Report: LGBT immigrants may obtain asylum easier if they are not in detention deportation proceedings

A new report says LGBT immigrants stand a better chance of winning their asylum cases in the United States if the are not in detention or in deportation proceedings.

The Washington-based group Center for American Progress (CAP) issued the 46-page report titled Humanitarian Diplomacy, aimed at urging the U.S. government to do more to enhance asylum and other immigration protections for foreign nationals who are lesbian, gay, bisexual or transgender.

The report, released Thursday, was issued on the 30^th anniversary of a landmark immigration court petition in which a gay Cuban Mariel boatlift refugee became the first immigrant allowed to file a claim for asylum on the grounds of persecution in Cuba for his sexual orientation.

In 1985, Fidel Armando Toboso-Alfonso applied for asylum after an immigration judge terminated his parole and placed him in exclusion proceedings. Though Toboso-Alfonso did not win asylum, he was allowed to stay by the judge under a ruling of withholding — a lesser protection.

Nevertheless, Toboso-Alfonso made history because his case was the first to establish the precedent that gay — and now LGBTs — can claim persecution for sexual orientation as grounds for asylum proceedings.

The new report provides perhaps the first comprehensive look at the state of asylum for LGBT immigrants. Since U.S. immigration authorities do not collect sexual orientation and gender identity data in the asylum system, report authorities relied on statistics and information provided by the groups Immigration Equality and Human Rights First. Immigration Equality is a pro bono legal service provider for LGBT and HIV-positive immigrants and Human Rights First is an international human rights organization based in New York, Washington, D.C. and Houston.

“In light of the extreme violence and persecution inflicted by state actors and citizens in many countries, the United States must ensure that LGBT people are not denied lifesaving protections such as asylum by factors unrelated to the merits of their claims,” according to the newly-released report.

Among its principal findings:

▪ LGBT immigrants who are in detention or in deportation proceedings in immigration court are less likely to win their asylum cases than those who are free and pursuing their petitions before asylum officers of U.S. Citizenship and Immigration Services (USCIS), the Homeland Security agency that processes immigrant documents and applications for benefits.

▪ LGBT immigrants are more likely than other immigrants to wait long to seek asylum, thus often missing the deadline required by the government to present a petition within a year of arriving in the country.

The report also says LGBT immigrants often need more than one year to file an asylum claim both because they are not aware of the deadline and also because many are traumatized when they first arrive in the United States.

“For people who have spent their lives hiding their identity from government officials in order to survive, it is unsurprising that they would need more than one year to be able to disclose their sexual orientation or gender identity to a government official, particularly if they are recovering from trauma caused by the persecution they faced,” the report says. “Another reason why LGBT people may be disproportionately affected by the one-year deadline is that they may not know that persecution based on sexual orientation and gender identity is grounds for asylum.”

In the United States, foreign nationals can apply for asylum if they claim persecution under five specific categories: race, religion, nationality, membership in a particular social group and political opinion.

“For the first time, we have a glimpse into the challenges [LGBT immigrants] face and can promote specific recommendations to ensure that far fewer aren’t sent back to lives of dangerous persecution” said Sharita Gruberg, CAP senior policy analyst and co-author of the report.

This story was originally published June 19, 2015 at 12:44 PM with the headline "Report: LGBT immigrants may obtain asylum easier if they are not in detention deportation proceedings."