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The Right to Survive: LGBTQ Immigration

It was a sunny afternoon when my colleague and I walked into the Otero County Processing Center. A single-story building with a fenced and barbed wire yard, it looked like a prison. It was right next to a prison after all. We entered through one of the four doors, the one with a sign noting visiting hours. The guards were in the middle of “the count” when we arrived, and so we had to wait before visiting the young man we were there to speak with. If you’re wondering, “the count” is the same thing that occurs in prisons; it’s an accounting of all inmates. And at the Otero County Processing Center, they are inmates.


We waited for around an hour for the count to finish, and during this time my colleague and I reviewed our interview questions and took in the atmosphere around us… a poster displaying a bail and commissary app… an older man waiting for a relative’s release… a sign describing appropriate attire for female visitors aged 12 and older… a middle-aged woman coming in to check on someone’s release status... a sign noting ICE’s “zero tolerance policy” for harassment.


The mood was heavy, and it’s hard to know whether it was solely the environment of that place or if our purpose for being there was a big part in that mood. Finally, the count was over, and we each provided staff with a copy of our driver’s license and went through the metal detector before being provided with our visitors badges. “You’ll be in the room labeled Legal 3” the guard instructed.


We entered a hallway which was about 50 feet long. On the left was a row of plexiglass windows with a stool on either side; one for the visitor and one for the inmate. Little privacy existed. On the right, several small rooms lined the hallway. We went into “Legal 3” and stood on our side of the plexiglass waiting for the young man to enter on his side. After about five minutes he entered. In his orange jumpsuit he looked tired, defeated, a prisoner.


My colleague and I were there in a support and advocacy role to try to substantiate this young man’s claim that he is gay for his upcoming asylum hearing. We asked him about his life, about his sexual orientation, about how long he has identified as gay, and about his safety in his country of origin. We learned that he was afraid to live “out” as a gay man in his country of origin, and that he hid this part of himself for his own safety. Talking about the conditions in detention, he illustrated for us the insufficient amount of food and the disconnect from human contact. As we concluded the interview, we thanked him for speaking with us. His eyes grew red as he fought back tears. I put my hand on the plexiglass wall between us. He began to cry.


We left the Otero County Processing Center knowing that this young man’s outlook was grim. Not only were we concerned about his emotional state, but it is almost a given that he will be denied asylum and will be deported. Approximately 61.8% of asylum claims are denied overall, with 78.1% of asylum claims denied from the young man’s country of origin (1).


This young man and many like him are seeking asylum from violence in their countries of origin. LGBTQ rights are often left out of the immigration conversation, but not all that long ago, this young man wouldn’t have been allowed to even enter the United States being openly gay. For decades individuals who were known to be gay, lesbian, bi-sexual, or transgender could be, and most often were, denied admittance into the United States as an immigrant. This included those seeking highly skilled jobs or traveling as tourists. In 1990 Congress removed this rule from the Immigration and Nationality Act (2). In 2013, LGBTQ immigrant rights were improved when the Supreme Court issued its ruling in U.S. v. Windsor, striking down the provision of the Defense of Marriage Act (DOMA) which defined marriage as only legal between a man and a woman (3). This ruling allowed LGBTQ couples the same rights as heterosexual couples in marriage, including immigration benefits. In addition, the Supreme Court decision allowed LGBTQ couples and their children access to the same immigration benefits as heterosexual couples, including naturalization through marriage. With these policy changes, LGBTQ immigration, including through refugee and asylum status, has become a more promising possibility. These advances in policy gave LGBTQ individuals and couples the same rights “on paper” as heterosexual and cisgender individuals and couples in the immigration process. However, on paper and in practice are two very different things.


Same-sex couples with children seeking asylum at the U.S southern border are at greater risk of family separation as the family unit is subject to interpretation by the individual implementing policy on the ground. In Honduras and many other countries, same-sex marriage is illegal, and for that reason, same-sex couples with children are unable to produce proof that they are a family unit, resulting in family separation.


Within the immigration detention facilities, LGBTQ immigrant detainees suffer punitive conditions that violate due process. They face an increased risk of sexual assault, often do not receive adequate healthcare, and suffer abuse through policies of segregation and solitary confinement (4). While the Prison Rape Elimination Act of 2003 offers some protection for prisoners regarding sexual assault, it does not apply to most contract facilities and also does not account for sufficient medical care (4). The recent death of a Transgender woman in ICE custody, after which an independent autopsy identified evidence of blunt force trauma and with deep internal bruising in her chest, deep bruising on her upper back, as well as extensive trauma around her wrists, has elevated the public conversation about abuse within immigration detention (5).


LGBTQ individuals detained face constant questioning about their validity as a person through misgendering and extensive explanations by the entities detaining them. During asylum proceedings, legal professionals must present evidence solidifying the asylee’s sexual orientation or identity before a court decides how valid their identity is. This is emotionally traumatizing.

In addition to the injustices which occur in detention, the oppression and violence against the LGBTQ community in Central American countries is on the rise. LGBTQ individuals are at greater risk of violent attacks from the gangs and cartels. The risk continues to rise with at least 264 LGBTQ people killed in Honduras alone since 2009, of whom more than half were gay men (6). Very little data is available on current immigration due to persecution of the LGBTQ community. Naturally, those that feared persecution due to sexual orientation or gender identity are less likely to live as openly LGBTQ in their country of origin, and also unlikely to disclose this information when arriving in a new community. The secrecy of identity as a means of safety and self-preservation can however harm an individual’s asylum case, as the risk of violent persecution versus lived violent persecution isn’t as compelling in court. They are punished for survival.


We do not know what the outcome will be for the young man in detention. Statistics surrounding asylum approvals offer little hope. As a social worker, one thing I do know is that with the emotional trauma and physical strain he undoubtedly lived in his country of origin, on his migration journey to the United States, and then continuing during his incarceration, at the very least he deserves due process and validation that he has the right to exist and to pursue life, liberty, and happiness.


1 Syracuse University https://trac.syr.edu/immigration/reports/491/

2 United States Congress https://www.congress.gov/bill/101st-congress/senate-bill/358

3 United States Supreme Court https://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

4 William & Mary Journal of Race, Gender, and Social Justice https://scholarship.law.wm.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1416&context=wmjowl

5 AZCentral https://www.azcentral.com/story/news/politics/immigration/2018/11/27/autopsy-says-transgender-migrant-who-died-ice-custody-beaten-roxsana-hernandez-rodriguez/2131503002/

6 Reuters https://www.reuters.com/article/us-latam-lgbt-rights/terrorized-at-home-central-americas-lgbt-people-to-flee-for-their-lives-report-idUSKBN1DR28O

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