RUNNING HEAD: COURTING JUSTICE: NC LGBT ASYLUM PROJECT. Courting Justice: The North Carolina Lesbian, Gay, Bisexual and Transgender Asylum Project

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1 RUNNING HEAD: COURTING JUSTICE: NC LGBT ASYLUM PROJECT Courting Justice: The North Carolina Lesbian, Gay, Bisexual and Transgender Asylum Project SOWO 709: Human Migration: Implications for Policy, Practice, and Research Professor Josh Hinson Virginia Susan Lewis School of Social Work The University of North Carolina at Chapel Hill December 11, 2013 I have neither given nor received any unauthorized assistance on this assignment.

2 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 1 Within this paper, the term non-heteronormative is used as an umbrella term for individuals whose sexual orientations and/or gender identities do not fall within a heterosexual orientation or with the gender identity designated at birth. The acronym LGBT refers to those who identify, and/or are identified by others, as Lesbian, Gay, Bisexual and Transgender. LGBT Asylum Seekers in the United States Asylum applicants come to the United States from a wide range of identities and cultures, not all of which match the identities they are expected to fulfill upon arrival to the United States. Asylum is the granting of refuge to those who have already left their countries of origin and seek protection from persecution. LGBT asylum applicants who arrive to the U.S. present their cases under a variety of circumstances, many residing in the U.S. without current authorization to remain, for fear of persecution if they return and without knowledge that this persecution could be a claim for asylum. The persecution of LGBT individuals worldwide takes place in the form of state-sponsored repression, paramilitary violence, and intra-familial violence, including honor killings and the curative rapes of lesbians on the rise in South Africa (Epprecht, 2012; Msibi, 2011). The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) reports that same-sex relationships are punishable with the death penalty in 5 countries: Iran, Saudi Arabia, Eritrea, Yemen, Mauritania, the Sudan, as well as parts of Nigeria and Somalia. LGBT identities are punishable with prison sentences in 73 countries, with some penalties ranging up to life sentences. (ILGA, 2013) While the United States Citizenship and Immigration Service (USCIS) does not record data on asylum claims based on LGBT persecution, using LGBT asylum applicant data collected by neighboring Canada as a frame of reference, projections indicate that the majority of asylum applications to the U.S. on the basis of persecution for sexual orientation or gender identity would be from LGBT persons of color. (Morgan, 2006) The first U.S. law specifically to set up guidelines which immigrants would qualify for Refugee or asylee status was the Refugee Act of 1980, which incorporated the United Nations 1967 Protocol Relating to the Status of Refugees in stating that refugee status or asylum may be granted to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion. (United Nations, 1967) Individuals fleeing persecution for being LGBT have been able to file for refugee or asylum status to the U.S. since 1994, under the protection category of being members of a particular social group that has been deliberately persecuted in the country of origin. (Immigration Equality, 2013; U.S. Citizen and Immigration Services, 2013) In 1994, Attorney General Janet Reno ruled that the case of Toboso-Alfonso, a Cuban gay man persecuted in Cuba for his gay identity who was granted asylum status, would serve as precedent for other asylum applicants fleeing persecution for their LGBT identities. Essential in Reno s decision was the separation of Toboso-Alfonso s expressions of himself as a gay man, his actions that could be interpreted as controllable to prevent persecution, from his immutable sexual orientation, his inherent identity as a gay man that he could not change. (Immigration Equality, 2013) While for most applicants, the one requirement for refugee status to be granted for entry to the United States, or for asylum to be granted within the United States, is proof that the applicant would face a well-founded fear of persecution by remaining or returning to the country

