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Humanitarian Diplomacy
The U.S. Asylum System’s Role in Protecting Global LGBT Rights
By Sharita Gruberg and Rachel West June 2015
WWW.AMERICANPROGRESS.O
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Humanitarian DiplomacyThe U.S. Asylum System’s Role in Protecting
Global LGBT Rights
By Sharita Gruberg and Rachel West June 2015
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1 Introduction and summary
7 The global state of LGBT rights
13 Characteristics and outcomes of affirmative asylum case
18 Defensive asylum cases
20 Findings
31 Recommendations
33 Conclusion
34 Appendix
37 About the authors and acknowledgments
38 Endnotes
Contents
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1 Center for American Progress | Humanitarian Diplomacy
Introduction and summary
Nearly a decade beore he U.S. Supreme Cour ruled ha U.S. laws which crimi-
nalize “homosexual conduc” are unconsiuional in he 2003 case Lawrence v.
Texas , a gay Cuban man won proecion in he Unied Saes rom he persecuion
he aced in his naive land because o his sexual orienaion. I was he firs ime
ha persecuion based on sexual orienaion was esablished as valid grounds or
asylum in he Unied Saes.1
In 1980, U.S. immigraion law sill excluded lesbian, gay, bisexual, and ransgen-der, or LGB, people rom enering he counry under a prohibiion on wha was
ermed “sexual deviaion.”2 Despie his ban, Fidel Armando oboso-Alonso
came o he Unied Saes ha year as par o he inamous Mariel boalif, seeking
proecion rom he violence and police harassmen he aced in Cuba.3 Beginning
in 1967, he Cuban governmen mainained a file on oboso-Alonso, lising
him as a “homosexual,” a criminal offense in Cuba a he ime. Every wo or
hree monhs or 13 years, he received a noicewhich reerred o him as “Fidel
Armando oboso, a homosexual”o appear or a hearing. Each hearing involved
an invasive physical examinaion and quesions rom Cuban officials abou his sex
lie and parners. Frequenly, he was deained or days afer hese hearings wihou
being charged, subjeced o verbal and physical abuse, and once sen o a orced
labor camp or 60 days.4
Finally, oboso-Alonso was given wo opionsleave Cuba or spend our years
in prison. He chose o leave and in 1980, upon arriving in he Unied Saes along
wih more han 124,000 Cuban reugees, was graned parole, or emporary per-
mission o remain in he counry.5 However, his emporary permission o say was
lifed in 1985 afer a criminal convicion. He hen applied or asylum. Alhough
he judge ound ha he me he definiion o a reugee and ha he was more likelyhan no o be persecued i he reurned o Cuba, oboso-Alonso was graned he
lesser proecion o wihholding o removal because o his convicion, insead o
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2 Center for American Progress | Humanitarian Diplomacy
asylum. Tis mean ha he could be depored o a counry oher han Cuba and
had o pay a ee o work in he Unied Saes. (see Glossary)6 Te Immigraion and
Nauralizaion Service, or INS, appealed he judge’s decision, arguing ha “socially
deviaed behavior, i.e. homosexual aciviy is no a basis or finding a social
group [grounds or asylum] wihin he conemplaion o he [Immigraion and
Naionaliy Ac].”7
I urher argued ha recognizing gay men in Cuba as a paricu-lar social group eligible or asylum “would be anamoun o awarding discreion-
ary relie o hose involved in behavior ha is no only socially devian in naure,
bu in violaion o he laws or regulaions o he counry as well.”8 In response, he
Board o Immigraion Appeals, or BIA, disinguished beween criminal conduc
and saus. Te BIA, in he decision Mater of Toboso-Alfonso , deermined ha
i was no he applican’s criminal conduc ha caused he Cuban governmen
o arge him bu simply “his having he saus o being a homosexual,” and i
affirmed he judge’s decision.9 Eigh monhs laer, Presiden George H.W. Bush
signed he Immigraion and Naionaliy Ac o 1990 ino law, finally lifing he ban
on LGB people immigraing o he Unied Saes and opening he door or hemo ener he counry lawully.10
While he Unied Saes and oher counries have made grea srides in recogniz-
ing he righs o LGB people in he 25 years since he ban on LGB immigraion
was lifedand since he Toboso-Alfonso decision ha people fleeing persecuion
based on heir sexual orienaion could be eligible or asylumhe LGB com-
muniy coninues o ace widespread persecuion around he world, making he
Unied Saes’ role as a sae haven criical or he saey and well-being o LGB
people worldwide. Bu recognizing he righ o LGB people o access he U.S.
asylum sysem is only he firs sep. More mus be done o ensure ha his righ
can be exercised meaningully.
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Former Rep. Barney Frank (D-MA) and LGBT asylum
The battle to recognize sexual orientation as grounds for
asylum unfortunately did not end with the BIA’s decision in
Toboso-Alfonso . In 1994, then-U.S. Attorney General Janet
Reno gave the case precedential status, for the first timerequiring all asylum adjudicators to recognize persecution
based on sexual orientation as grounds for asylum.11 She did
so with a push from former Rep. Barney Frank (D-MA), who
sat on the House Judiciary Committee at the time and wanted
to use his position to eliminate the exclusion of LGBT people
from the U.S. immigration system. Rep. Frank recently spoke
to the Center for American Progress about his role in securing
protections for LGBT people fleeing persecution. What follows
is an excerpt from that conversation:12
“I had been determined when I got to Washington to get rid of
the anti-gay exclusion from the immigration bill. My first year,
I got put on [the] judiciary subcommittee on immigration to
work on the overhaul that led to the first amnesty sanctions
trade-off. I agreed to be part of the coalition to pass that bill
in return for them letting me take the lead in rewriting the
exclusions, which were not just gay people but even more of
a problem, ideological. We finally worked that out, so by 1990
when Bush signed the bill, we got rid of the anti-gay exclu-
sion. That was the prerequisite to asylum.
“I knew about asylum because all through the [19]80s I’d
hear from people who were persecuted, and we tried to find
some way for them to stay. Once that happened, I tried to get
asylum on our list, but the next important issue for us was
gays in the military.
“When [former President Bill] Clinton was frustrated in his
effort to get gays in the military in ‘93 and we got stuck with‘Don’t Ask Don’t Tell,’ I saw my opportunity. I then said to him,
‘You have people critical of you over gays in military.’ I believe
that was unfair, I believe he tried his hardest.”
Continuing his discussion with President Clinton, Rep. Fran
recalled saying the following:
“But it does seem to me you have interest in showing thereare things you can do to help gay people. I had three [is-
sues] on my list. The most important was getting rid of the
Eisenhower executive order saying we [LGBT people] were
security risks, which he did.
“The second was the asylum issue. And I asked him [Presid
Clinton] to do that. The way to do that was through the att
ney general declaring that case [Toboso-Alfonso] to be prec
edential. There was a little back and forth over it. Janet [Re
was not initially convinced that she had the legal authority
but I, frankly, kept up the heat with the president, and that
how it happened. It was explicitly done by [President] Clin
after the failure of the effort to get gays in military in part
because he recognized the importance of showing he was
only pro-LGBT but capable of doing some real things.
“The third one was a letter reaffirming that sexual orienta-
tion could not be a factor in federal hiring. Getting both
sexual orientation and gender identity explicitly added to t
list for which you could get asylum by naming that case as
precedential was something I specifically lobbied [Presiden
Clinton] to do, with the leverage being that it was importa
to enact some pro-gay policies after the failure of the milit
ban. When he did it, a very anti-immigrant group called FA
[Federation for American Immigration Reform] announced
would lead to a tremendous influx of people pretending to
gay. That was just another one of a number of stupid predi
tions by anti-gay people that never came true.”
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In he 25 years since he Toboso-Alfonso decision, he U.S. governmen has rec-
ognized he righ o LGB people fleeing persecuion in heir home counries o
seek proecion in he Unied Saes. While much has been done o recognize he
righ o hese individuals o access U.S. proecion, here is litle inormaion avail-
able o deermine how effecive hese measures have been, since he governmen
does no collec sexual orienaion and gender ideniy daa in he asylum sysem.ecognizing he paricular difficulies ha LGB asylum seekers have accessing
proecion in he Unied Saes, he U.S. Ciizenship and Immigraion Services,
or USCIS, began o rain asylum officers on adjudicaing LGB asylum claims in
2012.13 However, wihou collecing daa on LGB asylum claims, here is no way
o knowing how many LGB people seek proecion in he Unied Saes, where
hey come rom, he oucomes o heir cases, or i officer raining is effecive.
o help answer hese quesions, CAP enlised he help o Immigraion Equaliya
pro bono legal service provider or LGB and HIV-posiive immigransand
Human ighs Firsan inernaional human righs organizaion based in New York; Washingon, D.C.; and Houson ha, in addiion o is inernaional advocacy,
also provides pro bono legal represenaion o asylum seekers. Boh organizaions
provided access o heir daa abou LGB asylum seekers, along wih insigh ino
how well he Unied Saes is proecing LGB people fleeing persecuion.
