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Important LGBT asylum ruling in Canada: The situation in the U.S.

in CANADA, 29/07/2012

In 2011 the U.S. Citizenship and Immigration Services (USCIS) published a training manual for asylum officers titled "Guidance for adjudicating lesbian, gay, bisexual,transgender, and intersex (lgbti) refugee and asylum claims."

In addition to training officers how to recognize and avoid bias, the manual also includes a very important section that provides possible reasons to explain a delay in the application for asylum. These reasons include: 1. Recently coming out as LGBTI; 2. Recent steps to transition from birth gender to corrected gender; 3. Recent HIV diagnosis; 4. Post-traumatic stress disorder; 5. Severe family opposition to an applicant’s identity.These provide possible exceptions to the rule that requires applicants to file for asylum within the first year since the last entry in the U.S.

As a psychologist and psychiatrist, we both volunteer to provide mental health expert testimony for asylum seekers and have found these new guidelines a great help when explaining to asylum officers and immigration judges the psychological challenges that LGBTI asylum seekers face.

As part of our work we have developed a measure to help document the many changes that LGBTI asylum seekers may experience in their sexual orientation and gender identity.

Because many LGBTI persons who have just fled persecution may require time to come out and integrate their sexuality with the rest of their lives, we have found it helpful to shift the argument in court away from a focus on any particular aspect of sexual orientation and gender identity to a broad picture that documents shifts over time of sexual behavior, falling in love, relationships, identity, disclosure to LGBTI persons and disclosure to heterosexual persons. This way the adjudicator gets to see the bigger picture of an LGBTI applicant. We are able to refocus the discussion in court to the difficulties that LGBTI persons have in being safe enough to be who they are as LGBTI, their identities, and away from the intrusive and sometimes homophobic questions of whether someone is really LGBTI. In the U.S. an LGBTI asylum seekers needs to argue that they belong to a "particular social group" (the language of the asylum law)--this measure can help support that there are many aspects and ways of being LGBTI, so that some asylum adjudicators can get beyond their, possibly, narrow interpretation of what it means to be LGBTI.

The new measure can be downloaded here as a pdf. Please let us know if you have any questions or suggestions about improving it by emailing the Research Institute Without Walls (RIWW) at ariel.shidlo@riww.org.


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