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Detailed Table of Contents
WINNING ASYLUM, WITHHOLDING AND CAT CASES BASED ON SEXUAL ORIENTATION, TRANSGENDER IDENTITY AND/OR HIV-POSITIVE STATUS
Welcome to the third edition of Immigration Equality and the Midwest Immigrant and Human Rights Center's LGBT/HIV Asylum Manual! Fully updated in 2006, this edition is a web-based document that can be viewed in its entirety online.
The Manual would not have been possible without the work of many others (especially those who wrote the first two versions of the handbook). Please see the Preface and Acknowledgments for a complete list of such indispensable individuals.
This handbook is intended for use by pro bono attorneys and immigration attorneys working on LGBT/HIV asylum cases. The handbook is not intended as legal advice and is not meant to be used by unrepresented asylum seekers to prepare their own applications.
DETAILED TABLE OF CONTENTS
Preface and Acknowledgments
Acronyms and Terms
1 Asylum Law Basics – Brief History of Lesbian, Gay, Bisexual, Transgender and HIV (LGBT/H Asylum) Law
2 Immigration Basics – Sources of Law
3 Immigration Basics – Elements of Asylum Law
3.1 Well-founded Fear of Persecution
3.1.1 Definition of Persecution
3.1.1.1 Serious Physical Harm
3.1.1.2 Coercive Medical and Psychological Treatment
3.1.1.3 Invidious Prosecution or Disproportionate Punishment for a Criminal Offense
3.1.1.4 Economic Persecution and Other Forms of Severe Discrimination
3.1.1.5 Severe Criminal Extortion or Robbery
3.1.2 Establishing a Well-Founded Fear
3.1.3 Past Persecution
3.1.4 Pattern and Practice of Persecution Against Similarly Situated Persons
3.1.5 Individualized Fear of Future Persecution
3.2 On Account of Membership in a Particular Social Group
3.3 Imposed by the Government or by a Group which the Government is Unable or Unwilling to Control
3.4 Meriting a Favorable Exercise of Discretion
3.5 Frivolous Asylum Applications
4 Immigration Basics – Precedential LGBT/H Asylum Cases
5 Immigration Basics – The One-Year Filing Deadline
5.1 Appellate Review Jurisdiction
5.1.1 Prior to the Real ID Act
5.1.2 After the Real ID Act
5.2 One Year Exceptions
5.2.1 Changed Circumstances
5.2.1.1 Change in Country Conditions
5.2.1.2 Change in the Applicant’s Circumstances
5.2.2 Extraordinary Circumstances
5.2.2.1 Extraordinary Circumstances -- Serious Illness or Mental/Physical Disability
5.2.2.2 Extraordinary Circumstances -- Legal Disability
5.2.2.3 Extraordinary Circumstances -- Ineffective Assistance of Counsel
5.2.2.4 Extraordinary Circumstances -- Maintenance of Lawful Status
5.2.2.5 Extraordinary Circumstances -- Improperly Filed Application within the One-Year Period
5.2.2.6 Extraordinary Circumstances -- Death of Serious Illness of Legal Representative or Family Member
5.2.2.7 Extraordinary Circumstances -- Other Circumstances
5.2.3 Reasonable Period of Time
5.3 Relief Comparison Chart
6 Immigration Basics – Withholding of Removal
6.1 Withholding of Removal – A Higher Standard
6.2 Bars to Eligibility for Withholding of Removal
7 Immigration Basics – Relief under the Convention Against Torture
7.1 Definition of Torture
7.2 Proof of Torture
7.3 Procedure for Raising CAT Claims
7.4 LGBT/H CAT Case
7.5 HIV and CAT
8 Immigration Basics – Voluntary Departure
8.1 Voluntary Departure – Before the Conclusion of the Hearing
8.2 Voluntary Departure – After the Conclusion of the Hearing
9 Immigration Basics – The Real I.D. Act Practice Advisory
