Immigration Law Trends — Asylum For Gay Persons

       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.  Prestreshi was laughed at and called names by the police to whom he reported his beating.  In the hospital emergency room he was made to mop up his own blood. He had photographs taken of his injuries and complained to the press about the hostile environment homosexuals endure in Kosovo. Later his family disowned him for his sexual orientation.  He joined a gay rights organization and in 2007 was granted asylum in the United States on the grounds that his treatment in Kosovo amounted to persecution.

            Although such grants of asylum are generally unknown to the American public, Birdsong is one of many who, for the last few years, have taught and written about the phenomenon of grants of asylum on the grounds of sexual orientation and the problems involved in obtaining justice for victims of such persecution.   Birdsong’s article, Give Me Your Gays, Your Lesbians, And Your Victims of Gender Violence, Yearning to Breathe Free of Sexual Persecution…” The New Grounds for Grants of Asylum,[1]  consisted of an analysis of some of the problems of obtaining justice in our asylum system for persons such as Gramoz Prestreshi and other victims of persecution on the basis of sexual orientation.  The analysis of those problems revealed the need for several solutions.  For one, it exposed the need for more consistency in defining and interpreting our asylum law. Secondly, the U.S. Department of Homeland Security (DHS) needs to better formulate policies that might guarantee uniformly just results in cases of those escaping persecution based on their sexual orientation.  Finally, the U.S. Justice Department needs to provide more published opinions in sexual persecution cases as well as better-trained and more sensitive immigration judges.


[1] Published in 32 Nova Law Review  Volume, issue 3 (Spring 2008).


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