Excerpted interview with Amelia Wilson, attorney with Davidson & Schiller, LLC, an immigration law firm in Chicago
Can you explain what kind of cases you work on?
I can start with HIV waivers. HIV waivers are necessary when anyone attempts to adjust their status (apply for a green card) in the United States. HIV is a communicable disease that’s considered a “ground of inadmissibility.” In theory, if you have HIV, you’re not allowed permanent residence in the United States. However, there is a waiver available, and I basically build those cases. That is to say, I try to prove that the person understands the virus and how it’s transmitted. Another element is that they do not pose a risk to the public health or will become a public charge. A lot of our clients are gay and won asylum, and are now seeking permanent residence. But they are are HIV positive and require a waiver. For instance, currently we are doing waivers for men from Colombia, Brazil and Iran.
How does the State decide what matters the most between the reasons for seeking asylum and the disease one applicant might be suffering from?
There are two different kinds of waivers for people who have HIV: one is the asylum-based, which is called an I-602 and the second kind if the I-601. The I-602 for asylees and is humanitarian-based, while the I-601 is oftentimes submitted along side a family-based application and requires a U.S. citizen or legal permanent resident “anchor relative.” The two waivers are a little different but generally involve the same elements of proof of understanding of the disease, etc.
Is this condition imposed to prevent people from attempting to immigrate to the US to seek medical treatment or was it designed to prevent the spreading of a disease? To be honest it’s a very draconian law in a way because it comes from a period in time when people did not know much about HIV. There’s been some talk about eliminating it as a ground for inadmissibility but it’s still on the books today. At its inception, the idea was that it is a disease that is very communicable and that poses a health risk to the greater public and also that these people might become a public charge in the sense that the state would have to be financially burdened, or obligated to pay for their care somehow.
In the case of an American citizen, who is on welfare, does the state have the obligation to provide treatment and care, should that person become HIV positive? I don’t know healthcare so well because it is not something that I have to deal with. I don’t have the answer when it comes to US citizens.
How many cases of asylum based on sexual preference do you work on?
We do actually see a fair number because one of the partners at the law firm, named William Schiller, is pretty prominent in Amnesty International and also has done a lot of human rights work. I know that before I started at the firm over two years ago, he had done a lot of sexual orientation cases. Currently we have about four or five. We just finished a case for two lesbians from Kazakhstan. We also just took in a case of a gay man from Nigeria, and another from Iran. A third is from Brazil.
Generally, our clients seeking asylum based on sexual orientation come from countries that are predominately Muslim. But it isn’t true of all Muslim countries. For example, Kazakhstan is considered more “moderate” and does not have a law on its books that criminalizes homosexuality. But other countries do. For instance, in Pakistan, not only is homosexuality criminalized but it’s punishable by death. Stoning, throwing from the highest mountain, hanging, that sort of thing can be the proscribed punishment. Certainly Kazakhstan is a country heavily influenced by Islam, but at the same time homosexuality was decriminalized about two years ago. It’s still not a great place to be out. But the main difference between it and some of the other Muslim countries is that it’s no longer “state sanctioned persecution.” Every time you have the government or the police actively persecuting people on the basis of ethnicity, nationality, race, membership in a certain social group, or political opinion, the case it becomes much easier.
In case there is not a state policy but just practices like harassment, how do you make your case for asylum?
It becomes more difficult. The first issue is that most of the time, in the countries we’re talking about, human rights organizations don’t have a lot of information about how gay, lesbian and transgender people are treated. Persecution is also harder to document.
There might be instances of social ostracism, discrimination in jobs, etc., but to provide evidence of such is challenging. In Iran homosexuality is punishable by public hanging, and there is evidence of such, but in cases lacking overt, highly publicized persecution, we rely on expert testimony.
A few years ago we had two such cases, one concerning a gay man from Bulgaria and the other from Romania. Since these cases were adjudicated, the law in those countries has changed. So now in Romania for example, which recently became part of the European Union, all state-sanctioned punishments of homosexuality have been abolished. It would be very hard, and even impossible, to now win sexual orientation case from Romania.
