One day early last year, immigration lawyer Cara Jobson received an email from two young women desperate to leave the United Arab Emirates (UAE), where they faced the near certainty of continued persecution - if not a violent death.
"We are lesbian, this will lead to kill us or take us to jail at best," the note read in fractured English. "We want to continue our relation because we believe in our right in love and life. ... Please, let us know if you can help."
For Jobson, a partner at the small San Francisco law firm of Wiley & Jobson, the plight of these women could not possibly be ignored.
"Their story was incredibly compelling to me," recalls Jobson, who is also of counsel for a nonprofit legal organization called the National Center for Lesbian Rights. "As horrible as the families of these women had been to them, they were almost certainly never going to see them again. And they were coming to a place where they know absolutely no one. I really felt for them."
Immigration lawyers, of course, deal with people in difficult circumstances all the time. But when the clients in question are lesbian, gay, bisexual, or transgender, the trouble they face is of a very particular kind.
Certainly, significant advances have been made in LGBT rights over the past decades. Yet even today, 78 of the United Nations' member countries still treat homosexuality as a crime; punishments include beatings, forced surgeries or hormone treatments, imprisonment, and what's called "corrective rape." Moreover, in at least six countries - Iran, Mauritania, Saudi Arabia, Sudan, Uganda, and Yemen - homosexuality remains a capital offense, with stoning sometimes the accepted method of execution. In many other countries, notably Turkey and Pakistan, extra-judicial "honor killings" are widely condoned.
Since 1994, people who come to the United States to escape persecution based on their sexual orientation have been eligible for asylum. However, it is often difficult for those fleeing the most repressive countries to collect and provide the necessary documentation.
Jobson handles about 40 LGBT asylum cases each year, which makes her one of California's most active lawyers in this tiny practice area. Most attorneys who do this kind of work see no more than a dozen cases a year. But what the specialty lacks in volume, it certainly makes up for in drama.
"It can be very taxing and draining work," says Ally Bolour, a Los Angeles attorney who handles as many as 20 LGBT asylum applications a year. "The cases are real," he adds. "And if my party loses, the consequences can be fatal." Still, Bolour calls this work "a labor of love."
LGBT asylum cases are also deeply meaningful to Jobson, who initially trained to be a paramedic. It was only in the process of doing some paralegal work to make ends meet that she became hooked on immigration cases.
"Working on LGBT cases was actually one of the main reasons I went to law school," says Jobson, who got her JD from UC Berkeley in 2001 and started digging into LGBT asylum cases even before she passed the bar. "I found I loved helping immigrants work out their problems, and the LGBT asylum cases were particularly compelling. It's my community, and just to see these people get the legal protection they deserved for the horrible things they had been through was pretty powerful for me."
As much is evident when she talks about the two women who emailed her from the Middle East last year. Let's call them Judy and Sara. As Jobson explains, these women met each other online through Facebook. Judy grew up in a strict Islamic household where her mother wears a full burqa. Sara is from Algeria, where she endured death threats as well as brutal beatings by family members once they discovered that she was a lesbian.
After spending two years together in the emirate of Sharjah, Judy and Sara applied for six-month visas to visit the United States. Without a word to their families, they frantically paid their bills and took care of whatever loose ends they could before boarding a plane that took them on a circuitous route to San Francisco. The two arrived with just a suitcase and a handbag full of clothes, and showed up the next day at Jobson's office.
For most of the 20th century, United States immigration
policy treated gays and lesbians as "mental defectives" - a designation that not only made them ineligible for asylum but also barred them from entering the country. Even after the American Psychiatric Association removed homosexuality from its official list of disorders in 1973, the bar remained in effect. Finally, Congress, under growing political pressure, amended the Immigration and Nationality Act to lift the ban in 1990.
That was the year the Board of Immigration Appeals granted asylum to a gay Cuban man named Fidel Armando Toboso-Alfonso, who had emigrated to the United States a decade earlier as part of the Mariel boat lift (Matter of Toboso-Alfonso
, 20 I. & N. Dec. 819, (1990)). As the court determined, Toboso-Alfonso had been threatened by Cuban government and police officials, and once he was even sent to a forced labor camp for 60 days because of his sexual orientation.
