With harsh new laws persecuting sexual minorities threatening the Winter Olympics and thus making headlines even on ESPN, petitions demanding that the U.S. grant asylum to LGBT Russians are circulating on the internet. The good news for any lesbian, gay, bisexual, or transgender Russian living in the United States is that you may already be eligible for asylum. For asylum claims, sexual identity or sexual orientation is considered a "social group," so a person who is persecuted based on sexual identity or orientation may make a claim for asylum.
The first recognition of sexual minorites as a protected class came in 1986, when a Cuban "Marielito" was granted withholding of removal by an immigration judge who determined that he must not be deported back to Cuba because he was certain to face imprisonment and mistreatment as a registered homosexual. The case was appealed, and the Board of Immigration Appeals upheld the judge's decision, in Matter of Toboso-Alfonso in 1990. (Decision available on www.refworld.org) This case was particularly noteworthy, because at that time of the initial hearing, homosexual immigrants were still excluded from U.S. by law. This curious contradiction was cured with the Immigration Act of 1990, which removed the grounds which INS had used to exclude sexual minorities ("psychopathic personality, sexual deviation, or mental defect").
Of course, sexual minorities face the same obstacles as all asylum seekers. Strict deadline must be met, and credible fear of persecution must be shown for each individual. This requires evidence about the applicant and also about conditions in his or her home country. An applicant for asylum based on sexual orientation or identity must be prepared to reveal and discuss private, personal details of his or her life. The process is procedurally and emotionally difficult.
Nonetheless, in the past two decades, many successful asylum claims have been made by lesbian, gay, bisexual and transgender immigrants to the United States. Leading the way in this field is Chicago's own National Immigrant Justice Center. NIJC not only provides pro bono assistance to low-income LGBT asylum-seekers, but also advocates for consideration of the rights and needs of the LGBT immigrants and families in immigration laws and policies.