LGBT people face challenges and unique vulnerabilities that cause many to leave their country of origin and seek refuge in another. Research shows that consensual same-sex conduct remains criminalized in 69 countries, and as many as 11 countries could impose the death penalty upon conviction. (ILGA World, The International Lesbian, Gay, Trans and Intersex Association)
Research show that even where such conduct is not criminalized, LGBT people face persecution and violence, including domestic violence, rape, and murder, as well as discrimination in areas like education, employment, housing, and healthcare. Aside from being vulnerable to violence, LGBT people are often discriminated against, making it difficult for them to access housing or find jobs. (United Nations General Assembly)
These are just some of the palpable fears felt by many LGBTQ+ immigrants currently fighting deportation or seeking asylum in the U.S. For example, Salesh Prasad, a 50-year-old man who was born in Fiji but has lived in the U.S. since he was six years old, is facing deportation to a country where he has no family and is at risk of violence and abuse due to his sexual orientation.
“If I’m deported, I won’t survive. I won’t make it in Fiji. There’s no protection there for me. There’s no support,” he said, adding that he would be forced to be someone he is not.
Then there is the story of Edafe Okporo, who left Nigeria to seek asylum in America, and like Prasad, fears for his life if he must return to his country of origin. Nigeria criminalizes same-sex activity. In fact, men and women can be arrested and sentenced to up to 14 years in prison, or even put to death by stoning.
These are only two examples of countless individuals who live in fear of returning to the country where they were born. For members of the LGBTQ+ community who are currently the targets of persecution due to their sexual orientation, relief exists in the form of asylum.
What is asylum?
Asylum is a legal process that allows someone who feels their life is in danger to seek refuge in a safer country.
U.S. immigration law allows an immigration judge or asylum officer to grant asylum to people who are found to meet the legal definition of a refugee in the Immigration and Nationality Act (INA). Under the INA, “refugee” means:
Any person who is outside any country of such person’s nationality, who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA 101(a).
This means if you can convince the judge or asylum officer that you suffered or fear persecution in your home country, and the persecution is tied to either race, religion, nationality, membership in a particular social group, or political opinion, you could be granted asylum. Courts have recognized sexual orientation and gender identity as constituting membership in a particular social group that could form the basis of an asylum claim with evidence of persecution. Matter of Toboso-Alfonso, 20 I.&N. Dec 819 (1990/1994). For an asylum application based on LGBT status to be successful, an applicant must prove that the harm they have suffered, or fear they will suffer if returned to their native country, rises to the level of persecution.
What is persecution?
While there is no universally accepted definition of persecution, the following forms of mistreatment constitute examples: beatings, threats of violence or other harm, detention, confinement, police harassment, torture, severe economic discrimination, and degradation. Persecution can also include being forced to engage in conduct that is not physically painful or harmful but is abhorrent to an individual’s deepest beliefs, such as remaining “closeted.” Additionally, an applicant can establish eligibility for asylum not only by showing they have been subjected to past persecution, but also by showing they have a “well-founded fear of future persecution,” even if they have not been harmed in the past. An applicant can demonstrate that by showing a pattern or practice in their country of persecution of LGBTQ+ people. The applicant must establish that they are LGBTQ+ and that their fear upon return is reasonable.