International Protection for a Newly Surfacing Refugee Community
A refugee's description of his situation in a country of first asylum as a member of the lesbian, gay, bisexual, and transgender (LGBT) community offers a succinct explanation of the unique challenge that these individuals face when they seek refuge in a foreign country: the lack of support and resources to which LGBT refugees have access.
Thousands of refugees apply for resettlement to the United States every year; including LGBT refugees who have been persecuted for their sexual orientation, gender assignment, gender identity, or combination of the three. In fiscal year 2011, the United States resettled 56,419 refugees and granted asylum to slightly more than half of the approximately 41,000 asylum claims received in 2011. According to the US Department of Justice, the United States has the highest asylum application rate in the world.
The United States' first precedential ruling granting asylum based on sexual orientation came in 1994. While public records do not break down asylum grants per reason for filing, there is anecdotal evidence of an increase in claims based on sexual orientation. A number of other countries grant asylum to LGBT applicants, including Australia, Canada, France, Germany, Thailand, and the United Kingdom.
International and US Refugee Protection Regime
Under principles of international refugee law, there are three responses to refugees: voluntary repatriation; local integration (or asylum) in a host country; and as a last resort, resettlement to a third country.
In many refugee contexts, repatriation is not feasible because the county of origin is still a place of violent conflict, and the government is unable or unwilling to protect its own citizens. The second solution – integration into countries of first asylum – is also not considered a long-term solution because many host countries are not able or not willing to formally take on the financial, social, and political implications of adopting a large refugee population. This makes resettlement the only durable solution, and a necessary protection need, for many vulnerable refugees.
In the US context, applicants may arrive in the United States directly from their country of origin and seek protection. These persons are known as asylum seekers. Persons seeking humanitarian protection while based in a country other than their own apply for refugee status via a lengthy process. The scope of this article will focus on refugees and resettlement, but makes reference to US asylum law, which affects both processes.
Applying for protection and resettlement from abroad can vary and be extremely complicated. It is reported to take on average one year for refugees to receive a resettlement referral from UNHCR, which is the international body charged with providing humanitarian assistance and protection to refugees, and another five months to pass a US security clearance.
In order for a person to gain humanitarian protection in the United States, he or she must first meet the definition of a refugee, which includes establishing "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group (PSG), or political opinion." The US definition of a refugee parallels the one given in international law.
Under both international and US refugee and asylum law, the term persecution is not explicitly defined; but the boundaries of what constitutes persecution have been defined in US case law. In addition, the Board of Immigration Appeals (BIA) – the highest US administrative body for interpreting and applying immigration laws – has defined persecution as "either a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive."
A number of efforts have been put forth to tailor policies and procedures to the specific needs of LGBT refugees – with mixed reactions – which will be explored further below.
"Particular Social Group"
While it is clear that none of the protected categories described above is explicitly for persecution claims based on sexual orientation or gender identity, most LGBT refugees claim persecution based on their affiliation with a particular social group, and some may have persecution claims based on more than one protected characteristic. Although there is no specific definition of particular social group, the United Nations Handbook on Procedures and Criteria for Determining Refugee Status states:
"A 'particular social group' normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality. [...] Membership of such a particular social group may be at the root of persecution because there is no confidence in the group's loyalty to the Government or because the political outlook, antecedents or economic activity of its members, or the very existence of the social group as such, is held to be an obstacle to the Government's policies."
Other UN guidelines suggest that there are two perspectives of determining what comprises a social group:
"The protected characteristic approach, which examines 'whether a group is united by an immutable characteristic that is so fundamental to human dignity that a person should not be compelled to forsake it.' [...] The social perception approach, which examines 'whether or not a group shares a common characteristic which makes them a cognizable group or sets them apart from society at large.'
An early US case law analysis of determining membership in a social group states:
"Persecution on account of membership in a particular social group refers to persecution that is directed toward an individual who is a member of a group of persons, all of whom share a common immutable characteristic, i.e. a characteristic that either is beyond the power of the individual members of the group to charge or is so fundamental to their identities or consciences that it ought not be required to be changed."
