Immigration Equality - TLM

Under = U.S. immigration=20 law, individuals who are fleeing persecution in their home = countries may=20 be granted refugee or asylum status in the United States. To = comply with=20 international law, most developed countries give some kind of = status to=20 those who would face harm at the hands of their governments at = home. For=20 those who apply from within the United States, the status is = called=20 =93asylum,=94 and for those who apply from abroad, it is called = =93refugee.=94=20 This chapter will focus on asylum. Transgender asylum-seekers have = had a=20 great deal of success in bringing claims for protection. This = chapter will=20 cover the basics of asylum law with a focus on the special issues=20 affecting transgender applicants.[1]

Asylum is = a very good=20 status to have under U.S. immigration law. Asylees are permitted = to apply=20 for lawful permanent resident (LPR) status one year after winning = asylum=20 status in the United States.[2]Four years=20 after obtaining LPR status, the asylee can apply to naturalize to = become a=20 U.S. citizen (USC).[3]Asylees=20 are permitted to work lawfully in the United States without being = required=20 to have a valid employment authorization document (EAD).[4]They also=20 receive =93unrestricted=94 Social Security cards from the Social = Security=20 Administration, meaning, they can work lawfully without needing an = EAD.[5]

As a = general premise of=20 U.S. immigration law, once an individual has fallen out of lawful = status,=20 he or she generally cannot make an application from within the = United=20 States to get back into lawful status. However, the Immigration = and=20 Nationality Act (INA) carves out a major exception for=20 asylum-seekers.[6]Thus, the=20 fact that the asylum applicant has overstayed a visa or has = entered the=20 country without inspection (for example, by crossing the Mexican = border)=20 will not preclude a grant of asylum. Counselors should be aware, = however,=20 that some forms of entry=97such as using a fake passport=97will = not hurt an=20 asylum application, but will require a special waiver when the = asylee=20 applies for LPR status.[7]

Nonetheless, there are=20 limitations imposed by asylee status. Since the grant of asylum is = based=20 on the asylee=92s fear of his or her government and of being = returned to the=20 home country, asylees are not permitted to travel back to their = country of=20 origin; doing so could cause the asylee status to be = revoked.[8]Likewise,=20 the asylee is not permitted to seek any protections or benefits = from the=20 home country, so once he or she applies for asylum, there should = be no=20 attempt to renew the passport from the home country. Thus, if an = asylee or=20 LPR who was formerly an asylee wishes to travel internationally, = he or she=20 must first obtain a Refugee Travel Document.[9]

Practice = Tip: You=20 should be wary of an asylum-seeker who is very disturbed by the = inability=20 to return to the home country. Of course, it is natural for the = applicant=20 to want to visit with family in the future, but if the applicant = does not=20 seem genuinely afraid of returning home, it may not be appropriate = to file=20 for asylum.

Asylum is = a complex=20 area of the law and it is important that applicants are = represented by=20 qualified counsel in order to submit the strongest possible = application.=20 The possibility of winning declines with each step in the = litigation=20 process, so it is essential to prepare a strong application from = the=20 beginning.

An = applicant may apply=20 affirmatively for asylum, meaning that the applicant submits an = asylum=20 application, Form I-589,[10]with U.S.=20 Citizenship and Immigration Services (USCIS) and gets scheduled = for an=20 interview with an asylum officer. There are eight asylum offices=20 throughout the United States. Asylum interviews are generally = scheduled=20 within six weeks of submission of the application, although there = may be a=20 delay in scheduling the interview if the applicant lives far from = an=20 asylum office and has to wait for an asylum officer to =93ride = circuit=94 in=20 that geographic region.

Interviews with asylum=20 officers are nonadversarial[11]and=20 informal, taking place in the office of the asylum officer. = Although each=20 asylum officer will have his or her own individual style, in = general, the=20 officer will ask the applicant many of the same questions that are = contained in the asylum application=97one=92s purpose for seeking = asylum,=20 kinds of harm suffered in the country, how and when one first came = to=20 realize being transgender and express this identity, and what one = thinks=20 will happen if forced to return to the home country. The interview = generally lasts between one and two hours. Since the interview is=20 nonadversarial, the attorney plays a limited role, commonly only = asking=20 questions about any significant incidents that the officer failed = to=20 elicit and making a closing statement at the end.[12]

Asylum = officers receive=20 special training in conducting interviews with individuals who = have fled=20 persecution. Most asylum officers are very professional and = respectful. In=20 the rare instance where you as an attorney feel that an asylum = officer is=20 asking inappropriate questions, or displaying a transphobic = attitude, you=20 should halt the interview and ask to speak to a supervisor=20 immediately.

Practice = Tip: In some=20 asylum offices, the officers do not receive the asylum application = packet=20 until the morning of the interview. Do not be disturbed if you = have=20 submitted voluminous materials on your client=92s behalf and it = seems as if=20 the officer has barely looked at them; he or she probably = hasn=92t. The most=20 important function of the asylum interview is for the officer to = assess=20 your client=92s credibility. The officer will go back and review = all the=20 documents as he or she prepares the decision in the = case.

