Asylum for Transgender People

by Matthew Bray

Sanctuary, or asylum, is a very old legal concept that refers to the protection that a country or other sovereign provides to a national of another country fleeing war or persecution. Unlike most of US immigration law, asylum is unique in that it is derived from international law, including the 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention), which provides a definition of refugee and sets forth the principle of non-refoulement. Under the refugee convention and US asylum law, a refugee is a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”

The principle of non-refoulement is the principle that a country may not return a refugee to countries where they would face persecution based on one of these protected grounds. Another international treaty is the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), to which the US is also a signatory, that prohibits returning a person to a country where there are “substantial grounds for believing that he would be in danger of being subjected to torture.”

Although US asylum law originally developed during the Cold War in part to protect individuals fleeing communist countries, since that time the law has developed significantly. The refugee definition has been expanded by statute to include people who have been forced to undergo abortions or sterilization, who have been persecuted for failure or refusal to undergo such procedures, “or for other resistance to a coercive population control program[.]” At the same time, Congress has added restrictions on who can apply for asylum, including restrictions (absent changed or exceptional circumstances) on second asylum applications, and a time limit requiring that an application for asylum be filed within one year of the applicant’s arrival in the US.

There are also restrictions on who can be granted asylum even where the burden of proving persecution based on a protected ground has been met, including a bar to asylum for people who have ordered, incited, or participated in the persecution of others based on a protected ground or for a conviction based on a “particularly serious crime[.]” For foreign nationals, a grant of asylum provides not only the right to remain in the US, but also the right to employment authorization and to apply for adjustment of status (i.e., for a Green Card) after one year.

In recent decades, increased attention has been paid to gender-based persecution and the persecution of sexual minorities. Although neither gender nor sexual orientation is a protected ground under the refugee definition, advocates have argued and several courts have found that in some circumstances they may be considered a “particular social group” for the purposes of asylum. In 1994, the attorney general designated as precedent (a binding legal ruling) Matter of Toboso-Alfonso, a groundbreaking decision granting withholding of removal (applying the principle of non-refoulement to a case where the applicant was denied asylum as a matter of discretion due to his criminal history) to a gay man from Cuba who demonstrated that he had been persecuted by the Cuban government based on his status as a gay man.

“Membership in a particular social group” is not defined in the Immigration and Nationality Act (INA), but its meaning has been shaped by case law over time. In Matter of Acosta, the Board of Immigration Appeals (BIA) interpreted the phrase to mean membership in a group of people “all of whom share a common, immutable characteristic,” providing as examples “sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership.”  According to the BIA, the characteristic “must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.”

In 2001, the attorney general proposed regulations to further define and refine “particular social group,” and although they have not been codified, the regulations have guided advocates in formulating new social groups and courts in adjudicating novel asylum claims. The legacy of Matter of Toboso-Alfonso and the evolving definition of “particular social group” have led to an opening for transgender individuals to apply for asylum where they can prove that they have been persecuted or have a well-founded fear of future persecution based on their transgender identity.

As this is still a relatively new area of law, there remain many challenges for transgender asylum seekers to win their cases. One such challenge is the so-called “nexus” requirement. Asylum applicants must be able to prove not only that they are members of a particular social group, but also that they were persecuted because of that membership. As with other asylum claims, credible testimony may be sufficient to establish that an asylum seeker was persecuted because of their transgender identity, but sometimes it will be difficult for the applicant to prove what motivated their persecution.

In particular, in some places, transgender people are viewed as gay or lesbian, and although they may not consider themselves gay or lesbian, this identity may have been projected onto them by the persecutor. The testimony and other evidence may lead to the conclusion that the person was persecuted based on perceived sexual orientation and not based on their transgender identity, and since the motivation of the persecutor is key to the “nexus” requirement, a successful asylum strategy in such a case may mean adopting this “imputed sexual orientation” strategy for transgender people.

A key legal development from gay and lesbian asylum cases also relevant to transgender asylum applicants is the principle that the persecutor must be motivated by the immutable characteristic that makes the person a member of a particular social group, but that does not mean that the applicant must show that the persecutor had an evil motive. In Pitcherskaia v. INS, the Ninth Circuit Court of Appeals found that a Russian lesbian did not need to show that her persecutors intended to punish her in order to qualify for asylum. In that case, the evidence showed that when they subjected her to involuntary psychiatric treatment, their intention was to “cure” her of her homosexuality. It is not hard to conceive of a scenario where a transgender person suffers persecution by people who believe that their actions are meant to help the transgender person “overcome” their transgender identity. It is important to remember that this allegedly benevolent motivation does not mean that the transgender person was not subject to persecution based on their transgender identity.

Another potential hurdle for transgender individuals is the one-year filing deadline. As mentioned above, an asylum seeker is blocked from applying for asylum if the application is not filed within one year of their arrival in the US. Very often, transgender individuals who have been subject to severe persecution may be suffering from Post-Traumatic Stress Disorder (PTSD) and do not believe that their experiences would qualify them for asylum. Arguably, this PTSD would fall under “extraordinary circumstances relating to the delay in filing” that would trigger the exception to the one-year filing deadline. Additionally, a transgender person who begins a gender transition process after coming to the US may not have suffered past persecution in their country of origin but would suffer future persecution given their transition. In such a case, the one-year filing deadline should arguably be waived based on “changed circumstances which materially affect the applicant’s eligibility for asylum.”

Even when transgender asylum applicants do not suffer from PTSD, they may be reluctant to speak of the persecution they suffered. This may be because of shame, fear, and/or reluctance to open up to a government official (even an asylum officer), or because of lack of knowledge of the availability of asylum protection for transgender people. Creating a safe space for a transgender individual to tell their story is an important role for advocates as well as asylum officers and judges.

In May 2012, US Citizenship and Immigration Services (USCIS) released a training module, Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugee and Asylum Claims (downloadable in PDF here). Now a required part of training for all officers adjudicating refugee and asylum claims, this module includes extensive sample question sets designed to get to the heart of gay/lesbian as well as transgender asylum claims.

Since the refugee definition does not explicitly mention transgender identity as a protected ground, access to asylum for transgender people has been a gradual process of administrative practice and case law. Since the US government has begun training asylum officers specifically to work with LGBT applicants, this indicates that persecution based on transgender identity is a valid basis upon which to apply for asylum. As with most aspects of US immigration law--and like the overall civil rights struggles of LGBT people in the US--asylum protection for transgender people is a work in progress. As the struggles of transgender people throughout the world become more visible, transgender individuals who have suffered persecution or have a well-founded fear of future persecution should be able to seek asylum protection in the US.