People facing anti-LGBT persecution in their home country have been able to seek asylum in the U.S. for almost 25 years, but they face an uphill climb proving it under the U.S. immigration system, advocacy groups say.
Felipe Molina Mendoza, 25, of Durham faces possible deportation to Mexico after a judge denied his asylum request and he lost an appeal at the Board of Immigration Appeals.
Last week, after intervention by U.S. Rep. G.K. Butterfield, his scheduled deportation was put on hold pending his appeal to the Fourth Circuit of the U.S. Court of Appeals. In a meeting Tuesday with immigration officials in Charlotte, he was allowed to remain in Durham, with periodic check-ins, pending that appeal.
Molina Mendoza came to the United States when he was 8. He graduated from Riverside High School in Durham but returned to Mexico when he could not afford out-of-state college tuition here.
He tried to re-enter the U.S. in 2013, then again in 2014, when he said he sought asylum on the grounds of anti-gay harassment and threats in Mexico and was allowed to stay while his claim was pending.
In an interview, Molina Mendoza said he went to Mexican police for help after men threw beer bottles at him and his boyfriend and he was threatened with rape.
“They said if I didn’t want to be persecuted, I shouldn’t be acting gay,” he said, explaining why he wants to stay in the U.S. “Next time it might not be glass beer bottles; it might be a bullet.”
Mexico’s Supreme Court legalized same-sex marriage in 2015. But a study last year by the Transgender Law Center and the Cornell University Law School LGBT Clinic found anti-LGBT violence “remains pervasive through Mexico.” The study focused on transgender women, citing 120 murders of transgender people or people who didn’t fit traditional gender expectations since same-sex marriage was allowed.
“Legal recognition of same-sex couples has increased societal awareness of the LGBT community and made LGBT people much more visible,” the report said. “Ironically, increased awareness of LGBT people appears to have produced significant backlash.”
At one time, U.S. immigration law banned lesbian, gay, bisexual and transgender people from entering the country on the grounds of “sexual deviation.”
President George H.W. Bush lifted the ban in 1990, and in 1994 Attorney General Janet Reno required immigration officials to recognize persecution based on sexual orientation as grounds for asylum, according to a 2015 report by the Center for American Progress, a progressive think tank in Washington, D.C.
The report cited U.S. Rep. Barney Frank as key to that happening. In its report, analysts Sharita Gruberg and Rachel West quoted the gay congressman as saying, “It was explicitly done by (President) Clinton after the failure of the effort to get gays in the military in part because he recognized the importance of showing he was not only pro LGBT but capable of doing some real things.”
Nearly a quarter century later, however, LGBT refugees seeking asylum face significant hurdles.
People seeking asylum must prove they fear persecution based on race, religion, nationality, membership in a particular social group or political organization.
But proving you’re LGBT, especially if you’ve been hiding it for fear of being found out, is not always easy, said Laura Durso, vice president for the LGBT Research and Communications Project, part of the Center for American Progress.
About 80 countries criminalize LGTB people, in some cases punishable by death, Durso said.
“The idea that one is able to be out to friends and family or to have evidence (of a same-sex relationship) it really puts people in a complete bind because of the violence that causes them to flee and hide their identity,” she said.
When they do file for asylum, they go before judges who aren’t trained on LGBT asylum issues, Durso said.
“As a result, their decisions on LGBT asylees can be dangerously arbitrary, biased, or based on a lack of understanding of the serious threats LGBT people face,” she said.
“For example, judges might falsely believe that because Mexico has marriage equality, LGBT people across the country are free from violence – when cases like Felipe de Jesus Molina Mendoza’s prove the opposite is true,” she said.
Jennifer Quigley, of the advocacy group Human Rights First, agreed.
“That’s not something that’s supported across the country,” she said of same-sex-marriage. “It’s similar to here. You’ve made advancements in law; that doesn’t mean you’ve made advancements in society.”
A spokeswoman for the Executive Office for Immigration Review said judges consider asylum claims case by case according to the law, regulations and precedent.
“Immigration judges make a credibility determination ... considering a wide variety of factors including an applicant’s demeanor while testifying, the plausibility of an applicant’s claims, inconsistencies in the applicant’s testimony, or inconsistencies between the applicant’s testimony and any other evidence of record,” spokeswoman Kathryn Mattingly said by email.
“An applicant’s sexual orientation can be grounds for claiming membership in a particular social group for the purpose of claiming asylum,” she said.
The transgender violence study reported 9,206 asylum applications from Mexican people in 2012 and 463 Mexican applicants being granted asylum that year. Another 1,395 cases were denied, with the rest classified as abandoned, withdrawn or “other.”
Both that study and The Center for American Progress said it is impossible to know how many requests for asylum are made on the basis of sexual orientation or gender identity and how those cases fare compared to asylum cases overall.
But analysts Gruberg and West found LGBT people fare better when they have a lawyer, apply for asylum “affirmatively” – meaning they are not already in a deportation proceeding – and when they have not spent time in an immigration detention center like Molina Mendoza has.
As happened when he sought asylum in the U.S. in 2014 after his deportation in 2013, “the very act of coming back puts somebody in detention,” said Durso.
“We’ve essentially branded them a criminal, locked them up in a system that looks like prison,” she said. “There’s a perception that person is a criminal and doesn’t deserve to be granted asylum.”
The Center for American Progress report recommends:
▪ U.S. Customs and Immigration Service and Executive Office for Immigration Review collect and publish data on sexual orientation and gender identity in asylum claims
▪ Reduce backlog of asylum cases so seekers are not left in limbo for up to years at a time
▪ Promote legal counsel for asylum seekers, as those with representation are dramatically more likely to successfully receive asylum than those without it
▪ End the one-year filing deadline from arrival in the United States in order to seek asylum
▪ End the use of immigration detention, as those who seek asylum who have been previously detained are more likely to fail in their effort than those who have not been detained