3 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 2 of origin. For LGBT asylum applicants however, there would be 2 requirements to meet. LGBT asylum applicants have to prove not only their well-founded fear of persecution; they also have to prove that they are immutably LGBT and cannot change who they are to avoid persecution. Toboso-Alfonso claimed a well-founded fear of persecution based on his immutable sexual orientation, who he was, rather than for his persecution for having had sexual relationships with men, what he did. While the difference between persecution for being LGBT and persecution for doing things associated with LGBT persons seems semantic, in terms of obtaining asylum status in the U.S., defining what it means to be a sexual minority in terms of an immutable characteristic of one s being rather than one s actions, has proven to be crucial for LGBT asylum applicants to be recognized as LGBT by U.S. immigration judges. (Heller, 2009; Morgan, 2006; Randazzo, 2005) For a non-heteronormative asylum applicant of color fleeing persecution, who may or may not identify with Western LGBT identities, proving persecution for one s membership in a particular social group can mean utilizing racial and sexualized stereotypes of LGBT persons and persons of color to prove an immutable LGBT identity as understood by a U.S. immigration judge or interviewing official. (Cantú, 2005; Heller, 2009; Morgan, 2006) Countries in Latin America and the continent of Africa have been the targets of Western imperialism, the political, economic and cultural domination of less powerful countries by wealthier and militarily powerful countries to exploit resources for the benefit of the powerful nations. For Latin American countries, the U.S. is the primary imperial power, whereas African nations were dominated by multiple imperial powers, including the U.S. and European nations. The centuries of U.S. imperialism in Latin America have resulted in a consequential flow of refugees and asylees to the U.S., an abundance of human capital Juan Gonzalez termed the Harvest of Empire. Most asylum petitions to the U.S. in the 1980s and 1990s came from Latin America; and not coincidentally, the LGBT asylum cases that have set precedents opening the way for LGBT asylum in the U.S. were asylum petitions for Latino gay men. (Cantú, Naples, & Vidal-Ortiz, 2009) LGBT asylum seekers from Africa also face the contradictory bind of coming from regions in which some indigenous practices that covered non-heteronormative unions with practices of discretion, particularly tolerating bisexuality for individuals who fulfilled societal roles within heterosexual marriages, were repressed by U.S. Christian fundamentalist missionaries acting as colonial agents. (Epprecht, 2012) From their position of economic power, these missionaries taught and enforced with state support, and continue to teach and enforce with state support, binary concepts of sexuality and gender identity that mirror their binary messages of heaven and hell. Persecuted LGBT individuals from African countries seeking asylum from state-sponsored persecution for their LGBT identities are fleeing colonial era laws that punish non-heteronormative sexualities and gender identities. As if in continuation of the empire s control, in fleeing these colonial era homophobic laws LGBT asylum applicants have to adapt the expression of their sexualities and gender identities to match those recognized as legitimately LGBT within the cultures of their former colonial rulers. (Epprecht, 2012) Gay men and transgender women, especially those of color, face the highest rates of state sponsored violence worldwide. (Randazzo, 2005) As state-sponsored violence often receives more media coverage and meets the definition of persecution for which refugee and asylum laws were originally written, gay men and transgender women at times have the dubious advantage of

4 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 3 access to documentation of their persecution required for asylum applications. Any advantage to being targeted by state-sponsored repression is indeed dubious, as Traumatic Brain Injury from attacks involving weapons is increasingly recognized as a health concern for gay men and transgender women in countries where they are legally defined as criminals. (Moreno & McKerral, 2013) Safia Swimlear, Associate professor of Political Science and Policy Studies at Elon University, has been studying homophobic repression of LGBT populations in Eastern Europe and reported that while state-sponsored violence against LGBT populations has increased in Russia where LGBT identities and associations are declared illegal, that several European Union countries, such as the Netherlands, have been reluctant to grant refugee status or asylum to Russian LGBT individuals fleeing persecution, because granting refuge to Russian LGBT individuals would then place their country in a status of officially recognizing that Russia is violating LGBT human rights. The political caution is from not wanting to endanger the relationships European Union nations have with Russia. (Safia Swimlear, personal communication, December 2, 2013) While violent as well, the persecution lesbian and bisexual women asylum applicants are fleeing could be for being women in patriarchal and sexist cultures, as well as from belonging to a sexual orientation minority, and does not always fit as clearly within interpretations of persecution for membership in a particular social group. (Neilson, 2005; Scavone, 2013) Gender disparities in income and legal resources, which determine the ability to purchase plane tickets and obtain valid passports, exacerbate the difficulties LGBT women face in obtaining the money and documentation necessary to leave the countries in which they are targeted for persecution. (Randazzo, 2005) In 2003, the Asylum Program of the International Gay and Lesbian Human Rights Commission reported to Randazzo that 686 LGBT asylum approvals had been made to men, while only 87 LGBT asylum approvals were made to women, a gender disparity resulting in part from fewer applications coming from women. (Randazzo, 2005) LGBT Asylum Applicants: Unique Vulnerabilities, Strengths, and Service Needs In order to remain in the United States, LGBT asylum applicants need community connections, especially with agencies that assist them with obtaining legal representation. The possibility of mandatory detention if tourist visas expire, or they entered the U.S. without documentation, looms large as a threat to the long-term well-being of all asylum applicants, retraumatizing survivors of torture and trauma. (Keller, Ford, Sachs, Rosenfeld, Trinh- Shevrin, Meserve, & Rockline, 2003) LGBT asylum applicants who are detained while their cases are pending will face risks of isolation from these networks of support, -as well as poor mental health outcomes. (Welch, 2004; Welch & Schuster, 2005) The networks of support systems LGBT asylum applicants create from non-biological family members as well as biological family members are a life-sustaining community strength. Mandatory detention policies isolate LGBT asylum applicants from their community ties, and from legal representation. Approximately 84% of immigrants in detention facilities do not have legal representation and have to make their way through legal proceedings that will determine whether or not they can remain in the United States without the benefit of legal counsel. (Gruberg, 2013) Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, immigrants in deportation proceedings and asylum seekers were not detained unless they were

