Humanitarian Diplomacy: The U.S. Asylum System’s Role in Protecting Global LGBT Rights

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    Humanitarian Diplomacy

    The U.S. Asylum System’s Role in Protecting Global LGBT Rights

    By Sharita Gruberg and Rachel West June 2015

      WWW.AMERICANPROGRESS.O

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    Humanitarian DiplomacyThe U.S. Asylum System’s Role in Protecting

    Global LGBT Rights

    By Sharita Gruberg and Rachel West June 2015

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      1 Introduction and summary

      7 The global state of LGBT rights

     13 Characteristics and outcomes of affirmative asylum case

     18 Defensive asylum cases

      20 Findings

      31 Recommendations

      33 Conclusion

      34 Appendix

     37 About the authors and acknowledgments

      38 Endnotes

    Contents

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    1 Center for American Progress |  Humanitarian Diplomacy

    Introduction and summary

    Nearly a decade beore he U.S. Supreme Cour ruled ha U.S. laws which crimi-

    nalize “homosexual conduc” are unconsiuional in he 2003 case Lawrence v.

    Texas , a gay Cuban man won proecion in he Unied Saes rom he persecuion

    he aced in his naive land because o his sexual orienaion. I was he firs ime

    ha persecuion based on sexual orienaion was esablished as valid grounds or

    asylum in he Unied Saes.1 

    In 1980, U.S. immigraion law sill excluded lesbian, gay, bisexual, and ransgen-der, or LGB, people rom enering he counry under a prohibiion on wha was

    ermed “sexual deviaion.”2 Despie his ban, Fidel Armando oboso-Alonso

    came o he Unied Saes ha year as par o he inamous Mariel boalif, seeking

    proecion rom he violence and police harassmen he aced in Cuba.3 Beginning

    in 1967, he Cuban governmen mainained a file on oboso-Alonso, lising

    him as a “homosexual,” a criminal offense in Cuba a he ime. Every wo or

    hree monhs or 13 years, he received a noicewhich reerred o him as “Fidel

     Armando oboso, a homosexual”o appear or a hearing. Each hearing involved

    an invasive physical examinaion and quesions rom Cuban officials abou his sex

    lie and parners. Frequenly, he was deained or days afer hese hearings wihou

     being charged, subjeced o verbal and physical abuse, and once sen o a orced

    labor camp or 60 days.4 

    Finally, oboso-Alonso was given wo opionsleave Cuba or spend our years

    in prison. He chose o leave and in 1980, upon arriving in he Unied Saes along

     wih more han 124,000 Cuban reugees, was graned parole, or emporary per-

    mission o remain in he counry.5 However, his emporary permission o say was

    lifed in 1985 afer a criminal convicion. He hen applied or asylum. Alhough

    he judge ound ha he me he definiion o a reugee and ha he was more likelyhan no o be persecued i he reurned o Cuba, oboso-Alonso was graned he

    lesser proecion o wihholding o removal because o his convicion, insead o

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    2 Center for American Progress |  Humanitarian Diplomacy

    asylum. Tis mean ha he could be depored o a counry oher han Cuba and

    had o pay a ee o work in he Unied Saes. (see Glossary)6 Te Immigraion and

    Nauralizaion Service, or INS, appealed he judge’s decision, arguing ha “socially

    deviaed behavior, i.e. homosexual aciviy is no a basis or finding a social

    group [grounds or asylum] wihin he conemplaion o he [Immigraion and

    Naionaliy Ac].”7

     I urher argued ha recognizing gay men in Cuba as a paricu-lar social group eligible or asylum “would be anamoun o awarding discreion-

    ary relie o hose involved in behavior ha is no only socially devian in naure,

     bu in violaion o he laws or regulaions o he counry as well.”8 In response, he

    Board o Immigraion Appeals, or BIA, disinguished beween criminal conduc

    and saus. Te BIA, in he decision Mater of Toboso-Alfonso , deermined ha

    i was no he applican’s criminal conduc ha caused he Cuban governmen

    o arge him bu simply “his having he saus o being a homosexual,” and i

    affirmed he judge’s decision.9 Eigh monhs laer, Presiden George H.W. Bush

    signed he Immigraion and Naionaliy Ac o 1990 ino law, finally lifing he ban

    on LGB people immigraing o he Unied Saes and opening he door or hemo ener he counry lawully.10 

     While he Unied Saes and oher counries have made grea srides in recogniz-

    ing he righs o LGB people in he 25 years since he ban on LGB immigraion

     was lifedand since he Toboso-Alfonso decision ha people fleeing persecuion

     based on heir sexual orienaion could be eligible or asylumhe LGB com-

    muniy coninues o ace widespread persecuion around he world, making he

    Unied Saes’ role as a sae haven criical or he saey and well-being o LGB

    people worldwide. Bu recognizing he righ o LGB people o access he U.S.

    asylum sysem is only he firs sep. More mus be done o ensure ha his righ

    can be exercised meaningully.

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    Former Rep. Barney Frank (D-MA) and LGBT asylum

    The battle to recognize sexual orientation as grounds for

    asylum unfortunately did not end with the BIA’s decision in

    Toboso-Alfonso . In 1994, then-U.S. Attorney General Janet

    Reno gave the case precedential status, for the first timerequiring all asylum adjudicators to recognize persecution

    based on sexual orientation as grounds for asylum.11 She did

    so with a push from former Rep. Barney Frank (D-MA), who

    sat on the House Judiciary Committee at the time and wanted

    to use his position to eliminate the exclusion of LGBT people

    from the U.S. immigration system. Rep. Frank recently spoke

    to the Center for American Progress about his role in securing

    protections for LGBT people fleeing persecution. What follows

    is an excerpt from that conversation:12 

    “I had been determined when I got to Washington to get rid of

    the anti-gay exclusion from the immigration bill. My first year,

    I got put on [the] judiciary subcommittee on immigration to

    work on the overhaul that led to the first amnesty sanctions

    trade-off. I agreed to be part of the coalition to pass that bill

    in return for them letting me take the lead in rewriting the

    exclusions, which were not just gay people but even more of

    a problem, ideological. We finally worked that out, so by 1990

    when Bush signed the bill, we got rid of the anti-gay exclu-

    sion. That was the prerequisite to asylum.

    “I knew about asylum because all through the [19]80s I’d

    hear from people who were persecuted, and we tried to find

    some way for them to stay. Once that happened, I tried to get

    asylum on our list, but the next important issue for us was

    gays in the military.

    “When [former President Bill] Clinton was frustrated in his

    effort to get gays in the military in ‘93 and we got stuck with‘Don’t Ask Don’t Tell,’ I saw my opportunity. I then said to him,

    ‘You have people critical of you over gays in military.’ I believe

    that was unfair, I believe he tried his hardest.”

    Continuing his discussion with President Clinton, Rep. Fran

    recalled saying the following:

    “But it does seem to me you have interest in showing thereare things you can do to help gay people. I had three [is-

    sues] on my list. The most important was getting rid of the

    Eisenhower executive order saying we [LGBT people] were

    security risks, which he did.

    “The second was the asylum issue. And I asked him [Presid

    Clinton] to do that. The way to do that was through the att

    ney general declaring that case [Toboso-Alfonso] to be prec

    edential. There was a little back and forth over it. Janet [Re

    was not initially convinced that she had the legal authority

    but I, frankly, kept up the heat with the president, and that

    how it happened. It was explicitly done by [President] Clin

    after the failure of the effort to get gays in military in part

    because he recognized the importance of showing he was

    only pro-LGBT but capable of doing some real things.

    “The third one was a letter reaffirming that sexual orienta-

    tion could not be a factor in federal hiring. Getting both

    sexual orientation and gender identity explicitly added to t

    list for which you could get asylum by naming that case as

    precedential was something I specifically lobbied [Presiden

    Clinton] to do, with the leverage being that it was importa

    to enact some pro-gay policies after the failure of the milit

    ban. When he did it, a very anti-immigrant group called FA

    [Federation for American Immigration Reform] announced

    would lead to a tremendous influx of people pretending to

    gay. That was just another one of a number of stupid predi

    tions by anti-gay people that never came true.”

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    In he 25 years since he Toboso-Alfonso decision, he U.S. governmen has rec-

    ognized he righ o LGB people fleeing persecuion in heir home counries o

    seek proecion in he Unied Saes. While much has been done o recognize he

    righ o hese individuals o access U.S. proecion, here is litle inormaion avail-

    able o deermine how effecive hese measures have been, since he governmen

    does no collec sexual orienaion and gender ideniy daa in he asylum sysem.ecognizing he paricular difficulies ha LGB asylum seekers have accessing

    proecion in he Unied Saes, he U.S. Ciizenship and Immigraion Services,

    or USCIS, began o rain asylum officers on adjudicaing LGB asylum claims in

    2012.13 However, wihou collecing daa on LGB asylum claims, here is no way

    o knowing how many LGB people seek proecion in he Unied Saes, where

    hey come rom, he oucomes o heir cases, or i officer raining is effecive.

    o help answer hese quesions, CAP enlised he help o Immigraion Equaliya

    pro bono legal service provider or LGB and HIV-posiive immigransand

    Human ighs Firsan inernaional human righs organizaion based in New York; Washingon, D.C.; and Houson ha, in addiion o is inernaional advocacy,

    also provides pro bono legal represenaion o asylum seekers. Boh organizaions

    provided access o heir daa abou LGB asylum seekers, along wih insigh ino

    how well he Unied Saes is proecing LGB people fleeing persecuion.