In an attempt to clarify the broad and often disputed definition of particular social group, UNHCR issued guidelines in 2008 on how to handle refugee claims based specifically on sexual orientation and gender identity. The guidelines acknowledge that there is a range of scenarios in which people identified as LGBT could have faced persecution and thus be eligible for refugee status and protection. The guidelines most notably state that the persecution based on membership in the LGBT community does not have to be carried out by only state actors; private actors, such as family members, can be persecutors as well. The guidelines also state that LGBT persons can qualify as refugees even if the first time they make their sexual orientation or gender identity known is in the country of first asylum; and it challenges the stereotypes that for a man to be considered homosexual, he must dress femininely, and for a woman to be considered a lesbian, she must dress in a masculine manner.
While the guidelines address the need for proper training for UNHCR officials to be able to sensitively and properly interview LGBT asylum seekers, they do not classify LGBT refugees as a group in need of expedited processing. In addition, during 2011 UNHCR consultations, at a side panel on LGBT refugee and asylum seeker issues, it was noted by several refugee advocacy groups that while UNHCR has made significant strides in combating homophobia and taking an official stance toward equal access to UNHCR's services, these policies often don't trickle down to the frontline staff who are the first point of contact for LGBT refugees and asylum seekers. For example, during interviews with UNHCR staff and other officials, people who advance a claim based on LGBT grounds can sometimes be asked pervasive questions about their sexual orientation or gender identity to the point of trauma, and are told if they can just "live discretely," there is no need for special protection or resettlement.
Without a clear understanding that LGBT persons constitute a particular social group, the burden of proving that such would-be refugees have faced persecution in line with the international and US definition of a refugee is on the claimant, and his or her legal advocate if fortunate enough to have access to legal representation. Not having the ability to clearly fit within a protected characterized group, and having no immediate means of protection during a resettlement process that can take years, leaves vulnerable refugee populations at the risk of being unfairly rejected throughout the protection and resettlement process, both abroad and within the United States.
This is in addition to being exposed to other particular vulnerabilities over long periods of time, such as harassment from host-country communities and other refugees and asylum seekers; not having complaints being taken seriously by local authorities; discrimination in the workplace and within housing and education sectors; and in extreme circumstances, physical harm or torture. All of these things can amount to persecution under international and US asylum law.
Addressing the Gaps in LGBT Refugee Protection in the United States
The newly surfacing trend of LGBT persons seeking protection abroad has left a gap within the international and US regime for supporting and protecting refugees and asylum seekers. This vulnerable group is already living in countries of first asylum, which – while generous in allowing them to remain – often do not offer rights to LGBT persons who are noncitizens, and are at risk because of the social stigma attached to the group that forms part of their real or perceived identity.
US Citizenship and Immigration Services (USCIS) has put forth a number of efforts to address the gaps in protection for LGBT refugees, although advocacy and human-rights circles are still pressing for further action. In January 2012, USCIS released "Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims". While the guidance does not expand the statutory definition of a refugee, it does underline sensitivities required when refugee officers interview LGBT refugee and asylum applicants. For example, the objectives of the training module include training officers to "use sensitive questioning and listening techniques that aid in eliciting information from LGBTI applicants."
Many resettlement countries, including Canada, allow LGBT refugees to be resettled or reunified with their same-sex partners, if they meet the definition of a refugee and the criteria for resettlement. This allows marginalized couples to stay with their closest source of support and protection, while easing their transition through the resettlement process. In 2011, the US Office of Refugee Resettlement (ORR) teamed up with Heartland Alliance of Chicago to open the LGBT Refugee Resource Center to assist refugees in the LGBT community in transitioning and thriving in the United States.
In December 2011, US Secretary of State Hillary Clinton gave a landmark speech at the Palais des Nations in Geneva, Switzerland. The speech focused on the global issue of better protecting and enhancing the rights of LGBT individuals worldwide. Secretary Clinton outlined the specific challenges and protection concerns that the LGBT community faces, noting that the solution to ending the discrimination, persecution, and human rights violations against sexual and gender minorities begs a comprehensive, global response. This speech correlated with a White House memo that President Obama published on US initiatives to advance the human rights of the LGBT community, including initiatives specifically targeting LGBT refugees and asylum seekers.