5 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 4 found to be likely to flee or to be a threat to national security. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act also reduced the number of asylum applications by placing a one-year limit from the last entry into the U.S. for filing an asylum claim. For asylum applicants who may not be aware of this time limit, or who may have denied their LGBT status in earlier immigration interviews, the one-year time limit can drastically limit their chances of being granted asylum status. (Berg & Millbank, 2009; Neilson, 2005) The one year limit for filing for asylum after arrival to the U.S. is particularly problematic for LGBT asylum applicants, who most often flee their countries of origin with little knowledge of U.S. asylum law, and consequently do not know they only have one year to file for asylum. (Chavez, 2011; Gruberg, 2013) Many LGBT asylum seekers arrive to the U.S. after lifetimes of insufficient healthcare, due to discrimination and ignorance on the part of healthcare providers, and often with internalized shame and homophobia that shapes their expressions of their sexual orientation in terms of addiction, moral weakness, or illness. Their testimonies can be fraught with behaviors adopted to conceal or minimize their identities in the face of authorities. (Berg & Millibank, 2009; Scavone, 2013) Often LGBT asylum seekers maintain their learned self-protective reluctance to reveal their sexual orientation to healthcare providers, to avoid exposure to the homophobia, heterosexism, and transphobia that they experienced in their countries of origin and continue to experience in U.S. manifestations. (Chavez, 2011) If the incidents that led to the asylum claim include rape or torture, the handcuffing and screening by armed Immigration and Naturalization officers before an interrogation of someone arriving without all required documents could trigger panic driven identity concealment, including disowning one s LGBT identity. Many LGBT immigrants who have faced persecution for their non-heteronormative sexual orientation and gender identity assume that they could be deported from the U.S. for revealing their sexual orientation, do not know that they can apply for asylum based on persecution they face as LGBT individuals in their countries of origin, and lack knowledge of U.S. legal proceedings for asylum. (Gruberg, 2013; Scavone 2013) Port-of-entry statements denying or belittling an LGBT identity can prove to be problematic for asylum claims when interpreted by immigration officials as evidence that the person may not actually be LGBT, if they do not appear to be confident in their LGBT identity. If they don t look gay or lesbian to immigration officials, their claim for asylum based on an LGBT identity could be denied. (Berg & Millibank, 2009; Immigration Equality, 2013; Scavone, 2013) Lesbian and bisexual women applying for asylum based on persecution for their sexual orientation often face difficulties proving that violent attacks against them were based on their LGBT status, rather than their female gender. (Neilson, 2005) The persecution of lesbians, as the persecution of women, tends to occur in the private sphere by non-state perpetrators. Heather Scavone, Director of the Humanitarian Immigration Law Clinic and Assistant Professor of Law at Elon University, explained that women LGBT clients from regions such as Central Africa, often do not perceive homosexuality as something that affects women. Frequently not having words in their vocabulary for women who have sexual and intimate relationships primarily with women, they only have words that apply exclusively to men for same gender loving relationships. Female non-heteronormative clients within these cultures may define themselves as asexual, rather than as lesbian, if they do not feel sexually attracted to men. Their relationships with women may not be consummated sexually in ways that Western society,

6 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 5 including immigration judges, would view as confirmation of a lesbian identity. Scavone described interviewing one client from an African nation whose father tried to kill her after witnessing her kissing a woman. The persecution she fled was clearly for what would qualify in the U.S. as her immutable identity of being a lesbian. This client, however, did not have that terminology in her vocabulary and felt that her lack of attraction to men was due to her having been raped earlier in her life. As she did express having fallen in love with a woman, and she escaped her father s attempt to murder her because she loved a woman, the case for application for asylum was made, and approved, with her saying that she fled persecution for loving another woman. Scavone noted that she spent approximately 75 hours interviewing this client to arrive at a testimony that would retain the authenticity of the client s language, while meeting the requirements for asylum based on persecution for the client s sexual orientation. (Heather Scavone, personal communication, December 2, 2013) The Department of Homeland Security (DHS) does not track the sexual orientation of its detainees, so exact numbers of LGBT asylum applicants detained are difficult to obtain. The Center for American Progress obtained data on incidents of abuse of LGBT immigrant through the Freedom of Information Act. Sharita Gruberg compiled this data in her report Dignity Denied: LGBT Immigrants in U.S. Immigration Detention to illustrate the unique dangers and risks that LGBT immigrants, including LGBT asylum seekers, face in detention centers. Detention harms the mental health of all immigrants. For LGBT asylum applicants fleeing violence and assault for their sexual orientation or gender identity, the repetition of violence and assault in detention centers for their sexual orientation or gender identity can retraumatize them. When LGBT asylum applicants have requested protection from rape and other assaults within detention centers, DHS policy typically is to place them in administrative segregation, otherwise known as solitary confinement, rather than isolating their attackers. Such was the case of Christina Madrazo, an undocumented Mexican transgender woman who was detained in 2000, after applying for asylum based upon the persecution she faced in Mexico for her gender identity. She was detained in the Krome Detention facility in Miami, Florida, where she was raped by a male guard. When she alerted detention officials that he had raped her, she was placed into solitary confinement and the same guard was assigned to guard her cell. Following a second rape by this guard, she brought criminal charges against him and he was sentenced to 8 months in prison, notably without solitary confinement, followed by a year s probation. (Solomon, 2005) The convolutions of changes to asylum law have resulted in the criminalization of asylum applicants through mandatory detention policies and mandates to fill immigration detention facilities. (Gruberg, 2013; Immigration Equality, 2013; Robbins, 2013) Asylum seekers have an average detention of 102 days, more than 3 times the average detention period of 30 days for other immigrant detainees. (Gruberg, 2013) For LGBT asylum applicants, for whom the gender-specific housing and miserable conditions in the detention centers aggravate the multiple traumas with which they arrive, arbitrary detention places them at a heightened risk for homophobic assaults. Within detention centers LGBT detainees have fewer defenses and resources than they would in crime ridden areas of large cities. (International Lesbian, Gay, Bisexual, Trans and Intersex Association, 2013)

