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PHR Applauds New Government Guidance on Sexual Orientation Asylum Claims

January 2012

PHR welcomes the release of a new training course (pdf) for Asylum Officers charged with hearing claims from lesbian, gay, bisexual, transgender, and intersex asylum applicants. Given the increasing volume of people who seek asylum in the US after facing persecution and torture in their home countries because of their sexual orientation or gender identity, this new training course is a sorely-needed resource for government officials who hold the fates of LGBTI asylum applicants in their hands.

The training course, issued by US Citizenship and Immigration Services (USCIS), provides comprehensive and invaluable guidance on numerous aspects of LGBTI asylum claims. In the past, LGB asylum applicants had to “prove” their sexual orientation or gender identity in order to win asylum claims. The new training module explicitly rejects the idea that LGBTI applicants must “look gay” or “act gay” in order to present a compelling asylum claim.

The new guidance also takes into account a number of factors that are particularly applicable to people who apply for asylum after suffering persecution or torture because of their sexual orientation or gender identity. For example, it notes that LGBTI individuals in many countries are at heightened risk for criminal prosecution, sexual violence, and forced medical and psychiatric treatment as a result of their status. It also explores the relationship between sexual orientation and HIV status.

In many countries and cultures, those identified as homosexual are presumed to have HIV, and those who have HIV are presumed to be homosexual. Furthermore, the guidance notes that some LGBTI applicants may miss the one-year filing deadline for a variety of reasons: they may have only recently “come out,” recently received a diagnosis of HIV, or may have been forced to suppress their sexual orientation or gender identity for so long that they were unable to discuss it for some time. Explicitly discussing these unique concerns fills in many of the gaps in asylum procedures that lead to the denial of numerous bona fide asylum claims from LGBTI applicants.

While this guidance is an important step, it only applies to USCIS. Many LGBTI asylum seekers must apply for asylum in the Immigration Courts, and many more are held for long periods of time in immigration detention facilities run by Immigration and Customs Enforcement (ICE), local law enforcement agencies, or private prison contractors.

PHR encourages ICE and the Department of Justice, which oversees the Immigration Courts, to promulgate similar guidance and rules for all government officials who come into contact with LGBTI asylum seekers to ensure that they are treated fairly and humanely.

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