One of the most commonly discussed topics in the news today is the doctrine of asylum, primarily from Central American countries that have been deemed unsafe by those fleeing. However, the doctrine of asylum, in the context of immigration law, is not quite as simple.
Asylum is an immigration benefit that allows certain foreign nationals who fear persecution to remain lawfully in the U.S. indefinitely. Individuals may apply for lawful permanent residence within a year after having been granted asylum. Asylum is also an immigration relief, or defense against removal, when an individual has been summoned to immigration court. For purposes of this article, the focus will be on asylum as an immigration benefit for those who are of the LGBTQ+ community.
To qualify for asylum, an individual must prove that he/she has a well-founded fear of persecution based on one or more of the following grounds: (1) race; (2) religion; (3) nationality; (4) membership in a particular social group; (5) political opinion.
In the case of LGBTQ+ individuals, most apply for asylum based on “membership in a particular social group,” as it is the category that most encapsulates the plight of those whose sexual orientation and gender have been discriminated against and used as bases for persecution.
Since 1994, the immigration laws in the United States have granted asylum based on the persecution on account of ones’ sexual orientation, with the protection extending to transgender and HIV-positive individuals. Along with having to “fit” within one of the five grounds, one must also prove that he/she had been subjected to persecution in the past, or that he/she has a credible fear of persecution in the future.
Immigration laws recognize persecution as mistreatment that is inflicted either directly by the government, or by individuals whom the government cannot or will not control. Factors that immigration officials will look at include the severity of the mistreatment, as well as the length of time the length of time the mistreatment occurred.
Persecution has been recognized by immigration laws to have occurred in countries that arrest individuals for being gay, or countries that inflict abuse based on an individual’s sexual orientation. Additionally, asylum has been granted to individuals who were able to prove that they were subjected to abuse from a local gang based on their orientation, with the government’s refusal to do anything about it. Fear of future persecution has also been recognized as a basis for granting asylum, where an individual must provide pattern and practice of persecution against similarly situated individuals as him or herself.
The principle behind asylum is multilayered and much more complex than what could be condensed in one article. However, if you have experienced persecution due to your sexual orientation and gender in the past that you fear returning to your home country, you should contact an attorney experienced in immigration law and determine whether you have a viable asylum claim.
An individual applying for asylum should file within one year of his/her last arrival to the United States. The application process includes completing Immigration Form I-589 and providing additional documents (including a personal statement detailing the instances surrounding the persecution). After the documents and the Form I-589 are filed, the Department of Homeland Security will issue a receipt notice as proof that the application has been filed. After some time (and these days, take in to account extensive backlogs), the applicant will be called in for an asylum interview. The decision regarding the case will be issued two weeks after the interview, where the applicant is required to appear in person to pick up the written decision. The decision will either grant asylum, recommend asylum approval, provide a notice of intent to deny the case, or refer the case to immigration court.
The decision of whether to file for asylum is a serious decision that can have many consequences. Speaking with an attorney experienced in immigration law will help you run through your options, and choose the right decision for you. If you are a non-citizen considering an asylum application, or are having trouble with any other immigration issue, please call the attorneys at Bretz & Coven LLP. We will help you through the difficult process of applying for asylum status, protecting your rights, and giving you the best chance possible at attaining legal residency. To schedule a consultation with our New York immigration lawyers, call (212) 267-2555.
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