If you fear returning to your country based on your transgender identity, you may qualify for asylum in the United States. You will have to demonstrate that you suffered past persecution (harm directly from the government or from others that the government was unable or unwilling to control) or that you have a well-founded fear of future persecution. Additionally, if you suffered persecution in your country in the past because others assumed you were gay or lesbian, this may also be grounds to apply for asylum.
As with any application for asylum, you should discuss your case with a qualified attorney before filing. Immigration Equality can help you to assess your case, locate an LGBT/HIV-friendly attorney, and assist you in obtaining documentation about conditions in your country.
I’m a transgender woman from Jamaica. Can I apply for asylum?
As with any potential application for asylum, the answer to this question is very fact specific. There have been numerous, successful applications for asylum based on the applicant’s transgender identity. There have been many more cases based on sexual orientation claims than based on transgender claims. Often attorneys for transgender applicants will make a claim based on the applicant’s transgender identity as well as an imputed gay or lesbian identity. In other words, regardless of the way the applicant actually identifies his or her sexual orientation, if other assume that he or she is homosexual because he or she is perceived as “different” and persecute the applicant based on this perception, this may also be grounds to apply for asylum. There was a successful asylum case in the Ninth Circuit Court of Appeals, Hernandez-Montiel v. Immigration and Naturalization Service, 225 F.3d 1084 (9th Circ. 2000) in which the applicant was identified as a “gay man with female sexual characteristics.”
Please see our general information about asylum and make sure to speak with a qualified immigration attorney before deciding whether or not to apply.
I’ve been in the U.S. without legal status for five years and I just began transitioning from female to male last year. Now I’m more afraid than ever to return to my country where I fear I could be killed for being transgender. Can I apply for asylum?
In general, applicants for asylum in the U.S. must apply within one year of their most recent entry into the United States. There are two categories of exceptions to this rule, “changed circumstances” and “extraordinary circumstances.” It is possible that your transition from one gender to another could qualify you for a “changed circumstances” exception to the one year filing deadline. You will also have to show that you are filing within “a reasonable period of time” after the changed circumstance.