9.1 Post Real ID Act -- Burden of Proof
9.2 Post Real ID Act -- Corroborating Evidence
9.3 Post Real ID Act -- Credibility
9.4 Post Real ID Act -- Review Standards
10 Immigration Basics – The Safe Third Country Agreement
11 Immigration Basics – Thorny Issues in LGBT/H Asylum Cases
11.1 Marriage
11.1.1 Marriage in the Home Country
11.1.2 Marriage in the United States
11.2 Bisexual Claims
11.3 The Applicant Does not “Look Gay”
11.4 Multiple Return Trips to Country of Origin
11.5 Criminal Issues
11.6 Prior Government Employment
11.7 Visa Waiver Program
11.8 Dual Nationality
12 The Application Process – Working with Asylum Seekers
12.1 Recognizing And Respecting Client Individuality
12.2 Setting the Stage for Client Trust, Confidence and Candor in the Initial Consultation
12.3 Brief Explanation of Asylum Law, Its Extended Eligibility to Socially Marginalized Groups and Its Requirements
12.4 Overcoming Cultural Barriers
12.5 Dealing with Psychological and Medical Barriers
13 Working with LGBT/H Clients
13.1 Working with Lesbian, Gay and Bisexual Clients
13.2 Working with Transgender Clients
13.3 Working with HIV-Positive Clients
14 The Application Process – The Elements of an Asylum Application
15 The Application Process – Preparing the Application: The I-589
16 The Application Process – Sample I-589
17 The Application Process – Preparing the Asylum Declaration
17.1 Client’s Childhood
17.2 Client’s Realization of Identity
17.3 Client’s Adolescence
17.4 Client’s Adulthood
17.5 Availability of Legal Protection for Client
17.6 Client’s Knowledge of People Similarly Situated
17.7 Client’s Possible Delay in Departure after Abusive Experience
17.8 Event(s) Triggering or Culminating in Client’s Departure
17.9 Client’s Destination Choice
17.10 Client’s Comparison between United States and Home Country
17.11 One Year Filing Deadline
17.12 Thorny Issues
17.13 Client’s Specific Concerns over Return
17.14 What Not to Include in the Declaration
17.15 Translation Issues
17.15.1 Sample Certification of Accurate Translation
18 Preparing the Application – Declaration Do’s and Don’ts
19 Preparing the Application – Annotated Sample Declaration
20 Preparing the Application – Corroborating Documents Specific to the Applicant
20.1 Supporting Documentation Checklist
20.2 Proof of the Applicant’s Membership in a Particular Social Group
20.2.1 For LGBT Applicants
20.2.2 For Transgender Applicants
20.2.3 For HIV-positive applicants
20.3 Proof of Past Persecution
20.4 Proof of Well-Founded Fear of Future Persecution – Country Conditions
20.5 One Year Filing Deadline
20.6 Criminal Issues
20.7 Proof that the Applicant Merits a Favorable Exercise of Discretion
20.8 Supporting Documentation Format: Affidavits and Letters
20.9 Translation of Documents
20.9.1 Sample One – Certification of Accurate Translation
20.9.2 Sample Two – Certification of Accurate Translation
21 Preparing the Application: Corroborating Country Conditions Information
21.1 Researching Country Conditions
21.2 Indexing Country Conditions
22 Preparing the Application – Indexed Country Conditions Sample
23 Preparing the Application – Sample Cover Letter
24 Preparing the Application – Checklist
25 Preparing the Application – Assembling Everything
26 The Affirmative Asylum Application Process
26.1 The Affirmative Asylum Application Process – When to File?
26.2 Affirmative Filing and Scheduling
26.2.1 Adjourning the Interview
26.3 Preparing for the Interview
26.4 Preparing a Timeline
26.5 Sample Timeline
26.6 Attending the Interview