7 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 6 Immigration Equality, a non-profit agency with an LGBT Asylum Program that links LGBT and HIV positive asylum applicants with law firms and legal teams, reports that LGBT asylum seekers who are detained while their cases are pending are harassed and threatened for their gender identity or sexual orientation by guards and other detainees within sex-segregated detention facilities, especially transgender women and gay men housed in all-male facilities. The most common protection against assaults offered to LGBT asylum applicants, administrative segregation, results in the targeted LGBT asylum applicant being kept in total isolation for up to 23 hours a day, oftentimes held in 6 by 13 foot windowless cells, without access to library privileges, to immigration attorneys, or even to minimal outdoor recreation that can involve nothing more than pacing within an outdoor cage. (Urbina & Rentz, 2013) Those visiting detained asylum applicants are required to have a valid U.S. identification document proving their lawful presence within the U.S., and most visits are non-contact (the visitor and the detainee are separated by a see-through barrier). Undocumented visitors risk being detained themselves when presenting identification to visit a detained immigrant, including asylum applicants. (Immigration Equality, 2013) The detention of asylum applicants results in this population developing higher levels of depression, panic, post-traumatic stress symptoms as well as suicidal ideation, especially when placed in solitary confinement. (Keller, et al., 2003; Silove, Steel, & Mollica, 2001) LGBT asylum applicants are particularly vulnerable to physical and psychological assaults within detention centers. In 2013, Juan Mendez, the U.N. Special Rapporteur on torture found the solitary confinement of immigrants in U.S. detention centers to be in violation of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Mendez called for a worldwide ban on solitary confinement except in special situations, in which solitary confinement should not be used for more than 15 days. The United States places more detainees in solitary confinement than any other democratic nation, particularly targeting civil immigrants in detention, many of whom are asylum applicants. A New York Times 2013 report stated that 46% of immigrant detainees in solitary confinement were kept for more than 15 days; and, on any given day in 2013, at least 300 immigrants were detained in solitary confinement. (Urbina & Rentz) In addition to the psychological torture of solitary confinement as a significant risk factor for LGBT asylum applicants, who are placed in solitary confinement when they complain of assaults against them in prison, the moving of detainees to facilities far away from their communities also complicates their efforts to stay in touch with social support systems and to obtain legal representation. LGBT asylum applicants need legal representation, access to their community support systems by being able to remain in their communities while they process their asylum claim (rather than being placed in mandatory detention), knowledge of U.S. immigration law, and for agencies working with them to give them the opportunity to discuss their LGBT status. Many LGBT immigrants are indigent upon arrival, and without authorization to work in the U.S., their needs reflect those of many undocumented immigrants: housing, mental health care, and quite simply, food. (Heather Scavone, personal communication, December 2, 2013)

8 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 7 Proposed Intervention: The North Carolina LGBT Asylum Project to Provide Alternatives to Detention, Legal Orientation Programs, and LGBT Affirming Service Practices Keeping LGBT asylum applicants out of detention centers and living in their communities addresses their needs for having access to the community support they build for themselves upon arrival, as well as regular access to legal counsel to advise them on processing their asylum claim. While detention could theoretically be argued to provide for their needs of housing and food, the damage to their mental health and the social isolation caused by detention eliminate any benefits that could be ascribed to mandatory detention. The need to stay in one s community, free of detention, is shared amongst all asylum applicants, many of whom arrive to the U.S. as undocumented immigrants. Therefore, the proposed interventions for LGBT asylum applicants encompass the needs of a broad range of immigrant groups. The Vera Institute of Justice in New York has developed the nation s first pilot program providing public defenders for immigrants at risk for detention, to ensure their appearance in court for civil immigration proceedings. Launched in November of 2013, the New York Immigrant Family Unity Project s goal of keeping immigrants in their communities while filing for the legal mechanisms through which they can legally remain in the U.S. could serve as a model for meeting the desperate need for legal representation that LGBT asylum seekers face. (Vera Institute of Justice, 2013; Wang, 2013) The New York Immigrant Family Unity Project is an example of an Alternative to Detention (ATD) program. In ATD programs, non-criminal immigrants with pending immigration cases, including asylum applications, continue to live in their communities, with their families, friends, and support networks, and work with case managers who provide intensive scheduled supervision along with supportive services in the immigrants languages of origin. Participants in ATD programs have much greater options than those detained for obtaining legal representation and meeting with attorneys regularly, thus facilitating their compliance with immigration court requirements. (Meissner, et al., 2013) ATD programs for all asylum applicants that intentionally include LGBT asylum seekers would provide these immigrants and their communities with greater opportunities for successful outcomes in terms of immigrant integration into their new homeland, improved immigrant mental and physical health, and significantly fewer costs to local communities and to the federal government. The provision of ATD programs for asylum seekers, as well as for undocumented immigrants filing for stays of deportation, would save federal tax dollars while promoting community inclusion of these immigrants. In November of 2013, National Public Radio reported on the Congressional mandate to Immigration and Customs Enforcement (ICE) to fill 34,000 immigration detention center beds per night, in approximately 250 immigration detention facilities across the nation. (Robbins, 2013) The daily cost of this detention per immigrant is $120, totaling approximately 2 billion dollars a year. ATD programs are significantly more cost effective, with a daily cost of approximately $12 per immigrant, and keep LGBT immigrants safe from the dangers they face in mandatory detention. In addition to protecting LGBT immigrants from assaults in detention centers, ATD programs protect their children. LGBT asylum applicants may well bring children with them to the United States, especially LGBT women who also may have chosen to have children after arriving. ATD programs protect the right of their children, many of whom are U.S. citizens, to have their parents care for them. When parents are