    Briefly, he daa rom Immigraion Equaliy and Human ighs Firs show he

    ollowing:

    • LGB people seeking asylum are more likely o win heir claims i hey apply

    affirmaivelyha is, i hey apply when hey are no already in a removal

    proceedingraher han deensively, where asylum seekers are in a removal

    proceeding and mus prove ha hey should no be depored.

    • ransgender people seeking asylum do no apply affirmaively as requenly as

    nonransgender asylum seekers do.

    • Deenion hurs LGB applicans’ chances o being graned asylum.

    • LGB asylum seekers are disproporionaely affeced by he one-year filingdeadline.

    In ligh o he exreme violence and persecuion infliced by sae acors and ciizens

    in many counries, he Unied Saes mus ensure ha LGB people are no denied

    liesaving proecions such as asylum by acors unrelaed o he meris o heir claims.

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    Glossary

    Affirmative asylum process: Available to people seeking

    protection from persecution who are inside the United States

    or are seeking to enter the United States and not in removal

    proceedings. The application must be filed within one year ofarriving in the United States, unless eligibility for an exception

    can be shown. An asylum officer interviews applicants and

    decides whether they are eligible for asylum, whether they

    meet the definition of a refugee, whether they are barred

    from being granted asylum, or whether to refer their case to

    an immigration judge.14

    Asylum: A form of protection available to people who meet

    the definition of a refugee and who are either already in the

    United States or seeking to enter the United States at a port

    of entry.

    Relief under the Convention against Torture and

    Other Cruel, Inhuman or Degrading Treatment or

    Punishment, or CAT: A form of relief available to people

    who demonstrate that it is more likely than not that they

    will be tortured if deported to their country of origin. Torture

    “must be an extreme form of cruel and inhuman punishment”

    that “must cause severe pain or suffering.”15 Unlike asylum

    and withholding of removal, there are no bars to eligibility for

    relief under this form of protection.16

    Defensive asylum process: Available to people in removal

    proceedings who request asylum as a defense against depor-

    tation. An immigration judge hears the case in a courtroom-

    like proceeding, with individuals and their attorneys—if they

    have one—making the case for asylum and a U.S. govern-

    ment attorney making the case for deportation. The immi-

    gration judge decides whether the individual is eligible forasylum or another form of relief.17

    Particular social group: Group of people who share a co

    mon, immutable characteristic that the members of the gr

    cannot or should not be required to change.18

    Persecution: Refers to a degree of harm that the asylum

    applicant previously experienced or fears. The term is not

    defined by law, but the BIA has found that persecution can

    consist of objectively serious harm or suffering that is inflic

    because of an actual or perceived characteristic of the victi

    regardless of whether the persecutor intends the victim to

    experience the harm as harm. Harm includes physical harm

    the threat of physical harm, as well as “the deliberate impo

    tion of severe economic disadvantage or the deprivation o

    liberty, food, housing, employment or other essentials of

    life.”19 A finding of past persecution motivated by one of fiv

    things—an applicant’s race, religion, nationality, members

    in a particular social group, or political opinion—carries a

    presumption of future persecution. The persecution must b

    by a government entity, or the government must be unabl

    unwilling to control the persecutor.20

    Refugees: People outside their country of origin who are

    able or unwilling to return home and are unable or unwilli

    to avail themselves of the protection of their home country

    because of persecution or a well-founded fear of persecu-

    tion on account of race, religion, nationality, membership i

    a particular social group, or political opinion. Under U.S. law

    asylum seekers are people seeking protection from within

    the United States, while refugees were screened outside th

    United States and referred for resettlement here.21

    Removal proceedings: Also known as deportation pro-

    ceedings, this term refers to an administrative proceedingto determine whether individuals can be removed from th

    United States under immigration law. An immigration judg

    conducts such proceedings.22

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    Pro se: Individuals advocating on behalf of themselves—

    without an attorney—in legal procedures.23

    Withholding of removal: A form of relief available to

    people who can prove a more likely than not—51 percentor greater—chance of persecution on account of their race,

    religion, nationality, membership in a particular social group,

    or political opinion if deported to their country of origin. Un-

    like asylum, there is no path to a green card or citizenship for

    people granted withholding of removal, and they must pay

    annual fee to work in the United States. The government re

    tains the right to deport these people to a country other th

    their country of origin. People who are ineligible for asylum

    may be eligible for withholding of removal because there ino one-year filing deadline for withholding of removal; it is

    not discretionary, as a judge must grant it if someone prov

    eligibility; and some crimes that disqualify a grant of asylu

    do not disqualify a grant of withholding of removal.24

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     The global state of LGBT rights

    oday, a leas 76 counries have laws ha criminalize and harass people on he

     basis o heir sexual orienaion or gender ideniy and expression.25 In much o he

     world, he penaly or being LGB can be exremely harsh, rom prison o even

    deah in Iran, Mauriania, Sudan, Saudi Arabia, Yemen, and pars o Nigeria and

    Somalia.26 Likewise, alhough i is unclear wheher hese laws are acually being

    implemened, Brunei, Iraq, Pakisan, and Qaar have legal codes ha sipulae he

    deah penaly or “homosexual acs.”27 In addiion o ani-sodomy laws, which in

    many cases are remnans o colonial occupaion, a growing number o counries aresrenghening old laws and passing new ones ha arge LGB people.

    2013 saw a rise in new and renewed laws criminalizing LGB people, beginning wih

    he Supreme Cour o India reinsaing a colonial-era law ha criminalizes consen-

    sual same-sex relaions.28 Nigeria urher criminalized consensual same-sex relaions

    and insiued resricions on he righs o ree associaion, expression, and assembly

    or LGB people.29 In Uganda, he Ani-Homosexualiy Acpreviously known

    as he “Kill he Gays” bill because o an earlier version’s use o he deah penaly as

    punishmen or “homosexual aciviy”was passed in 2013 and signed ino law in

    February 2014.30 Consensual same-sex relaions were already illegal in Uganda, bu

    his law urher penalized hem by punishing “aggravaed homosexualiy” wih lie

    imprisonmen. Uganda’s Consiuional Cour laer annulled he law on a echnicaliy

    in Augus 2014, bu members o he parliamen wroe a new bill shorly afer. A he

    ime o his repor’s publicaion, however, i had no ye been inroduced.31 

    In addiion o laws criminalizing consensual same-sex relaions, here has been a

    rise in wha are known as “homosexual propaganda” laws, which preven promo-

    ing equal righs or LGB people under he guise o child proecion.32 In 2013,

    ussia passed a law banning “propaganda o non-radiional sexual relaionships”o minors, in effec argeing LGB people. Lihuania passed a similar law in 2014,

     wih similar ani-propaganda laws being proposed in Belarus, Kyrgyzsan, Lavia,

    Moldova, Nigeria, anzania, Uganda, and Ukraine.33 A recen Human ighs

     Wach repor on he ussian law’s one-year anniversary ound ha he law’s pas-

    sage has led o an increase in violence agains and harassmen o LGB people.34 

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    Persecuion o LGB people is no limied o laws ha explicily criminalize heir

    ideniies. LGB people, and hose perceived o be LGB, are subjeced o he

    denial o basic righs, arbirary imprisonmen, rape, physical violence, discrimina-

    ion, and even argeed or killings around he world.35 Alhough rarely prosecued,

    consensual same-sex relaions beween adul males has been illegal in Jamaica

    since 1864.36

     Despie he irregular enorcemen o hese laws, hey have resuled inLGB people in Jamaica being a increased risk o violence; hese people also do

    no repor such incidens o he police ou o ear o unresponsiveness or misrea-

    men.37 Tese ears are no wihou meri, as he 2011 repor o he U.N. Special

    appporeur on exrajudicial, summary or arbirary execuions, or U.N. Special

    apporeur, included a 2004 case rom Jamaica in which a man was sabbed and

    soned o deah afer police urged onlookers o atack him or being gay. 38

    Moreover, he persecuion o LGB people is no limied by geography, nor do

    laws proecing heir righs ensure saey. Even hough same-sex relaions are no

    criminalized in Mexicomarriage or same-sex couples is even legal in somepars o he counryhe U.N. Special apporeur ound 555 recorded homi-

    cides o LGB people in Mexico rom 2005 o March 2013.39 Tese murders were

    commited wih impuniyin some cases, hey were commited wih he com-

    pliciy o auhoriies. In many insances, vicims’ bodies showed signs o orure

    and muilaion.40 In Honduras, where “homosexual acs” were decriminalized in

    1899, 31 LGB people were murdered during an 18-monh period rom June

    2009 hrough January 2011.41 Among hose killed was a 23-year-old ransgender

     woman beaen and burned unil her remains were virually unrecognizable.42 

    Tese incidens show ha LGB people flee no only because o explici laws

    punishing hem or who hey are bu also a culure o discriminaion and persecu-

    ion in which he governmen is unable or unwilling o provide proecion.

