May 23, 2018

CORTEZ MASTO, COLLEAGUES CALL ON SESSIONS TO UPHOLD PROTECTIONS FOR LGBTQ ASYLUM SEEKERS FLEEING PERSECUTION

Washington, D.C. – Today, U.S. Senator Cortez (D-Nev) Masto joined Senators Kamala D. Harris (D-Calif)  and Dianne Feinstein (D-Calif) and other Senate Democrats in sending a letter to Attorney General Jeff Sessions urging that the Justice Department uphold a ruling by the Board of Immigration Appeals (BIA) that provides protections for LGBTQ asylum seekers who are fleeing persecution. In the letter, the senators highlight the increasing threat of violence LGBTQ individuals face in many parts of the world.

“LGBTQ individuals’ access to the U.S. asylum process has assumed increased urgency today as their persecution by both state and private actors is worsening in many parts of the world,” said the senators. “As of 2017, 72 countries worldwide effectively outlaw same-sex sexual relations between consenting adults. Eight apply the death penalty as a punishment for such relations. A majority of countries lack applicable hate crime laws and have law enforcement agencies that neither effectively investigate nor document hate-motivated private violence against LGBTQ individuals.”

The senators continued, “Altering the BIA’s decision in Matter of A-B- to place additional roadblocks and burdens upon asylum seekers could potentially deprive deserving LGBTQ applicants with an opportunity to secure protection in the U.S. that would save their lives. Any increase in the burden of proof for LGBTQ asylum seekers experiencing private harm – additional evidence not now needed by either the immigration courts or asylum officers to fairly adjudicate claims – would be unnecessary and contrary to the public interest.”

In addition to Cortez Masto, Harris and Feinstein, the letter was signed by U.S. Senators Tammy Baldwin (D-WI), Patty Murray (D-WA), Amy Klobuchar (D-MN), Kirsten Gillibrand (D-NY), Jeanne Shaheen (D-NH), Richard Blumenthal (D-CT), Tammy Duckworth (D-IL), Cory Booker (D-NJ), Bob Casey (D-PA), Chris Coons (D-DE), Bernie Sanders (I-VT), Patrick Leahy (D-VT), and Bob Menendez (D-NJ).

A copy of the letter can be found HERE and below:

Dear Attorney General Sessions:

We write to express our concerns about your pending review of the Board of Immigration Appeals (“BIA”) decision in Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018) and the adverse impact such a decision could have on vulnerable populations fleeing persecution and violence.  We urge you to uphold the BIA’s decision, which reflects a well-settled matter of law that provides critical protections for vulnerable populations, including LGBTQ individuals subject to private persecution that foreign governments are unwilling or unable to control.

LGBTQ individuals’ access to the U.S. asylum process has assumed increased urgency today as their persecution by both state and private actors is worsening in many parts of the world. As of 2017, 72 countries worldwide effectively outlaw same-sex sexual relations between consenting adults. Eight apply the death penalty as a punishment for such relations. A majority of countries lack applicable hate crime laws and have law enforcement agencies that neither effectively investigate nor document hate-motivated private violence against LGBTQ individuals. As just two alarming examples of state sponsored anti-LGBTQ actions this past year, Russian authorities in Chechnya undertook an anti-gay purge that involved the alleged torture of dozens of men, and Egyptian authorities engaged in a campaign to target and incarcerate individuals solely based on their sexual orientation.

Your referral order for the Matter of A-B- – in which you aim to address, “Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal” –has great import for the majority of LGBTQ asylum seekers who arrive in the United States fleeing persecution by private individuals.  In the decades since this country first recognized LGBTQ status as a protected particular social group, it has been well established that LGBTQ individuals face grave risks in reporting private persecution or seeking governmental protection from such persecution abroad. Any change to this body of law would be a mistake.

In countries where government authorities engage in serious physical and sexual assaults of LGBTQ individuals, it is effectively impossible for them to seek protection from those same authorities when faced with private persecution. In some countries, simply asking for protection from state authorities can result in government-sponsored persecution. Even where state authorities are not active perpetrators of violence against LGBTQ individuals, they frequently turn a blind eye, emboldening private actors to engage in hate-motivated violence. U.S. State Department research highlights that foreign government retribution towards and lack of assistance for LGBTQ individuals who face private threats of persecution is commonplace, even when the population is not expressly criminalized. This chills the ability of LGBTQ individuals to report such persecution in their home countries.

Societal and familial considerations also often prevent LGBTQ victims of private persecution from coming forward to foreign authorities. They may be threatened with reprisals from their persecutors or coming forward would reveal their LGBTQ status and increase other persecution. In many countries, the act of reporting violence can have deadly consequences.

Altering the BIA’s decision in Matter of A-B- to place additional roadblocks and burdens upon asylum seekers could potentially deprive deserving LGBTQ applicants with an opportunity to secure protection in the U.S. that would save their lives.  Any increase in the burden of proof for LGBTQ asylum seekers experiencing private harm – additional evidence not now needed by either the immigration courts or asylum officers to fairly adjudicate claims – would be unnecessary and contrary to the public interest. As such, we strongly urge you to leave undisturbed the BIA’s decision in Matter of A-B-.

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The effort is likely to be futile. It’s hard to believe that Sessions, given his xenophobic record and anti-asylum rhetoric, certified the case to himself (actually over the objection of both the DHS and the Respondent) just to uphold and strengthen refugee protections for abused women and LGBTQ individuals. Indeed, Sessions has a clear record of anti-LGBTQ views and actions to go along with his anti-asylum bias.

But, the law favoring asylum protections for victims of DV and LGBTQ individuals who suffer harm at the hands of non-state-actors that governments are unwilling or unable to control is now well established. Therefore, Sessions’s likely “scofflaw” attempt to undo it and deny protections to such vulnerable refugees is likely to “muck up the system” and artificially increase the backlogs in the short run, while failing in the long run to achieve the perversion of justice and denial of Due Process for asylum seekers that he seeks to impose.

Surprisingly, the Article III (“real”) courts don’t allow the disgruntled prosecutor to “certify” results that he doesn’t like to himself and rewrite the law in his own favor! That’s why the facade of “courts” operating within the USDOJ must come to an end, sooner or later!

PWS

05-26-18