9 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 8 detained, children lose their home along with their parents and the already strained foster care systems must then assume care for these children of detained parents. (Applied Research Center, 2011) For those immigrants who are detained and are not in solitary confinement, legal orientation programs in immigration detention facilities provide them with valuable knowledge of the U.S. immigration laws through group orientations in the native languages of the detainees. For LGBT immigrants in detention, having access to legal orientation programs can provide them with knowledge of their basic rights as immigrants, and orient them to their right to apply for asylum for persecution as members of a sexual minority. (Gruberg, 2013) Legal Orientation Programs (LOP) provide 4 levels of intervention for detained immigrants: 1) group orientations, in which attorneys and paralegals provide an overview of immigration court processes, information on relief from removal, and ways to avoid removal; 2) individual orientations, following the group orientations, in which attorneys and paralegals meet with individual detainees to answer specific questions about their cases and provide guidance, such as providing information on LGBT asylum to those who describe fleeing persecution for being nonheteronormative; 3) self-help workshops, in which detainees pursuing similar defenses work together to practice their defenses; and, 4) referrals to attorneys are made when LOP staff determine that they will not be able to adequately handle their cases themselves. (Vera Institute of Justice, 2013) An internal review of the Vera Institute of Justice LOP program, begun in 2003, found that participants in the LOP program had significantly fewer deportations than those immigrant detainees who did not have access to an LOP program and that detainees participating in the LOP program also spent less time in detention. (Siulc, Cheng, Son, & Byrne, 2008) The model funding mechanism for these programs through the Vera Institute of Justice has been to combine funding from local governments and universities, such as the funding for the New York Immigrant Family Unity Project that combined funding from the New York City Council with donations from the Yeshiva University School of Law. (Wang, 2013) While the Vera Institute of Justice operates LOP programs at 25 immigration detention facilities throughout the U.S., there is a stark absence of LOP programs in the Southeast. The Research Triangle area of North Carolina, with its numerous law schools upon which the LOP model depends to provide law students to conduct the training workshops and individual orientations and its comparatively central location, would be a feasible location for extending LOP programs into the southeast. To address the need of LGBT immigrants to have staff at agencies working with them give them the opportunity to discuss their LGBT status and their possible persecution as nonheteronormative individuals, training workshops that assist agencies to develop open and accepting climates for non-heteronormative clients could increase the availability of safe forums for these discussions. In conducting an interview for an asylum applicant, typically the answers that indicate that an individual is fleeing LGBT persecution include histories of rape and physical assault following the individual s participation in LGBT events, such as attending gay bars or political rallies. (Heather Scavone, personal communication, December 2, 2013) The attending lawyer, or social worker at a service agency, can open space for sharing non-heteronormative identities in a conversation with an immigrant client seeking asylum from persecution by asking the person if the violence they suffered was related to their sexual orientation or gender identity.

10 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 9 Oftentimes, the immigrant fleeing LGBT persecution will judge whether or not to divulge their identity by whether or not the U.S. staff person seems accepting of non-heteronormative individuals and comfortable talking about LGBT persecution. Asking questions about sexual orientation and gender identity in the same calm manner with which other questions are asked will allow LGBT immigrants a safe space within which to talk about their identities and why they have come to the United States. In that setting, the LGBT immigrant can choose what information to divulge, and information can be made available in ways so that the immigrant can follow up independently. To address the needs of LGBT asylum seekers, those at risk for detention and those detained, a three-phased program modeled on the Vera Institute of Justice s New York Immigrant Family Unity Project and Legal Orientation Programs, with the Heartland Alliance s guidelines for refugee resettlement agencies working with LGBT refugees and asylees, would build community resources for LGBT asylum seekers and refugees while strengthening services for asylum seekers and refugees arriving to North Carolina. Within the North Carolina LGBT Asylum Project, a coalition of a university law clinic in the Triad region and 2 non-profit law agencies will share the implementation of a 3 tiered initiative to help asylum seekers, especially LGBT asylum seekers of color, overcome the greatest barriers to their finding refuge in the U.S. from persecution: defining the persecution they fled for their non-heteronormative sexual orientations or gender identities within the LGBT framework of U.S. culture, lack of knowledge of U.S. immigration law, detention, and lack of legal representation. The North Carolina LGBT Asylum Project Organizational Case Studies: The Elon University Humanitarian Law Clinic, The NC Justice Center Immigrant and Refugee Rights Project, and Pisgah Legal Services The North Carolina LGBT Asylum Project (NCLAP) will have its base at the Elon University Humanitarian Law Clinic. This university law clinic specializes in providing free legal services to low-income refugees and asylum seekers in the Triad area of North Carolina, which receives more than 25% of the 2,000 refugees arriving each year to the state. Located in Greensboro, the Humanitarian Law Clinic is directed by Heather Scavone, who was the director of legal services for Lutheran Family Services before that agency ended its legal aid for asylum seekers in September of The Humanitarian Law Clinic began its services in January of 2011, and has the capacity to provide legal counsel to refugee and asylum seekers annually. The rationale for selecting this law clinic as the administrative home for NCLAP has dimensions of sustainability and feasibility: 1) this clinic is solely for refugees and asylum seekers, with a developed expertise in the area of law most needed by LGBT asylum seekers; 2) as a university law clinic exclusively for refugee and asylum seekers, no other services are competing for the time and attention of faculty and staff; 3) faculty and staff have represented LGBT asylum seekers and have developed expertise in representing them; 4) as a university law clinic, the Elon University Humanitarian Law Clinic has steady financial and personnel resources, including faculty and administrative support, that do not rely on short-term grants; and, 5) the director of the Humanitarian Law Clinic returned my calls and expressed great enthusiasm for the NCLAP project, whereas staff at the non-profit law firms I contacted have yet to return my attempts to contact them.

