Ask Lambda Legal – Asylum and Sexual Orientation 

Q: I have been going to school in the United States for a couple of years, and during that time, I came out of the closet. As graduation gets closer, I’m afraid of going back to my home country because over there, gays and lesbians are persecuted. What are my options?

First, congratulations on coming out and on your imminent completion of a degree. Getting through school while coming out makes both efforts that much more complicated and difficult.

Lambda Legal’s help desk regularly gets calls from people who fear going back to their home country because of their sexual orientation. If you are lesbian, gay or bisexual and your home country has a history of violence or oppression toward LGB people, your concerns are very serious. Thankfully, there are potential legal options for you if you need to stay in the United States.

You may apply for asylum relief if you are unable or unwilling to return to your country of nationality because of a history of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Among the barriers to an application for asylum are an asylum-seeker’s conviction of a serious crime while in the United States. Asylum is overseen by the Immigration and Nationality Act, and if you would like more information about seeking asylum, you can call our help desk or check the U.S. Department of Justice’s website section on asylum at Asylum

If you don’t qualify for asylum but still fear going back to your home country, there may be other ways to stay in the United States. The United Nations Convention Against Torture (CAT) is an international agreement that aims to prevent torture of people, including those who are LGB, around the world.

Lambda Legal recently filed a friend-of-the-court brief with the Board of Immigration Appeals, asking the board to reverse an immigration judge’s ruling that denied a Jamaican immigrant’s application for protection under the CAT against being removed to Jamaica. The judge had denied the man’s application because he felt that the applicant had not “proved” he was gay – a conclusion reached despite the client’s own testimony and additional testimony from two romantic partners that he is gay.

Lambda Legal, along with several national advocacy groups, submitted a brief outlining the complex nature of sexual orientation and explaining that the coming-out process can be quite complicated and that it is shaped by each person’s unique circumstances and background. The Board of Immigration Appeals agreed with us and sent the case back to the immigration court for further review, and we are hopeful that the applicant will be able to stay safe in the United States.

If you have any questions about seeking asylum or think you have been discriminated against because you are LGBT, contact our help desk at 1-866-542-8336 or visit: Ask Lambda Legal

Thomas Ude Jr. is a senior staff attorney for Lambda Legal, the national organization that works to secure full civil rights for LGBT people.”

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