By Duncan Osborne
While the US Department of Homeland Security (DHS) will rewrite its asylum regulations that govern “membership in a particular social group” deemed at risk for persecution in a foreign country, a category that some gay, lesbian, and transgendered asylum seekers claim, the federal agency’s clarification of those regulations may not aid queer immigrants looking for refuge.
In December, DHS placed a notice in the Federal Register, where proposed and final US government rules are published, saying it would amend the regs to state that “gender can be a basis for membership in a particular social group” and “that a person who has suffered or fears domestic violence may... be eligible for asylum on that basis.”
The announcement later noted that the US has increasingly seen asylum applications based on more varied grounds “related, for example, to an applicant’s gender or sexual orientation” and that “these new types of claims are based on the ground of ‘membership in a particular social group,’ which is the least well-defined of the five protected grounds within the refugee definition.”
When Gay City News wrote to DHS seeking comment on what specific changes in asylum regulations the Federal Register notice signaled, the agency responded, “Although each case is highly fact-dependent and requires scrutiny of the specific threat an applicant faces, the Department continues to view domestic violence as a possible basis for asylum in the United States. The issue is highly complex, and we are moving ahead to develop regulations that will address these cases. In the meantime, US Citizenship and Immigration Services will continue to rule on domestic violence-based asylum claims, applying what the Department views as the best reading of the existing immigration laws.”
Following that statement, Gay City News twice wrote DHS asking if the agency would alter the rules as they apply to claims based on sexual orientation and gender identity. DHS did not respond to those emails.
Some asylum seekers assert that they belong to “a particular social group,” such as the gay community, in their home country and will face violence or persecution if they are sent back. How to prove “membership in a particular social group” has often been an issue.
“That’s why on most cases if you can avoid social group, you avoid social group,” said Christopher Nugent, who until early February was senior counsel at Holland & Knight LLP, a Washington, DC, law firm, and has handled asylum cases including claims made by gay, lesbian, and transgendered immigrants.
Clearer rules would help, advocates said.
“There are many players in the immigration system who don’t understand a lot about sexual orientation and gender identity issues, so additional guidance about this would be very helpful,” said Jon Davidson, legal director at Lambda Legal, the gay rights law firm.
Asylum seekers can be asked to prove that they subscribed to gay publications or belonged to gay groups. Those activities could get them killed in their home country. They must also demonstrate that they sought state protection or help from their home country’s government, which can also be dangerous, or convince US officials that seeking such assistance would be pointless.
Nugent said ideal rules “would explicitly recognize GLBTI as a social group” and spell out that in some countries, seeking government help would be futile since those nations have anti-gay laws or traditions.
“It should recognize that if there is a pattern and practice of futility... then that should be sufficient,” Nugent said. “It can’t be a de facto requirement that somebody has to seek state protection.”
None of the gay groups that deal with gay, lesbian, and transgendered asylum seekers was aware of the DHS announcement until contacted by Gay City News nor had DHS contacted any of them for input.
“Immigration Equality will be carefully monitoring the proposed regulations to ensure that no further restrictions are placed on LGBT asylum seekers,” Victoria Neilson, legal director at the group, wrote in an email.