11 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 10 The North Carolina Justice Center s Immigrant and Refugee Rights Project, located in Raleigh, provides a broad range of services to immigrants in North Carolina. The four main categories of their services are: 1) immigration law, most notably family reunification; 2) employment law, handling wage theft, job discrimination, and other violations of employment law affecting immigrants; 3) public benefits, including helping parents enroll children in school and handling Department of Motor Vehicles discrimination cases; and, 4) consumer protection and housing law. The North Carolina Justice Center (NCJC) is a large agency with over 8 areas of specialty, ranging from budget and taxes, to consumer and housing law, education and health. The rationale for selecting the NCJC Immigrant and Refugee Rights Project as a community partner for NCLAP is that its staff are known throughout the state for providing services to immigrants and provide workshops statewide on immigration topics. In addition, the NCJC is the state s most eastern legal non-profit clinic serving immigrants. In the western area of North Carolina, Pisgah Legal Services, founded in 1978 to serve low-income populations in western North Carolina, would be the third collaborator in the trio of legal agencies beginning NCLAP. With offices in Hendersonville, Asheville, and Spindale, Pisgah Legal Services provides legal services to 17 counties in western North Carolina. Pisgah Legal Services has been able to establish and maintain a Justice for All Project that provides legal counsel for low-income immigrants eligible for legal status. Other services provided by Pisgah Legal Services include the Children s Law Project, a Disability Assistance Project and an Elder Law Project, and the Homelessness Prevention Project. The rational for proposing recruitment of Pisgah Legal Services for the NCLAP pilot project is that this agency anchors services for low-income individuals in the western area of the state where LGBT immigrants have few services. Establishing NCLAP visibility within Pisgah Legal Services would be a means of reaching out to underserved LGBT immigrants in that region. The strategies to establish NCLAP under the leadership of the Elon University Humanitarian Law clinic would be undertaken by a social work intern and collaborating agencies in 3 phases, listed in increasing order of the resources required. Phase I, that would be initiated by the social work intern, would be to engage Elon University s Humanitarian Law clinic with the NCJC s Immigrant and Refugee Rights Project and Pisgah Legal Services to increase their knowledge of LGBT asylum law and best practices for welcoming LGBT immigrants into their service programs. The resources required for Phase I are social work intern time and faculty support, Elon University Humanitarian Law Clinic agency staff time, the commitment of NCJC Immigrant and Refugee Rights Project and Pisgah Legal Services staff to participate in 3 on-site training sessions, 3 copies of Heartland Alliance s Rainbow Response, and donated food for meetings. Phase I would be led by the social work intern who would complete the following steps. 1. Social work intern prioritizes with the Elon University Humanitarian Law clinic feasible training goals for collaborative partners. 2. Utilizing the Heartland Alliance s guidelines for resettling LGBT refugees as a guide, Rainbow Response: A practical guide to resettling LGBT refugees and asylees, the social work intern with Elon law students and faculty develop three 2 hour training sessions on working with LGBT refugees and asylees.

