence. In many countries that persecute LGBT individuals, the Government actually demonizes LGBT individuals through legal means, by passing laws against the existence of LGBT establishments and groups, making it against the law to advocate for LGBT rights, or even flat-out criminalizing being LGBT.
What then often follows the state-sponsored demonization and criminalization are acts of brutal violence at the hands of thugs and gangs.
So you can get asylum even if the violence is not directly at the hands of the State?
Yes! The asylum law states that an individual can receive asylum due to past persecution or well-founded fear of future persecution, even if the persecution is (or will be) at the hands of non-state actors, as long as s/he can show that the Government is unwilling or unable to protect their safety. As is often the case in countries where there is anti-gay violence, the Government demonizes LGBT people and is not only unwilling to help, but in some cases it appears that they condone the violence / mistreatment being afflicted upon LGBT members.
What about HIV status as a grounds for asylum?
The interplay between LGBT and HIV is also important to mention. In many countries there is a perception that only LGBT people or sex workers have HIV. And so, a person with HIV may be “perceived as” or assumed to be LGBT by the community at large, even if they are not in fact LGBT, and may suffer persecution as such. If you are living with HIV, please call us to discuss what asylum options you may have, as every case is unique.
It should be noted that in the context of HIV+ status, simply not having access to top-notch medical care will not suffice to win asylum. The applicant must show that he or she has been persecuted or will suffer persecution by the government or groups the government is unable or unwilling to control, because of their HIV status, or because they are perceived as being in a social group (example, LGBT) because of their HIV status. Lack of access to good medical care, as unfortunate as that may be, is not seen by the U.S. government at this time as meeting the definition of “persecution.”
What about people who are saying they are LGBT just so they can apply for asylum?
Deliberately making up a fraudulent claim for asylum is one of the worst things a person seeking to remain in the United States can do. If a person is not LGBT and tells the U.S. immigration authorities that they are, just to apply for asylum, they are deliberately fabricating an asylum claim. Plain and simple. If an Immigration Judge finds that you deliberately fabricated your asylum story, he or she will make what is called a “frivolous finding” against you.
It should be noted that just because your case is denied that does not mean that the Judge will automatically make a frivolous finding against you. A frivolous finding is made if the Judge finds that you purposely and deliberately made up your case. If the Immigration Judge makes a frivolous finding against you, and no appeal is granted on this finding, then the frivolous finding is final, and you will be barred from virtually all benefits under U.S. immigration laws. This means that you will not be able to get status in the United States, even through family-based or employment-based immigration, temporary visas, the diversity lottery, etc.
There are two very minor exceptions to this rule, namely withholding of removal and protection under Article III of the Convention against Torture. These two forms of relief are not barred by a frivolous finding. But all other forms of immigration benefits are permanently closed off to anyone who deliberately fabricates an asylum claim. So it is probably one of the worst choices an immigrant trying to stay in the United States can make!