Briefly, he daa rom Immigraion Equaliy and Human ighs Firs show he
ollowing:
• LGB people seeking asylum are more likely o win heir claims i hey apply
affirmaivelyha is, i hey apply when hey are no already in a removal
proceedingraher han deensively, where asylum seekers are in a removal
proceeding and mus prove ha hey should no be depored.
• ransgender people seeking asylum do no apply affirmaively as requenly as
nonransgender asylum seekers do.
• Deenion hurs LGB applicans’ chances o being graned asylum.
• LGB asylum seekers are disproporionaely affeced by he one-year filingdeadline.
In ligh o he exreme violence and persecuion infliced by sae acors and ciizens
in many counries, he Unied Saes mus ensure ha LGB people are no denied
liesaving proecions such as asylum by acors unrelaed o he meris o heir claims.
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Glossary
Affirmative asylum process: Available to people seeking
protection from persecution who are inside the United States
or are seeking to enter the United States and not in removal
proceedings. The application must be filed within one year ofarriving in the United States, unless eligibility for an exception
can be shown. An asylum officer interviews applicants and
decides whether they are eligible for asylum, whether they
meet the definition of a refugee, whether they are barred
from being granted asylum, or whether to refer their case to
an immigration judge.14
Asylum: A form of protection available to people who meet
the definition of a refugee and who are either already in the
United States or seeking to enter the United States at a port
of entry.
Relief under the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or
Punishment, or CAT: A form of relief available to people
who demonstrate that it is more likely than not that they
will be tortured if deported to their country of origin. Torture
“must be an extreme form of cruel and inhuman punishment”
that “must cause severe pain or suffering.”15 Unlike asylum
and withholding of removal, there are no bars to eligibility for
relief under this form of protection.16
Defensive asylum process: Available to people in removal
proceedings who request asylum as a defense against depor-
tation. An immigration judge hears the case in a courtroom-
like proceeding, with individuals and their attorneys—if they
have one—making the case for asylum and a U.S. govern-
ment attorney making the case for deportation. The immi-
gration judge decides whether the individual is eligible forasylum or another form of relief.17
Particular social group: Group of people who share a co
mon, immutable characteristic that the members of the gr
cannot or should not be required to change.18
Persecution: Refers to a degree of harm that the asylum
applicant previously experienced or fears. The term is not
defined by law, but the BIA has found that persecution can
consist of objectively serious harm or suffering that is inflic
because of an actual or perceived characteristic of the victi
regardless of whether the persecutor intends the victim to
experience the harm as harm. Harm includes physical harm
the threat of physical harm, as well as “the deliberate impo
tion of severe economic disadvantage or the deprivation o
liberty, food, housing, employment or other essentials of
life.”19 A finding of past persecution motivated by one of fiv
things—an applicant’s race, religion, nationality, members
in a particular social group, or political opinion—carries a
presumption of future persecution. The persecution must b
by a government entity, or the government must be unabl
unwilling to control the persecutor.20
Refugees: People outside their country of origin who are
able or unwilling to return home and are unable or unwilli
to avail themselves of the protection of their home country
because of persecution or a well-founded fear of persecu-
tion on account of race, religion, nationality, membership i
a particular social group, or political opinion. Under U.S. law
asylum seekers are people seeking protection from within
the United States, while refugees were screened outside th
United States and referred for resettlement here.21
Removal proceedings: Also known as deportation pro-
ceedings, this term refers to an administrative proceedingto determine whether individuals can be removed from th
United States under immigration law. An immigration judg
conducts such proceedings.22
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Pro se: Individuals advocating on behalf of themselves—
without an attorney—in legal procedures.23
Withholding of removal: A form of relief available to
people who can prove a more likely than not—51 percentor greater—chance of persecution on account of their race,
religion, nationality, membership in a particular social group,
or political opinion if deported to their country of origin. Un-
like asylum, there is no path to a green card or citizenship for
people granted withholding of removal, and they must pay
annual fee to work in the United States. The government re
tains the right to deport these people to a country other th
their country of origin. People who are ineligible for asylum
may be eligible for withholding of removal because there ino one-year filing deadline for withholding of removal; it is
not discretionary, as a judge must grant it if someone prov
eligibility; and some crimes that disqualify a grant of asylu
do not disqualify a grant of withholding of removal.24
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The global state of LGBT rights
oday, a leas 76 counries have laws ha criminalize and harass people on he
basis o heir sexual orienaion or gender ideniy and expression.25 In much o he
world, he penaly or being LGB can be exremely harsh, rom prison o even
deah in Iran, Mauriania, Sudan, Saudi Arabia, Yemen, and pars o Nigeria and
Somalia.26 Likewise, alhough i is unclear wheher hese laws are acually being
implemened, Brunei, Iraq, Pakisan, and Qaar have legal codes ha sipulae he
deah penaly or “homosexual acs.”27 In addiion o ani-sodomy laws, which in
many cases are remnans o colonial occupaion, a growing number o counries aresrenghening old laws and passing new ones ha arge LGB people.
2013 saw a rise in new and renewed laws criminalizing LGB people, beginning wih
he Supreme Cour o India reinsaing a colonial-era law ha criminalizes consen-
sual same-sex relaions.28 Nigeria urher criminalized consensual same-sex relaions
and insiued resricions on he righs o ree associaion, expression, and assembly
or LGB people.29 In Uganda, he Ani-Homosexualiy Acpreviously known
as he “Kill he Gays” bill because o an earlier version’s use o he deah penaly as
punishmen or “homosexual aciviy”was passed in 2013 and signed ino law in
February 2014.30 Consensual same-sex relaions were already illegal in Uganda, bu
his law urher penalized hem by punishing “aggravaed homosexualiy” wih lie
imprisonmen. Uganda’s Consiuional Cour laer annulled he law on a echnicaliy
in Augus 2014, bu members o he parliamen wroe a new bill shorly afer. A he
ime o his repor’s publicaion, however, i had no ye been inroduced.31
In addiion o laws criminalizing consensual same-sex relaions, here has been a
rise in wha are known as “homosexual propaganda” laws, which preven promo-
ing equal righs or LGB people under he guise o child proecion.32 In 2013,
ussia passed a law banning “propaganda o non-radiional sexual relaionships”o minors, in effec argeing LGB people. Lihuania passed a similar law in 2014,
wih similar ani-propaganda laws being proposed in Belarus, Kyrgyzsan, Lavia,
Moldova, Nigeria, anzania, Uganda, and Ukraine.33 A recen Human ighs
Wach repor on he ussian law’s one-year anniversary ound ha he law’s pas-
sage has led o an increase in violence agains and harassmen o LGB people.34
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Persecuion o LGB people is no limied o laws ha explicily criminalize heir
ideniies. LGB people, and hose perceived o be LGB, are subjeced o he
denial o basic righs, arbirary imprisonmen, rape, physical violence, discrimina-
ion, and even argeed or killings around he world.35 Alhough rarely prosecued,
consensual same-sex relaions beween adul males has been illegal in Jamaica
since 1864.36
Despie he irregular enorcemen o hese laws, hey have resuled inLGB people in Jamaica being a increased risk o violence; hese people also do
no repor such incidens o he police ou o ear o unresponsiveness or misrea-
men.37 Tese ears are no wihou meri, as he 2011 repor o he U.N. Special
appporeur on exrajudicial, summary or arbirary execuions, or U.N. Special
apporeur, included a 2004 case rom Jamaica in which a man was sabbed and
soned o deah afer police urged onlookers o atack him or being gay. 38
Moreover, he persecuion o LGB people is no limied by geography, nor do
laws proecing heir righs ensure saey. Even hough same-sex relaions are no
criminalized in Mexicomarriage or same-sex couples is even legal in somepars o he counryhe U.N. Special apporeur ound 555 recorded homi-
cides o LGB people in Mexico rom 2005 o March 2013.39 Tese murders were
commited wih impuniyin some cases, hey were commited wih he com-
pliciy o auhoriies. In many insances, vicims’ bodies showed signs o orure
and muilaion.40 In Honduras, where “homosexual acs” were decriminalized in
1899, 31 LGB people were murdered during an 18-monh period rom June
2009 hrough January 2011.41 Among hose killed was a 23-year-old ransgender
woman beaen and burned unil her remains were virually unrecognizable.42
Tese incidens show ha LGB people flee no only because o explici laws
punishing hem or who hey are bu also a culure o discriminaion and persecu-
ion in which he governmen is unable or unwilling o provide proecion.
