Desperately Seeking Freedom
Are the number of immigrants seeking asylum over sexual-orientation discrimination increasing?
By Krista Gesaman
Newsweek, November 30, 2009
Luiz enjoys cooking family dinners for a small household in New York City. He works as an au pair and cares for a 13-year-old boy who constantly urges him to play videogames. Luiz values the tranquility of his life today, most especially that he can now live openly as a gay man. Eight years ago, Luiz was living in his native Brazil and keeping his sexuality a secret.
One evening in 2001, Luiz (who asked NEWSWEEK to use a pseudonym to protect his identity) and his friends went to a nightclub in Rio de Janeiro. Waiting for his bus home, a car pulled up, and a man rolled down the window and asked, 'Are you gay?' Luiz responded, 'No,' but the men weren't convinced. They forced Luiz into the car, held a gun to his head, and played Russian roulette. Luiz lost consciousness, thinking he was going to die. He awoke hours later in a local hospital with 21 stitches in his head, having been beaten. The attack left him with more than just stitches and the possibility of a large facial scarthe left side of Luiz's face was paralyzed. The stress and severity of the beating appeared to have triggered Bell's palsy, a form of temporary facial paralysis. Because corruption among the police force in some parts of Brazil is widespread, he chose not to report the attack. Deciding that he could no longer live safely as a gay man in Brazil, Luiz sought asylum in the United States. He booked a flight to Florida and contacted Immigration Equalitya nonprofit organization that helps lesbian, gay, bisexual, transgender, and HIV-positive people with immigration and asylum questionsand the group helped him immigrate.
'For straights [Brazil] is dangerous, but for gays it's worse,' says Luiz, 42. Though he hasn't talked to his family in close to 25 years because of their disapproval of homosexuality, coming to the United States has allowed Luiz to begin a new life, one in which he can openly live as a gay man.
Last year, the United States received about 49,000 applications for asylum due to a fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion, more than any other nation. Of those, 22,930 individuals were officially granted asylum, according to the U.S. Bureau of Citizenship and Immigration Services. In 1994 the 'members of a particular social group' clause was expanded to include foreign citizens who feared persecution based on their sexual orientation. (In order to apply for asylum, one must already be present in the United States, either legally or illegally.)
It's impossible to know exactly how many individuals have sought and gained asylum based specifically on sexual orientation because the U.S. Citizenship and Immigration Services doesn't separate its figures by category. When contacted by NEWSWEEK, a media-relations manager at the agency said that the bureau doesn't have the right computer software to break down the reasons why people are seeking asylum. Nonetheless, anecdotal evidence suggests that the number of people applying for asylum based on sexual orientation may be increasing.
'When sexual orientation became an option in 1994, the Internet was in its infancy, and it was difficult for people to find out they could seek safe haven in the U.S.,' says Rachel B. Tiven, executive director of Immigration Equality. 'Now we are seeing a steady increase.' Last week the nonprofit won its 60th case of the year, and it has several others still pending. Immigration Equality won 55 cases in 2008 and 30 cases in 2007.
Immigration Equality isn't the only organization that has noticed a jump in asylum claims based on sexual orientation. Shannon Minter, legal director of the National Center for Lesbian Rightsan organization committed to advancing the rights of gays, lesbians, bisexual, and transgender peoplesays the number of claims filed by the center has been 'particularly intense' this year. 'Every year the number of cases grows,' Minter says, referring not only to the number of cases the organization wins, but also the number of inquiries it receives.
Individuals from many different nations seek asylum in the United States based on sexual orientation, but Caribbean countries are a particularly common point of origin, Tiven says, pointing out that her organization has handled more cases from Jamaica than the next three countries combined. 'There is lots of documentation of violence [in Jamaica] toward the lesbian, gay, bisexual, and transgendered community,' says Caitlin Barry, staff attorney at Nationalities Service Center, a nonprofit organization that provides legal services to immigrants in the Philadelphia area. 'There's a lot of documentation of the government's inability or desire to protect these individuals.'
Those seeking asylum based on sexual orientation must present evidence to prove their sexuality. Testimony of family, friends, or partners can be submitted. Medical records, police reports, newspaper articles, and e-mails may also be sufficient. 'You must be able to convince the immigration judge you are who you say you are,' Tiven says. 'You can also demonstrate [thatt] the country's conditions [under which you're living] are severe.'
When Luiz applied for asylum, his attorneys were able to submit reports and news articles detailing the hostile climate against gays and lesbians in Brazil. Luiz also relied on the testimony of friends who could verify his sexual orientation and give personal reports about the nightmares he has suffered from since his attack.
Some immigration organizations worry that the flexible-evidence policy opens the door to a slew of fraudulent asylum claims. 'There are two ways to look at it: you can make sure that everyone who qualifies gets asylum even if a lot of liars get through, or you can take the chance that a few legitimate people don't get asylum to reduce fraud,' says Mark Krikorian, executive director of the Center for Immigration Studies, a nonprofit organization that advocates reduced immigration. '[The current policy says] it's OK if there is a lot of fraud as long as every legitimate asylum application gets through.'
Fraudulent asylum claims have recently made headlines. In February a group of six Russian-born immigrants were sentenced to jail time for their role in filing false asylum claims in Philadelphia. Over a period of roughly four years, the group helped more than 380 immigrants apply for asylum based on false religious discrimination or sexual-orientation discrimination claims. The group took in more than $3 million, charging immigrants between $8,000 and $12,000 for fake documents and reports. Only a handful of the false applicants were actually granted asylum.
In late October, Steven Mahoney, a self-proclaimed immigration expert from Kent, Wash., was sentenced to 18 months in prison for advising clients to falsely say they were homosexual to receive asylum. The U.S. Attorneys Office for the Western District of Washington reports that Mahoney filed up to 99 deceptive claims and charged between $1,000 and $4,000 for each false application. It's not clear how many of these applicants actually received asylum.
'Sexual-preference asylum is a big issue because there is no way of verifying these claims,' says Dan Stein, president of the Federation for American Immigration Reform, an organization working to reduce legal and illegal immigration. 'An asylum officer is trying to consider facts being asserted where the claim turns on the credibility of the claimant. There is no check for asylum officers who are feeling like they want to give people the benefit of the doubt.' Immigration Equality and like-minded organizations say that although they continue to win more asylum cases based on sexual orientation, they haven't encountered incidents of fraud.
Even though the number of people seeking asylum for sexual-orientation discrimination may be climbing, the U.S. is less supportive of civil rights for gays than many other developed nations. 'We certainly aren't ahead of the curve when it comes to LGBT issues,' says the National Center for Lesbian Rights' Minter. There are some conservative parts of the country where it's still difficult for homosexuals to get a fair asylum hearing, she says, even though the U.S. has become more socially progressive on gay and lesbian issues in recent years.
On Oct. 28, Luiz was officially granted asylum by U.S. Citizenship and Immigration Services, which he celebrated by having friends over for a drink. He still suffers from low self-esteem because of his partial facial paralysis, but his newly acquired citizenship has given him the ability to be open about who he is, and has allowed him to pursue his dream: to become a chef.