Le Monde Diplomatique, December 13, 2013.
NEW YORK Jose (1) was a closeted gay teenager when he was brutally sexually assaulted by gang members in his native El Salvador and fled to the United States, illegally. He suspected he was targeted because of his sexual orientation. The trauma and shame prevented him from seeking help from the US authorities within the first year of arriving there, as current law requires for political asylum claims—and so, by the time he was eighteen, Jose had unknowingly committed immigration fraud.
Representatives of prominent support services for the estimated 267,000 undocumented Lesbian, Gay, Bisexual and Transgender (LGBT) immigrants living in the United States argue that the one-year deadline is too short. The Senate agreed in its bipartisan immigration reform bill, proposing to extend the deadline to five years for all asylum-seekers. However, the House did not pass that bill. House Republicans are now proposing piecemeal reforms instead of a broad overhaul—but given that the 2013 Congressional session ends on Friday December 12th, potential remedies will again be put on hold until next year.
Jose, like many LGBT immigrants, was taught from a young age that homosexuality is sinful. Ashamed to tell his family what happened, he chose to go north alone in search of safety when he was only 17. “I thought the North was so technologically advanced that someone would give me medicine to make me straight,” he said.
In 2010, while traveling from California to New Mexico to visit a friend, Jose was pulled over and detained upon discovery that he was undocumented. He had been in the U.S. for five years but hadn’t sought legal support. “Even if I had known such a thing existed, I wouldn’t have asked for help until I was forced to,” he says. “I wanted to change my sexual orientation, not seek help for being gay.”
The arrest put Jose in ‘removal proceedings’—the beginning of the legal process that ends in deportation. He needed help fast, or he would again be vulnerable to attack in El Salvador. He found support from Immigration Equality, a national firm that offers pro-bono legal services for LGBT individuals who seek political asylum. The attorneys warned him that his case might not be successful, because of the one-year filing deadline. Unless Jose could prove one of two exceptions — “changed or extraordinary circumstances” — he would be deported.
Supporters of the deadline argue that it helps prevent immigration fraud. In an NPR piece on the topic, Senator Charles Grassley called the one-year limit “a reasonable period,” adding that, “Even if the immigrants don’t seek asylum within one year, they can be granted a waiver from an immigration judge. All they have to do is show that they have extraordinary circumstances that prevented them from filing within that year.”
According to Immigration Equality staff attorney Aaron Morris, that explanation is based on a lack of understanding about the reality for most asylum petitioners. “There is this classical idea of ‘the political asylum claim,’ where someone from the former Soviet Union, sophisticated and with a lot of wherewithal, comes to the US, immediately files for asylum and the case is closed,” Morris says. “That’s just not the reality for a lot of refugees, who are actually very desperate, marginalized people.”
The same trauma that prompts them to flee their homeland makes it difficult for them to trust the asylum process in the United States, says Cristina Herrera, the gender identity project counselor at the New York LGBT Center. “Most of our Central American clients are fleeing heavy trauma—domestic violence, persecution from gangs, the police and the army, rape and torture, and constant daily discrimination in which society basically punishes them for being LGBT,” Herrera says. “They have only lived under a militarized government. They have little education, little knowledge of the U.S. legal system. They haven’t dealt with the trauma. They don’t trust anyone or know how to get help.”
Qualifying for an exception is more difficult that it seems, Morris, of Immigration Equality, says. “If someone has suffered severe trauma but has held down a job and a relationship for five years, there’s always push-back (from adjudicators), like, ‘Well, this person filed their taxes; why didn’t they file for asylum?’ It can be hard to show the difference between accomplishing daily survival and addressing the gross trauma, which the asylum process requires.”
Morris estimates that he turns away nearly half of all potential clients — people who otherwise have legitimate claims — because they have been in the U.S. for longer than one year.
The result, Immigration Equality attorneys argue in a report published in the 2011 New York City Law Review, is that the one-year deadline disproportionately hurts LGBT immigrants.
Jose almost left the asylum-seeking process several times, he says. “I had never told anyone the details of the attack. I was ashamed of being gay. Now, I had to open up with the lawyers, the psychologist, the judge. It was traumatic,” he says. Fortunately for Jose, in October 2012 a San Francisco district court found his trauma to have been sufficient “extraordinary circumstance” to prevent him from filing within one year, and granted him permanent political asylum.
Many people aren’t as lucky as Jose. “In the end, whether the individual’s narrative will make sense to the U.S. government matters a lot,” Morris, of Immigration Equality, says. Those whose narrative doesn’t fit current rules face deportation. A 2010 Human Rights First report estimates that 79,000 such individuals have been deported since 1996.
This situation may change, if the piecemeal reforms proposed by House Republicans include the extension originally proposed by the Senate, and if Congress addresses the reform in the 2014 session.
Meanwhile, Jose, now 25, celebrates his newfound stability. “It is a priceless gift to live in a country that protects you,” he says. He began a desk job last week after working in restaurants for the past few years, and he will earn his high school equivalency diploma this month. “I’m still working on it, but little by little, I’ve gotten to know and accept myself here.”
Danielle Marie Mackey is a journalist specialized in Latin America