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Ground-breaking USCIS Guidance on LGBTI Asylum Claims

by Victoria Neilson

Recently, the U.S. Citizenship and Immigration Services issued its first ever "Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims." Following closely on the heels of Secretary of State Hillary Clinton's historic speech at the United Nations where she declared that "gay rights are human rights and human rights are gay rights," the Guidance heralds an unprecedented commitment to protecting the rights of LGBTI people fleeing persecution.

The Guidance is a training module and so its audience is first and foremost Asylum and Refugee officers. For this audience, the Guidance offers basic definitions of sexual orientation, gender identity, intersex condition, and HIV. It also sets expectations that the officers be sensitive to the difficult nature of these claims:

Interviews with LGBTI or HIV-positive refugee and asylum applicants require the individual "to discuss some of the most sensitive and private aspects of human identity and behavior" - sexual orientation, gender identity, and life-threatening illness. These topics may be particularly difficult for applicants to discuss with government officials and may also be uncomfortable for the Interviewer to discuss. Guidance at 11.

The Guidance also gives officers specific directions on how to interact with LGBTI applicants, such as telling officers to ask transgender applicants which pronoun and name they prefer to us, and using that preferred language during the interview. With specific examples of appropriate and inappropriate lines of questioning, the practitioner now has a concrete basis on which to seek a supervisor's intervention if an officer asks inappropriate questions, such as graphic sexual questions.

In addition to describing how the asylum standard is applied in LGBTI cases, the Guidance explains some challenging scenarios which may arise in LGBTI cases and offers explanations. For example, the Guidance suggests that the mere fact that an applicant is or has been in an opposite sex marriage does not undermine the applicant's credibility if he or she can explain the circumstances of the marriage. The Guidance also directs officers not to find applicants to lack credibility if they are unfamiliar with the same LGBTI terminology and culture that is common in the U.S. And the Guidance makes it clear that an officer may not rely on his or her own stereotypes of whether or not the applicant "looks gay" in determining whether the applicant would be singled out for harm in his or her country of origin. (Guidance pp. 39-41).

Finally, one of the most useful sections of the Guidance is the Appendix (this section is in the appendix because the Guidance is for both refugee and asylum officers and there is no one year deadline for refugee claims) which discusses some of the reasons that LGBTI asylum seekers may have missed the one year filing deadline and possible exceptions that may overcome the deadline. I have previously argued that LGBTI asylum seekers are disproportionately affected by the filing deadline because so many would-be asylum applicants simply have no idea that their sexual orientation or gender identity could be a basis for an asylum claim. Since there are very few federal decisions that address one year exceptions and even fewer BIA decisions, having something from USCIS to cite on one year issues will be hugely helpful to practitioners.

If you practice this area of law, you should be familiar with pages 61-64 of this Guidance. Specifically, the Guidance lays out possible "changed circumstances" exceptions where the applicant:

  • Has recently "come out" as LGBT;
  • Is transgender and has recently taken medical steps in his or her transition which changes his or her outward appearance; or
  • Has been recently diagnosed with HIV.

The Guidance also lays out some LGBTI-specific "extraordinary circumstances" exceptions which may arise, including:

  • Severe medical problems relating to HIV;
  • Mental health issues including PTSD and mental health consequences of being subjected to psychiatric "treatment" in the home country to "cure" him or her of being LGBTI;
  • Severe family or community opposition or isolation, recognizing that many LGBTI people will not have the support of family or extended community upon arriving in the U.S.

In issuing this Guidance, USCIS has taken an important step toward ensuring that LGBTI asylum seekers are treated respectfully and that claims are adjudicated consistently throughout the Refugee and Asylum officers corps. It also provides invaluable guidance to asylum practitioners who, at last, have a government document to cite when making common-sense arguments.

About The Author

Victoria Neilson is the Legal Director of Immigration Equality, a national organization fighting to end discrimination under U.S. immigration law towards LGBT immigrants and their families. We also provide resources (including an LGBT asylum manual) and mentoring to attorneys who work on LGBT asylum cases.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.