LGBTQ+ Asylum Seekers
A short overview of some issues faced by the LGBTQ+ community of asylum seekers and refugees.
The asylum process is difficult enough as it is for refugees and asylum seekers that do not identify as part of the LGBTQIA+ community. The LGBTQIA+ community faces struggles unique to their identities that are important to highlight. However, they are not just defined by their struggles; they are people with agency and the power to effect change, another aspect of the LGBTQIA+ community in the U.S./Mexico border region that is crucial to highlight.
Those who are a part of the Latin American LGBTQ+ community face extreme difficulties in their home countries. As stated by Clara Mora in their “The Trump Administration’s Immigration Policy and its Effect on LGBTI Migrants and Asylum Seekers”, refugees from Latin America mostly flee from Mexico and the Northern Triangle region of Central America consisting of Guatemala, Honduras, and El Salvador. The struggles faced by the LGBTQ+ community– aside from the struggles the rest of the population faces such as gang violence and poverty– in these regions vary from lack of access to healthcare, education, employment, discriminatory legislation that will make their existence criminal to sexual abuse, torture, and murder. For these reasons as well as a considerable amount more, people are forced to seek asylum in the U.S. However, the journey to the United States and the asylum process also prove to be great hurdles to surmount. Being in Mexico proves to be extremely dangerous as well; Mora states, “two-thirds of LGBTI asylum seekers interviewed in 2016 coming from El Salvador, Honduras, or Guatemala reported suffering sexual and gender-based vioelnce in Mexico” (Mora 128).
According to the American Immigration Council, a refugee is “a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future ‘on account of race, religion, nationality, membership in a particular social group, or political opinion’”. If a refugee is granted asylum into the United States, this means they are granted protection and do not have to return to their home country where their lives are threatened. Once in the United States, an individual can apply for asylum. This process however presents new challenges to refugees who are already struggling as it is. Before even being able to file a claim, asylum seekers must first wait for their case to be heard which could take months since there is already a long list of people waiting for the same thing. For one to be able to file an LGBT asylum claim, one must fulfill a number of requirements. First, they must have “(1) a well-founded fear of persecution (2) based on past persecution or risk of persecution in the future if returned to the country of origin (3) because of the applicant’s membership in a PSG wherein (4) the persecutor is a government actor and/or a non-governmental actor that the government is unwilling to control” (Kareff 621). A PSG here refers to being a part of the LGBT+ community. This proves difficult since so many people have so many different circumstances. An example of a difficulty with proving such requirements is that of people from Mexico having been denied asylum because the LGBT presence in Mexico was not strong enough to be proof of being part of a PSG (Mora 129). In addition to this, LGBTQ+ youth who flee without their family have trouble acquiring proof of their gender and sexuality that others might acquire from family members and friends (Mora 130). After having to establish these things, one must also present what is titled a credibility determination. A credibility determination does exactly that, it determines the credibility of the person's claims to be part of the marginalized community they are in. The problem posed here is that the asylum process is a “discretionary” process; this means that judges are tasked with determining credibility at their own discretion, oftentimes finding other reasons to refuse cases such as previous bias against gender and sexuality non conforming folks. This process is extremely precarious and relies on a variety of factors for refugees to be able to be granted asylum. This is an example of how the American legal system sets a thousand hoops to jump through and even then still has to determine credibility of identity. This shows the extreme regulation of the kinds of bodies that are allowed to enter the country. Because of this added “discretionary” tool that judges are able to use, they are able to regulate who gets to enter the country. The intersection of gender and sexuality with race only worsens the chances of someone being admitted. Because of anti-immigrant rhetoric spewed by the Trump administration, many people were able to fortify their stances on issues of immigration and LGBTQ+ rights, making this an extremely precarious situation. In addition to this, communities are often subjected to Western notions of gender and sexuality that make it quite difficult to prove their identities. Kareff writes, “…officers expect claimants to engage in conspicuous consumption of stereotypical commodities and culture and to appear visibly “LGBT,” either through gender non-conformity or by being ‘out.’” Western ideas of being part of the LGBT+ community are based on stereotypes that in no way encompass the vast spectrum of identities that are non conforming to the heterosexual binary. Because of these expected stereotypes and preconceived notions of gender and sexuality however, it is made even more difficult to determine credibility. The process of “coming out” is a more moderate/liberal idea that implies “coming out” is a precursor to living one's true authentic self. However, this is not the case for many especially for those living in highly discriminatory environments. While many people do not feel the need to come out in the first place, others cannot risk it for fear of repercussions either from external factors or from family members.
