A Legislative Rejoinder to "Give Me Your Gays, Your Lesbians, and Your victims of Gender Violence, Yearning To Breathe Free of Sexual Persecution
Birdsong provides herein analysis of two recent asylum cases, one involving gender
violence and, the other based on sexual orientation. Birdsong reminds students and practitioners alike that asylum cases are strongly “fact driven” and they must present a good story. Further, good lawyers must read the footnotes. Please read the footnotes included herein!
The United States continues to be a country which will accept and give asylum to those who flee persecution in their homelands even if that persecution is as a result of sexual orientation or gender based violence against women. It is apparent that not all GLBT persons or abused women obtain asylum status, but from a human rights point of view we remain a safe haven where people of all sexual orientations can seek justice if they believe they have been persecuted. Yet, the lack of precedent and the discretionary power of IJ’s in asylum cases and the other aforementioned problems with adjudication make it difficult to readily predict how such cases may be decided before filing. Practitioners who file claims for affirmative asylum or who represent claimants already in removal proceedings are best advised to work with the claimant to prepare an affidavit which recounts the claimant’s background and recounts in detail each instance of persecution encountered in the country of origin. Attached to the affidavit should be as much documentary evidence as possible relevant to the claim of asylum and that will support the claimant’s position, such as newspaper articles, photographs, hospital reports and any evidence one can discover on the country of origin conditions and how that country treats GLBT persons and women.
When the United States of America came into being with the signing of the Declaration of Independence in 1776, there were no immigration laws. There were no such laws for almost 100 years. In 1875 the first immigration law was passed by Congress and Americans have been debating who should be allowed to legally immigrate to the United States and who should be excluded.
The Immigration Act of 1917 was the first U.S. law to exclude lesbian and gay aliens from entry into the United States. Congress excluded lesbians and gay men because of the medical and psychiatric communities’ belief that homosexuality was a disease. Congress ended the general exclusion of lesbian and gay aliens in 1990, which has allowed refugees to escape sexual orientation based persecution in their home countries. Also in 1990, the Board of Immigration Appeals (BIA) affirmed an immigration judge’s (IJ’s) decision to withhold deportation of a gay Cuban marielito in the case of In re Toboso-Alfonso. This was the first known instance in U.S. immigration law where a homosexual was cast as a member of a particular social group,
In the last fifteen years there have been important advances in aspects of American immigration law that protect lesbians, gays, bisexual and transgendered persons (LGBT) and women who may have been victims of gender based violence in their home countries. Earlier immigration law legally excluded lesbian and gay men because the medical and psychiatric communities believed homosexuality was a disease. We, as a country, are to be commended for now extending grants of asylum to those who may have experienced past persecution or who fear future persecution in their country of origin because of their sexual orientation or victimization on account of gender violence. Such types of persecution may be considered together and may be best described as “persecution based on sexual orientation.”
One such recent case, typical of many, started in 2003, and involved Gramoz Prestreshi, an eighteen year old citizen of Kosovo who was stalked and beaten almost to death by a group of local thugs because he was a homosexual.