Asylum Pitfalls May Await the Transgender Applicant

Asylum Pitfalls May Await the Transgender Applicant

by Victoria Neilson

When “Cristina” calls Immigration Equality, where I am the legal director, she’s called the right place for legal representation before the Immigration Court. Immigration Equality is the only national organization that works exclusively for equal rights under the U.S. immigration law for Lesbian, Gay, Bisexual, Transgender and HIV-positive (LGBT/H) individuals. She has already filed for asylum based on her transgender identity (MTF, or male-to-female). She has been living as a woman for many years, has taken hormones and has had several surgeries including complete sex reassignment surgery.

If forced to return
to his country as a
transgender man,
Marco is afraid
he’ll be raped or killed.

Individuals can win asylum in the U.S. if they can prove a well-founded fear of persecution in their country of origin based upon race, religion, nationality, political opinion or membership in a particular social group.

Cristina, originally from a Latin American country, had filed her asylum application without the assistance of an attorney. Asylum applicants first attend an administrative interview with an asylum officer. The officer can grant the case, or, if it is not granted, the applicant is placed in deportation proceedings and a renewed asylum application can then be filed. Cristina had attended the interview on her own.

At the interview, the male asylum officer told Cristina: “You’re a beautiful woman, what problems would you have if you went back to your country?”

The asylum officer could not imagine what harm will befall Cristina based on her transgender identity because she doesn’t “look transgender.” She looks like a “regular” woman. Essentially, the comment indicates that she will lose her asylum case, at least at the first stage, because her transition has been too successful.

Seeking Safety

Since 1994 sexual orientation has been an established ground for asylum if the person can show a well-founded fear of persecution under the “membership of a particular group category” because of a ruling of then-Attorney General Janet Reno in the Board of Immigration Appeals (BIA) case, In Re Toboso-Alfonso. which held that a gay man from Cuba who had regular check-ins with the police and had been sentenced to hard labor because of his sexual orientation was entitled to protection. The U.S. Immigration Service does not track the number of asylum cases by the ground under which the application is made, so it is difficult to estimate the number of these cases. Last year Immigration Equality’s pro bono program won 55 such cases.

There have also been many successful claims based on transgender identity. The early cases framed the applicants’ identities as a “gay man with female sexual identity.” That was the situation in women’s clothes. The Court rejected the BIA’s decision that while the applicant’s sexual orientation might be innate, it was his (the pronoun used throughout the case) choice to wear women’s clothing, and found Hernandez-Montiel’s attire to be directly linked to the expression of his sexual orientation.

Marco comes from the same Latin American country as Cristina Marco is a transgender man (FTM or female to male) who began his transition last year when he started seeing a gender identity therapist. The therapist diagnosed him with Gender Identity Disorder and after a year of therapy, Marco has accepted his male identity and “come out” to co-workers, friends and family. Marco started hormone therapy a few weeks earlier and he is quick to point out physical changes – a deepening voice, increased body and facial hair. But to the casual observer, it is hard to say that his appearance is more male than a “butch lesbian.”

At Marco’s asylum interview, the officer was respectful, but confused. Marco described the mistreatment he had suffered as a butch lesbian in his country and at a certain point the officer interrupted to ask, “So you were a homosexual and now you’re a transsexual?” The officer elicited all the relevant information, but may not have understood the heart of Marco’s claim – even though things were bad before as a butch lesbian, if he is forced to return to his country as a transgender man, Marco is afraid he’ll be raped or even killed.

Seeking Safety from Persecution

What’s interesting is that in the extensive work of Immigration Equality in representing LGBT/H asylum seekers ourselves and mentoring others, we’ve seen that transgender asylum seekers generally have a higher grant rate than those who seek asylum based on gay or lesbian sexual orientation. Because the grant of an asylum application is dependent upon the likelihood of persecution, it’s not hard to see why this happens

Transgender identity
is not the same thing
as sexual orientation.

An essential part of the asylum process is conducting research on country conditions and proving to an adjudicator that the applicant would be in danger if forced to return to the country of origin. A quick survey of conditions in most countries from which people seek asylum, reveals extreme violence against transgender individuals. This is also the case in the country of origin of Cristina and Marco, where the number of transgender people tortured and killed is terrifying.

No doubt, in countries with rigidly enforced gender roles where most of the power and privilege is reserved for males, there is especially virulent transphobia, that is hatred, which is often violent, toward transgender people. As Marco explains it, people feel that transgender individuals are trying to deceive them into believing they are something they are not. It makes sense in the case of FTM transgender men that trans-bashing men – the type of people who engage in social cleansing, hate crimes and anti-LGBT violence — would be angry that a person they believe to be female is trying to enter into the privileged world that is reserved for males.

On the other hand, trans-bashing men who may harbor a thinly veiled hatred of women might find it incomprehensible and contemptible that an individual who is considered male at birth would ever “choose” to identify as a (MTF) female.

But There’s A Catch

In cases we handle that involve sexual orientation, the most difficult issue may be proving that the applicant really is gay or lesbian. Unlike cases based on political opinion or religion, the applicant won’t have a “membership card” proving that he or she is gay or lesbian. Transgender applicants may have an easier time proving their transgender identity, both because they will have medical evidence of their transition and because they will “look trans.”

Or will they?

I was recently on a panel training pro bono attorneys to take on asylum cases, when a colleague talked about the need to paint the asylum applicant as “other” to win. The person must be sympathetic on one level, but different enough that the adjudicator could easily imagine the applicant being subjected to violence. In the classic transgender case this “otherness” is readily apparent. The individual has taken some steps to transition to the opposite gender, but still retains some characteristics of the birth gender.

Because Cristina has so successfully taken on female characteristics and has lost her “otherness,” it will now be up to her attorney to prove in court that, “beautiful woman” or not, she will still face violence in her country when others discover (for example, through identity documents that still identify her as male) that she is transgender.

On the other hand, if Marco’s application is not granted, it will no doubt be because he is not yet “other” enough. He is in such an early stage of his transition that the officer may have failed to understand that his transgender identity is not the same thing as his sexual orientation towards women. Fortunately for Marco, if his case is referred to court he will have another year to continue his transition to “otherness” before a judge will decide his case.

Marco’s fate shouldn’t hinge on how thick his beard is or how deep his voice becomes, but in many ways it does. In any event, it is my challenge as Marco’s lawyer — and the challenge for any other attorney who takes on one of these cases — to educate the adjudicator about the real danger that transgender asylum seekers face in their home countries, regardless of what stage they are at in their transition.

Victoria Neilson is the Legal Director of Immigration Equality, a national organization fighting for equal immigration rights for the lesbian , gay, bisexual, transgender and HIV-positive community. She is the primary author of “The LGBT/HIV Asylum Manual,” a comprehensive guide for attorneys, and she has published extensively on legal issues facing LGBT and HIV-positive immigrants and refugees.

ALSO see Busting Bogus Biology and Beliefs by Mahin Hassibi in this issue

See The Art Perspective curated by Linda Stein in this issue