Advancements in international protections for LGBT people
While some counries are making condiions worse or heir LGB ciizens,
he Unied Saes and he Unied Naions have responded o persecuion and
discriminaion agains LGB people by unequivocally saing, in he words o
hen-Secreary o Sae Hillary Clinon, ha “… gay righs are human righs.”43
In March 2011, he U.N. Human ighs Council issued a saemen calling or
an end o criminalizaion and violence agains people because o heir sexual
orienaion or gender ideniy. A ew monhs laer, i passed a resoluion ha
expressed grave concern abou acs o violence and discriminaion agains LGB
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people.44 Laer ha year, on he 63rd anniversary o he Universal Declaraion
o Human ighs, Secreary Clinon addressed he U.N. General Assembly and
called or a global consensus ha “recognizes he human righs o LGB ciizens
everywhere.”45 A home, his policy ook he orm o a direcive rom Presiden
Barack Obama o all ederal agencies“Inernaional Iniiaives o Advance he
Human ighs o Lesbian, Gay, Bisexual, and ransgender Persons”whichincluded insrucions or he Sae, Homeland Securiy, and Jusice deparmens
o enhance effors o proec vulnerable LGB reugees and asylum seekers. 46
In he Unied Saes, reugees are resetled rom overseas, while asylum seekers
apply rom wihin he counry.47
In he 20 years since sexual orienaion was firs recognized as a paricular social
group eligible or asylum in he Unied Saes, U.S. asylum laws, as well as inerna-
ional reugee rameworks or proecing LGB people fleeing persecuion, have
become well esablished. Furhermore, a growing recogniion o he dangers ha
LGB people ace in much o he world and an acknowledgmen o he paricularneeds o LGB people seeking proecion has led o he creaion o improved
U.N. guidance on he 1951 eugee Convenion and/or he 1967 Proocol
elaing o he Saus o eugees.48 Tese are he key reaies oulining he righs
o reugees and he responsibiliies o naions ha provide asylum o hem.
In 2008, he Office o he U.N. High Commissioner or eugees, or UNHC,
issued is firs “Guidance Noe on eugee Claims elaing o Sexual Orienaion
and Gender Ideniy,” clariying ha sexual orienaion and gender ideniy
are boh included wihin “membership o a paricular social group.”49 In 2012,
i issued legal guidance o governmens, legal praciioners, adjudicaors, and
UNHC saff on adjudicaing claims o reugee saus based on sexual oriena-
ion and/or gender ideniy.50 Also in 2012, afer a wo-year collaboraive process
beween Immigraion Equaliy and he U.S. Ciizenship and Immigraion Services,
USCIS inroduced a raining course or reugee and asylum officers on adjudica-
ing lesbian, gay, bisexual, ransgender, and inersex, or LGBI, reugee and asylum
claims in order o improve he handling o hese cases.51 Unorunaely, no such
raining exiss or U.S. immigraion judges.
Te growing recogniion o he paricular proecion needs o LGB peoplefleeing persecuion comes as he number o people orcibly displaced around he
globe is a is highes poin since World War II, a more han 50 million people
worldwide, including 16.7 million people who mee he definiion o a reugee.52
However, since neiher USCIS nor he Deparmen o Jusice collecs daa on sex-
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ual orienaion or gender ideniy in he asylum sysem, here is no way o know
how many LGB people seek proecion in he Unied Saes annually, how many
are graned asylum, and wheher USCIS’ raining module has had any impac on
LGB asylum adjudicaions. Te daa presened below, culled rom he records o
Immigraion Equaliy and Human ighs Firs, hopeully will clariy he picure
and begin o fill in exising knowledge gaps.
Data sources and methodology
Immigration Equality53
For 20 years, Immigration Equality has provided pro bono
legal assistance to LGBT and HIV-positive immigrants. Data
obtained from Immigration Equality for this report include
793 asylum cases closed from 2010 through 2014. These data
include the year the case was closed; whether the case was
affirmative, defensive, or referred to an immigration judge;
the applicant’s country of origin and gender or transgender
status; whether the applicant was detained; and the verdict
of the case. The verdict was unknown for 263 cases. Unknown
verdicts could be the result of a number of different fac-
tors, including another attorney taking the case or the client
ceasing contact with the Immigration Equality offices. These
missing data were not included in any analysis of grant rates.
The focus was on adjudications by asylum officers and im-
migration judges, so cases appealed to a higher court were
also eliminated. Of the remaining cases with a known final
verdict, 372 were affirmative, 103 were defensive, and 35 were
referred to an immigration judge. Sixty were for people in
detention awaiting their hearing.
Human Rights First54
Human Rights First provided data on its one-year filing dea
line cases to help shed light on how the deadline affects LG
people seeking protection.
The goal of looking at this organization’s cases was to get
some sense of what is happening in asylum cases for LGBT
individuals. While the government separates asylum seeke
by the five grounds for asylum, it does not disaggregate th
“particular social group” category, which can include gang
members, female genital mutilation victims, LGBT people,
and others. Human Rights First’s information helps fill this
void. One particular question explored was whether the 2
USCIS training had any noticeable effect on case outcome
Since most asylum seekers are not represented by counse
and even fewer are represented by attorneys whose sole a
of expertise is LGBT asylum or even asylum more gener-
ally—these findings are not representative. This is why it i
critical for the government to collect sexual orientation an
gender identity data in its asylum program and to disaggr
gate and publish it.
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Methodology
In the sections that follow, a descriptive overview of the LGBT
asylum seekers in these two datasets is provided—what
countries they hail from, what share is transgender, and what
share is granted asylum—to help characterize case outcomes.In addition, outcomes are compared across various groups
of interest—including transgender vs. nontransgender cases
and detainees vs. nondetainees—using statistical compari-
sons of means, or averages, called two-sample t-tests. This
allows testing of whether the differences observed in the
samples are statistically significant—that is, whether they are
likely to reflect underlying differences between groups that
exist in the larger population, rather than simply being due
to random chance. Such tests may be of particular interest
if differences across groups are hypothesized to be due to
differential treatment in the court system. As is conventional,
a difference is characterized as statistically significant if the as-
sociated t-test yields a confidence level of 5 percent or greater,
meaning that the probability of observing that difference
merely due to random chance is 1 in 20 or less.
As discussed below, relatively few of the statistical compari-
sons performed for this report meet conventional levels of
statistical significance, even when differences in the group
averages are relatively large. This does not necessarily imp
that differences between groups do not exist in the underl
ing populations; rather, this failure may instead be a con-
sequence of the limitations of the data, particularly of the
relatively small size of the data samples. For example, thereare relatively few transgender asylum seekers in the datase
as well as many individuals whose gender identity was not
recorded; this makes statistical comparisons difficult. The s
of the differences observed in certain outcomes, such as gr
rates for transgender vs. nontransgender asylum seekers, i
highly suggestive of differential treatment. But due to limit
sample size, as well as to a nontrivial number of missing da
points, a high degree of certainty in some of the observed
trends cannot be claimed.
Such limitations underscore the need for stronger and mor
widespread data collection procedures. Given a larger sam
size, researchers could determine with a greater degree of
confidence whether true differences in outcomes underlie
the differences observed in the data and could character-
ize the severity of these differences. Greater amounts of an
better-quality information could confirm or refute some of
suggestive trends discussed below.
Countries that LGBT people are fleeing
During he ime period analyzed in his repor, Immigraion Equaliy handled
cases rom all over he world; however, he cases are no equally disribued across
counries. Overall, Jamaica consisenly had he highes number o people seeking
proecion in he Unied Saes each year. ussia had he second-highes number
in 2010 and 2011 bu was in hird place rom 2012 hrough 2014, replaced byMexico in 2012 and 2014 and by Honduras in 2013.
Tese daa sugges ha boh longsanding issues o persecuion agains LGB
peoplesuch as in he case o Jamaicaand more recen rends oward urher
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criminalizaion o LGB peoplesuch as in he cases o ussia, ussian-
influenced counries, Uganda, and Nigeriaconribue o an increase in LGB
people seeking proecion in he Unied Saes.
Alhough he arrivals o women and children rom Cenral America have domi-
naed recen headlines, paricularly in summer 2013, Immigraion Equaliy daashow a rise in LGB cases rom Honduras, El Salvador, and Guaemala during
ha ime period as well. Beween 2011 and 2012, here was also a rise in cases
rom LGB asylum seekers rom Egyp and Syria, coinciding wih he Arab
Spring. Te observed daa rend o increases in asylum applicaions rom LGB
people coinciding wih larger issues o conflic and insabiliy around he globe
suggess ha persecuion based on sexual orienaion and gender ideniy may no
always be isolaed rom larger conflics.
