LITTLE HOPE OF U.S. ENTRY FOR LGBT ASYLUM SEEKERS

by Victoria Neilson

(PNS) -- Applying for political asylum nowadays can be like playing roulette -- land the right judge and you win, land the wrong judge and you lose. But because the result could lead to deportation to a country that would jail, torture and or execute you, the game is more like Russian roulette.

Aswad and Zaid (not their real names), came to the United States for a vacation in the summer of 2001. They wanted a holiday from the stress of their lives as a gay couple in the Middle East. Aswad and Zaid, both Egyptian, had fallen in love five years before while working in a neighboring country. After seeing that it was possible to live openly and without fear as gay men in the United States, they wanted to stay here beyond the six months that Immigration had authorized.

It wasn't until many months later that they learned it was possible for gays and lesbians to seek political asylum in the United States -- but by that time the Sept. 11 attacks had taken place, and Aswad and Zaid doubted they would be allowed to stay.

By the time they decided to apply for asylum, they had missed the mandatory one-year filing deadline and were both placed in removal (deportation) proceedings. Thankfully, they were still eligible to apply for "withholding of removal," a form of relief related to asylum.

The United States has been protecting the rights of lesbian, gay, bisexual and transgender (LGBT) people who would face persecution in their home countries for over a decade. Nevertheless, a gay couple that seeks asylum or withholding of removal on this basis must pursue their claims separately, unlike a married heterosexual couple.

With a straight couple, if a wife wins asylum based on her religion, political opinion or any other ground of asylum, she may keep her husband with her in the United States as a "derivative" of her own status. Ironically, for a gay couple -- whose relationship itself may help prove the validity of their claim -- there is no derivative status. Aswad and Zaid had to pursue their cases separately, and they were assigned to different judges.

Earlier this month, the Transactional Records Clearinghouse (TRAC) of Syracuse University released a comprehensive study of the asylum grant rates of American immigration judges. The results of the study (available at http://trac.syr.edu/immigration/reports/160) are startling. While on average, judges over the past decade denied 65 percent of asylum applications, some judges denied up to 98 percent of their asylum applications, TRAC found.

Unfortunately, Aswad's case was assigned to one of the immigration judges least likely to grant withholding of removal, while Zaid's case was assigned to a less stringent judge. In immigration cases, this is often the single most important factor in whether an applicant wins or loses his case.

Aswad's case was heard by a judge who denied more than 82 percent of all asylum applications over the past decade, with his denial rate climbing closer to 90 percent in the past two years. Zaid appeared before a judge whose denial rate was close to the national average. Zaid had his case granted while Aswad, his partner, was denied. The Board of Immigration Appeals affirmed the decision in Aswad's case and it is now on appeal in federal court, his last chance to avoid deportation to Egypt and almost certain imprisonment.

Egypt in recent years has become one of the most dangerous countries in the world for gay men. According to a report by Human Rights Watch, gay men are routinely entrapped, arrested, imprisoned and tortured simply for being gay.

Although both Aswad and Zaid filed very similar claims, which included past harassment, beatings, hospitalization and lack of police response, the two received opposite results in their cases.

There are few areas of law where the stakes are as high as in asylum law. The judge's decision can literally mean the difference of life or death, freedom or imprisonment, for the applicant.

Attorney General Alberto Gonzalez recently announced that the Department of Justice would evaluate all immigration judges. This could be an important step in ensuring that all asylum seekers get a fair hearing. It is imperative, however, that the review process be even-handed and not simply be a ploy to remove more lenient judges.

It is time for the Department of Justice to ensure that asylum cases be decided on the merits of the case, not the individual bias of the judge. The lives of asylum-seekers like Aswad depend upon it.