    Advancements in international protections for LGBT people

     While some counries are making condiions worse or heir LGB ciizens,

    he Unied Saes and he Unied Naions have responded o persecuion and

    discriminaion agains LGB people by unequivocally saing, in he words o

    hen-Secreary o Sae Hillary Clinon, ha “… gay righs are human righs.”43

     In March 2011, he U.N. Human ighs Council issued a saemen calling or

    an end o criminalizaion and violence agains people because o heir sexual

    orienaion or gender ideniy. A ew monhs laer, i passed a resoluion ha

    expressed grave concern abou acs o violence and discriminaion agains LGB

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    people.44 Laer ha year, on he 63rd anniversary o he Universal Declaraion

    o Human ighs, Secreary Clinon addressed he U.N. General Assembly and

    called or a global consensus ha “recognizes he human righs o LGB ciizens

    everywhere.”45 A home, his policy ook he orm o a direcive rom Presiden

    Barack Obama o all ederal agencies“Inernaional Iniiaives o Advance he

    Human ighs o Lesbian, Gay, Bisexual, and ransgender Persons”whichincluded insrucions or he Sae, Homeland Securiy, and Jusice deparmens

    o enhance effors o proec vulnerable LGB reugees and asylum seekers. 46 

    In he Unied Saes, reugees are resetled rom overseas, while asylum seekers

    apply rom wihin he counry.47 

    In he 20 years since sexual orienaion was firs recognized as a paricular social

    group eligible or asylum in he Unied Saes, U.S. asylum laws, as well as inerna-

    ional reugee rameworks or proecing LGB people fleeing persecuion, have

     become well esablished. Furhermore, a growing recogniion o he dangers ha

    LGB people ace in much o he world and an acknowledgmen o he paricularneeds o LGB people seeking proecion has led o he creaion o improved

    U.N. guidance on he 1951 eugee Convenion and/or he 1967 Proocol

    elaing o he Saus o eugees.48 Tese are he key reaies oulining he righs

    o reugees and he responsibiliies o naions ha provide asylum o hem.

    In 2008, he Office o he U.N. High Commissioner or eugees, or UNHC,

    issued is firs “Guidance Noe on eugee Claims elaing o Sexual Orienaion

    and Gender Ideniy,” clariying ha sexual orienaion and gender ideniy

    are boh included wihin “membership o a paricular social group.”49 In 2012,

    i issued legal guidance o governmens, legal praciioners, adjudicaors, and

    UNHC saff on adjudicaing claims o reugee saus based on sexual oriena-

    ion and/or gender ideniy.50 Also in 2012, afer a wo-year collaboraive process

     beween Immigraion Equaliy and he U.S. Ciizenship and Immigraion Services,

    USCIS inroduced a raining course or reugee and asylum officers on adjudica-

    ing lesbian, gay, bisexual, ransgender, and inersex, or LGBI, reugee and asylum

    claims in order o improve he handling o hese cases.51 Unorunaely, no such

    raining exiss or U.S. immigraion judges.

    Te growing recogniion o he paricular proecion needs o LGB peoplefleeing persecuion comes as he number o people orcibly displaced around he

    globe is a is highes poin since World War II, a more han 50 million people

     worldwide, including 16.7 million people who mee he definiion o a reugee.52 

    However, since neiher USCIS nor he Deparmen o Jusice collecs daa on sex-

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    ual orienaion or gender ideniy in he asylum sysem, here is no way o know

    how many LGB people seek proecion in he Unied Saes annually, how many

    are graned asylum, and wheher USCIS’ raining module has had any impac on

    LGB asylum adjudicaions. Te daa presened below, culled rom he records o

    Immigraion Equaliy and Human ighs Firs, hopeully will clariy he picure

    and begin o fill in exising knowledge gaps.

    Data sources and methodology

    Immigration Equality53 

    For 20 years, Immigration Equality has provided pro bono

    legal assistance to LGBT and HIV-positive immigrants. Data

    obtained from Immigration Equality for this report include

    793 asylum cases closed from 2010 through 2014. These data

    include the year the case was closed; whether the case was

    affirmative, defensive, or referred to an immigration judge;

    the applicant’s country of origin and gender or transgender

    status; whether the applicant was detained; and the verdict

    of the case. The verdict was unknown for 263 cases. Unknown

    verdicts could be the result of a number of different fac-

    tors, including another attorney taking the case or the client

    ceasing contact with the Immigration Equality offices. These

    missing data were not included in any analysis of grant rates.

    The focus was on adjudications by asylum officers and im-

    migration judges, so cases appealed to a higher court were

    also eliminated. Of the remaining cases with a known final

    verdict, 372 were affirmative, 103 were defensive, and 35 were

    referred to an immigration judge. Sixty were for people in

    detention awaiting their hearing.

    Human Rights First54

    Human Rights First provided data on its one-year filing dea

    line cases to help shed light on how the deadline affects LG

    people seeking protection.

    The goal of looking at this organization’s cases was to get

    some sense of what is happening in asylum cases for LGBT

    individuals. While the government separates asylum seeke

    by the five grounds for asylum, it does not disaggregate th

    “particular social group” category, which can include gang

    members, female genital mutilation victims, LGBT people,

    and others. Human Rights First’s information helps fill this

    void. One particular question explored was whether the 2

    USCIS training had any noticeable effect on case outcome

    Since most asylum seekers are not represented by counse

    and even fewer are represented by attorneys whose sole a

    of expertise is LGBT asylum or even asylum more gener-

    ally—these findings are not representative. This is why it i

    critical for the government to collect sexual orientation an

    gender identity data in its asylum program and to disaggr

    gate and publish it.

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    Methodology

    In the sections that follow, a descriptive overview of the LGBT

    asylum seekers in these two datasets is provided—what

    countries they hail from, what share is transgender, and what

    share is granted asylum—to help characterize case outcomes.In addition, outcomes are compared across various groups

    of interest—including transgender vs. nontransgender cases

    and detainees vs. nondetainees—using statistical compari-

    sons of means, or averages, called two-sample t-tests. This

    allows testing of whether the differences observed in the

    samples are statistically significant—that is, whether they are

    likely to reflect underlying differences between groups that

    exist in the larger population, rather than simply being due

    to random chance. Such tests may be of particular interest

    if differences across groups are hypothesized to be due to

    differential treatment in the court system. As is conventional,

    a difference is characterized as statistically significant if the as-

    sociated t-test yields a confidence level of 5 percent or greater,

    meaning that the probability of observing that difference

    merely due to random chance is 1 in 20 or less.

    As discussed below, relatively few of the statistical compari-

    sons performed for this report meet conventional levels of

    statistical significance, even when differences in the group

    averages are relatively large. This does not necessarily imp

    that differences between groups do not exist in the underl

    ing populations; rather, this failure may instead be a con-

    sequence of the limitations of the data, particularly of the

    relatively small size of the data samples. For example, thereare relatively few transgender asylum seekers in the datase

    as well as many individuals whose gender identity was not

    recorded; this makes statistical comparisons difficult. The s

    of the differences observed in certain outcomes, such as gr

    rates for transgender vs. nontransgender asylum seekers, i

    highly suggestive of differential treatment. But due to limit

    sample size, as well as to a nontrivial number of missing da

    points, a high degree of certainty in some of the observed

    trends cannot be claimed.

    Such limitations underscore the need for stronger and mor

    widespread data collection procedures. Given a larger sam

    size, researchers could determine with a greater degree of

    confidence whether true differences in outcomes underlie

    the differences observed in the data and could character-

    ize the severity of these differences. Greater amounts of an

    better-quality information could confirm or refute some of

    suggestive trends discussed below.

    Countries that LGBT people are fleeing

    During he ime period analyzed in his repor, Immigraion Equaliy handled

    cases rom all over he world; however, he cases are no equally disribued across

    counries. Overall, Jamaica consisenly had he highes number o people seeking

    proecion in he Unied Saes each year. ussia had he second-highes number

    in 2010 and 2011 bu was in hird place rom 2012 hrough 2014, replaced byMexico in 2012 and 2014 and by Honduras in 2013.

    Tese daa sugges ha boh longsanding issues o persecuion agains LGB

    peoplesuch as in he case o Jamaicaand more recen rends oward urher

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    criminalizaion o LGB peoplesuch as in he cases o ussia, ussian-

    influenced counries, Uganda, and Nigeriaconribue o an increase in LGB

    people seeking proecion in he Unied Saes.

     Alhough he arrivals o women and children rom Cenral America have domi-

    naed recen headlines, paricularly in summer 2013, Immigraion Equaliy daashow a rise in LGB cases rom Honduras, El Salvador, and Guaemala during

    ha ime period as well. Beween 2011 and 2012, here was also a rise in cases

    rom LGB asylum seekers rom Egyp and Syria, coinciding wih he Arab

    Spring. Te observed daa rend o increases in asylum applicaions rom LGB

    people coinciding wih larger issues o conflic and insabiliy around he globe

    suggess ha persecuion based on sexual orienaion and gender ideniy may no

    always be isolaed rom larger conflics.

