Give Me Your Gays, Your Lesbians, and Your Victims of Gender Violence
In the last twenty years there have been important advances in aspects of American immigration law that protect lesbians, gays, bisexual and transgendered persons (LGBT) and women who may have been victims of gender based violence in their home countries.
Earlier immigration law legally excluded lesbian and gay men because the medical and psychiatric communities believed homosexuality was a disease.
We, as a country, are to be commended for now extending grants of asylum to those who may have experienced past persecution or who fear future persecution in their country of origin because of their sexual orientation or victimization on account of gender violence.
Such types of persecution may be considered together and may be best described as "persecution based on sexual orientation.
" One such recent case, typical of many, started in 2003, and involved Gramoz Prestreshi, an eighteen year old citizen of Kosovo who was stalked and beaten almost to death by a group of local thugs because he was a homosexual.
Prestreshi was laughed at and called names by the police to whom he reported his beating.
In the hospital emergency room he was made to mop up his own blood.
He had photographs taken of his injuries and complained to the press about the hostile environment homosexuals endure in Kosovo.
Later his own family disowned him for his sexual orientation.
He joined a gay rights organization and in 2007 was granted asylum in the United States on the grounds that his treatment in Kosovo amounted to persecution.
Although such grants of asylum are generally unknown to the American public, this author is one of many who, for the last few years, have taught and written about the phenomenon of grants of asylum on the grounds of sexual orientation and the problems involved in obtaining justice for victims of such persecution.
My 2008 article I wrote for the Nova Law Review, Give Me Your Gays, Your Lesbians, And Your Victims of Gender Violence, Yearning to Breathe Free of Sexual Persecution...
")The New Grounds for Grants of Asylum (Nova L.
R.
, Vol 32, No.
2 Spring 2008) consisted of an analysis of some of the problems of obtaining justice in our asylum system for persons such as Gramoz Prestreshi and other victims of persecution on the basis of sexual orientation.
The analysis of those problems revealed the need for several solutions.
First, it exposed the need for more consistency in defining and interpreting our asylum law.
Secondly, the U.
S.
Department of Homeland Security (DHS) needs to better formulate policies that might guarantee uniformly just results in cases of those escaping persecution based on their sexual orientation.
Finally, the U.
S.
Justice Department needs to provide more published opinions in sexual persecution cases as well as better-trained and more sensitive immigration judges.
The Immigration and Nationality Act at §101(42) provides, in relevant part: The term "refugee" means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion...
The problem with this statute is that there is no definition of persecution and it fails to provide judges, lawyers and especially immigration practitioners who represent LGBT persons or women who have been subject to gender violence in their home country.
My solution is that we appeal to the U.
S.
Congress and suggest they amend and clarify the basic Act at §101(a) (42) to reflect much of what the asylum law is intended to do.
That is, to provide humanitarian relief to those fleeing persecution in their home countries whether it be from persecution based on racial, religious, nationality, social group, political, or sexual grounds.
The amendment that I propose below would make it less burdensome for LGBT persons or women who are victims of gender violence to obtain justice in asylum claims.
Here is the model legislation I propose: A Bill To amend the Immigration And Nationality Act of 1952, as amended, so as to provide clear and definitive definitions regarding all refugees fleeing persecution for political and other types of humanitarian harms.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That the Immigration And Nationality Act, as amended INA §101(a)(42), is amended by adding at the end of Part A the following subsections: Sec.
(42) Definitions: For the purposes of this Act the following definitions, principles and rules are to be applied: (1) Persecution is the objective infliction of suffering or harm which is subjectively experienced or that will be experienced in the future upon those who differ including, but not limited to, threats to life, confinement, torture and economic restrictions so severe that they constitute a real threat to life or freedom.
(2) Persecution may be demonstrated by showing by direct or circumstantial evidence the persecutor's motivation to either punish, or more generally, the infliction of harm on account of the statutory grounds set out in Part A of this section.