12 COURTING JUSTICE: NC LGBT ASYLUM PROJECT Social work intern obtains food donation commitments from local vendors in western NC, the Triad area, and Raleigh, for training sessions. 4. Social work intern and law students conduct 3 training sessions on LGBT asylum, 1 every 3 months, at each collaborating agency and collect evaluation data on participant reactions and expectations. Pre and post tests of knowledge of LGBT terminology, LGBT affirming practices, and asylum law are administered at each training session. 5. Social work intern coordinates focus group meetings with each collaborating agency to gather data on reactions and expectations of the NCLAP initiative from the proposed community collaborators. 6. Social work intern compiles evaluation and focus group data on agency readiness to provide affirming and accepting environments for LGBT immigrants, and measures overall increased knowledge in LGBT terminology, LGBT affirming practices, and asylum law using pre and post tests conducted at the training sessions. 7. Evaluation data is compiled by the social work intern in a report that will serve as the basis for community-based fundraising and grant applications that will fund the staff positions for phase II and phase III. Phase II would be to engage local governments with university law clinics and attorneys and social workers to create systems of publicly funded court-appointed attorneys for immigrants at risk for detention, following the Vera Institute of Justice pilot model of the New York Immigrant Family Unity Project, including LGBT immigrants openly and visibly. The resources needed for Phase II include a 50% FTE (Full Time Employee) at NCJC and at Pisgah Legal Services to coordinate this liaison forming process, elicit community support for court-appointed attorneys for immigrants at risk for detention, and identify the geographic areas most strategic for reaching LGBT asylum seekers. In addition, the collaboration of non-profit and private law firms and university law clinics will be needed to provide legal counsel for immigrants. Phase III would be to collaborate with the Vera Institute of Justice to establish Legal Orientation Programs for detained immigrants throughout North Carolina, including LGBT immigrants openly and visibly. The resources needed for Phase III include a 100% Project Manager FTE at each collaborating partner for a total of 3 100% FTE Project Managers, who will coordinate the 4 tiered LOP training sessions at detention facilities. In addition, the collaboration of law students and supervising faculty will be needed to provide the Legal Orientation Programs within detention centers. As the Legal Orientation Program of the Vera Institute of Justice would serve as the model for North Carolina implementation, their consultation for Phase III would be instrumental in planning for the launching Legal Orientation Programs in North Carolina and they would provide such consultation during the planning stages for Phase III that will include grant-writing and community-based fundraising. (Stacey Strongarone, Director of the Legal Orientation Program of the Vera Institute of Justice, personal communication, December 10, 2013) The ultimate goals for phases II and III of NCLAP would be that each program would become self-maintaining after the initial start-up funding support from grants. The 3 phases for the implementation of NCLAP separate what a social work student could attempt to complete for

13 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 12 the certificate in Global Transmigration (Phase I) from what would take years of groundwork and funding to complete (Phases II and III). Phases II and III are included in this paper for consideration because immigrants at risk for detention and detained immigrants, many of whom are LGBT asylum seekers fleeing persecution for their non-heteronormative identities, can ultimately speak and self-advocate through their access to legal representation and knowledge, which also increases their likelihood of obtaining freedom from detention. The preparation of agencies to work with LGBT asylum seekers in Phase I creates the environment for the inclusion of LGBT asylum seekers in the design of legal service delivery models statewide. By making LGBT asylum seekers the target population for an asylum seeker intervention and attempting to focus on those of color, the goal is to create an inclusive portrait of those seeking asylum from persecution by placing those most marginalized at the center and designing an intervention working from that center outwards.

14 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 13 References Applied Research Center. (2011). Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System. New York, NY. Berg, L., & Millbank, J. (2009). Constructing the personal narratives of lesbian, gay and bisexual asylum claimants. Journal of Refugee Studies, 22(2), Cantú, L., Naples, N. A., & Vidal-Ortiz, S. (2009). The sexuality of migration: Border crossings and Mexican immigrant men. NYU Press. Cantú, L., Luibhéide, E., & Stern, A.M., (2005) Well-Founded Fear: Political Asylum and the Boundaries of Sexual Identity in the U.S. Mexico Borderlands. In Luibhéid & Cantú, L. (Eds.), Queer migrations: Sexuality, U.S. citizenship, and border crossings (30-60). Minneapolis, MN: University of Minnesota Press. Chávez, K. R. (2011). Identifying the needs of LGBTQ immigrants and refugees in southern Arizona. Journal of Homosexuality, 58(2), Epprecht, M. (2012). Sexual minorities, human rights and public health strategies in Africa. African affairs, 111(443), Gruberg, Sharita. (November, 2013). Dignity denied: LGBT immigrants in U.S. Immigration Detention. Center for American Progress. Retrieved December 1, Heller, P. (2009). Challenges facing LGBT asylum-seekers: The role of social work in correcting oppressive immigration processes. Journal of Gay & Lesbian Social Services, 21(2-3), Immigration Equality: Conditions of Detention (2013) Retrieved December 1, 2013 at Immigration Equality (2013) Immigration Basics: Thorny Issues in LGBT/H Asylum Cases Retrieved December 4, International Lesbian, Gay, Bisexual, Trans and Intersex Association (2013) Lesbian and Gay Rights in the World Retrieved December 7, Keller, A. S., Ford, D., Sachs, E Rosenfeld, B., Trinh- Shevrin, C., Meserve, C. & Rockline, P. (2003). The impact of detention on the health of asylum seekers. The Journal of ambulatory care management, 26(4),