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    Characteristics and outcomes

    of affirmative asylum cases

     Asylum seekers who are no in removal proceedings may file wha is called an

    affirmaive asylum applicaion.55 In hese cases, individuals can only apply or asy-

    lum rom wihin he Unied Saes, and he applicaion mus be filed wihin one

     year o U.S. arrival. aher han being decided by an immigraion judge, affirma-

    ive asylum applicaions are iniially decided by an asylum officer who inerviews

    applicans abou heir asylum applicaions. And while an atorney is allowed o

    represen applicans, he governmen does no provide atorneys in immigraion

    proceedings, even or indigen people seeking proecion.

     Afer conducing he iniial inerview, he asylum officer is responsible or decid-

    ing wheher he individual is eligible o apply or asylum; wheher he applican

    mees he definiion o a reugee under he Immigraion and Naionaliy Ac; and

     wheher he applican is barred rom receiving asylum under he ac.56 Asylum is a

    discreionary orm o relie, and asylum officers can eiher gran meriorious cases;

    deny asylum i he applican is in he Unied Saes lawully bu ound ineligible

    under one o he sauory bars o asylum; or, i he officer is unable o approve he

    applicaion, reer he case o an immigraion judge or urher review.57 I should

     be noed ha asylum officers are required by law o “receive special raining in

    inernaional human righs law, non-adversarial inerview echniques, and oher

    relevan naional and inernaional reugee laws and principles.”58

    In 2012, he U.S. Ciizenship and Immigraion Services inroduced a raining

    module on adjudicaing asylum claims made by LGB people as par o is

    comprehensive five-week raining program or all new asylum officers.59 Prior

    o he USCIS raining, asylum officers received no specific raining on adju-

    dicaing claims o persecuion based on sexual orienaion or gender ideniy.

    ecognizing ha he asylum process requires LGB applicans o discusssensiive and privae deails o heir lives wih governmen officials, he raining

    no only covers he legal sandards used in adjudicaing claims bu also seeks

    o educae asylum officers on paricular challenges ha LGB people may ace

     when presening heir claims and o increase sensiiviy around hese issues.60 

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    For example, someone who claims he was persecued because he is gay mus

    prove ha he is in ac gay. Tis can be very difficul or someone who has been

    orced o hide his sexual orienaion or his enire lie and who may no conorm

    o biases held by he asylum officer o wha a gay man looks and acs like. Or, as

    in a case currenly pending beore he 9h U.S. Circui Cour o Appeals, judges

    may no be able o disinguish beween sexual orienaion and gender ideniyand may incorrecly assume a ransgender woman in Mexico would no ace

    persecuion based on her gender ideniy because marriage or same-sex couples

    is legal in cerain pars o Mexico.61 Unlike or sexual orienaion, here is no ye

    a precedenial case esablishing persecuion on accoun o gender ideniy as a

    paricular social group eligible or asylum.

    Analysis of Immigration Equality’s affirmative cases

    Te majoriy o cases ha Immigraion Equaliy handles are affirmaive. Includingonly hose Immigraion Equaliy cases wih a known oucome, here were 372

    affirmaive cases adjudicaed by an asylum officer beween 2010 and 2014.

    Immigraion Equaliy compleed 86 affirmaive cases in 2010, 92 in 2011, 89 in

    2012, 69 in 2013, and 71 in 2014.

    FIGURE 1

    Immigration Equality's caseload

    Total case intake, by year

    Source: Immigration Equality. Data on file with author.

      Not completed/outcome unknownCompleted affirmative Completed defensive

    124

    156

    155

    143

    195

    2010

    2011

    2012

    2013

    2014

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    Case outcomes

    Compleed affirmaive applicaions were graned asylum an average o 99 per-

    cen o he ime. While his represens an ofen liesaving oucome or he LGB

    individuals in his daase, i is imporan o noe ha hese cases likely are no

    represenaive o all LGB affirmaive asylum applicans, as Immigraion Equaliyselecs which cases i chooses o represen and provides excellen counsel o

    cliens.62 Addiionally, by definiion, affirmaive applicans do no ace he same

    obsacles ha deensive applicans ace, including he acs ha hey are no in

    deenion, are no in removal proceedings, and heir claim is no being dispued

     by a governmen atorney. Naionally, asylum gran raes are rising or affirmaive

    asylum claims, bu he naional average o 46 percen in 201463 is much lower han

    he Immigraion Equaliy gran rae noed above.

    Looking a affirmaive applicaions by gender ideniy, a smaller proporion o

    ransgender asylum seekers apply affirmaively, 69.8 percen, compared wih75.85 percen or nonransgender asylum seekers, hough his difference is

    no saisically significan and possibly due o he relaively small number o

    ransgender immigrans53included in his daase. However, exising daa

    also sugges ha ransgender people may be less likely o affirmaively apply or

    asylum. Discriminaion and harassmen, including rom law enorcemen, may

    conribue o ransgender asylum seekers being more relucan han lesbian,

    gay, and bisexual asylum seekers o seek proecion rom he governmen.64 One

    resul o he widespread discriminaion aced by ransgender people, paricularly

    ransgender people o color, is a lack o access o legal inormaion and no even

    knowing ha asylum is an available orm o relie or people persecued because

    o heir gender ideniy.65 

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    Referred cases

     When an asylum officer does no deny an asylum applicaion bu eels ha he or

    she canno make a final deerminaion and he applican no longer has legal saus

    o remain in he Unied Saes, he case is reerred o an immigraion judge. For

    Immigraion Equaliy’s cases, 8.6 percen o affirmaive cases were reerred o an

    immigraion judge, compared wih an observed rae o 25 percen o 30 percen

    or all affirmaive cases.66 Immigraion Equaliy’s reerred cases were graned asy-

    lum in 91.4 percen o hese cases. Combining asylum grans and grans o wih-

    holding o removal, 94.3 percen o Immigraion Equaliy’s reerred cases beween

    2010 and 2014 resuled in a posiive oucomebeing graned asylum, wihhold-

    ing o removal, or proecion under he Convenion agains orure.

    Te U.S. Execuive Office or Immigraion eview’s, or EOI’s, annual repor on

    immigraion saisics shows ha affirmaive cases reerred o immigraion judges

     were graned asylum 75 percen o he ime in fiscal year 2014.67 Immigraion

    cours end o have low gran raes, only graning asylum in 28 percen o deen-sive cases ha same year, so his is no a populaion o adjudicaors radiionally

    disposed o graning asylum.68

    FIGURE 2

    Countries of origin: Affirmative

    Top 10 countries of origin for completed affirmative asylum cases, by number of cases

    Source: Immigration Equality. Data on file with author.

    2010

    Jamaica

    Russia

    Grenada

    Mexico

    Paraguay

    Uzbekistan

    Venezuela

    El Salvador

    Ghana

    Kenya

    2011

    Jamaica

    Russia

    Peru

    Egypt

    Honduras

    Mexico

    Trinidad and Tobago

    Brazil

    China

    Colombia

    2012

    Jamaica

    Russia

    Mauritania

    Honduras

    Belize

    Croatia

    Ivory Coast

    Egypt

    Ecuador

    El Salvador

    2013

    Jamaica

    Honduras

    Russia

    Ukraine

    Dominican Republic

    Guatemala

    Nigeria

    Pakistan

    Trinidad and Tobago

    Turkey

    2014

    Jamaica

    Mexico

    Russia

    Guyana

    Macedonia

    Ukraine

    Honduras

    India

    Malaysia

    Uganda

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    Tis high rae o approvals or reerred cases relaive o he approval rae in he

    general populaion indicaes ha asylum officers may be reerring cases ha

    should be receiving grans. For LGB people seeking proecion, he complex-

    iy o heir cases may be he reason why asylum officers are reerring cases, raher

    han graning meriorious claims a he ouse. Tis is problemaic, since reerrals

    ake longer o adjudicae and use more resources. No only does an asylum officerhave o hear he case, bu an immigraion judge mus hear i as well, conribuing

    o he immigraion cour’s enormous backlog.

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    Defensive asylum cases

     Asylum claims made by individuals already in removal proceedings who express a

    ear o removal due o persecuion are known as deensive applicaions. Tis ype

    o applicaion also includes people apprehended by immigraion officers wihin

    100 miles o he U.S. border or a a por o enry who are subjec o expedied

    removal and who express ear o persecuion i depored when apprehended.

    Unlike affirmaive cases, asylum seekers in deensive proceedings mus prove

     why hey should no be depored, and hey are subjec o cross-examinaion rom

    governmen atorneys who argue in avor o heir deporaion.69

    Analysis of Immigration Equality’s defensive cases

    Immigraion Equaliy represens ewer people in deensive proceedings han in

    affirmaive claims. I had a oal o 103 deensive cases or he years examined: 18

    deensive cases in 2010; 18 in 2011; 25 in 2012; 22 in 2013; and 20 in 2014. A

    oal o 60 o he individuals in hese cases were deained.