Punitive intent is not a necessary requirement for finding persecution under this Act.
(3) A particular social group is a group of persons united by a voluntary association, or by an innate characteristic that is so fundamental to their identities or consciences of its members that the members either cannot or should not be required to change it; such group may also be recognized as a societal faction or is otherwise a recognized segment of the population in question; members view themselves as members of the group; and the society in which the group exists distinguishes members of the group for different treatment or status than is accorded to other members of society.
The Act will be further amended by adding after Part B of Section (42) two new subsections as follows: C.
For purposes of determination under this Act, claims that arise from persecution based upon gender-based violence that is non-state sponsored such as, but not limited to, sexual abuse, rape, infanticide, genital mutilation, forced marriage, slavery, extreme domestic violence, honor killings, and forced prostitution shall be assessed to determine whether the instance or instances of such harm amounts to persecution on the basis of the general principles set out herein.
D.
The Attorney General of the United States through the Board of Immigration Appeals shall publish written opinions of each asylum case granted wherein such claims are made on grounds of sexual orientation and/or gender-based violence in Part A and Part C of this section, or are granted on grounds of any coercive population program as provided in Part B of this section.
CONCLUSION Asylum and human rights doctrines are intertwined in that how a country defines persecution reflects beliefs about what constitutes human rights violations.
Persecution of LGBT persons, as well as persecution of women who are victims of gender violence, has become increasingly accepted grounds for legal asylum in the United States.
For persecuted LGBT persons and women subjected to persecution because of their gender, such asylum protections represents recognition of their basic rights as human beings.
Congress should implement the amendment that I have set out above with respect to asylum.
Such an amendment will better allow justice to be served in our immigration courts with respect to LGBT persons, women victims of gender violence who seek asylum from sexual persecution, and all others seeking asylum from persecution.
As a humanitarian nation, we should not be ashamed to paraphrase the words of Emma Lazarus by saying: Give me your gays, your lesbians and your victims of gender violence yearning to breathe free of sexual persecution; "I lift my lamp beside the golden door.
"
Earlier immigration law legally excluded lesbian and gay men because the medical and psychiatric communities believed homosexuality was a disease.
We, as a country, are to be commended for now extending grants of asylum to those who may have experienced past persecution or who fear future persecution in their country of origin because of their sexual orientation or victimization on account of gender violence.
Such types of persecution may be considered together and may be best described as "persecution based on sexual orientation.
" One such recent case, typical of many, started in 2003, and involved Gramoz Prestreshi, an eighteen year old citizen of Kosovo who was stalked and beaten almost to death by a group of local thugs because he was a homosexual.
Prestreshi was laughed at and called names by the police to whom he reported his beating.
In the hospital emergency room he was made to mop up his own blood.
He had photographs taken of his injuries and complained to the press about the hostile environment homosexuals endure in Kosovo.
Later his own family disowned him for his sexual orientation.
He joined a gay rights organization and in 2007 was granted asylum in the United States on the grounds that his treatment in Kosovo amounted to persecution.
Although such grants of asylum are generally unknown to the American public, this author is one of many who, for the last few years, have taught and written about the phenomenon of grants of asylum on the grounds of sexual orientation and the problems involved in obtaining justice for victims of such persecution.
My 2008 article I wrote for the Nova Law Review, Give Me Your Gays, Your Lesbians, And Your Victims of Gender Violence, Yearning to Breathe Free of Sexual Persecution...
")The New Grounds for Grants of Asylum (Nova L.
R.
, Vol 32, No.
2 Spring 2008) consisted of an analysis of some of the problems of obtaining justice in our asylum system for persons such as Gramoz Prestreshi and other victims of persecution on the basis of sexual orientation.
The analysis of those problems revealed the need for several solutions.
First, it exposed the need for more consistency in defining and interpreting our asylum law.
Secondly, the U.
