Very often, the most vulnerable people seek asylum in the United States, fleeing oppressive and dangerous conditions in their home countries. Yet what many do not realize is that sometimes, the waiting for a decision can be arguably just as difficult and dangerous. This is especially true for transgender and non-gender-conforming people, who make up approximately one of every 500 immigrants, and an even higher proportion of asylum seekers. However, Immigration and Customs Enforcement (ICE) has begun to make changes to their policies regarding these potential asylees, which can only improve quality of life in general.
Is Gender Identity Covered by Asylum Law?
U.S. asylum law has its roots in the 1951 Geneva Convention and its 1967 protocol on refugees. The definition of a refugee propagated in the Convention is the one contained almost word for word in the U.S. Immigration & Nationality Act, and it permits application for asylum if someone is unable to obtain protection from, or return to, his or her country of nationality. If these criteria are met, there are five grounds on which someone may apply under U.S. law for asylum. Those grounds are race, religion, nationality, political opinion, or membership in a particular social group.
Gender identity is not mentioned on its face, but many transgender asylum seekers have sought to apply as members of a particular social group (PSG). Usually, membership in a PSG must be even more specific than ‘transgender women’—for example, ‘Mexican transgender women fleeing abusive suitors’ has been used before.
Until the middle of 2015, U.S. immigration authorities did not adequately know how to handle non-gender-conforming immigrants, and there was very little law to suggest appropriate case disposition. However, two legal and policy shifts have changed the picture and made the U.S. marginally more safe and welcoming for transgender refugees.
The first occurred in July 2015. Previously, ICE categorized those seeking asylum by their birth gender, and this identification would regulate the detention facilities they were sent to, if it became necessary to detain the person in question. In July of that year, however, the Department of Homeland Security issued an opinion granting transgender detainees the right to be housed in facilities matching the gender identity with which they identify. This occurred after multiple reports of gender-based violence in detention facilities, and ICE understandably took steps to curtail such harm.
The second policy change came in the case of Avendano-Hernandez v. Lynch, decided in September 2015. In Avendano-Hernandez, the Ninth Circuit held that there is a demonstrable difference between gender identity and sexual orientation, and that improvements in the situation of the gay and lesbian community may not equate to the same improvements for transgender people. This case means that gender identity will be more likely to be considered as a sole ground for asylum than it was in the past.
Seek an Experienced Legal Professional
In asylum cases of such a complex and sensitive nature, a skilled and knowledgeable immigration attorney can make all the difference. The compassionate DuPage County asylum attorneys at Mevorah Law Offices LLC will do our best to ensure that you are given your fair day in court, and answer your questions about the process. Contact our office at 630-932-9100 to set up an appointment.
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