    Case outcomes

     Analyzing he oal sample o cases, success raes in deensive cases are much

    lower han in affirmaive cases. Unlike Immigraion Equaliy’s affirmaive appli-

    caions, where asylum is graned 99 percen o he ime, deensive claims are

    graned asylum 66 percen o he ime. However, 24 percen o deensive asylum

    applicans are graned lesser orms o relie, such as wihholding o removal or

    proecion under he Convenion agains orure. Wihholding o removal and

    CA require a higher sandard o proo o uure persecuion han asylum; a judgeound a oal o 90 percen o he deensive claims eligible or relie rom removal.

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    ransgender asylum seekers are more likely han nonransgender applicans o

    apply or asylum deensively, wih 26 percen o Immigraion Equaliy’s ransgen-

    der applicans applying deensively, compared wih 20 percen o nonransgender

    applicans. As described above, acors such as discriminaion, a lack o access o

    legal resources and inormaion abou heir righ o apply or asylum, and higher

    raes o ineracions wih law enorcemen can explain he larger proporion oransgender asylum seekers who apply deensively.70 Again, hese findings are

    no saisically significan because o he small sample size. However, saisically

    significan differences may be ound in a larger sample size, underscoring he need

    or he U.S. governmen o gaher hese daa.

    FIGURE 3

    Countries of origin: Defensive

    Top countries of origin for completed defensive asylum cases, by number of cases

    Source: Immigration Equality. Data on file with author.

    2010

    Ghana

    Jamaica

    Afghanistan

    2012

    Jamaica

    El Salvador

    Mexico

    2011

    Colombia

    Ecuador

    El Salvador

    Mexico

    2013

    Ecuador

    Colombia

    El Salvador

    Guyana

    2014

    Honduras

    El Salvador

    Guyana

    Ghana

    Guatemala

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    Findings

    LGBT people seeking asylum are more likely to win their claims if

    they are applying affirmatively rather than defensively

     While 99 percen o Immigraion Equaliy’s affirmaive cases were graned asylum,

    only 66 percen o is deensive cases were graned asylum. Since 24.3 percen o

    deensive claims were graned anoher orm o relie rom deporaion, i appears

    ha many LGB people seeking proecion have legiimae claims, bu here are

    significan barriers o applying wihin one year o arriving. Tese include a lack oaccess o legal inormaion abou heir righ o apply or asylum; a ear o coming

    ou o a governmen official afer a lieime spen hiding heir sexual orienaion

    or gender ideniy; and/or criminal convicions ha limi heir access o he ull

    proecion afforded by being graned asylum.

     Transgender people do not apply af firmatively as frequently as

    nontransgender people do

    For ransgender asylum seekers, wheher hey applied affirmaively or deensively

    made an enormous difference in erms o wheher he applican was graned relie,

    since applicans are hal as likely o win asylum i hey are in removal proceedings.

    Niney-seven percen o Immigraion Equaliy’s affirmaive ransgender applica-

    ions were graned asylum, compared wih only 50 percen in deensive cases.

    Asylum Withholding/protection under CAT Outcome unknown

    FIGURE 4

    Transgender asylum applicants

    Rates of protection grants for transgender applicants

    Source: Immigration Equality. Data on file with author.

     Affirmative claims by transgender applicants

    Defensive claims by transgender applicants

    97%

    3%

    7%50% 43%

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    ransgender applicans also are more likely o be graned wihholding o removal

    or proecion under he Convenion agains orure han nonransgender appli-

    cans. While 24 percen o he deensive claims were graned wihholding o

    removal or proecion under CA, he rae or ransgender applicans was nearly

    wice ha a 43 percen. Te burden o proo or wihholding o removal and CA

    proecion is higher han ha or asylum, suggesing ha ransgender applicansin his sample had a high likelihood o acing persecuion i depored, bu hrough

    eiher ailing o file heir applicaions wihin one year o arriving in he Unied

    Saes or a criminal convicion, hey were ineligible or he ull proecion o

    asylum. Furhermore, he discriminaion and police profiling aced by ransgender

    applicans no only appears o make hem less likely o apply affirmaively bu also

    means hey are less likely o receive asylum and all o he benefis ha come wih

    i.71 Insead, alhough hey have a clear need or proecion, many are eligible only

    or lesser orms o relie ha leave hem in limbo.

    Affirmative Defensive

    Rate of defensive cases in detention: 52%

    Appealed

    FIGURE 5

    Transgender representation in LGBT asylum populations

    Transgender people are overrepresented in defensive applications

    Source: Immigration Equality. Data on file with author.

    Nontransgender LGB

    Transgender

    76% 20% 4%

    70% 26% 4%

    Rate of defensive cases in detention: 64%

    Detention hurts LGBT applicants’ chances of being granted asylum

    Te daa rom Immigraion Equaliy show ha deenion has a saisically sig-

    nifican impac on asylum case oucomes or LGB people seeking proecion.

     Asylum seekers were 11.5 percen more likely o succeed in heir claims i hey

     were no deained. Only 45 percen o deained cases were graned asylum, and

    28.39 percen were graned lesser orms o proecion. A greaer proporion oImmigraion Equaliy’s ransgender cliens seeking asylum were deained han were

    nonransgender LGB cliens. A ull 64.3 percen o ransgender asylum seekers in

    deensive proceedings were deained, compared wih 52 percen o nonransgen-

    der LGB asylum seekers. For 20 percen o Immigraion Equaliy’s deained cases,

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    i was impossible o deermine wheher applicans were ransgender because no

    gender ideniy was lised, so hese cases were no included in his analysis. A larger

    sample size is needed o definiively deermine wheher ransgender asylum seekers

    are deained a higher raes han nonransgender asylum seekers.

    LGBT asylum seekers are disproportionately affected by the 1-year

    deadline

    Immigraion Equaliy did no have daa on how he one-year filing deadline

    affecs is cliens, so Human ighs Firs provided hese daa, which included

     boh LGB and non-LGB cliens. Among cases represened by Human ighs

    Firs, i is clear ha LGB asylum seekers are disproporionaely affeced by he

    one-year filing deadline. While LGB asylum seekers represen 11 percen o

    he organizaion’s open cases, hey accoun or 20 percen o is open cases wih

    filing deadline issues.

    For people who have spen heir lives hiding heir ideniy rom governmen officials

    in order o survive, i is unsurprising ha hey would need more han one year o be

    able o disclose heir sexual orienaion or gender ideniy o a governmen offi-

    cial, paricularly i hey are recovering rom rauma caused by he persecuion hey

    aced.72 Anoher reason why LGB people may be disproporionaely affeced by

    he one-year deadline is ha hey may no know ha persecuion based on sexual

    orienaion and gender ideniy is grounds or asylum. A lack o access o legal

    resources and inormaion also could accoun or his dispariy, hough he degree o

     which LGB asylum seekers have access o his inormaion is presenly unknown.

     A Human ighs Firs repor ound ha many asylum seekers wih well-ounded

    ears o persecuion were denied asylum simply or ailing o mee he deadline.73

    Overarching issues

    Counsel is key

    Te oucome o an immigraion case can have an enormous impac on an indi- vidual’s lie. Tis is paricularly rue in asylum cases, where deporaion can be

    pracically a deah senence. A wo-year sudy o immigraion proceedings in

    New York Ciyhe New York Immigran epresenaion Sudy, conduced by

    a group convened by Judge ober A. Kazmann o he U.S. 2nd Circui Cour

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    o Appeals and he Vera Insiue o Jusice in 2010ound ha he wo mos

    imporan variables affecing a successul case oucomebeing graned relie

    rom deporaion or having a case erminaedwere having an atorney and no

     being deained. Immigrans wih lawyers are nearly six imes more likely o have

    a successul case oucome han hose no represened by counsel.74 Considering

    ha asylum applicans mus esablish credibiliy and provide evidence o proveheir claim, a difficul ask or individuals no amiliar wih he law and who

    requenly are orced o flee heir home counries quickly wihou ime o gaher

    evidence o suppor heir claimsomehing exacerbaed or LGB applicans,

     who mus prove he ideniy hey were orced o hidehe enormous difference

    ha compeen counsel makes is no surprising. In he New York sudy, 74 percen

    o cases in which people were represened by counsel and no deained resuled

    in a successul case oucome. Tis dropped o 18 percen or people represened

     by counsel bu in deenion. Tose wihou a lawyer ared even worse: 13 percen

     who were no deained had successul oucomes, while only 3 percen who were

    deained and did no have a lawyer had successul oucomes.75 

    FIGURE 6

    New York Immigrant Representation Study

    Successful case outcomes by representation and detention status

    Source: Steering Committee of the New York Immigrant Representation Study Report, "Accessing Justice: The Availability and Adequacy

    of Counsel in Removal Proceedings," Cardozo Law Review  33 (2) (2011): 357–416, available at http://www.cardozolawreview.com/Joom-la1.5/content/33-2/NYIRS%20Report.33-2.pdf.