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Characteristics and outcomes
of affirmative asylum cases
Asylum seekers who are no in removal proceedings may file wha is called an
affirmaive asylum applicaion.55 In hese cases, individuals can only apply or asy-
lum rom wihin he Unied Saes, and he applicaion mus be filed wihin one
year o U.S. arrival. aher han being decided by an immigraion judge, affirma-
ive asylum applicaions are iniially decided by an asylum officer who inerviews
applicans abou heir asylum applicaions. And while an atorney is allowed o
represen applicans, he governmen does no provide atorneys in immigraion
proceedings, even or indigen people seeking proecion.
Afer conducing he iniial inerview, he asylum officer is responsible or decid-
ing wheher he individual is eligible o apply or asylum; wheher he applican
mees he definiion o a reugee under he Immigraion and Naionaliy Ac; and
wheher he applican is barred rom receiving asylum under he ac.56 Asylum is a
discreionary orm o relie, and asylum officers can eiher gran meriorious cases;
deny asylum i he applican is in he Unied Saes lawully bu ound ineligible
under one o he sauory bars o asylum; or, i he officer is unable o approve he
applicaion, reer he case o an immigraion judge or urher review.57 I should
be noed ha asylum officers are required by law o “receive special raining in
inernaional human righs law, non-adversarial inerview echniques, and oher
relevan naional and inernaional reugee laws and principles.”58
In 2012, he U.S. Ciizenship and Immigraion Services inroduced a raining
module on adjudicaing asylum claims made by LGB people as par o is
comprehensive five-week raining program or all new asylum officers.59 Prior
o he USCIS raining, asylum officers received no specific raining on adju-
dicaing claims o persecuion based on sexual orienaion or gender ideniy.
ecognizing ha he asylum process requires LGB applicans o discusssensiive and privae deails o heir lives wih governmen officials, he raining
no only covers he legal sandards used in adjudicaing claims bu also seeks
o educae asylum officers on paricular challenges ha LGB people may ace
when presening heir claims and o increase sensiiviy around hese issues.60
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For example, someone who claims he was persecued because he is gay mus
prove ha he is in ac gay. Tis can be very difficul or someone who has been
orced o hide his sexual orienaion or his enire lie and who may no conorm
o biases held by he asylum officer o wha a gay man looks and acs like. Or, as
in a case currenly pending beore he 9h U.S. Circui Cour o Appeals, judges
may no be able o disinguish beween sexual orienaion and gender ideniyand may incorrecly assume a ransgender woman in Mexico would no ace
persecuion based on her gender ideniy because marriage or same-sex couples
is legal in cerain pars o Mexico.61 Unlike or sexual orienaion, here is no ye
a precedenial case esablishing persecuion on accoun o gender ideniy as a
paricular social group eligible or asylum.
Analysis of Immigration Equality’s affirmative cases
Te majoriy o cases ha Immigraion Equaliy handles are affirmaive. Includingonly hose Immigraion Equaliy cases wih a known oucome, here were 372
affirmaive cases adjudicaed by an asylum officer beween 2010 and 2014.
Immigraion Equaliy compleed 86 affirmaive cases in 2010, 92 in 2011, 89 in
2012, 69 in 2013, and 71 in 2014.
FIGURE 1
Immigration Equality's caseload
Total case intake, by year
Source: Immigration Equality. Data on file with author.
Not completed/outcome unknownCompleted affirmative Completed defensive
124
156
155
143
195
2010
2011
2012
2013
2014
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Case outcomes
Compleed affirmaive applicaions were graned asylum an average o 99 per-
cen o he ime. While his represens an ofen liesaving oucome or he LGB
individuals in his daase, i is imporan o noe ha hese cases likely are no
represenaive o all LGB affirmaive asylum applicans, as Immigraion Equaliyselecs which cases i chooses o represen and provides excellen counsel o
cliens.62 Addiionally, by definiion, affirmaive applicans do no ace he same
obsacles ha deensive applicans ace, including he acs ha hey are no in
deenion, are no in removal proceedings, and heir claim is no being dispued
by a governmen atorney. Naionally, asylum gran raes are rising or affirmaive
asylum claims, bu he naional average o 46 percen in 201463 is much lower han
he Immigraion Equaliy gran rae noed above.
Looking a affirmaive applicaions by gender ideniy, a smaller proporion o
ransgender asylum seekers apply affirmaively, 69.8 percen, compared wih75.85 percen or nonransgender asylum seekers, hough his difference is
no saisically significan and possibly due o he relaively small number o
ransgender immigrans53included in his daase. However, exising daa
also sugges ha ransgender people may be less likely o affirmaively apply or
asylum. Discriminaion and harassmen, including rom law enorcemen, may
conribue o ransgender asylum seekers being more relucan han lesbian,
gay, and bisexual asylum seekers o seek proecion rom he governmen.64 One
resul o he widespread discriminaion aced by ransgender people, paricularly
ransgender people o color, is a lack o access o legal inormaion and no even
knowing ha asylum is an available orm o relie or people persecued because
o heir gender ideniy.65
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Referred cases
When an asylum officer does no deny an asylum applicaion bu eels ha he or
she canno make a final deerminaion and he applican no longer has legal saus
o remain in he Unied Saes, he case is reerred o an immigraion judge. For
Immigraion Equaliy’s cases, 8.6 percen o affirmaive cases were reerred o an
immigraion judge, compared wih an observed rae o 25 percen o 30 percen
or all affirmaive cases.66 Immigraion Equaliy’s reerred cases were graned asy-
lum in 91.4 percen o hese cases. Combining asylum grans and grans o wih-
holding o removal, 94.3 percen o Immigraion Equaliy’s reerred cases beween
2010 and 2014 resuled in a posiive oucomebeing graned asylum, wihhold-
ing o removal, or proecion under he Convenion agains orure.
Te U.S. Execuive Office or Immigraion eview’s, or EOI’s, annual repor on
immigraion saisics shows ha affirmaive cases reerred o immigraion judges
were graned asylum 75 percen o he ime in fiscal year 2014.67 Immigraion
cours end o have low gran raes, only graning asylum in 28 percen o deen-sive cases ha same year, so his is no a populaion o adjudicaors radiionally
disposed o graning asylum.68
FIGURE 2
Countries of origin: Affirmative
Top 10 countries of origin for completed affirmative asylum cases, by number of cases
Source: Immigration Equality. Data on file with author.
2010
Jamaica
Russia
Grenada
Mexico
Paraguay
Uzbekistan
Venezuela
El Salvador
Ghana
Kenya
2011
Jamaica
Russia
Peru
Egypt
Honduras
Mexico
Trinidad and Tobago
Brazil
China
Colombia
2012
Jamaica
Russia
Mauritania
Honduras
Belize
Croatia
Ivory Coast
Egypt
Ecuador
El Salvador
2013
Jamaica
Honduras
Russia
Ukraine
Dominican Republic
Guatemala
Nigeria
Pakistan
Trinidad and Tobago
Turkey
2014
Jamaica
Mexico
Russia
Guyana
Macedonia
Ukraine
Honduras
India
Malaysia
Uganda
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Tis high rae o approvals or reerred cases relaive o he approval rae in he
general populaion indicaes ha asylum officers may be reerring cases ha
should be receiving grans. For LGB people seeking proecion, he complex-
iy o heir cases may be he reason why asylum officers are reerring cases, raher
han graning meriorious claims a he ouse. Tis is problemaic, since reerrals
ake longer o adjudicae and use more resources. No only does an asylum officerhave o hear he case, bu an immigraion judge mus hear i as well, conribuing
o he immigraion cour’s enormous backlog.
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Defensive asylum cases
Asylum claims made by individuals already in removal proceedings who express a
ear o removal due o persecuion are known as deensive applicaions. Tis ype
o applicaion also includes people apprehended by immigraion officers wihin
100 miles o he U.S. border or a a por o enry who are subjec o expedied
removal and who express ear o persecuion i depored when apprehended.
Unlike affirmaive cases, asylum seekers in deensive proceedings mus prove
why hey should no be depored, and hey are subjec o cross-examinaion rom
governmen atorneys who argue in avor o heir deporaion.69
Analysis of Immigration Equality’s defensive cases
Immigraion Equaliy represens ewer people in deensive proceedings han in
affirmaive claims. I had a oal o 103 deensive cases or he years examined: 18
deensive cases in 2010; 18 in 2011; 25 in 2012; 22 in 2013; and 20 in 2014. A
oal o 60 o he individuals in hese cases were deained.
Case outcomes
Analyzing he oal sample o cases, success raes in deensive cases are much
lower han in affirmaive cases. Unlike Immigraion Equaliy’s affirmaive appli-
caions, where asylum is graned 99 percen o he ime, deensive claims are
graned asylum 66 percen o he ime. However, 24 percen o deensive asylum
applicans are graned lesser orms o relie, such as wihholding o removal or
proecion under he Convenion agains orure. Wihholding o removal and
CA require a higher sandard o proo o uure persecuion han asylum; a judgeound a oal o 90 percen o he deensive claims eligible or relie rom removal.
