These Lives Matter: Reconceptualizing the Asylum Seeker

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Victor’s* mother brought him to the United States when he was five years old and raised him in the Chicago suburbs. Now 21, Victor has few memories of his time in Guatemala. In middle school, he came out as gay, and in high school his peers bullied him and called him gay slurs, causing him to become depressed and attempt suicide. At home, Victor’s mother relayed stories of violence against lesbian, gay, bisexual and transgender (LGBT) people in Guatemala, and Victor’s Guatemalan step-father refused to accept his sexual orientation. Victor felt rejected by his parents, and during his junior year of high school, they kicked him out of the house. At age 17, Victor joined the 20 percent of homeless youth in America who are LGBT, and began sleeping on park benches and in alleyways. Yet, Victor’s story is distinct from that of many LGBT youth in America; he is also a refugee.

I began representing Victor in August 2012 when he was 20 years old, detained, and in deportation proceedings. Even though he has not been to Guatemala since he was a child, Victor told me that he was afraid of going back because of the way gay people are treated there.  Victor has reason to be afraid, and together we convinced the judge that he meets the definition of a refugee and should be granted protection. Victor has been held in immigration custody at a county jail for more than five months, and hopes that  he will be released from detention for the holidays.

Like Victor, many of our clients seeking protection from persecution on account of their sexual orientation or gender identity do not fit the traditional profile of a refugee or an asylum seeker. For many Americans, “refugees” and “asylum seekers” are only those people who recently fled their countries for political or religious reasons. To some degree, these perceptions are born out in the law; asylum seekers must usually apply for protection within one year of arrival to the United States, and the named groups of people who are eligible are limited to political opinion, national origin, race, and religion. But Victor—who was raised in the Chicago suburbs and barely remembers Guatemala—is of a different profile. Under the law, he is eligible for protection as a “member of a particular social group,” but that phrase is something that many, if not most, of our clients fail to understand.

In addition to a lack of understanding about what social groups are entitled to refugee protections, sexual minorities face other hurdles. The period to apply for asylum (that first year following entry) may not coincide with the time when the applicant was aware of, comfortable with, or open about her sexual orientation or gender identity. For example, entrenched homophobia abroad and even in immigrant communities in the United States prevents many of our clients from coming out or transitioning to a different gender until long after they arrive in the United States. Others do not realize that they can apply for asylum based on sexual orientation or gender identity until they are in removal proceedings and are informed of their eligibility by fellow detainees or legal service providers. And others, like Victor, were brought here when they were too young to understand their sexual orientations.

Working with Victor and being the first person in his life to explain these concepts gave me a profound appreciation for the challenges facing unrepresented individuals in deportation proceedings. These individuals face extremely complex legal and procedural challenges with often very limited resources and understanding of the law. Individuals who fall outside of the traditional profile of a “refugee” may also face additional challenges. LGBT individuals, for example, may face the intractable task of explaining their sexual orientation or gender identity to immigration judges or officials who are unfamiliar with these concepts. While Victor and I were able to overcome these challenges together, for many others, they remain insurmountable.

* Pseudonym used to protect our client’s confidentiality.

Sarah Plastino is an attorney for NIJC’s LGBT Immigrant Rights Initiative.

Photo credit: Maxwell GS via Creative Commons