A policy that greatly impacted the health and safety of refugees at the U.S./Mexico border was Donald Trump’s Migrant protection Protocols policy. This policy was established in January of 2019 and was only exacerbated by the Covid-19. This “policy required that asylum seekers presenting to the southern border of the United States wait in Mexico during the determination of their asylum case” (Silverstein et al 2021). Before this policy, asylum seekers had been allowed entry to the United States for their asylum process. This in itself was not a perfect situation since many people were not given a place to stay and had no one in the U.S. to turn to. The impacts of this were a number of shelters being created in San Diego to help asylum seekers waiting for the verdicts on their cases. This was already in itself a precarious situation because of the limited amount of supplies. This was exacerbated with the Migrant Protection Protocols policy, also known as the Remain in Mexico policy, since refugees also did not have any place to stay in Mexico. Mora states, “When waiting for a decision on whether they can enter the United States, migrants and asylum seekers are often forced to wait in detention centers in Mexico where LGBTI people have suffered discrimination, sexual harassment, and aggression from other detainees” (Mora 128). This was made worse by the pandemic with the amount of people and being stretched thin on resources.
The San Diego community has not been inactive in these issues. Centers such as the San Diego LGBT Community Center have been making sure to prioritize intersections such as immigration and LGBTQ+ issues. In a report written by Ricardo Gallego, Director of Department of Latinoax Services, Gallego states, “The San Diego Center partnered with RAÍCES, Al Otro Lado, and the Los Angeles LGBTQ Center, collaborating on the first LGBTQ border campaign in history to ensure that legal services, case management, and humanitarian relief were provided to asylum seekers who are LGBTQ, and to those living with HIV, who made it to the Mexico/U.S. border” (Gallego 2019). Throughout this article, Gallego relates how these organizations came together to help the 2018 caravan of asylum seekers and refugees and how this is but one of the many examples of how they have been helping. This intersection between asylum seekers and the LGBTQ+ community already has limited amount of research; these current efforts to help made by queer people of color are crucial.
Pictured above are folks from the caravan who wave a pride flag.
“Asylum in the United States.” American Immigration Council, 26 Feb. 2021, https://www.americanimmigrationcouncil.org/research/asylum-united-states.
Clara Mora, "Shoot Them!" The Trump Administration's Immigration Policy and Its Effect on LGBTI Migrants and Asylum Seekers, 34 Geo. Immigr. L.J. 121 (2019).
Gallego, Ricardo "Immigration and LGBTQ Intersections: A Pioneering Project on the San Diego/Tijuana Border," Journal of Hispanic / Latino Theology: Vol. 22 : No. 2 , Article 6. (2020) :178-184 Available at: https://repository.usfca.edu/jhlt/vol22/iss2/6
Kareff, Michael. "Constructing Sexuality and Gender Identity for Asylum through a Western Gaze: The Oversimplification of Global Sexual and Gender Variation and Its Practical Effect on LGBT Asylum Determinations." Georgetown Immigration Law Journal, vol. 35, no. 2, Winter 2021, pp. 615-630. HeinOnline, https://heinonline.org/HOL/P?h=hein.journals/geoimlj35&i=638.
Madeleine C. Silverstein, Rebecca F.P. Long, Elizabeth Burner, Parveen Parmar, and Todd W. Schneberk. Health Equity.Dec 2021.277-287.http://doi.org/10.1089/heq.2020.0144
Suryaningrat, Supardi. “Buzzfeed-On.” LGBT Members Of The Caravan Have The Best Chance Of Getting Asylum. They Also Face The Greatest Risk Waiting For It., 1 Jan. 1970, https://buzzfeed-on.blogspot.com/2018/11/lgbt-members-of-caravan-have-best.html.