While these and other recent efforts have perhaps contributed to some momentum in addressing the specific challenges that the LGBT refugee community faces at large, many are still calling for additional actions. One idea put forth by LGBT and advocacy communities is collaboration with local NGOs in refugee host countries to set a standard for identifying, supporting, and protecting vulnerable refugees, while creating awareness and eliminating threats the refugees may face in the host country. This is especially relevant considering the numerous reports of violence against LGBT individuals, including refugees. A 2009 New York Magazine article illuminates the lives of gay Iraqi men, forced to flee Iraq because they were being targeted, hunted, tortured, and slayed for their sexual orientation. Those who are able to flee do so to neighboring countries that may not have the adequate capacity to address their needs or identify them for assistance. Thus, making any broad, international policy changes less effective because the target group cannot access the protection frameworks under which policy changes exist.
The United States' emerging protection-oriented policies and procedures are the product of increasing tolerance for the LGBT community whether in political, social, or legal settings. Having resettled more than 3 million refugees since 1975, the United States holds an important leadership role in the international humanitarian arena, and its practices regarding the protection and resettlement of LGBT persons help set the standards for others as well.
Citizenship and Immigration-Canada. 2011. Sponsoring your family: Spouses and dependent children-who can apply. Available online.
Clinton, Hillary, Secretary of State. 2011. Remarks in recognition of International Human Rights Day at Palais des Nations Geneva, Switzerland. Available online, via US Department of State.
Council of Europe. 2011. Discrimination on grounds of sexual orientation and gender identity in Europe. June 2011, p. 67.
Frelick, Bill. 2006. The Silent Treatment: Fleeing Iraq, Surviving in Jordan. New York: Human Rights Watch.
Helsinki Citizens' Assembly-Turkey. 2007. An Evaluation of UNHCR Turkey's Compliance with UNHCR's RSD Procedural Standards. September 2007, via Helsinki Citizen's Assembly-Turkey. Available online.
Human Rights First. 2010. Living in Limbo: Iraqi Refugees and U.S. Resettlement. December 2010, p. 19. Available online.
Immigration and Nationality Act § 208(b)(1)(B), 8 U.S.C. § 1158(b)(i) (2009).
Letter to the Editor. 2011. Gay Asylum Seekers. The New York Times, February 6, 2011. Available online.
McAllester, Matt. 2009. The Hunted. New York Magazine, October 4, 2009. Available online.
Obama Administration. 2011. Presidential Memorandum -- International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual, and Transgender Persons. Available online.
Organization for Refuge, Asylum and Migration (ORAM). 2009. Unsafe Haven: The Security Challenges Facing Lesbian, Gay, Bisexual and Transgender Asylum Seekers and Refugees in Turkey. June 2009. Available online.
Power, Samantha. 2012. U.S. Leadership to Advance Equality for LGBT People Abroad. Available online.
Sridharan, Swetha. 2008. The Difficulties of US Asylum Claims Based on Sexual Orientation. Migration Information Source. Washington, DC: Migration Policy Institute. Available online.
The White House. 2009. Presidential Determination No. 2009-32, Memorandum for the Secretary of State. September 30, 2009. Available online.
United Nations. 1979. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1. Available online.
United Nations High Commissioner for Refugees. 2003. Framework for Durable Solutions of Refugees and Persons of Concern. May 2003, pp. 5-6. Available online.
--. 2002. Guidelines on International Protection: Membership of a Particular Social Group. Available online.
--.2011. UNCHR Resettlement Handbook, Criteria for Determining Resettlement Eligibility (Chapter 4). Available online.
--. 2008. UNHCR Guidance Notes on Refugee Claims Relating to Sexual Orientation and Gender Identity. November 2008. Available online.
--. 1967. Protocol Relating to the Status of Refugees, Article 1. Available online.
--. 2012. Operations Profile-North America. Available online.
United Nations Office for the Coordination of Humanitarian Affairs (OCHA). 2011. Regional Response Plan for Iraqi Refugees 2011. Available online.
US Department of Justice. 2012. FY 2011 Statistical Year Book. Office of Planning, Analysis, and Technology. Available online.
US Department of State. 2012. Refugee Admissions. Available online.
World Organization for Human Rights USA. 2011. Guide to Establishing the Asylum Eligibility of Victims of Human Trafficking and Forced Marriage. Washington, DC: World Organization for Human Rights USA. Available online.
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