     Represented and not detained

    74%

    Represented and detained

    18%

    Unrepresented and not detained

    13%

    Unrepresented and detained

    3%

     Access o counsel is paricularly criical in asylum proceedings. According o

    daa mainained by he ransacional ecords Access Clearinghouse a SyracuseUniversiy on immigraion cour cases rom FY 2009 o FY 2014, 89 percen o all

    asylum seekers no represened by an atorney in removal proceedings are denied

    asylum.76 For affirmaive asylum applicans, he gran rae is 19 percen higher

    or asylum seekers represened by counsel.77 Te New York sudy ound ha 50

    percen o cases beore immigraion cours were represened by counsel during a

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    leas one poin in he proceedings, bu his does no address he qualiy or consis-

    ency o counsel received, a acor ha can also make a significan difference.78 

     While he righ o counsel ha is explicily saed in he Sixh Amendmen o he

    Consiuion only applies o criminal prosecuionsimmigraion proceedings are

    civilcours have recognized a righ o counsel or immigrans in removal pro-ceedings, hough no necessarily a he governmen’s expense. Te American Bar

     Associaion, or ABA, has come ou in suppor o he due process righ o counsel

    or all people in removal proceedings, as well as reerral o pro bono or appoined

    counsel or indigen individuals eligible or immigraion relie. Te ABA also

    advocaes overurning he requiremen ha represenaion in removal proceed-

    ings is “a no expense o he governmen” and avors allowing judges o appoin

    counsel a he governmen’s expense in a limied number o siuaions.79

    Detention hurts LGBT people’s ability to win asylum

     As shown in he New York Immigran epresenaion Sudy, he second impor-

    an acor ha deermines case oucomes afer represenaion by counsel is he

    seeker’s deenion saus.80 Individuals represened by counsel bu deained are 25

    percen less likely o have a successul case oucome han hose no deained and

    represened by counsel. Even among hose no represened by counsel, individu-

    als who are no in deenion are 10 imes more likely o have a successul oucome

    han hose in deenion.

    Moreover, in is 2015 repor, he Office o he U.N. High Commissioner or

    Human ighs ound ha i is no jus oher counries where LGB people ace

    abuse. According o he repor, “LGB people in [U.S.] deenion have been

    subjec o cruel, dehumanizing reamen.” Specifically, i ound “[s]ixeen gay

    and ransgender individuals in he Unied Saes [who] were allegedly subjeced

    o soliary confinemen, orure and ill-reamen, including sexual assaul, while

    in deenion in immigraion aciliies.”81 Unorunaely, an earlier CAP column

    revealed ha even hough Immigraion and Cusoms Enorcemen’s, or ICE’s,

    own inake process recommends release or provides i as an opion 70 percen

    o he ime or LGB immigrans, i elecs o deain hem 68 percen o he ime.LGB people are no only a higher risk o physical and sexual abuse in deenion;

    hese daa show ha being deained also has a negaive effec on heir abiliy o

     win asylum cases.82

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     The 1-year fi ling deadline disproportionately affects LGBT people

    seeking protection

    Te 1996 Illegal Immigraion eorm and Immigran esponsibiliy Ac, or

    IIIR, inroduced a new requiremen or asylum applicaions o be filed wihin

    one year o he applican’s arrival in he Unied Saes, wih he raionale o pre- vening raudulen asylum claims.83 As a resul o his rule, eligible asylum seek-

    ers are denied proecion rom persecuion simply or ailing o file he correc

    paperwork wihin one year o arriving in he Unied Saes, even hough hey sill

    may be a risk in heir home counry. Te rule includes an excepion or “changed

    FIGURE 7

    LGBT immigrants are often detained unnecessarily

    ICE elects to detain two-thirds of the LGBT immigrants who were recommended

    for release by the automated system

    Detain

    Detained without bond Detained

    but bond

    eligible

    Release on

    community

    supervision

    Released on

    community

    supervision

    Supervisor to determine

    whether to detain or to release

    on community supervision

    Source: Author's calculations from documents on file with a uthor. Documents were accessed through a March 13, 2015, Freedom of

    Information Act request to U.S. Immigration and Customs Enforcement.

    Automated detention recommendations

    ICE's actual detention decisions

    30% 6%   64%

    64% 11% 25%

    The automated system gave the option of release in 70 percent

    of cases, but ICE chose release in only 31 percent of those cases.

    Automated

    detention

    recommendations

    Release on community supervision: 6

    ICE decisions

    Released on community

    supervision: 2

    Detained but

    bond eligible: 2

    Detained

    without bond: 2

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    condiions, which maerially affec he applican’s eligibiliy or asylum or exraor-

    dinary circumsances relaing o he delay in filing he applicaion.”84 Cours have

    ound ha HIV diagnosis or he process o coming ou can qualiy as changed

    circumsances, bu he arbirary deadline has proven harmul o eligible asylum

    seekers unable o access proecion because hey missed he deadline, wih a dis-

    proporionae impac on LGB applicans.85

     

     A repor rom he Naional Immigran Jusice Cener and Human ighs Firs

    ound ha one in five asylum applicaions were filed afer he one-year deadline.86 

    People fleeing persecuion who do no mee he deadline and are no eligible

    or an excepion mus mee a higherand much harder o esablishburden o

    proo o qualiy or wihholding o removal or oherwise ace deporaion; hey

    need o prove an a leas 51 percen likelihood o uure persecuion i hey are

    reurned o heir counry o origin.87

    FIGURE 8

    LGBT asylum seekers appear to be disproportionately affectedby the 1-year filing deadline

    Source: Data represent open cases as of May 21, 2015. Personal communication from Vanessa Allyn, managing attorney for refugeerepresentation, and Selam Tesfai, senior legal assistant for refugee representation, Human Rights First, May 21, 2015.

    Of all open cases, 174 involvenon-LGBT asylum seekers...

    have deadlinefiling issues

    8%have deadlinefiling issues

    18%

    Case with deadline filing issue

    vs.

    ...and 22 involve LGBT seekers.

    wo ransgender women represened by Human ighs Firs missed he filing

    deadline by yearsone by five years and he oher by 10 yearsbecause i ook

    hem ha long o overcome heir ear o coming ou as ransgender o governmen

    officials afer a lieime o persecuion by police in heir home counries. During

    he ime ha hey were oo araid o come ou o he shadows and seek proec-

    ion, hey sruggled o survive in he Unied Saes as undocumened ransgender

     women. Tey aced difficuly in securing employmen and were also vicims odomesic violence, bu heir ear o law enorcemen prevened hem rom repor-

    ing he abuse o auhoriies.

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    Evenually, hey ound he srengh o find legal counsel and o ry o beter heir

    siuaion by seeking proeced saus. Unorunaely, by ha ime, even hough

    he siuaion in heir home counries remained unchanged, hey were barred rom

    receiving asylum because hey had missed he one-year deadline and did no qual-

    iy or an excepion o he deadline. A Human ighs Firs repor ound ha 17

    percen o is new cliens had no filed or asylum wihin a year and ha many wih well-ounded ears o persecuion did no qualiy or an excepion o he rule.88

    Due o he arbirary naure o he deadline and is harmul effecs on people seek-

    ing proecion in he Unied Saes, here is a growing recogniion o he need o

    eliminae he deadline in order o ensure ha people wih a well-ounded ear o

    persecuion are no subjec o deporaion, which can in some cases be a deah

    senence or LGB asylum seekers. In 2013, Sen. Parick Leahy (D-V) and ep.

    Zoe Logren (D-CA) inroduced he eugee Proecion Ac, which sough o

    eliminae he one-year filing deadline.89 Te legislaion was incorporaed ino he

    immigraion reorm bill ha passed he Senae in 2013, bu unorunaely, heHouse o epresenaives ailed o ake acion on immigraion reorm.

     The immigration cour t back log threatens the due process rights of

    asylum seekers

    UNHC esimaes ha here are more reugees in he world needing proecion

    oday han a any ime since World War II.90 Tis increased need or proecion is

    no only seen in he increase in reugees needing resetlemen hrough UNHC,

     bu i has also resuled in an increase in people seeking proecion inside he

    Unied Saes, wih he number o affirmaive applicaions received by he U.S.

    Ciizenship and Immigraion Services increasing as well. USCIS received approxi-

    maely 45,000 affirmaive applicaions in 2013, many more han in pas years,

     when he agency received beween 28,000 and 30,000 applicaions.91 Increased

    applicaions, prioriizaion o deained cases, loss o unding under USCIS’ ee

    srucure, and a saffing shorage all creaed an enormous backlog o cases, rom

    6,940 cases waiing o be adjudicaed in May 2010 o 82,175 cases as o March

    2015.92 Te Immigraion and Naionaliy Ac requires an asylum seeker o be

    inerviewed wihin 45 days o filing an applicaion and or a decision wihin 180days “in he absence o excepional circumsances.”93 Currenly, applicans can

     wai more han wo years or an inerview.94

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    FIGURE 9

    Backlog of cases and processing times in immigration courts,

    FY 1998–2014

    Note: FY 2014 data are through August 2014.

    Source: TRAC Immigration, "Immigration Court Backlog Tool: Pending Cases and Length of Wait in Immigration Courts," available at

    http://trac.syr.edu/phptools/immigration/court_backlog (last accessed October 2014).