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ransgender asylum seekers are more likely han nonransgender applicans o
apply or asylum deensively, wih 26 percen o Immigraion Equaliy’s ransgen-
der applicans applying deensively, compared wih 20 percen o nonransgender
applicans. As described above, acors such as discriminaion, a lack o access o
legal resources and inormaion abou heir righ o apply or asylum, and higher
raes o ineracions wih law enorcemen can explain he larger proporion oransgender asylum seekers who apply deensively.70 Again, hese findings are
no saisically significan because o he small sample size. However, saisically
significan differences may be ound in a larger sample size, underscoring he need
or he U.S. governmen o gaher hese daa.
FIGURE 3
Countries of origin: Defensive
Top countries of origin for completed defensive asylum cases, by number of cases
Source: Immigration Equality. Data on file with author.
2010
Ghana
Jamaica
Afghanistan
2012
Jamaica
El Salvador
Mexico
2011
Colombia
Ecuador
El Salvador
Mexico
2013
Ecuador
Colombia
El Salvador
Guyana
2014
Honduras
El Salvador
Guyana
Ghana
Guatemala
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Findings
LGBT people seeking asylum are more likely to win their claims if
they are applying affirmatively rather than defensively
While 99 percen o Immigraion Equaliy’s affirmaive cases were graned asylum,
only 66 percen o is deensive cases were graned asylum. Since 24.3 percen o
deensive claims were graned anoher orm o relie rom deporaion, i appears
ha many LGB people seeking proecion have legiimae claims, bu here are
significan barriers o applying wihin one year o arriving. Tese include a lack oaccess o legal inormaion abou heir righ o apply or asylum; a ear o coming
ou o a governmen official afer a lieime spen hiding heir sexual orienaion
or gender ideniy; and/or criminal convicions ha limi heir access o he ull
proecion afforded by being graned asylum.
Transgender people do not apply af firmatively as frequently as
nontransgender people do
For ransgender asylum seekers, wheher hey applied affirmaively or deensively
made an enormous difference in erms o wheher he applican was graned relie,
since applicans are hal as likely o win asylum i hey are in removal proceedings.
Niney-seven percen o Immigraion Equaliy’s affirmaive ransgender applica-
ions were graned asylum, compared wih only 50 percen in deensive cases.
Asylum Withholding/protection under CAT Outcome unknown
FIGURE 4
Transgender asylum applicants
Rates of protection grants for transgender applicants
Source: Immigration Equality. Data on file with author.
Affirmative claims by transgender applicants
Defensive claims by transgender applicants
97%
3%
7%50% 43%
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ransgender applicans also are more likely o be graned wihholding o removal
or proecion under he Convenion agains orure han nonransgender appli-
cans. While 24 percen o he deensive claims were graned wihholding o
removal or proecion under CA, he rae or ransgender applicans was nearly
wice ha a 43 percen. Te burden o proo or wihholding o removal and CA
proecion is higher han ha or asylum, suggesing ha ransgender applicansin his sample had a high likelihood o acing persecuion i depored, bu hrough
eiher ailing o file heir applicaions wihin one year o arriving in he Unied
Saes or a criminal convicion, hey were ineligible or he ull proecion o
asylum. Furhermore, he discriminaion and police profiling aced by ransgender
applicans no only appears o make hem less likely o apply affirmaively bu also
means hey are less likely o receive asylum and all o he benefis ha come wih
i.71 Insead, alhough hey have a clear need or proecion, many are eligible only
or lesser orms o relie ha leave hem in limbo.
Affirmative Defensive
Rate of defensive cases in detention: 52%
Appealed
FIGURE 5
Transgender representation in LGBT asylum populations
Transgender people are overrepresented in defensive applications
Source: Immigration Equality. Data on file with author.
Nontransgender LGB
Transgender
76% 20% 4%
70% 26% 4%
Rate of defensive cases in detention: 64%
Detention hurts LGBT applicants’ chances of being granted asylum
Te daa rom Immigraion Equaliy show ha deenion has a saisically sig-
nifican impac on asylum case oucomes or LGB people seeking proecion.
Asylum seekers were 11.5 percen more likely o succeed in heir claims i hey
were no deained. Only 45 percen o deained cases were graned asylum, and
28.39 percen were graned lesser orms o proecion. A greaer proporion oImmigraion Equaliy’s ransgender cliens seeking asylum were deained han were
nonransgender LGB cliens. A ull 64.3 percen o ransgender asylum seekers in
deensive proceedings were deained, compared wih 52 percen o nonransgen-
der LGB asylum seekers. For 20 percen o Immigraion Equaliy’s deained cases,
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i was impossible o deermine wheher applicans were ransgender because no
gender ideniy was lised, so hese cases were no included in his analysis. A larger
sample size is needed o definiively deermine wheher ransgender asylum seekers
are deained a higher raes han nonransgender asylum seekers.
LGBT asylum seekers are disproportionately affected by the 1-year
deadline
Immigraion Equaliy did no have daa on how he one-year filing deadline
affecs is cliens, so Human ighs Firs provided hese daa, which included
boh LGB and non-LGB cliens. Among cases represened by Human ighs
Firs, i is clear ha LGB asylum seekers are disproporionaely affeced by he
one-year filing deadline. While LGB asylum seekers represen 11 percen o
he organizaion’s open cases, hey accoun or 20 percen o is open cases wih
filing deadline issues.
For people who have spen heir lives hiding heir ideniy rom governmen officials
in order o survive, i is unsurprising ha hey would need more han one year o be
able o disclose heir sexual orienaion or gender ideniy o a governmen offi-
cial, paricularly i hey are recovering rom rauma caused by he persecuion hey
aced.72 Anoher reason why LGB people may be disproporionaely affeced by
he one-year deadline is ha hey may no know ha persecuion based on sexual
orienaion and gender ideniy is grounds or asylum. A lack o access o legal
resources and inormaion also could accoun or his dispariy, hough he degree o
which LGB asylum seekers have access o his inormaion is presenly unknown.
A Human ighs Firs repor ound ha many asylum seekers wih well-ounded
ears o persecuion were denied asylum simply or ailing o mee he deadline.73
Overarching issues
Counsel is key
Te oucome o an immigraion case can have an enormous impac on an indi- vidual’s lie. Tis is paricularly rue in asylum cases, where deporaion can be
pracically a deah senence. A wo-year sudy o immigraion proceedings in
New York Ciyhe New York Immigran epresenaion Sudy, conduced by
a group convened by Judge ober A. Kazmann o he U.S. 2nd Circui Cour
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o Appeals and he Vera Insiue o Jusice in 2010ound ha he wo mos
imporan variables affecing a successul case oucomebeing graned relie
rom deporaion or having a case erminaedwere having an atorney and no
being deained. Immigrans wih lawyers are nearly six imes more likely o have
a successul case oucome han hose no represened by counsel.74 Considering
ha asylum applicans mus esablish credibiliy and provide evidence o proveheir claim, a difficul ask or individuals no amiliar wih he law and who
requenly are orced o flee heir home counries quickly wihou ime o gaher
evidence o suppor heir claimsomehing exacerbaed or LGB applicans,
who mus prove he ideniy hey were orced o hidehe enormous difference
ha compeen counsel makes is no surprising. In he New York sudy, 74 percen
o cases in which people were represened by counsel and no deained resuled
in a successul case oucome. Tis dropped o 18 percen or people represened
by counsel bu in deenion. Tose wihou a lawyer ared even worse: 13 percen
who were no deained had successul oucomes, while only 3 percen who were
deained and did no have a lawyer had successul oucomes.75
FIGURE 6
New York Immigrant Representation Study
Successful case outcomes by representation and detention status
Source: Steering Committee of the New York Immigrant Representation Study Report, "Accessing Justice: The Availability and Adequacy
of Counsel in Removal Proceedings," Cardozo Law Review 33 (2) (2011): 357–416, available at http://www.cardozolawreview.com/Joom-la1.5/content/33-2/NYIRS%20Report.33-2.pdf.
