On November 16, the San Francisco Human Rights Commission's LGBT Advisory Committee held a panel at the LGBT Community Center on the obstacles and challenges in the U.S. asylum process faced by LGBT immigrants. When I arrived at the center to help set up the room for the evening's panel, I was not prepared to be confronted with the real-life emotional impact that this topic has on the lives of LGBT immigrants in our community. But before I even got past the lobby of the center, a young Middle Eastern gay man approached me and asked me where he could meet one of the night's panelists. Tears gliding down his face, he related the story of his arrival in the U.S. as a refugee just a few months earlier, and the agony he suffered over the separation from his partner who remained overseas. At that moment, the emotional impact of the topic hit me head on. I realized that what potentially could be a dry panel on an international human rights issue and the surrounding complex legal discussion would actually be a chance for members of our community to learn about and discuss a deeply personal and profoundly emotional issue that affects the lives of many LGBT persons in the San Francisco Bay Area.
San Francisco has always been a destination point for LGBT immigrants seeking refuge from persecution in their home countries on account of their LGBT identity. Great strides have been made over the last 20 years for gays and lesbians seeking asylum in the U.S., and transgender immigrants have also mounted successful asylum cases in recent years. Despite these gains, LGBT asylum seekers have faced clear bias on the part of asylum adjudicators and immigration judges who sometimes make credibility findings based on inherent stereotyping and prejudices about what gay people "should look like" and how they are expected to behave. Four federal circuit courts have strongly rebuked a number of immigration judges that have made decisions based on their own false stereotypes and prejudices in order to deny the asylum applications of LGBT immigrants.
However, it is disconcerting that that there have been four federal cases at all surrounding this issue, and that further emphasizes the need for cultural competency and sensitivity training for asylum adjudicators and immigration judges. One of the goals of the LGBT advisory committee coming out of the November 16 panel will be to work with the local asylum offices to enhance existing cultural competency curriculum for asylum adjudicators, immigration judges, and ultimately detention center personnel. Cultural competency is critical to the establishment and maintenance of a fair and just process for LGBT asylum seekers who rely on our system to provide an egalitarian process in their quest for freedom from persecution in their home countries and asylum in the U.S.
In 1996, Congress passed sweeping changes to the Immigration and Nationality Act known as the Illegal Immigration Reform and Immigration Responsibility Act. The act changed asylum law by requiring immigrants seeking asylum to submit their applications to the government within one year of entering the U.S. After the law's implementation it was clear that the new one-year filing requirement had a particularly negative impact on LGBT immigrants. Many LGBT persons are not even aware that they can qualify for asylum based on persecution for sexual orientation or transgender identity. Furthermore, many LGBT people live a life of secrecy or are so deeply traumatized by their persecution that they do not even seek the counsel of an attorney or legal advocacy organization until well after one year of arriving in the U.S. While waivers of the one-year filing requirements are available, LGBT immigrants have certainly faced a disproportionate negative impact because of the rule. As part of a comprehensive immigration reform bill currently making its way through Congress, there is a proposal to eliminate the one-year filing deadline for asylum seekers. However, the poor state of the economy and the high rate of unemployment have derailed support of any positive immigration reform and legislation. As a result, it is imperative that we support a local resolution to send a message to our national leadership in Congress to support comprehensive immigration reform, which specifically eliminates the prohibitive one-year filing deadline.
Finally, the community discussion generated by the LGBT advisory committee's panel demonstrated the need for a greater dissemination of available community resources to assist LGBT asylum seekers in the Bay Area. Legal services are costly and many seeking asylum in the U.S. cannot afford the assistance of a private attorney. Fortunately, there are a number of organizations and pro-bono legal referral services that provide low cost or free legal services to those seeking asylum. A centralized clearinghouse of available community organizations and resources is needed so that LGBT asylum seekers can easily find the assistance they need to mount successful applications for asylum in the U.S.
Under the U.S. asylum laws and procedure, LGBT immigrants have continued to face obstacles and prejudices, despite the emergence of positive case law precedent supporting protection from persecution of gays and lesbians. The granting of asylum is more than a national issue of immigration rights – it is a human rights issue. Because of the various obstacles and difficulties faced by LGBT immigrants due to the misapplication of international and U.S. asylum laws and the prejudicial attitudes of some asylum adjudicators and immigration judges, many deserving LGBT immigrants are not afforded asylum benefits. This is unacceptable because these same individuals have suffered oppression of their human rights and dignity at the hands of their own government, and the denial of their right to asylum simply compounds this oppression and stands in direct opposition to the intent of international refugee and asylum laws.
Fayaz Rajani is a resident of San Francisco, and has been an advocate for immigrants for more than a decade. He is a senior immigration case manager at the San Francisco office of a prominent international law firm, and is a member of the San Francisco Human Rights Commission's LGBT Advisory Committee.