By Michael Serrano, Legal Assistant for The Law Offices of Ally Bolour
According to the UCLA Williams Institute, there are approximately 267,000 undocumented LGBT immigrants in the US. The National Center for Transgender Equality estimates that between 15,000 and 50,000 or more of those 267,000 are transgenders. A transgender individual, if not a US citizen, may have a claim for asylum and protection in the U.S. Proving that one needs asylum to an immigration officer and judge is difficult. If they are unsure on how to convey their persecution their claim can be declined.
Prospective asylees need to prove: that in their country of nationality they have suffered persecution, or have a well-founded fear of future persecution based on their race, religion, nationality, membership in a particular social group, or political opinion, and the government is unable or unwilling to protect them. The five protected groups can be combined if the persecution arises from the asylee’s identification with multiple groups.
If the prospective LGBT asylum applicant is not yet in the US, they should immediately inform the border agent when attempting to cross the border that they are seeking asylum. They will be detained so that a Department of Homeland Security (DHS) agent can conduct a credible fear interview. Here, it is important for the detained to be as truthful, candid and detailed about past persecution, or fear of future persecution, based on their sexual orientation. The results of this interview will be placed in their permanent file.
No one should ever sign any documents they do not understand. If there are no previous crimes the agent may then order the detained to be released into the US and give them a future court date with an immigration judge to prove their asylum case. If there is a crime or other issue, the agent will put the applicant on the detained docket to see a Judge. The process would be quicker but more difficult to prepare for without easy access to legal assistance.
If the prospective asylum applicant is already in the US, they have one year from the time they entered to file an asylum claim. They can be undocumented or in the US based on another unrelated visa. Although they will not go through the credible fear interview initially, they will still have to prove their case either to an Asylum Officer.
It is imperative that individuals that think they are being persecuted based on their sexual orientation/gender identification to seek advice from an immigration attorney. Non-profit organizations that assist the LGBT community should also have contact information for legal assistance for individuals suffering poverty/indigence.
Please feel free to contact our office for a free consultation if you have any questions.