Represented and not detained
74%
Represented and detained
18%
Unrepresented and not detained
13%
Unrepresented and detained
3%
Access o counsel is paricularly criical in asylum proceedings. According o
daa mainained by he ransacional ecords Access Clearinghouse a SyracuseUniversiy on immigraion cour cases rom FY 2009 o FY 2014, 89 percen o all
asylum seekers no represened by an atorney in removal proceedings are denied
asylum.76 For affirmaive asylum applicans, he gran rae is 19 percen higher
or asylum seekers represened by counsel.77 Te New York sudy ound ha 50
percen o cases beore immigraion cours were represened by counsel during a
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leas one poin in he proceedings, bu his does no address he qualiy or consis-
ency o counsel received, a acor ha can also make a significan difference.78
While he righ o counsel ha is explicily saed in he Sixh Amendmen o he
Consiuion only applies o criminal prosecuionsimmigraion proceedings are
civilcours have recognized a righ o counsel or immigrans in removal pro-ceedings, hough no necessarily a he governmen’s expense. Te American Bar
Associaion, or ABA, has come ou in suppor o he due process righ o counsel
or all people in removal proceedings, as well as reerral o pro bono or appoined
counsel or indigen individuals eligible or immigraion relie. Te ABA also
advocaes overurning he requiremen ha represenaion in removal proceed-
ings is “a no expense o he governmen” and avors allowing judges o appoin
counsel a he governmen’s expense in a limied number o siuaions.79
Detention hurts LGBT people’s ability to win asylum
As shown in he New York Immigran epresenaion Sudy, he second impor-
an acor ha deermines case oucomes afer represenaion by counsel is he
seeker’s deenion saus.80 Individuals represened by counsel bu deained are 25
percen less likely o have a successul case oucome han hose no deained and
represened by counsel. Even among hose no represened by counsel, individu-
als who are no in deenion are 10 imes more likely o have a successul oucome
han hose in deenion.
Moreover, in is 2015 repor, he Office o he U.N. High Commissioner or
Human ighs ound ha i is no jus oher counries where LGB people ace
abuse. According o he repor, “LGB people in [U.S.] deenion have been
subjec o cruel, dehumanizing reamen.” Specifically, i ound “[s]ixeen gay
and ransgender individuals in he Unied Saes [who] were allegedly subjeced
o soliary confinemen, orure and ill-reamen, including sexual assaul, while
in deenion in immigraion aciliies.”81 Unorunaely, an earlier CAP column
revealed ha even hough Immigraion and Cusoms Enorcemen’s, or ICE’s,
own inake process recommends release or provides i as an opion 70 percen
o he ime or LGB immigrans, i elecs o deain hem 68 percen o he ime.LGB people are no only a higher risk o physical and sexual abuse in deenion;
hese daa show ha being deained also has a negaive effec on heir abiliy o
win asylum cases.82
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The 1-year fi ling deadline disproportionately affects LGBT people
seeking protection
Te 1996 Illegal Immigraion eorm and Immigran esponsibiliy Ac, or
IIIR, inroduced a new requiremen or asylum applicaions o be filed wihin
one year o he applican’s arrival in he Unied Saes, wih he raionale o pre- vening raudulen asylum claims.83 As a resul o his rule, eligible asylum seek-
ers are denied proecion rom persecuion simply or ailing o file he correc
paperwork wihin one year o arriving in he Unied Saes, even hough hey sill
may be a risk in heir home counry. Te rule includes an excepion or “changed
FIGURE 7
LGBT immigrants are often detained unnecessarily
ICE elects to detain two-thirds of the LGBT immigrants who were recommended
for release by the automated system
Detain
Detained without bond Detained
but bond
eligible
Release on
community
supervision
Released on
community
supervision
Supervisor to determine
whether to detain or to release
on community supervision
Source: Author's calculations from documents on file with a uthor. Documents were accessed through a March 13, 2015, Freedom of
Information Act request to U.S. Immigration and Customs Enforcement.
Automated detention recommendations
ICE's actual detention decisions
30% 6% 64%
64% 11% 25%
The automated system gave the option of release in 70 percent
of cases, but ICE chose release in only 31 percent of those cases.
Automated
detention
recommendations
Release on community supervision: 6
ICE decisions
Released on community
supervision: 2
Detained but
bond eligible: 2
Detained
without bond: 2
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condiions, which maerially affec he applican’s eligibiliy or asylum or exraor-
dinary circumsances relaing o he delay in filing he applicaion.”84 Cours have
ound ha HIV diagnosis or he process o coming ou can qualiy as changed
circumsances, bu he arbirary deadline has proven harmul o eligible asylum
seekers unable o access proecion because hey missed he deadline, wih a dis-
proporionae impac on LGB applicans.85
A repor rom he Naional Immigran Jusice Cener and Human ighs Firs
ound ha one in five asylum applicaions were filed afer he one-year deadline.86
People fleeing persecuion who do no mee he deadline and are no eligible
or an excepion mus mee a higherand much harder o esablishburden o
proo o qualiy or wihholding o removal or oherwise ace deporaion; hey
need o prove an a leas 51 percen likelihood o uure persecuion i hey are
reurned o heir counry o origin.87
FIGURE 8
LGBT asylum seekers appear to be disproportionately affectedby the 1-year filing deadline
Source: Data represent open cases as of May 21, 2015. Personal communication from Vanessa Allyn, managing attorney for refugeerepresentation, and Selam Tesfai, senior legal assistant for refugee representation, Human Rights First, May 21, 2015.
Of all open cases, 174 involvenon-LGBT asylum seekers...
have deadlinefiling issues
8%have deadlinefiling issues
18%
Case with deadline filing issue
vs.
...and 22 involve LGBT seekers.
wo ransgender women represened by Human ighs Firs missed he filing
deadline by yearsone by five years and he oher by 10 yearsbecause i ook
hem ha long o overcome heir ear o coming ou as ransgender o governmen
officials afer a lieime o persecuion by police in heir home counries. During
he ime ha hey were oo araid o come ou o he shadows and seek proec-
ion, hey sruggled o survive in he Unied Saes as undocumened ransgender
women. Tey aced difficuly in securing employmen and were also vicims odomesic violence, bu heir ear o law enorcemen prevened hem rom repor-
ing he abuse o auhoriies.
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Evenually, hey ound he srengh o find legal counsel and o ry o beter heir
siuaion by seeking proeced saus. Unorunaely, by ha ime, even hough
he siuaion in heir home counries remained unchanged, hey were barred rom
receiving asylum because hey had missed he one-year deadline and did no qual-
iy or an excepion o he deadline. A Human ighs Firs repor ound ha 17
percen o is new cliens had no filed or asylum wihin a year and ha many wih well-ounded ears o persecuion did no qualiy or an excepion o he rule.88
Due o he arbirary naure o he deadline and is harmul effecs on people seek-
ing proecion in he Unied Saes, here is a growing recogniion o he need o
eliminae he deadline in order o ensure ha people wih a well-ounded ear o
persecuion are no subjec o deporaion, which can in some cases be a deah
senence or LGB asylum seekers. In 2013, Sen. Parick Leahy (D-V) and ep.
Zoe Logren (D-CA) inroduced he eugee Proecion Ac, which sough o
eliminae he one-year filing deadline.89 Te legislaion was incorporaed ino he
immigraion reorm bill ha passed he Senae in 2013, bu unorunaely, heHouse o epresenaives ailed o ake acion on immigraion reorm.
The immigration cour t back log threatens the due process rights of
asylum seekers
UNHC esimaes ha here are more reugees in he world needing proecion
oday han a any ime since World War II.90 Tis increased need or proecion is
no only seen in he increase in reugees needing resetlemen hrough UNHC,
bu i has also resuled in an increase in people seeking proecion inside he
Unied Saes, wih he number o affirmaive applicaions received by he U.S.
Ciizenship and Immigraion Services increasing as well. USCIS received approxi-
maely 45,000 affirmaive applicaions in 2013, many more han in pas years,
when he agency received beween 28,000 and 30,000 applicaions.91 Increased
applicaions, prioriizaion o deained cases, loss o unding under USCIS’ ee
srucure, and a saffing shorage all creaed an enormous backlog o cases, rom
6,940 cases waiing o be adjudicaed in May 2010 o 82,175 cases as o March
2015.92 Te Immigraion and Naionaliy Ac requires an asylum seeker o be
inerviewed wihin 45 days o filing an applicaion and or a decision wihin 180days “in he absence o excepional circumsances.”93 Currenly, applicans can
wai more han wo years or an inerview.94
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FIGURE 9
Backlog of cases and processing times in immigration courts,
FY 1998–2014
Note: FY 2014 data are through August 2014.
Source: TRAC Immigration, "Immigration Court Backlog Tool: Pending Cases and Length of Wait in Immigration Courts," available at
http://trac.syr.edu/phptools/immigration/court_backlog (last accessed October 2014).