How do people come to seek asylum in the US instead of moving to the neighboring country or even to simply relocate within the country to escape persecution and/or harassment?
When you talk about relocation within the country, the idea in the United State is that someone who is persecuted for belonging to a particular social group would should not be forced to hide their sexuality in order to find safety. So where relocation is possible in theory in that someone could move to a different city and live a closeted life, United States immigration law says one should not have to.
Where did this conception emerge knowing that the American society is still very shy regarding homosexuality and gay rights?
This conception emerged from case-law, mostly that was decided before the Board of Immigration Appeals (“BIA”) and the circuit courts. The BIA is basically the appellate court for the Immigration Court, while the circuit courts are above the BIA. The idea started to emerge that sexual orientation was an immutable characteristic and therefore made homosexuals a particular social group. You have to recall that immigration law is a separate entity and does not necessarily follow the social or political trends of the United States or those of the state where the court sits. In fact it cannot follow state law. So if state X has no anti-discrimination law protecting homosexuals, an immigration court sitting in state X still recognizes sexual orientation as an immutable characteristic that can result in persecution.
So the rules about immigration evolve based on the courts’ jurisprudence? And do these rulings become afterwards an actual law?
Legislatively, there are five categories for asylum, and one of them is “membership to a particular social group”. It sounds like a very vague category and it is a vague statement. So it is through case law that this phrase has been developed and articulated. And it is just one of the five categories, the others being race, ethnicity, political opinion, and nationality.
But in terms of what “membership to a particular social group” means, it has really evolved over time, and in 2006 the 2nd circuit court of appeals even identified “women” as belonging to a particular social group in some countries. While this may seem obvious to some people, the idea that someone’s gender can result in persecution is somewhat novel in immigration law.
Could this practice be overruled by Congress?
Congress has ultimate authority over immigration law. So yes, in theory Congress could make a law that excludes homosexuals from asylum consideration. I don’t think that it would withstand Constitutional muster however, and of course Congress’ laws are also subject to judicial review. I don’t think that Congress has the intention of doing that though.
Could you explain to us how you plead a case for asylum based on homosexuality?
The individual’s testimony is the most critical. If a claimant’s testimony is credible and that their experiences fit within the purview of the law, they should be granted asylum. So if a person testifies that he/she is gay, is afraid to return to their home country, that they experienced harm or will in the future, and that there is a nexus between their sexuality and the fear/harm, that should be sufficient. Of course, that’s not really practical and generally we try to get as much evidence as we possibly can. There are a couple of different ways we do that. One of them is to provide affidavits from friends or family members living either abroad or in the US. With a lot of our gay clients, oftentimes they were closeted in the own country, so we’re unable to obtain affidavits from their relatives and friends back home because nobody knew. But usually they come here and suddenly they feel differently or maybe they come out to a few people, or enter into relationship, and we get statements from these people corroborating that they are gay. Sometimes they join a group, a gay rights organization, or a church, etc., and that becomes “proof” as well. Obviously, our clients do not carry cards or wear badges that identify their sexuality, so we have to be creative.
We also have experts testify to the likelihood of future persecution. We try to demonstrate that if the applicant were to be transplanted to their home country, as they are now in the United States as an openly gay individual, they would likely face persecution. If the court or officer estimates that the applicant is credible as is their fear of harm, they should receive asylum in the United States. Finally, we provide country condition evidence that demonstrates the attitudes/laws/societal treatment in the home country.
So how do immigration judges react when an asylum seeker comes to the stand and declare that he/she is homosexual?
Pretty well, usually. Asylum based on sexual orientation is a very unique area because very often, if the person had come out in his/her own country, he/she would not even have come to the United States because they would be dead. I think judge’s understand that it’s not easy.
Knowing that after September 11 the laws regulating visas, especially regarding nationals from Central Asian but also Arabic countries, have been made harsher, how could a homosexual from such country obtain, in the first place, a visa to come to the United States in order to apply for asylum?