S.
Department of Homeland Security (DHS) needs to better formulate policies that might guarantee uniformly just results in cases of those escaping persecution based on their sexual orientation.
Finally, the U.
S.
Justice Department needs to provide more published opinions in sexual persecution cases as well as better-trained and more sensitive immigration judges.
The Immigration and Nationality Act at §101(42) provides, in relevant part: The term "refugee" means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion...
The problem with this statute is that there is no definition of persecution and it fails to provide judges, lawyers and especially immigration practitioners who represent LGBT persons or women who have been subject to gender violence in their home country.
My solution is that we appeal to the U.
S.
Congress and suggest they amend and clarify the basic Act at §101(a) (42) to reflect much of what the asylum law is intended to do.
That is, to provide humanitarian relief to those fleeing persecution in their home countries whether it be from persecution based on racial, religious, nationality, social group, political, or sexual grounds.
The amendment that I propose below would make it less burdensome for LGBT persons or women who are victims of gender violence to obtain justice in asylum claims.
Here is the model legislation I propose: A Bill To amend the Immigration And Nationality Act of 1952, as amended, so as to provide clear and definitive definitions regarding all refugees fleeing persecution for political and other types of humanitarian harms.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That the Immigration And Nationality Act, as amended INA §101(a)(42), is amended by adding at the end of Part A the following subsections: Sec.
(42) Definitions: For the purposes of this Act the following definitions, principles and rules are to be applied: (1) Persecution is the objective infliction of suffering or harm which is subjectively experienced or that will be experienced in the future upon those who differ including, but not limited to, threats to life, confinement, torture and economic restrictions so severe that they constitute a real threat to life or freedom.
(2) Persecution may be demonstrated by showing by direct or circumstantial evidence the persecutor's motivation to either punish, or more generally, the infliction of harm on account of the statutory grounds set out in Part A of this section.
Punitive intent is not a necessary requirement for finding persecution under this Act.
(3) A particular social group is a group of persons united by a voluntary association, or by an innate characteristic that is so fundamental to their identities or consciences of its members that the members either cannot or should not be required to change it; such group may also be recognized as a societal faction or is otherwise a recognized segment of the population in question; members view themselves as members of the group; and the society in which the group exists distinguishes members of the group for different treatment or status than is accorded to other members of society.
The Act will be further amended by adding after Part B of Section (42) two new subsections as follows: C.
For purposes of determination under this Act, claims that arise from persecution based upon gender-based violence that is non-state sponsored such as, but not limited to, sexual abuse, rape, infanticide, genital mutilation, forced marriage, slavery, extreme domestic violence, honor killings, and forced prostitution shall be assessed to determine whether the instance or instances of such harm amounts to persecution on the basis of the general principles set out herein.
D.
The Attorney General of the United States through the Board of Immigration Appeals shall publish written opinions of each asylum case granted wherein such claims are made on grounds of sexual orientation and/or gender-based violence in Part A and Part C of this section, or are granted on grounds of any coercive population program as provided in Part B of this section.
CONCLUSION Asylum and human rights doctrines are intertwined in that how a country defines persecution reflects beliefs about what constitutes human rights violations.
Persecution of LGBT persons, as well as persecution of women who are victims of gender violence, has become increasingly accepted grounds for legal asylum in the United States.
For persecuted LGBT persons and women subjected to persecution because of their gender, such asylum protections represents recognition of their basic rights as human beings.
Congress should implement the amendment that I have set out above with respect to asylum.
Such an amendment will better allow justice to be served in our immigration courts with respect to LGBT persons, women victims of gender violence who seek asylum from sexual persecution, and all others seeking asylum from persecution.
As a humanitarian nation, we should not be ashamed to paraphrase the words of Emma Lazarus by saying: Give me your gays, your lesbians and your victims of gender violence yearning to breathe free of sexual persecution; "I lift my lamp beside the golden door.
"