200220001998 2004 2006 2008 2010 2012 2014
200220001998 2004 2006 2008 2010 2012 2014
Number of cases in Executive Office for Immigration Review backlog (in thousands)
Average number of days for an immigration case to process
0
100
200
300
400
0
200
400
600
Unlike resetled reugees, asylum applicans are no eligible or governmen finan-
cial assisance or benefis while heir cases are pending. While hey can receive
work auhorizaion 180 days afer applying or asylum, he backlog increases he
amoun o ime hey are unable o access assisance.95 uh Dickey, an immigraion
atorney in Washingon, D.C., described he backlog’s impac on her cliens o he
auhors, “Because o homophobia, my LGB cliens canno access housing, job
leads, or inormal lending rom heir immigran communiies. I is much harder or
LGB people o survive or 180 days pos-applicaion beore hey are eligible or
employmen auhorizaion. Waiing years or an inerview or hearingand some-imes even longer or a final decisionis incredibly anxiey-inducing or hem. ”96
Tis backlog also hreaens he inegriy o he asylum sysem, opening i up o
abuse hrough rivolous claims and depriving asylum seekers o having heir cases
airly adjudicaed in a imely manner, leaving heir saus in limbo.
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Anoher reason or he affirmaive asylum case backlog is ha USCIS asylum
officers are asked wih conducing credible ear screenings in expedied removal
cases, he number o which have expanded exponenially wih he use o expe-
died removal.97 IIIR creaed he process o expedied removal, which or he
firs ime allowed immigraion agens o depor summarily immigrans who lack
proper documens, commi raud, or willully misrepresen acs. A decision odeporaion by an immigraion agen can be done wihou any judicial review o
reugees who arrive a a por o enry or who are already in he Unied Saes bu
canno prove ha hey have been physically presen in he counry or wo con-
inuous years, unless hey indicae an inenion o apply or asylum or express a
ear o reurn.98 Te burden on asylum seekers in expedied removal is enormous,
paricularly or people unamiliar wih he exisence o asylum or unaware ha
hey could qualiy or proecion. Furhermore, LGB people are unlikely o ell a
Border Parol officer ha hey are LGB when hey are inerceped, since ques-
ioning ofen happens in a holding cell wih no privacy and in ron o he very
counrymen and women who hey are araid will persecue hem. In insances where ear is expressed, an asylum officer conducs a credible ear inerview, or
CFI, o deermine i he individual has a significan possibiliy o esablishing eligi-
biliy or asylum. I credible ear is ound, asylum seekers are eniled o have heir
cases reviewed by an immigraion judge.99
IIIR requires asylum seekers o be deained pending a final deerminaion o
credible ear or, i credible ear is no ound, unil he individual is depored.100
In order o avoid wai imes o several monhs in deenion, he USCIS Asylum
Division has redireced asylum officers o promp CFIs and o hire addiional saff;
however, his has no been enough o keep up wih caseloads. Credible ear receips
increased more han 100 percen rom FY 2009 o FY 2011 and nearly anoher 100
percen rom FY 2011 o FY 2014.101 Te asronomical rise in credible ear receips
can be atribued o a combinaion o he increased use o expedied removals and
growing numbers o people seeking proecion rom violence and persecuion.102
Te siuaion is no beter or deensive cases. While here has been a ourold
increase in resources or Border Parol, deenion, and removalrom $4.5 billion
in 2002 o $18 billion in 2013resources or immigraion judges have sagnaed,
resuling in unprecedened backlogs o cases.103
Te number o Border Parol offi-cers doubled, while only 23 more immigraion judges are on he bench oday han
in 2003, a 10.5 percen increase.104 Wih he increased caseloads and no enough
judges and saff o process hem, he curren average wai ime or a case o go
beore an immigraion judge is 598 days.105
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Source: Executive Office for Immigration Review, Budget Request At a Glance (U.S. Department of Justice, FY 2009–2015); U.S.
Department of Justice, Budget and Performance Summary, Administrative Review and Appeals (ARA) (FY 2005–2008); U.S. Department
of Homeland Security, Budget-in-Brief (FY 2004–2015).
2003
CBP agents and immigration judges per fiscal year
2014
ICE and CBP combined funding: $18,058,977
ICE and CBP combined funding: $9,149,000
EOIR funding: $312,200
EOIR funding: $188,480
Source: Customs and Border Protection, Border Patrol Agent Staffing by Fiscal Year (Oct. 1st through Sept. 30th) (U.S. Department of
Homeland Security), available at http://www.cbp.gov/sites/default/files/documents/ U.S.%20Border%20Patrol%20Fiscal%20-
Year%20Staffing%20Statistics%201992-2013.pdf (last accessed October 2014); personal communication from Executive Office for
Immigration Review's Office of Legislative and Public Affairs, U.S. Department of Justice, October 7, 2014.
2004
2006
Number of CBP agents: 12,349
Number of CBP agents: 10,819
Number of immigration judges: 223
Number of immigration judges: 215
2008
2010
Number of CBP agents: 20,558
Number of CBP agents: 17,499
Number of immigration judges: 253
Number of immigration judges: 223
2012
2014
Number of CBP agents: Data not available
Number of CBP agents: 21,394
Number of immigration judges: 240
Number of immigration judges: 258
FIGURE 10
Funding for immigration enforcement versus immigration courts,
FY 2003 versus FY 2014
ICE and Customs and Border Protection, or CBP, combined funding compared with
Executive Office for Immigration Review funding
Border personnel versus immigration judges, FY 2004–2014
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Recommendations
Te Unied Saes mus ake he ollowing seps o make sure ha LGB asylum
seekers are no denied proecion because o acors ha are unrelaed o he mer-
is o heir claims:
• The U.S. Citizenship and Immigration Services and the Executive Office for
Immigration Review should collect, disaggregate, and publish data on sex-
ual orientation and gender identity in asylum claims. Because Immigraion
Equaliy and Human ighs Firs provided daa on heir LGB cliens, hepicure concerning asylum claims made by LGB applicans and he oucome
o hose cases is clearer. However, he daa provided represen a small segmen
o LGB asylum seekers. Tere is sill no accurae measure o how many LGB
people seek proecion in he Unied Saes every year or wha happens o
people seeking proecion wihou counsel. Furher, he rae o represenaion
or LGB people compared wih non-LGB asylum seekers is unknown. Given
wha is known abou he remendous impac ha represenaion has on case
oucomes, i is criical o have daa on all LGB asylum applicans, including
pro se LGB applicans, o ensure ha hey are able o access proecions and o
help increase he undersanding o how he global climae o LGB righs affecs
LGB people seeking proecion in he Unied Saes.
• More resources must be allocated toward adjudicating asylum claims to
keep up with rising enforcement appropriations. Te enormous backlogs in
affirmaive asylum and deensive cases coninue o grow exponenially. Greaer
resources are needed o ensure ha cases are adjudicaed in a air and imely man-
ner. More immigraion judges and saff should be hired, as well as more asylum
officers. Congress should appropriae he unds necessary o ensure ha as immi-
graion laws are enorced, he due process righs o immigrans are proeced.
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• Promote access to free legal counsel for indigent asylum seekers and counsel
for all asylum seekers. While his analysis was limied o people wih counsel,
sudies show ha he high gran raes in his daase are consisen wih having
compeen counsel. No only does providing counsel ensure he proecion o
due process righs, bu he New York Immigran epresenaion Sudy showed
i is also key in ensuring ha cases are quickly and airly adjudicaed. Tis helpsaddress backlog issues.106
• Increase training for immigration officers and judges on LGBT asylum issues.
Te curren raining or asylum officers is an enormous sep orward, bu more
is needed. Immigraion judges do no have similar raining, nor do Border Parol
agens who conduc iniial credible ear screenings in expedied removals.
• End the one-year filing deadline. Te one-year deadline prevens people wih
legiimae asylum claims rom geting ull proecions. I also disproporionaely
affecs LGB immigrans. Te U.S. asylum sysem has numerous saeguards inplace o preven raud. An arbirary adminisraive filing deadline is no neces-
sary; i harms asylum seekers and increases caseloads or immigraion judges
when an asylum officer could adjudicae he claim insead.
• End the widespread use of immigration detention. In addiion o being repre-
sened by counsel, no being deained makes an enormous difference in wheher
LGB people seeking proecion are able o win asylum. Unorunaely, despie
a 2009 memorandum prioriizing release or asylum seekers who passed heir
credible ear inerviews, hey requenly remain in deenion or mus pay bond
amouns upward o $5,000 in order o be released.107 No only does deenion
urher raumaize people who have ofen already been subjec o arbirary
deenion or who hey are, i is expensive, unnecessary, and can arbirarily resul
in a legiimae asylum seeker being depored back o unsae condiions or even
o heir deah. Communiy-based alernaives o deenion are effecive, paricu-
larly because i is in he ineres o an asylum seeker o atend cour daes.108
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Conclusion
As Presiden Obama noed in his memorandum on “Inernaional Iniiaives o
Advance he Human ighs o Lesbian, Gay, Bisexual, and ransgender Persons,”
he Unied Saes’ asylum and reugee programs are a key componen o effors o
advance he righs o LGB people worldwide, providing a sae haven or hose
fleeing persecuion.109 Unorunaely, here is currenly no way o definiively
know how well our proecion sysems are meeing hese people’s needs.
