Tuesday, 23 August 2011

Understanding US asylum law

Gómez appears in a video about a Jamaican gay asylum seeker
By Grace Gómez

US Immigration law, and in particular asylum and refugee law, is varied and complicated. It is important to remember that one is dealing with life or death situations and most refugees would be subject to extreme hardship, torture, or even death if they are returned to their countries of origin. Thus it is vital to both understand the refugee’s fear and the limitations adherent in the law.

While winning a grant of asylum, withholding of removal, or protection under the Convention Against Torture allows a refugee to remain legally in the US and not be deported to their home country, only asylum is a path to residency. Furthermore, while most immigration advocates take the stand that those with valid refugee claims should not be detained, in reality many immigrants are detained for months while their claims are processed.

Helping refugees is a rewarding and honorable endeavor, but can also be extremely frustrating when faced with a system that is inherently anti-immigrant and filled with bureaucratic red tape.

Under the Immigration and Nationality Act, the Attorney General may not remove an alien to a country if it is determined that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” See 8 U.S.C. §1231 (b)(3). In addition, Article 3 of the Convention Against Torture expressly prohibits the United States from returning any person to a country where it is “more likely than not” that they will be subjected to torture. The area of social group asylum is an emerging field that can provide for relief for aliens who are in fear for their safety due to their sexual orientation.

An applicant who has not shown past persecution may still be entitled to asylum or withholding of removal if he can demonstrate a future threat to his life or freedom on a protected ground in his country. See INA § 208.13 (b)(2), 208.16 (b)(2). This determination must be made “free of any impermissible stereotyping or ungrounded assumptions about how gay men are supposed to look or act.” See Todorovic v. U.S. Attorney General, No. 09-11652 (11th Cir. 2010).

In Jamaica, the law clearly states that “homosexual acts by men in public or private are illegal.” See Jamaican Penal Code, Offenses Against the Person Act §§ 76-79. Such acts are punishable by a prison term of up to ten years with a possibility of hard labor. Furthermore, homosexuals in Jamaica suffer from extreme emotional distress as well as violent threats and actions including stoning, beatings, stabbings, and shootings.

Government actors hide under the veil of this law to allow rampant institutionalized anti-gay violence. Lack of adequate response, acquiescence and even active participation in violence against homosexuals by government officials and the police in Jamaica further exacerbates the problem.

The United States recognized this growing problem and cited the increasing violence in the State Department’s Human Rights Report year after year. Despite the number of high profile cases of murder and violence, the actual number of attacks on homosexuals in Jamaica is unknown. Many incidences of homophobic violence are reported as other crimes to try to avoid the bad stigma, while other reports do not mention the names of the victim for safety reasons. This makes it particularly difficult to present an asylum case, as reports of violence are often not available to be presented to court.

The pervasive and violent homophobia ruling Jamaica is further exemplified by the AIDS crisis on the island. Nearly one-third of gay men in Jamaica may be infected with HIV but the nation’s public health response remains paralyzed by homophobia as the epidemic continues its uncontrolled spread. Because of the complexity and life-threatening nature of these cases, it is highly recommended that those seeking relief under Asylum, Withholding of Removal, or protection under the Convention Against Torture seek a qualified and experienced immigration attorney to present their case.

Grace Gómez is a lawyer working with LGBT asylum seekers in Florida, USA
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