    200220001998 2004 2006 2008 2010 2012 2014

    200220001998 2004 2006 2008 2010 2012 2014

    Number of cases in Executive Office for Immigration Review backlog (in thousands)

    Average number of days for an immigration case to process

    0

    100

    200

    300

    400

    0

    200

    400

    600

    Unlike resetled reugees, asylum applicans are no eligible or governmen finan-

    cial assisance or benefis while heir cases are pending. While hey can receive

     work auhorizaion 180 days afer applying or asylum, he backlog increases he

    amoun o ime hey are unable o access assisance.95 uh Dickey, an immigraion

    atorney in Washingon, D.C., described he backlog’s impac on her cliens o he

    auhors, “Because o homophobia, my LGB cliens canno access housing, job

    leads, or inormal lending rom heir immigran communiies. I is much harder or

    LGB people o survive or 180 days pos-applicaion beore hey are eligible or

    employmen auhorizaion. Waiing years or an inerview or hearingand some-imes even longer or a final decisionis incredibly anxiey-inducing or hem. ”96 

    Tis backlog also hreaens he inegriy o he asylum sysem, opening i up o

    abuse hrough rivolous claims and depriving asylum seekers o having heir cases

    airly adjudicaed in a imely manner, leaving heir saus in limbo.

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     Anoher reason or he affirmaive asylum case backlog is ha USCIS asylum

    officers are asked wih conducing credible ear screenings in expedied removal

    cases, he number o which have expanded exponenially wih he use o expe-

    died removal.97 IIIR creaed he process o expedied removal, which or he

    firs ime allowed immigraion agens o depor summarily immigrans who lack

    proper documens, commi raud, or willully misrepresen acs. A decision odeporaion by an immigraion agen can be done wihou any judicial review o

    reugees who arrive a a por o enry or who are already in he Unied Saes bu

    canno prove ha hey have been physically presen in he counry or wo con-

    inuous years, unless hey indicae an inenion o apply or asylum or express a

    ear o reurn.98 Te burden on asylum seekers in expedied removal is enormous,

    paricularly or people unamiliar wih he exisence o asylum or unaware ha

    hey could qualiy or proecion. Furhermore, LGB people are unlikely o ell a

    Border Parol officer ha hey are LGB when hey are inerceped, since ques-

    ioning ofen happens in a holding cell wih no privacy and in ron o he very

    counrymen and women who hey are araid will persecue hem. In insances where ear is expressed, an asylum officer conducs a credible ear inerview, or

    CFI, o deermine i he individual has a significan possibiliy o esablishing eligi-

     biliy or asylum. I credible ear is ound, asylum seekers are eniled o have heir

    cases reviewed by an immigraion judge.99 

    IIIR requires asylum seekers o be deained pending a final deerminaion o

    credible ear or, i credible ear is no ound, unil he individual is depored.100 

    In order o avoid wai imes o several monhs in deenion, he USCIS Asylum

    Division has redireced asylum officers o promp CFIs and o hire addiional saff;

    however, his has no been enough o keep up wih caseloads. Credible ear receips

    increased more han 100 percen rom FY 2009 o FY 2011 and nearly anoher 100

    percen rom FY 2011 o FY 2014.101 Te asronomical rise in credible ear receips

    can be atribued o a combinaion o he increased use o expedied removals and

    growing numbers o people seeking proecion rom violence and persecuion.102

    Te siuaion is no beter or deensive cases. While here has been a ourold

    increase in resources or Border Parol, deenion, and removalrom $4.5 billion

    in 2002 o $18 billion in 2013resources or immigraion judges have sagnaed,

    resuling in unprecedened backlogs o cases.103

     Te number o Border Parol offi-cers doubled, while only 23 more immigraion judges are on he bench oday han

    in 2003, a 10.5 percen increase.104 Wih he increased caseloads and no enough

     judges and saff o process hem, he curren average wai ime or a case o go

     beore an immigraion judge is 598 days.105

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    Source: Executive Office for Immigration Review, Budget Request At a Glance (U.S. Department of Justice, FY 2009–2015); U.S.

    Department of Justice, Budget and Performance Summary, Administrative Review and Appeals (ARA) (FY 2005–2008); U.S. Department

    of Homeland Security, Budget-in-Brief  (FY 2004–2015).

    2003

    CBP agents and immigration judges per fiscal year

    2014

    ICE and CBP combined funding: $18,058,977

    ICE and CBP combined funding: $9,149,000

    EOIR funding: $312,200

    EOIR funding: $188,480

    Source: Customs and Border Protection, Border Patrol Agent Staffing by Fiscal Year  (Oct. 1st through Sept. 30th) (U.S. Department of

    Homeland Security), available at http://www.cbp.gov/sites/default/files/documents/ U.S.%20Border%20Patrol%20Fiscal%20-

    Year%20Staffing%20Statistics%201992-2013.pdf (last accessed October 2014); personal communication from Executive Office for

    Immigration Review's Office of Legislative and Public Affairs, U.S. Department of Justice, October 7, 2014.

    2004

    2006

    Number of CBP agents: 12,349

    Number of CBP agents: 10,819

    Number of immigration judges: 223

    Number of immigration judges: 215

    2008

    2010

    Number of CBP agents: 20,558

    Number of CBP agents: 17,499

    Number of immigration judges: 253

    Number of immigration judges: 223

    2012

    2014

    Number of CBP agents: Data not available

    Number of CBP agents: 21,394

    Number of immigration judges: 240

    Number of immigration judges: 258

    FIGURE 10

    Funding for immigration enforcement versus immigration courts,

    FY 2003 versus FY 2014

    ICE and Customs and Border Protection, or CBP, combined funding compared with

    Executive Office for Immigration Review funding

    Border personnel versus immigration judges, FY 2004–2014

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    Recommendations

    Te Unied Saes mus ake he ollowing seps o make sure ha LGB asylum

    seekers are no denied proecion because o acors ha are unrelaed o he mer-

    is o heir claims:

    • The U.S. Citizenship and Immigration Services and the Executive Office for

    Immigration Review should collect, disaggregate, and publish data on sex-

    ual orientation and gender identity in asylum claims. Because Immigraion

    Equaliy and Human ighs Firs provided daa on heir LGB cliens, hepicure concerning asylum claims made by LGB applicans and he oucome

    o hose cases is clearer. However, he daa provided represen a small segmen

    o LGB asylum seekers. Tere is sill no accurae measure o how many LGB

    people seek proecion in he Unied Saes every year or wha happens o

    people seeking proecion wihou counsel. Furher, he rae o represenaion

    or LGB people compared wih non-LGB asylum seekers is unknown. Given

     wha is known abou he remendous impac ha represenaion has on case

    oucomes, i is criical o have daa on all LGB asylum applicans, including

    pro se LGB applicans, o ensure ha hey are able o access proecions and o

    help increase he undersanding o how he global climae o LGB righs affecs

    LGB people seeking proecion in he Unied Saes.

    • More resources must be allocated toward adjudicating asylum claims to

    keep up with rising enforcement appropriations. Te enormous backlogs in

    affirmaive asylum and deensive cases coninue o grow exponenially. Greaer

    resources are needed o ensure ha cases are adjudicaed in a air and imely man-

    ner. More immigraion judges and saff should be hired, as well as more asylum

    officers. Congress should appropriae he unds necessary o ensure ha as immi-

    graion laws are enorced, he due process righs o immigrans are proeced.

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    • Promote access to free legal counsel for indigent asylum seekers and counsel

    for all asylum seekers. While his analysis was limied o people wih counsel,

    sudies show ha he high gran raes in his daase are consisen wih having

    compeen counsel. No only does providing counsel ensure he proecion o

    due process righs, bu he New York Immigran epresenaion Sudy showed

    i is also key in ensuring ha cases are quickly and airly adjudicaed. Tis helpsaddress backlog issues.106

    • Increase training for immigration officers and judges on LGBT asylum issues.

    Te curren raining or asylum officers is an enormous sep orward, bu more

    is needed. Immigraion judges do no have similar raining, nor do Border Parol

    agens who conduc iniial credible ear screenings in expedied removals.

    • End the one-year filing deadline. Te one-year deadline prevens people wih

    legiimae asylum claims rom geting ull proecions. I also disproporionaely

    affecs LGB immigrans. Te U.S. asylum sysem has numerous saeguards inplace o preven raud. An arbirary adminisraive filing deadline is no neces-

    sary; i harms asylum seekers and increases caseloads or immigraion judges

     when an asylum officer could adjudicae he claim insead.

    • End the widespread use of immigration detention. In addiion o being repre-

    sened by counsel, no being deained makes an enormous difference in wheher

    LGB people seeking proecion are able o win asylum. Unorunaely, despie

    a 2009 memorandum prioriizing release or asylum seekers who passed heir

    credible ear inerviews, hey requenly remain in deenion or mus pay bond

    amouns upward o $5,000 in order o be released.107 No only does deenion

    urher raumaize people who have ofen already been subjec o arbirary

    deenion or who hey are, i is expensive, unnecessary, and can arbirarily resul

    in a legiimae asylum seeker being depored back o unsae condiions or even

    o heir deah. Communiy-based alernaives o deenion are effecive, paricu-

    larly because i is in he ineres o an asylum seeker o atend cour daes.108 

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    Conclusion

     As Presiden Obama noed in his memorandum on “Inernaional Iniiaives o

     Advance he Human ighs o Lesbian, Gay, Bisexual, and ransgender Persons,”

    he Unied Saes’ asylum and reugee programs are a key componen o effors o

    advance he righs o LGB people worldwide, providing a sae haven or hose

    fleeing persecuion.109 Unorunaely, here is currenly no way o definiively

    know how well our proecion sysems are meeing hese people’s needs.