Tis repor’s analysis o LGB asylum cases shows ha he discriminaion LGBpeople ace in oher aspecs o liesuch as housing, educaion, and employ-
menalso affecs heir abiliy o win liesaving asylum proecions, making access
o counsel or his populaion criical.110 LGB asylum applicans’ chances o win-
ning are hur by arbirary acors unrelaed o heir proecion claims. Tey are dis-
proporionaely affeced by he one-year filing deadline or asylum applicaions and
are less likely o win asylum when hey are deained, an exreme and ofen rauma-
izing resricion on heir libery o which hey are ofen unnecessarily subjeced.
Furhermore, a lack o access o legal inormaion combined wih he myriad ways
ha ransgender people are discriminaed agains sugges ha ransgender people
fleeing persecuion are less likely o apply affirmaively or asylum and more likely
o qualiy or insufficien proecions ha leave hem in legal limbo. However, a
larger daase is needed o conclusively prove differenial reamen.
Te Unied Saes’ desire o provide saey o LGB people fleeing persecuion
is commendable, bu in order o comprehensively assess he adequacy o exising
effors o proec LGB asylum seekersas well as ideniy remaining gapshe
governmen mus collec sexual orienaion and gender ideniy daa and use his
inormaion o ensure a jus and equiable asylum sysem ha mees America’s
moral and reay obligaions.
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Appendix
Asylum law
In he afermah o World War II, he Unied Naions esablished inernaional
sandards and principles o proec he righs o reugees, or people unwilling or
unable o reurn o heir counry o origin owing o a well-ounded ear o being
persecued on accoun o one o five proeced grounds.111 Te Unied Saes
signed hese sandards, known as he 1951 Convenion relaing o he Saus o
eugees and he Unied Naion’s 1967 Proocol relaing o he Saus o eugees,in 1968. In 1980, Congress amended he Immigraion and Naionaliy Ac o
allow individuals in he Unied Saes who oherwise me he definiion o a
reugee o be graned asylum.112 Unorunaely, LGB people were barred rom
enering he Unied Saes legally unil 1990.113
Under he definiion o a reugee, here are five grounds ha reugee saus can be
based on: race, religion, naionaliy, membership in a paricular social group, or
poliical opinion. While membership in a paricular social group is no defined in
U.S. law, over he years, cours have inerpreed his erm as a group o people who
share a common, immuable characerisic ha he members o he group canno
or should no be required o change.114 Te Mater of Toboso-Alfonso opened he
door or people persecued on accoun o heir sexual orienaion o be eligible
or asylum by esablishing ha a gay Cuban man was a member in he paricular
social group o “homosexuals.”115 While he curren U.S. atorney general has no
ye designaed a case esablishing persecuion based on gender ideniy as grounds
or asylumas ormer Atorney General Jane eno did wih Toboso-Alfonso
he 9h U.S. Circui Cour o Appeals ound ha “gay men in Mexico wih emale
sexual ideniies” comprised a paricular social group.116
In addiion o esablishing membership in a paricular social group, applicans or
asylum mus prove ha hey were persecued on accoun o his saus or have a
well-ounded ear o persecuion in he uure. Persecuion is no defined in he
Immigraion and Naionaliy Ac, bu cours have consrued his o mean ha “a
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hrea o lie or reedom” on accoun o one o he five proeced grounds “is always
persecuion.”117 Te Supreme Cour held in INS v. Cardoza-Fonseca ha even a 1
in 10 chance o acing uure persecuion is sufficien o find a well-ounded ear
o persecuion.118 While persecuion is radiionally considered o require inen
o harm, or gay and lesbian asylum seekers, atemps o “cure homosexualiy”
hrough elecroshock herapy have been ound o be a orm o persecuion.119
Te persecuion mus be based on one o he five proeced grounds, and he
governmen mus have infliced ior been unable or unwilling o preven he
persecuion.120 In he case o LGB people seeking asylum, applicans mus prove
ha he persecuion is on accoun o heir sexual orienaion or gender ideniy.
Tis includes proving ha individuals are LGB o a governmen official, eiher
an immigraion judge or an asylum officer. Tis can be an incredibly difficul pro-
cess or people who were orced o conceal heir ideniy or years in order o sur-
vive. Te 11h U.S. Circui Cour o Appeals case Mockeviciene v. Atorney General
illusraes he difficuly ha LGB asylum seekers have proving heir sexualorienaion, especially when he only evidence hey can provide is esimony rom
hemselves and winesses.121 In he Mockeviciene case, an immigraion judge did
no find Ingrida Mockeviciene credible. Te judge did no believe Mockeviciene
was a lesbian because, as he wroe, “alhough [Mockeviciene] had been in he
Unied Saes or our years she had no ye had a lesbian parner” and had “no
documens o esablish ha she [was] a lesbian.” She also had no joined any
groups during her our years in he Unied Saes ha engaged in “lesbian acivi-
ies.” Te judge also based his adverse credibiliy deerminaion on her demeanor,
presumably he ac ha she did no conduc hersel in a manner consisen wih
sereoypes abou how lesbians behave.
Applicans who ail o file wihin one year and who are ineligible or an excep-
ion o he deadline or have been conviced o cerain crimes are ineligible or
asylum.122 Tey may be eligible or wihholding o removal i hey are able o mee
all o he crieria or asylum and demonsrae a 51 percen or greaer likelihood
o persecuion i depored. Tis is much higher han he 10 percen likelihood o
uure persecuion necessary or asylum.123 Unlike wih asylum, wihholding o
removal does no come wih benefis such as evenual eligibiliy or a green card
or he abiliy o sponsor relaives or a spouse or immigraion. I simply prevensdeporaion. Te judge in Mater of Toboso-Alfonso denied he applican’s asylum
claim because o his U.S. criminal record bu did gran wihholding o removal,
recognizing he “clear probabiliy o persecuion” on accoun o his sexual oriena-
ion i he were depored o Cuba.124
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Te Convenion agains orureis anoher orm o available relie. Like wihhold-
ing o removal, applicans mus mee a heighened sandard o qualiy, bu CA
prohibis removal o a counry where people would ace orure, regardless o pas
criminal convicions. However, hey can ace indefinie deenion in he Unied
Saes i hey are ound o be a hrea o he communiy.
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The asylum process:
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About the authors
Sharita Gruberg is a Senior Policy Analys or he LGB esearch and
Communicaions Projec a he Cener or American Progress. She has exensive
experience working in immigraion advocacy, law, and policy, as well as experience
providing direc service o immigraion deainees, reugees, and asylum seekers.
Gruberg earned her law degree rom he Georgeown Universiy Law Cener,
where she was a public ineres law scholar and he wriing program direcor
or he Georgeown Journal on Povery Law & Policy , and she also received he
eugees and Humaniarian Emergencies Cerificae rom he Insiue or he
Sudy o Inernaional Migraion. She holds a bachelor’s degree in poliical science
and women’s sudies rom he Universiy o Norh Carolina a Chapel Hill.
Rachel West is a Senior Policy Analys wih he Povery o Prosperiy Program
a he Cener. Previously, she was an economic policy researcher a he Insiueor esearch on Labor and Employmen a he Universiy o Caliornia, Berkeley,
where her work ocused on minimum wage policy and public assisance programs.
Wes began her career as an economis a he U.S. Deparmen o ransporaion
in Cambridge, Massachusets, and worked as a fiscal policy inern a he Economic
Policy Insiue in Washingon, D.C.
Wes holds a maser’s degree in public policy rom he Universiy o Caliornia,
Berkeley, Goldman School o Public Policy. She received a bachelor’s degree in
economics and physics rom Moun Holyoke College in 2008.
Acknowledgments
Te auhors would like o hank Immigraion Equaliy and Human ighs Firs or
heir cooperaion in he research o his repor by providing access o heir daa
and heir issue area experise; ormer ep. Barney Frank or aking he ime o be
inerviewed abou he hisory o LGB asylum proecions; and Laura E. Durso,
he Direcor o CAP’s LGB esearch and Communicaions Projec, and Philip
E. Wolgin, Associae Direcor or CAP’s Immigraion Policy eam, or heir helpuledis and guidance.
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Endnotes
1 Lawrence v. Texas, 539 U.S. 558 (2003); Matter of Toboso- Alfonso, 20 I. & N. Dec. 819 (BIA 1990); Attorney GeneralOrder No. 1895-94 (June 19, 1994). Transgender iden-tity has not yet been established as a particular socialgroup in a precedential case, but the 9th U.S. CircuitCour
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