The Obama administration has issued new rules which makes seeking asylum by persecuted gay people a little easier.
The new guidance [PDF] for adjudicating LGBT asylum and refugee claims have been welcomed by advocates.
It includes helpful definitions and appropriately sensitive questions for officers to use, including specific instructions about questions to avoid, such as those related to specific sexual practices.
LGBT-specific examples of harm that may constitute persecution include: laws criminalizing same-sex sexual activity in an applicant’s home country; forced medical or psychiatric treatment intended to ‘secure’ an applicant’s sexual orientation; forced marriage to an opposite-gender spouse; severe economic harm; and beatings or other physical abuse.
Officers must determine whether the harm rises to the level of persecution and if the government of the country from which the applicant hails is unable to protect the individual. Applicants may be eligible for asylum even if they weren’t personally persecuted in the past, but have a well-rounded fear of future persecution.
Guidelines for analyzing complex issues include, for example, that a former opposite-gender marriage does not mean an applicant is not lesbian or gay; that LGBT applicants are not required to meet per-conceived stereotypes or ‘look gay’ and that cultural norms within the LGBT community in an applicant’s home country may differ from those in the US.
Advocates have particularly welcomed a non-exhaustive list of possible one-year filing deadline exceptions (which are a particular problem and make it difficult to pursue asylum after one year of presence in the United States), including: recently coming out as gay; recent steps to transition from birth gender to corrected gender; a recent HIV diagnosis; post-traumatic stress disorder; or severe family opposition to an applicant’s identity.
The guidance follows developments in Europe on improving the situation for LGBT asylum claimants and refers to UK guidance. it also follows a promise made by the White House in December to “protect vulnerable LGBT refugees and asylum seekers.”
National Immigration Justice Centre Executive Director Mary Meg McCarthy said:
This is a wonderful tool that provides critical guidance on the adjudication of LGBT asylum claims. It will also be useful to pro bono attorneys and other advocates representing sexual minorities. In particular, we are hopeful the module will help asylum officers understand the dynamics that may result in an LGBT asylum seeker filing outside the one year filing deadline and contribute to better application of the filing deadline exceptions in these cases.
Steve Ralls, a spokesperson for Immigration Equality who helped develop the guidance, estimated there are about 250 asylum cases of LGBT people coming to the United States to escape persecution each year.
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