Eventually, the Toboso-Alfonso
ruling became binding precedent for future immigration and asylum decisions through an order by U.S. Attorney General Janet Reno. (See Att. Gen. Ord. No. 1895-94 (June 19, 1994).) In effect, it gave persecuted gays and lesbians the same standing as anyone seeking asylum for racial, religious, or political reasons. But standing is only the beginning.
Applicants must also show that the persecution they suffered was inflicted either by agents acting under government authority (such as the police) or by a group that the government is unwilling or unable to control. This makes it considerably less difficult to win asylum for a client from Saudi Arabia, Iran, Honduras, Russia, Uganda, or Pakistan than for someone emigrating from more officially tolerant nations such as Brazil or Chile.
And constant political shifts mean that asylum lawyers must stay on their toes. Attorney Bolour says, "I always look for new information about country conditions. Say I have a case involving Iran. Just because I got [an Iranian client] through two months ago doesn't mean I submit the same petition. You have to look to see what's happened in the country since the last time."
It's not enough just to track a country's legal developments, Bolour cautions. For example, he notes that even though the laws in Mexico have been liberalized in recent years, there's been a huge backlash against LGBT citizens. "It's the total picture that counts," including the culture, he declares.
Once it's demonstrated to the immigration court's satisfaction that an asylum applicant has been persecuted, the good news is that under American law the burden of proof shifts to the U.S. government to show that the person in question will not be persecuted further if returned home. (Hernandez-Barrera v. Aschcroft
, 373 F.3d, 9, 21 (1st Cir. 2004); 8 U.S.C. § 1158; 8 C.F.R. § 208.13(b)(1)(ii).)
However, if asylum applicants are to stand any real chance of remaining in the United States, they must file for asylum within a year of entering. (There may be exceptions for a serious illness, acute psychological problems, or major changes back home that would dramatically affect their safety.) This one-year cut-off hits the LGBT population especially hard, observers note, because they are usually more isolated compared to other refugees, and far more reticent to talk about their persecution. In the event they finally bring themselves to consult a lawyer and learn that the filing deadline has passed, the best strategy left for avoiding deportation may be just to lie low and avoid drawing attention from the U.S. government.
After carefully questioning Judy and Sara,
Jobson determined that they indeed had a strong case for asylum. Their personal stories, coupled with well-documented details about current conditions for homosexuals in the UAE and Algeria, would form the basis of their application.
In June, Jobson accompanied her clients to separate interviews with an officer from the United States Citizenship and Immigration Services (USCIS), the federal agency that handles asylum cases. The officer questioned each young woman for more than two hours about her background and experiences. And though both were extremely nervous about telling their stories to a government representative, neither said they found the questions either insensitive or overly intrusive.
This was no accident. In 2012 the agency provided asylum officers with more explicit guidance on what questions to ask - and not ask - of homosexual refugees. For example, training materials say that asylum officers can ask applicants when it was that they first realized they were gay or lesbian, how they were treated, and whether they were ever in a same-sex relationship. But questions about an applicant's intimate sexual conduct are strongly discouraged.
Jobson thought the interviews went well, overall. While they waited to hear the outcome, Judy and Sara wasted no time in traveling to Massachusetts to be legally married. But since the Defense of Marriage Act (1 U.S.C § 7) prohibits the federal government from recognizing same-sex marriages, each woman's respective fate still would have to be considered separately.
Two weeks later, Judy and Sara were summoned back to the San Francisco USCIS office on different days to learn whether their requests had been granted - or if they would have to appeal their cases to the Executive Office for Immigration Review.
"Waiting is the hardest part," Judy said as she sat in a first-floor waiting area, listening for her case number to be called. "You keep thinking of all the scenarios. Our freedom, our peace of mind; our whole lives depend on it."
In the end, both women were granted asylum.
In the months that followed, the couple moved out of the small room they were renting in the East Bay and signed a lease for their own apartment in Oakland. Sara began work on a novel and has done volunteer work for a local gay support group. Judy, meanwhile, landed a job at a restaurant in the Castro and finds time to write a blog. In one entry, she describes what winning asylum has meant to her.
"How many times in the human life do you get a chance to be born again?" she wrote. "America gave us this chance, to make this dream come true. Unlike many Middle Eastern people who hate America, this country has actually opened both arms and heart for us, and gave us the will again to live again without fear, without shame, and without pleasing everyone around before ourselves."
For Cara Jobson, it was a sweet moment as well.
Tom McNichol is a San Francisco-based freelance writer.