Are you eligible for LGBT asylum?
If you have a well-founded fear of persecution in your country based on your LGBT status, you may apply to the USCIS, or to an Immigration Judge for asylum.
One of the particular social groups whose members may be eligible for asylum in the US is the LGBT community. LGBT asylum can be applied for by submitting Form I-589 to the USCIS, or alternatively, before an Immigration Judge if you are in a removal proceedings. This application is free of charge.
In order to establish your eligibility for LGBT asylum, you must have a well-founded fear of persecution in your home country due to your sexual orientation. This can be done by providing a detailed affidavit about your experiences in your home country, news articles detailing stories of members of the LGBT community being persecuted in your country and threats from persons in your home country. It is not necessary to have an eye witness or personal evidence from home to show proof of feared persecution, but if this information is readily available it would strengthen your application for asylum.
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Generally, you should apply for asylum based on your membership in the LGBT community within one year of your admission to the US, although there are numerous exceptions to this requirement. If you have suffered past persecution in your country, this is an important factor which should be documented in your application.
Here is what the UNHCR has to say about LGBT asylum –
In many parts of the world, individuals are subject to serious human rights abuses because of their real or perceived sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC), particularly when these do not conform to dominant social and cultural norms. As of this writing, nearly 70 United Nations Member States criminalize consensual same-sex sexual acts de jure or de facto. Six States impose the death penalty, and sources indicate that the death penalty may be prescribed in five additional States, though with less legal certainty.
Severe persecution and discrimination from both State and non-State actors force lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ+) persons – including children and older persons, with and without disabilities – to leave their places of habitual residence in search of a safe environment in which they can fully exercise their rights. They may or may not be forced to cross an internationally recognized national border in order to access a safer environment. They may also be stateless – not considered as a national of any State under the operation of its laws.
LGBTIQ+ people frequently experience continued harm during the onset of an emergency situation,2 while in transit and upon arrival in places of asylum. This harm includes but is not limited to: Stigmatization, sexual and gender-based violence, abuse by or lack of protection from security forces, arbitrary detention, refoulement, and exclusion from access to essential basic services.
LGBTIQ+ persons who do cross a national border may arrive in countries where they face similar or higher risks of homophobic, bi-phobic and transphobic violence from both nationals of the host country as well as from other displaced people. These risks are exacerbated by other factors, such as xenophobic hostility, misogyny, irregular migration status, socioeconomic marginalization, isolation from traditional support networks and trauma-induced emotional duress.
If your LGBT asylum application is granted, you will be able to apply for a green card in the US after one year.
The LGBT asylum process is very complex. Therefore, it is important to consult an experienced immigration attorney before applying for asylum based on persecution.
LGBT ASYLUM RESOURCES
- 2021 Global Roundtable LGBTIQ+ Persons in Forced Displacement and Statelessness: Protection and Solutions – Discussion Paper (UNHCR)
- America’s Asylum System Must Ensure the Protection of LGBTQ People (3-08-19)
- Practice Advisory on Immigration Benefits and Pitfalls for LGBT Families in a Post-DOMA World (08-05-13)
- LGBT Asylum – Officer Training Materials (USCIS)
- Center for Gender and Refugee Studies (UC Hastings)
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.