    Tis repor’s analysis o LGB asylum cases shows ha he discriminaion LGBpeople ace in oher aspecs o liesuch as housing, educaion, and employ-

    menalso affecs heir abiliy o win liesaving asylum proecions, making access

    o counsel or his populaion criical.110 LGB asylum applicans’ chances o win-

    ning are hur by arbirary acors unrelaed o heir proecion claims. Tey are dis-

    proporionaely affeced by he one-year filing deadline or asylum applicaions and

    are less likely o win asylum when hey are deained, an exreme and ofen rauma-

    izing resricion on heir libery o which hey are ofen unnecessarily subjeced.

    Furhermore, a lack o access o legal inormaion combined wih he myriad ways

    ha ransgender people are discriminaed agains sugges ha ransgender people

    fleeing persecuion are less likely o apply affirmaively or asylum and more likely

    o qualiy or insufficien proecions ha leave hem in legal limbo. However, a

    larger daase is needed o conclusively prove differenial reamen.

    Te Unied Saes’ desire o provide saey o LGB people fleeing persecuion

    is commendable, bu in order o comprehensively assess he adequacy o exising

    effors o proec LGB asylum seekersas well as ideniy remaining gapshe

    governmen mus collec sexual orienaion and gender ideniy daa and use his

    inormaion o ensure a jus and equiable asylum sysem ha mees America’s

    moral and reay obligaions.

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    Appendix

    Asylum law

    In he afermah o World War II, he Unied Naions esablished inernaional

    sandards and principles o proec he righs o reugees, or people unwilling or

    unable o reurn o heir counry o origin owing o a well-ounded ear o being

    persecued on accoun o one o five proeced grounds.111 Te Unied Saes

    signed hese sandards, known as he 1951 Convenion relaing o he Saus o

    eugees and he Unied Naion’s 1967 Proocol relaing o he Saus o eugees,in 1968. In 1980, Congress amended he Immigraion and Naionaliy Ac o

    allow individuals in he Unied Saes who oherwise me he definiion o a

    reugee o be graned asylum.112 Unorunaely, LGB people were barred rom

    enering he Unied Saes legally unil 1990.113

    Under he definiion o a reugee, here are five grounds ha reugee saus can be

     based on: race, religion, naionaliy, membership in a paricular social group, or

    poliical opinion. While membership in a paricular social group is no defined in

    U.S. law, over he years, cours have inerpreed his erm as a group o people who

    share a common, immuable characerisic ha he members o he group canno

    or should no be required o change.114 Te Mater of Toboso-Alfonso opened he

    door or people persecued on accoun o heir sexual orienaion o be eligible

    or asylum by esablishing ha a gay Cuban man was a member in he paricular

    social group o “homosexuals.”115 While he curren U.S. atorney general has no

     ye designaed a case esablishing persecuion based on gender ideniy as grounds

    or asylumas ormer Atorney General Jane eno did wih Toboso-Alfonso

    he 9h U.S. Circui Cour o Appeals ound ha “gay men in Mexico wih emale

    sexual ideniies” comprised a paricular social group.116

    In addiion o esablishing membership in a paricular social group, applicans or

    asylum mus prove ha hey were persecued on accoun o his saus or have a

     well-ounded ear o persecuion in he uure. Persecuion is no defined in he

    Immigraion and Naionaliy Ac, bu cours have consrued his o mean ha “a

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    hrea o lie or reedom” on accoun o one o he five proeced grounds “is always

    persecuion.”117 Te Supreme Cour held in INS v. Cardoza-Fonseca ha even a 1

    in 10 chance o acing uure persecuion is sufficien o find a well-ounded ear

    o persecuion.118 While persecuion is radiionally considered o require inen

    o harm, or gay and lesbian asylum seekers, atemps o “cure homosexualiy”

    hrough elecroshock herapy have been ound o be a orm o persecuion.119

    Te persecuion mus be based on one o he five proeced grounds, and he

    governmen mus have infliced ior been unable or unwilling o preven he

    persecuion.120 In he case o LGB people seeking asylum, applicans mus prove

    ha he persecuion is on accoun o heir sexual orienaion or gender ideniy.

    Tis includes proving ha individuals are LGB o a governmen official, eiher

    an immigraion judge or an asylum officer. Tis can be an incredibly difficul pro-

    cess or people who were orced o conceal heir ideniy or years in order o sur-

     vive. Te 11h U.S. Circui Cour o Appeals case Mockeviciene v. Atorney General 

    illusraes he difficuly ha LGB asylum seekers have proving heir sexualorienaion, especially when he only evidence hey can provide is esimony rom

    hemselves and winesses.121 In he Mockeviciene case, an immigraion judge did

    no find Ingrida Mockeviciene credible. Te judge did no believe Mockeviciene

     was a lesbian because, as he wroe, “alhough [Mockeviciene] had been in he

    Unied Saes or our years she had no ye had a lesbian parner” and had “no

    documens o esablish ha she [was] a lesbian.” She also had no joined any

    groups during her our years in he Unied Saes ha engaged in “lesbian acivi-

    ies.” Te judge also based his adverse credibiliy deerminaion on her demeanor,

    presumably he ac ha she did no conduc hersel in a manner consisen wih

    sereoypes abou how lesbians behave.

     Applicans who ail o file wihin one year and who are ineligible or an excep-

    ion o he deadline or have been conviced o cerain crimes are ineligible or

    asylum.122 Tey may be eligible or wihholding o removal i hey are able o mee

    all o he crieria or asylum and demonsrae a 51 percen or greaer likelihood

    o persecuion i depored. Tis is much higher han he 10 percen likelihood o

    uure persecuion necessary or asylum.123 Unlike wih asylum, wihholding o

    removal does no come wih benefis such as evenual eligibiliy or a green card

    or he abiliy o sponsor relaives or a spouse or immigraion. I simply prevensdeporaion. Te judge in Mater of Toboso-Alfonso denied he applican’s asylum

    claim because o his U.S. criminal record bu did gran wihholding o removal,

    recognizing he “clear probabiliy o persecuion” on accoun o his sexual oriena-

    ion i he were depored o Cuba.124

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    Te Convenion agains orureis anoher orm o available relie. Like wihhold-

    ing o removal, applicans mus mee a heighened sandard o qualiy, bu CA

    prohibis removal o a counry where people would ace orure, regardless o pas

    criminal convicions. However, hey can ace indefinie deenion in he Unied

    Saes i hey are ound o be a hrea o he communiy.

     

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    The asylum process:

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    About the authors

    Sharita Gruberg is a Senior Policy Analys or he LGB esearch and

    Communicaions Projec a he Cener or American Progress. She has exensive

    experience working in immigraion advocacy, law, and policy, as well as experience

    providing direc service o immigraion deainees, reugees, and asylum seekers.

    Gruberg earned her law degree rom he Georgeown Universiy Law Cener,

     where she was a public ineres law scholar and he wriing program direcor

    or he Georgeown Journal on Povery Law & Policy , and she also received he

    eugees and Humaniarian Emergencies Cerificae rom he Insiue or he

    Sudy o Inernaional Migraion. She holds a bachelor’s degree in poliical science

    and women’s sudies rom he Universiy o Norh Carolina a Chapel Hill.

    Rachel West is a Senior Policy Analys wih he Povery o Prosperiy Program

    a he Cener. Previously, she was an economic policy researcher a he Insiueor esearch on Labor and Employmen a he Universiy o Caliornia, Berkeley,

     where her work ocused on minimum wage policy and public assisance programs.

     Wes began her career as an economis a he U.S. Deparmen o ransporaion

    in Cambridge, Massachusets, and worked as a fiscal policy inern a he Economic

    Policy Insiue in Washingon, D.C.

     Wes holds a maser’s degree in public policy rom he Universiy o Caliornia,

    Berkeley, Goldman School o Public Policy. She received a bachelor’s degree in

    economics and physics rom Moun Holyoke College in 2008.

    Acknowledgments

    Te auhors would like o hank Immigraion Equaliy and Human ighs Firs or

    heir cooperaion in he research o his repor by providing access o heir daa

    and heir issue area experise; ormer ep. Barney Frank or aking he ime o be

    inerviewed abou he hisory o LGB asylum proecions; and Laura E. Durso,

    he Direcor o CAP’s LGB esearch and Communicaions Projec, and Philip

    E. Wolgin, Associae Direcor or CAP’s Immigraion Policy eam, or heir helpuledis and guidance.

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    Endnotes

      1 Lawrence v. Texas, 539 U.S. 558 (2003); Matter of Toboso- Alfonso, 20 I. & N. Dec. 819 (BIA 1990); Attorney GeneralOrder No. 1895-94 (June 19, 1994). Transgender iden-tity has not yet been established as a particular socialgroup in a precedential case, but the 9th U.S. CircuitCour