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Asylum

The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.

Last updated: June 3, 2020


Being lesbian, gay, bisexual, transgender, queer, intersex, genderqueer, or HIV positive can be grounds for an asylum claim. In more than 70 countries, some aspect of being LGBTQ is a crime. Even if it is not illegal to be LGBTQ, it may nevertheless be fundamentally unsafe to be a member of the community. Facing fear, harassment and sometimes violence because of their sexual orientation, gender identity or HIV status, people reach out to Immigration Equality from all over the world.  They look for answers about how to apply for asylum, about what the process is like, and about the potential benefits and risks involved. 

Asylum is an immigration benefit that allows certain foreign nationals who fear persecution to remain lawfully in the U.S. indefinitely. If a person does not qualify for asylum, they may qualify for withholding of removal, or deferral of removal under the Convention against Torture (CAT).  Please see the links below for more information on asylum/Withholding/CAT.

Important Note: Unfortunately, right now a filing deadline exists that renders many LGBTQ people ineligible for asylum. The way the law is currently written one must apply for asylum within one year of arriving in the United States. There are some exceptions to the filing deadline rule (see below), but they are narrow and sometimes difficult to prove. Because the filing deadline was created by statutory law, only Congress can make the change we need. Asylum claims should be considered based on merit, not compliance with an arbitrary deadline.

    Eligibility

    In addition to the different eligibility factors detailed below, note that the Trump administration has created additional rules that may affect an asylum seeker’s eligibility to apply for asylum.

    Application Process

    Filing for asylum is a very serious decision and one should consult with an attorney before filing. If one files on their own, please keep a copy of every piece of paper submitted as a record.

    Work and Travel While Pending

    (ALERT: New Rules Restrict Access to Work Permits for Asylum Seekers) Individuals with a pending asylum application may be eligible work authorization in the United States…

    Case Outcome

    Affirmative asylum cases may conclude in three ways. First, the case may be approved. If so, the process concludes. Second, an applicant may receive a request for additional evidence (an RFE) or a notice of a second interview. ..

    Refugees

    Becoming a refugee or seeking asylum are in some ways related, but they are two distinctly different immigration benefits. Immigration Equality works primarily with LGBTQ and HIV positive asylum seekers, detained immigrants and undocumented people living in the U.S.

    Case Law

    Since 2003, the number of precedential LGBTQ asylum cases has more than tripled. Below is a case chart that combines precedential and non-precedential decisions from federal court, current as of September, 2017.

    Asylum Manual

    Welcome to the third edition of Immigration Equality and the Midwest Immigrant and Human Rights Center’s LGBTQ/HIV Asylum Manual. Fully updated in 2006, this edition is a web-based document that can be viewed…

The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.

This handbook is intended for use by pro bono attorneys and immigration attorneys working on LGBTQ/HIV asylum cases.

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