26.6.1 Attire for the Interview
26.6.2 Interpretation at the Interview
26.6.3 Requesting an Officer of a Particular Gender
26.7 The Asylum Interview
26.7.1 The Asylum Officer’s Approach
26.7.2 Questions at the Interview
26.8 The Decision
26.8.1 Recommended Approval
26.8.2 Notice of Intent to Deny
26.8.3 Referral to Court
27 Immigration Court Proceedings
27.1 Master Calendar
27.1.1 Arriving in Court
27.1.2 The Beginning of the Hearing
27.1.3 Determining Representation by Counsel
27.1.4 Adjourning the Case if You Are Newly Retained
27.1.5 Establishing Receipt of the Notice to Appear
27.1.6 Admitting or Denying the Charges and Conceding Removability
27.1.7 Designating a Country of Removal
27.1.8 Stating the Client’s Desire to Apply for Asylum
27.1.9 Setting a Date for Submissions of the Written Asylum Application
27.1.10 Background Checks
27.1.11 Requesting an Interpreter
27.1.12 Setting the Date and Amount of Time for the Merits Hearing
27.2 Before the Individual Hearing
27.2.1 Submitting Witness Lists and Documents
27.2.2 Witness List
27.2.3 Material Witnesses
27.2.4 Expert Witnesses – Country Conditions
27.2.5 Expert Witness – Psychological or Medical
27.2.6 Telephonic Testimony
27.2.7 Submitting Corroborating Documents
27.2.8 Supporting Documentation Format – Official Records
27.2.9 Submitting a Legal Brief
27.2.10 Contacting the Trial Attorney Prior to the Merits Hearing
27.2.11 Watching a Removal Proceeding
27.2.12 Adjourning an Individual Hearing
27.2.13 Preparing the Applicant
27.3 The Day of the Hearing
27.3.1 Overbooking Individual Hearings
27.4 The Individual Hearing
27.4.1 Rules of Procedure
27.4.2 Rules of Evidence
27.4.3 Before Testimony Begins – Procedural Formalities
27.4.4 Before Testimony Begins – Correcting and Updating Information
27.4.5 Identifying and Admitting Exhibits
27.4.6 Before Testimony Begins – Conferencing the Case
27.4.7 Opening Statements
27.4.8 Examination of Witnesses
27.4.8.1 Direct Examination
27.4.8.2 Cross-Examination
27.4.8.3 Examination by the Immigration Judge
27.4.9 Making a Record
27.4.10 Interpreters
27.4.11 DHS’s Case
27.4.12 Closing Statements
27.5 The Decision of the Immigration Judge
27.5.1 Reserving/Waiving Appeal Rights
27.6 Detention Pilot Projects
28 Board of Immigration Appeals
28.1 Notice of Appeal
28.2 The Argument
29 Federal Court Review
30 Representing Detained Asylum Seekers
31 Obtaining an Employment Authorization Document (“EAD”)
31.1 Eligibility
31.2 When To File
31.3 What To File
31.3.1 Application
31.3.2 Proof of Pending Asylum Application
31.3.3 Fee and Fee Waiver
31.3.4 Photos
31.4 Where to File
31.5 Timeline for Adjudication
31.6 Renewals
31.7 When Employment Authorization Terminates
31.8 Asylees and EADs
32 Advising Your Client after Asylum Is Granted – Asylee Status
32.1 Change of Address
32.2 Derivative Asylum for Spouse and Children
32.3 Eligibility for Employment and a Social Security Number
32.4 Public Benefits
32.5 Taxes
32.6 Selective Service Registration
32.7 International Travel
32.8 Asylee’s Adjustment of Status to Permanent Residence
32.9 Naturalization
33 Advising Your Client after Withholding Is Granted – Withholding Status
34 Advising Your Client after CAT Is Granted – CAT Status
35 Glossary
36 Important Resources
This Manual is intended to provide information to attorneys and accredited representatives. It is not intended as legal advice. Asylum seekers should speak with qualified attorneys before applying.
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