The = officer will=20 explain to the applicant that he or she must return to the asylum = office=20 two weeks after the interview to pick up the decision. There are = three=20 possible outcomes: Recommended Approval, Notice of Intent to Deny, = or a=20 Notice to Appear initiating removal proceedings in immigration=20 court.

Sometimes = the decision=20 is not ready after two weeks and the asylum office will either = call the=20 attorney before the scheduled pick-up date to state that it will = be=20 mailed, or the applicant will go to the asylum office and be = informed then=20 that the decision is not ready. There are various reasons that the = decision may not be ready after two weeks. A delay in rendering = the=20 decision is not predictive of the result. Currently, all Mexico = cases get=20 sent to Asylum Headquarters before a decision is rendered, so = Mexico cases=20 almost always take several months for a decision.

If the = asylum officer=20 believes that the case is strong enough to warrant a grant of = asylum, the=20 decision that the applicant picks up will be a letter recommending = approval of the application. This means that the applicant has = won, and=20 that once the criminal and terrorist background checks on the = fingerprints=20 have cleared, one will receive a final approval notice in the=20 mail.

Once the = applicant has=20 won recommended approval, he or she can apply for an EAD by = filling out an=20 I-765, Application for Employment Authorization,[13]under the=20 category of =93asylum pending.=94 When the applicant eventually = receives=20 =93final approval,=94 he or she is no longer required to have an = EAD to work,=20 although one may want to apply anyway because it can serve as = valid=20 government-issued photo identification.

Practice = Tip: You=20 should try to apply for the EAD in your client=92s corrected = gender. (See=20 the section below on removal proceedings in immigration court for = more=20 information on identity documents.) Some asylum offices = automatically send=20 an EAD in the mail seven to 10 days after an applicant is granted=20 asylum.

Note: It = is possible=20 that your client=92s background check will take longer if your = client has=20 used different names (i.e., a male birth name and a female name = now)=20 because USCIS will have to run background checks on each = name.

If the = applicant is=20 still in valid nonimmigrant status at the time the asylum officer = issues=20 the decision on the case (for example, in the United States on a = skilled=20 worker visa), the officer will issue a Notice of Intent to Deny = (NOID) if=20 he or she does not feel that the application is strong enough to = recommend=20 approval of the case.[14]The NOID=20 will explain in detail the reasons for the intended = denial.[15]The applicant then has 16 days to submit further = evidence=20 in an attempt to rebut the denial.[16]After=20 this evidence is submitted, the asylum office will either grant = the=20 application or issue a final denial. If the application is denied, = there=20 is no appeal.[17]However,=20 the applicant is in the United States lawfully and can remain in = the=20 country until the current status expires.

Practice = Tip: Although=20 it seems counter-intuitive, it is often advisable to wait until an = applicant is out of status to file for asylum so that if the = applicant is=20 unsuccessful at the asylum office, he or she can continue to = pursue the=20 application before an immigration judge (IJ) and, if necessary, on = appeal.=20 Once an asylum application has been denied by the asylum office, = it is=20 difficult to refile in the future.

An = individual whose=20 asylum application has been denied should be able to maintain the = current=20 nonimmigrant status, (for example, as a student.) As a practical = matter,=20 however, the fact that one has applied for asylum will be seen as = evidence=20 of one=92s =93immigrant intent=94=97that is, the intent to remain = in the United=20 States permanently. Therefore, even if the unsuccessful asylum = applicant=20 never technically violates the terms of the current student or = tourist=20 visa, it is unlikely one will be permitted re-entry if one leaves = the=20 country because U.S. officials will see one as having =93immigrant = intent.=94

If the = applicant is not=20 in lawful status at the time the asylum officer makes a negative = decision=20 on the case, when the applicant returns to the asylum office to = pick up=20 the decision, he or she will be handed a Notice to Appear (NTA) in = immigration court. The NTA is the charging document in removal=20 proceedings, and in referred asylum cases, the United States is = almost=20 always seeking removal because the applicant is here without = lawful=20 status. The NTA will provide a court date and the applicant must = appear in=20 immigration court on that date; otherwise, he or she will be = ordered=20 removed (deported) in absentia.[18]Unlike=20 the asylum interview, removal proceedings are adversarial, and = there will=20 be an attorney from U.S. Immigration and Customs Enforcement (ICE) = arguing=20 the case against the applicant.

There are = two types of=20 court dates in immigration court=97master calendars and individual = hearings.=20 Master calendars dispose of administrative and procedural issues = such as=20 pleading to the charges in the NTA, submitting the asylum = application to=20 the IJ, conferencing the case to discuss any issues, etc. Many = cases will=20 have two or three master calendars before the individual hearing = is=20 scheduled. Generally, IJs have very full calendars, and it can = take a year=20 or more after the last master calendar before the applicant gets = an=20 individual court date.

