Can I Seek Asylum in the United States?
Answered by Lavi Soloway, a founding member and former national coordinator of the Lesbian and Gay Immigration Rights Task Force. Oct. 7, 2002
Gays and lesbians seeking asylum
Q: Dear Lavi,
Can I seek asylum in the United States because I fear I will be persecuted in my country because I am a gay man or a lesbian?
T.
A: Dear T.,
Yes, you can claim asylum on the grounds of sexual orientation-based persecution. In order to claim asylum, you must be physically present in the United States or at a U.S. airport or U.S. border crossing. You must prove that you are unable or unwilling to return to your home country because of past persecution or a well-founded fear of persecution on account of race, religion, nationality, political opinion or "membership in a particular social group." Since 1994, lesbians and gay men have been eligible to apply for asylum and are considered members of a "particular social group."
While then-Attorney General Janet Reno declared in 1994 that gay men and lesbians constitute a particular social group for the purposes of asylum, there is unfortunately no stated policy concerning people with HIV. This means that an applicant for asylum who fears persecution because of his/her HIV status in his/her country should be prepared to show that in his/her country of origin people with HIV are targeted as a group and subjected to persecution.
If there is a pattern and practice of persecution against gays and lesbians in your home country, it is not necessary for you to have been persecuted yourself to make a claim of asylum based on sexual orientation.
For a complete discussion of how to proceed with an asylum claim based on sexual orientation, please see "Preparing Sexual Orientation Based Asylum Claims: A Handbook for Advocates and Asylum Seekers," a publication of theLesbian and Gay Immigration Rights Task Force. In addition to reading this handbook, it is strongly recommended that you consult with an immigration attorney who is familiar with asylum law (and preferably sexual orientation-based asylum) before filing an application for asylum. To obtain a copy of the asylum handbook and the names of gay or gay-friendly attorneys in your area, please contact LGITRF at 212/714-2904.
Sincerely,
Lavi Soloway
Soloway is a founding member and former national coordinator of the Lesbian and Gay Immigration Rights Task Force.
Oct. 7, 2002