Asylum allows foreign nationals to remain lawfully in the U.S. indefinitely and, after one year, apply for legal permanent residence. Generally an asylum application must be filed within one year of the applicant’s last entry into the U.S.
What are the grounds for asylum?
An asylum seeker must prove that he or she has suffered past persecution (see below) and/or has a well-founded fear of future persecution based on one of five grounds or a combination of grounds:
- Membership in a particular social group
- Political opinion
Can I apply for asylum based on being lesbian, gay, bisexual, transgender, or HIV-positive?
Yes, since 1994, the U.S. immigration law has recognized persecution on account of sexual orientation as a ground for asylum. Transgender individuals and HIV-positive individuals have also won asylum cases.
What is persecution?
Persecution is harm that is inflicted either directly by the government, or by other individuals who the government cannot or will not control.
What are some examples of persecution by the government?
- The police contact gay men on the internet and then arrest them when they come to meet for a date
- A military officer “helps” a lesbian with a flat tire by picking her up in his jeep, bringing her to a deserted field, and raping her “to show her what a real man feels like”
- The police raid a gay club, bring several gay men to the local jail, throw them in with the general population, and tell the criminals to “teach these faggots a lesson”
What are some examples of persecution which the government cannot or will not control?
- A transgender woman is beaten up on the street by a gang, telling her to “act like a man,” when she tries to report the incident to the police, the police tell her if she didn’t dress in women’s clothes this would not have happened, and they refuse to take a report
- The partner of a gay man is killed by a mob of angry neighbors when the two are discovered to be a couple; the surviving gay man is afraid to report the incident to the police because homosexuality is illegal in his country
Is it possible to win asylum if the applicant has not suffered past persecution?
It is possible, but much more difficult, to win a case based only on the well-founded fear of future persecution. The applicant will have to document very extensively the way that LGBT and/or HIV-positive individuals are mistreated in his or her country and also demonstrate why he or she reasonably believes that he or she will be singled out for persecution if he or she has to return.
How do I apply for asylum?
Filing for asylum is a very serious decision and you should consult with an attorney before filing.
The asylum application consists of:
- Immigration Form I-589. http://uscis.gov/graphics/formsfee/forms/i-589.htm
- A declaration (detailed personal statement by the applicant)
- Corroborating documents (medical reports, police reports, letters from witnesses, etc.) to back up the applicant’s story
- Country conditions documentation (human rights reports, newspaper articles, reports from expert witnesses) demonstrating how the government treats LGBT or HIV-positive people in your country
What happens after the application is filed?
- Within six weeks of mailing in the application, the applicant has an interview at the local asylum office in which she or he describes what happened in the past and what he or she fears may happen in the future if returned to her or his home country
- Two weeks after the interview, the applicant returns in person to pick up the decision
- The decision will either recommend asylum or it will not
What if asylum is not granted after the interview?
- If the applicant is in valid status (tourist, student, etc.), he or she will be issued an Intent to Deny and can submit further evidence about why he or she should win the case; if he or she is still not granted asylum, the applicant can remain in the U.S. for the duration of the valid status
- If the applicant is not in valid status (visa overstay, entered without inspection etc.), then she or he will be placed in removal (deportation) proceedings
- In removal proceedings, the applicant gets a second chance to explain her or his case to an Immigration Judge. The Judge can grant asylum or issue a deportation order against the applicant
- There is always a substantial risk of removal (deportation) when a person files for asylum
What is the one year filing deadline?
In general an asylum seeker must file the asylum application within one year of his or her last entry into the U.S. If an applicant misses the one year filing deadline, his or her asylum application will be denied unless he or she meets a legally recognized exception to the deadline.
What are the exceptions to the one year filing deadline?
Exceptions to the one year deadline fall into two categories, “changed circumstances” and “extraordinary circumstances.” Even if an applicant meets one of these exceptions, she or he still must file within a “reasonable period of time,” which is not defined but generally means within a few months.
Examples of “changed circumstances”:
- The applicant has maintained a lawful status (such as student, or H1B) since coming to the U.S.
- The applicant did not “come out” until she came to the U.S.
- The applicant’s government just changed and made homosexuality illegal
- The applicant had sex reassignment surgery in the U.S.
- The applicant recently learned that he was HIV-positive
Examples of “extraordinary circumstances”:
- The applicant suffers from post traumatic stress disorder or severe depression as a result of what happened in her country and was unable to file when she first came to the U.S.
- The applicant consulted with an attorney who committed malpractice and the applicant filed a complaint against the attorney
So how does a person decide whether to file for asylum or not?
Filing for asylum is a very serious decision to make. If the applicant wins, he or she can go from being undocumented to having a secure legal status in the U.S. If the applicant loses, however, he or she can be deported to the country that he or she fears returning to. Anyone considering filing for asylum should consult with an attorney with experience in these types of cases so that you can get as much information as possible before making your decision. No one can tell with certainty whether or not a particular case will be successful.