One way or another, through guile, fraud, tourist visa, student visa, etc., they arrive in the US and asked for asylum.
So there is some tolerance for violating immigration law in these instances?
When you are an asylum seeker, the answer is yes. Because the law considers that when a person flees persecutions he/she will do whatever he/she can to survive. Once the asylum is granted, it is like the government has forgiven the fraudulent or illegal entry.
Could you explain to us how the applicants feel during the examination of their asylum cases as well as during the court hearing?
It can be an extremely traumatizing experience. With the asylum seekers I represented who were seeking asylum based on sexuality, it can really be one the worst things that ever happened to them. Because oftentimes, as I mentioned, the person was closeted in their own country and find it very difficult to speak candidly on the subject. So here I am, sitting in front of them, posing all these questions to try to get a statement out of them or asking them to write their life story (for example, when they realized they were gay, at what age, how they felt, and so on) and at times even asking imprudent questions concerning their first experience with someone of the same sex or what it felt like to hide all the time. It is emotionally extremely difficult. For some of them, all the fears and the isolation they felt comes out during this process. Some seek therapy to help them learn to talk about it. And I need them to learn this because they’re going to have to do it in front of an officer of judge.
What kind of questions does the judge ask them?
The judge usually does not ask too many questions., though it depends on the individual judge. Some take control of the hearing, but usually we do a direct examination where the person tells their story. In doing so we try to direct their testimony so as to hit all the various elements of the asylum case. After that, the trial attorney for the Department of Homeland Security has an opportunity to cross-examine them. That is also very difficult for the asylum seeker because there is a sort of presumption, in my opinion, on the part of the DHS that the person is lying or using sexuality as a means of staying in this country. We have to prepare the client for this line of questioning. Eventually the client retells their stories with so many times they become really confident with the materials and express themselves really well.
What kind of questions does the trial attorney ask?
I can actually tell you a story that happened to one of the partners’ clients where the trial attorney was very hostile and basically tried to ask the client if he was a pedophile and if he ever had sex with boys. We objected, of course, and argued that it was an improper line of questioning. The trial attorney was making assumption that to be gay could quite easily translate into deviant, criminal behavior. That might sound really antiquated from a supposedly educated attorney for the U.S. government, and yet this was only nine months ago.
There was another instance where the trial attorney said: “but sir, you’ve admitted yourself that you’ve never had a homosexual relationship, and in fact that you were married to a woman in your country”. Our client answer was very ready for the question and said, “yes, because I was forced to marry. My family arranged it and threatened me if I didn’t. I had no choice. It does not change the fact that I am gay”. He answered very well. He basically went on to say, “well, so what if I haven’t had a homosexual experience? It’s not who you sleep with that defines sexuality”.
So really it depends on who we are dealing with. But it is okay because we never had a client not able to withstand the questions.
How are the trial attorneys nominated?
It is a random assignment. It is a rotating schedule where every month we’re given a list of the various judges and the trial attorneys that have been assigned to them for that particular month.
The trial attorneys work for the Department of Homeland Security. They are specialized in immigration law and work solely for that particular court which is called the Executive Office of Immigration Review. They are specifically hired to work on immigration cases by the DHS.
How long does it take to plead a case like this?
I’m talking about immigration court and yet there’s another step which we haven’t talked about, which is called and an administrative request for asylum. But first to talk about asylum hearings before a judge, it can take up to four hours. It depends on the number of witnesses we have. Sometimes we have friends and family who testify about their knowledge of the applicant’s sexual preferences. But with a lot of the sexual orientation cases, we don’t have as many witnesses nor evidence because as I mentioned no evidence really exist besides affidavits. So in most cases, the hearing takes about 3 to 4 hours.
And how long does the whole process take then?