15 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 14 Meissner, D, Kerwin, D., Chisti, M., Bergeron, C. (2013) Immigration Enforcement in the United States: The Rise of a Formidable Machinery. Washington, DC: Migration Policy Institute. Moreno, A. & and McKerral, M. A Biopsychosocial Model of Sexuality After Traumatic Brain Injury: Disability and Sexual Diversity Considerations in Rehabilitation (presentation, First International LGBT Psychology and Related Fields Conference: Coming-out for LGBT Psychology in the Current International Scenario, Lisbon, Portugal, June 20-22, 2013). Morgan, D. A. (2006). Not gay enough for the government: Racial and sexual stereotypes in sexual orientation asylum cases. Law & Sexuality: Rev. Lesbian, Gay, Bisexual & Transgender Legal Issues, 15, 135. Msibi, T. (2011). The Lies We Have Been Told: On (Homo) Sexuality in Africa. Africa Today, 58(1), Neilson, V. (2005). Homosexual or Female-Applying Gender-Based Asylum Jurisprudence to Lesbian Asylum Claims. Stan. L. & Pol'y Rev., 16, 417. Randazzo, T. (2005). Social and legal barriers: Sexual orientation and asylum in the United States. In Luibhéid & Cantú, L. (Eds.), Queer migrations: Sexuality, U.S. citizenship, and border crossings (30-60). Minneapolis, MN: University of Minnesota Press. Robbins, Ted (Correspondent). (2013, November 19). Little-known immigration mandate keeps detention beds full (Radio broadcast), Washington, DC: National Public Radio. Retrieved from Scavone, H. (2013). Queer evidence: The peculiar evidentiary burden faced by asylum applicants with cases based on sexual orientation and identity. Elon Law Review, 5 (2), Silove, D., Steel, Z., & Mollica, R. F. (2001). Detention of asylum seekers: assault on health, human rights, and social development. The Lancet, 357(9266), Solomon, A. (2005). Trans/Migrant: Christina Madrazo s All-American Story. Queer Migrations: Sexuality, US Citizenship, and Border Crossings, Siulc, N., Cheng, Z., Son, A., & Byrne, O. (2008). Legal Orientation Program Evaluation and Performance and Outcome Measurement Report. Retrieved December 9, United Nations (1967). Protocol Relating to the Status of Refugees Retrieved December 2,

16 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 15 Urbina, I. & Rentz, C. (2013, March 23). Immigrants held in solitary cells, often for weeks. The New York Times, pp. A1. Retrieved December 8, U.S. Citizen and Immigration Services (2013). Refugees and Asylum Retrieved December 8, vgnextoid=1f1c3e4d77d73210vgnvcm ca60arcrd&vgnextchannel=1f1c3e 4d77d73210VgnVCM ca60aRCRD Vera Institute of Justice (2013). Legal Orientation Program Retrieved December 4, Wang, Hansi Lo (Correspondent). (2013, November 29). New pilot program gives immigrants public defenders (Radio broadcast), Washington, DC: National Public Radio. Retrieved from Welch, M. (2004). Quiet Constructions in the War on Terror: Subjecting Asylum Seekers to Unnecessary Detention. Social Justice, 31(1/2), Welch, M., & Schuster, L. (2005). Detention of asylum seekers in the US, UK, France, Germany, and Italy A critical view of the globalizing culture of control. Criminal Justice, 5(4),

17 COURTING JUSTICE: NC LGBT ASYLUM PROJECT 16 Additional LGBT Asylum Resources Immigration Equality (2006). Immigration Equality Asylum Manual Retrieved December 1, Immigration Equality is a non-profit legal and social support organization for LGBT immigrants to the U.S., and specializes in LGBT asylum law. The indexed Immigration Equality Asylum Manual is available free at their website, and covers topics from the history of asylum laws, forms, and application processes. International Gay and Lesbian Human Rights Commission (IGLHRC) IGLHRC compiles LGBT human rights reports by country that can be downloaded in English, French, and Spanish. International lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) ILGA is the largest international sexual diversity human rights organization in the world. ILGA collaborates with local LGBT rights organizations to collect data on LGBT rights and issues and publishes these reports on the ILGA website. LGBT human rights maps plot the status of LGBT populations for issues related to sexual diversity. National Center for Transgender Equality (2013). Immigration and Asylum guidelines Retrieved December 7, Transgender individuals can visit the U.S. without restriction. Specific instructions for those seeking asylum are listed, along with information about obtaining documentation and correcting names and gender references. Heartland Allliance (2013). Rainbow Response: A practical guide to resettling LGBT refugees and asylees Retrieved December 8, iance%20field%20manual.pdf Designed for refugee resettlement agencies, this document provides concrete guidance on the resettling of LGBT refugees in U.S. communities. Available free at the Rainbow Welcome website, this guide provides information at topics such as managing staff discomfort in working with LGBT refugees and asylees, mental health, legal services, and community integration. United Nations High Commissioner for Refugees (2010). The Protection of Lesbian, Gay, Bisexual, Transgender and Intersex Asylum-Seekers and Refugees Retrieved December 8, This report defines LGBT terminology for UN and non-governmental organizations working with asylees and refugees. Unique risk factors for LGBTI populations are defined, including the high risk of sexual assault they face in detention facilities. Alternatives to Detention for LGBTI immigrants are recommended. Identity issues that can affect LGBTI refugee and asylum applicants are discussed, including the difficulties lesbians face in proving their persecution for their sexual minority status, the challenges that masculine gay men face in proving that they truly