Well, if the person is in removal proceedings already, and then they claim asylum, it is called “defensive,” meaning a defense against deportation. That can then take a really long time, years even. Because, in the first instance, they appear before the judge for what is called a master calendar. During that court date the judge asks the person what they will be seeking as a defense against deportation. The judge asks the attorney if the person would prefer a hearing quickly or would like more time. In general we ask for more time just because it takes a long time to build the case. These are often scheduled for a year later. But that doesn’t mean that that’s the end either. Oftentimes, there will be a continuance or the judge would delay the hearing. Worse still, the judge might deny the case, meaning we have to appeal. All told, these cases can go one for anywhere from six months to many years.
So what happens to these asylum seekers during the processing of their claim?
They wait. There is no mandatory detention for asylum seekers unless they’re criminals, so they are free to do whatever people do to survive. They cannot travel outside the country during the pendancy of the case. Another problem is that they don’t get work authorization unless a certain amount of time has passed. To make a living, they often resort to working illegally. For those who are granted work authorization, they’re obviously okay to work. But otherwise, the applicants work illegally. We know that and the government knows that. In terms of asylum, working illegally is not a bar to asylum. So while it’s not lawful, it’s not going to affect their asylum case in a detrimental way either.
Can you tell us more about the sociological background of your clients who seek asylum based on their sexuality?
The clients that we’ve had have been of all backgrounds economically and socially. We’ve had a client who was a diplomat from South America, and another who was a student from Iran. I don’t know that their level of education has anything to do with them realizing that they have the possibility to seek asylum in the United States. Some of them knew before they arrived in the U.S., while for other it took a really long time to realize that this option existed. Often they learn that this is available to them over time through discussion with contacts.
There is this rule called the “one year filling deadline,” where an asylum seeker must within one year of their last entry into the country. If they don’t, they are barred. We can overcome the “one year filing deadline” through showing that there has been an extraordinary change in circumstances in their life or their home country. But the burden is ours to prove the change which is not easy. An example is where suddenly a new law is passed in country X which criminalizes homosexual acts.
That could possibly be considered an extraordinary change in circumstances such that the government will forgive the person’s failure to file within one year and allow them to apply based on this new development. But there must be a nexus between the change of circumstance and the person’s fear of returning to their home country.
What happen to your clients once they’ve been granted asylum?
A year after they receive asylum, they can apply for permanent residence. Most of them do this right away at the one-year point. In terms of their personal lives, some become very active in their communities and try to help other people like them. Other just settle down into a comfortable life with their partners, work, etc. They’re not allowed to go back to their home country, though, as to do so would signal that they are not actually afraid of returning. Their asylum status can be revoked.
It makes sense that refugees would not want to go back to the country they fled, but why would the state prevent them from doing so?
The idea is that if they’re afraid of persecution upon return to their own country, it casts doubt on their original claim if suddenly they are traveling home to the place they said they feared. Their whole case was based on the idea that to step foot in their home country would imperil them. It appears disingenuous if afterward they go home without worry. And it is also important to remember that asylum status can be revoked if proved to be based in falsehood or fraud. Furthermore, asylum can be revoked based on political and social changes happening in the home country.
For instance, let’s say that your asylum was based on your political opinion or that you were persecuted as a member of an opposition party. 9 months later, that same opposition group wins an election and ousts all the bad guys and installs democracy. That’s a pretty big change and might mean that it’s ok for you to go home, so asylum is no longer necessary. But for asylum to be revoked in this fashion the change would have to be pretty significant. We have cases of citizens from the former Yugoslavia who 7 years after they were granted asylum are now being under scrutiny as the government argues that the conditions in their home country have improved a lot and that they no longer have to fear persecution.
But I think they will be ok.
So, you’re saying that for instance, at the end of the Cold War and after the fall of the soviet and socialist regimes in Eastern Europe, the immigration services could have called back all the refugees who had fled persecutions and sent them back to their home countries?
Technically they could have, but I’ve never heard of such a case happening. The DHS would still have a burden of proof. It is very difficult to revoke asylum status or permanent resident status. And the government has the burden of proving the elements of what they’re claiming. It is our role to react defensively. For us, it is a better position.