Practice = Tip: There has=20 been significant attention lately to the high discrepancy in grant = rates=20 of asylum applications among different IJs. It is extremely = helpful to=20 know as much as possible about your judge before the hearing. See=20 http://trac.syr.edu/immigration/reports/judgereports/ for a = comparison of=20 IJ asylum grant rates. The U.S. Department of Homeland Security = (DHS) does=20 not keep statistics on the ground on which asylum-seekers are = applying, so=20 there is no way to track how responsive particular judges are to=20 transgender claims.

Losing an = affirmative=20 asylum application is just one way that a foreign national can be = placed=20 in removal proceedings. The U.S. government also initiates removal = proceedings against noncitizens who have committed criminal=20 offenses,[19]who seek=20 to enter the United States without proper entry = documents,[20]or who=20 are in the United States illegally and come into contact somehow = with ICE=20 agents, such as at a work raid.[21]Even if a=20 noncitizen has not filed for asylum affirmatively, one may submit = an=20 application to the immigration court as a defense to the removal=20 proceedings.[22]

After = hearing the=20 evidence in the case, the IJ will issue a decision. If the IJ = believes the=20 case is strong enough, he or she will grant asylum. If the IJ = believes the=20 applicant would suffer persecution if forced to return home, but = there are=20 other problems in the case (such as the applicant missed the = one-year=20 filing deadline[23]or has=20 certain criminal convictions), the IJ may grant a lesser form of = relief=20 such as withholding of removal or relief under the Convention = Against=20 Torture (CAT).[24]

If the IJ = does not feel=20 that the case is strong enough, he or she will order the applicant = removed. The applicant then has 30 days to submit an appeal to the = Board=20 of Immigration Appeals (BIA).[25]

An = applicant who is=20 ordered removed by an IJ can appeal the decision to the = BIA.[26]The BIA=20 has put out a very helpful practice manual that practitioners = should=20 consult if doing a BIA appeal.[27]

The = Notice of Appeal=20 and accompanying fee must be received within 30 days of the denial = or the=20 right to appeal is lost.[28]The BIA=20 gives this rule extremely strict interpretation, so it is = imperative to=20 file the appeal in a timely manner.

Once a = BIA appeal is=20 filed, the removal (deportation) is automatically stayed until the = BIA=20 renders a decision.[29]After=20 submitting the Notice of Appeal, it generally takes about a year = to=20 receive the transcript in the case and a briefing schedule. Once = the=20 attorney receives the transcript, he or she has only 21 days to = submit a=20 brief. It is usually possible for each party to obtain one (and = only one)=20 21-day extension.[30]

If the = applicant is=20 detained,[31]the=20 appeals process is accelerated and the briefing probably will be = scheduled=20 three or four months after the IJ=92s decision.[32]For=20 detained cases, the applicant and DHS have the same 21-day due = date for=20 the brief[33](in other=20 words, the appellee does not get to see the appellant=92s argument = before=20 defending the appeal), and only one extension is available per = appeal=20 regardless of which party makes the request.[34]

The BIA = reviews=20 questions of law de novo but employs a substantial evidence = standard for=20 questions of fact.[35]The BIA=20 routinely rubber stamps IJ decisions either through an affirmance = without=20 opinion or a single paragraph summary decision.

It is = very important=20 for the party commencing the appeal to argue for a three- member = panel and=20 explain why the case is not appropriate for summary = affirmance.[36]The BIA=20 has a crushing backlog of appeals and will affirm the case without = opinion=20 or writing only a summary opinion, if possible. There are six = categories=20 of issues that require the board to utilize a three-member=20 panel:

Having a = three=20 member-panel review the decision will greatly increase the = likelihood that=20 the decision will be overturned. Conversely, in defending an = appeal=20 brought by DHS, the practitioner should not seek review by a = three-member=20 panel.

If an = applicant loses=20 ahttp://www.immigrationequality.org/c5.html#_Toc211075737n appeal = before=20 the BIA, one must file a petition for review with the U.S. Court = of=20 Appeals that would have jurisdiction[38]within 30=20 days of the BIA denial. Unlike the BIA appeals, there is no = automatic stay=20 when a petition is filed in federal court. The standard for appeal = in=20 federal court is the =93substantial evidence test,=94[39]meaning=20 that the court cannot substitute its own judgment for that of the = BIA=20 and/or the IJ; so long as substantial evidence supports the = decision, it=20 must be upheld. For this reason, it is difficult to win a federal = appeal,=20 and an attorney who does not generally practice in this area of = law should=20 consult with an organization or attorney who has experience in = this area=20 prior to deciding whether to pursue a federal appeal.

Asylum = law is governed=20 by statute,[40]regulations,[41]BIA=20 decisions, and federal court decisions. The vast majority of = asylum=20 applications are decided by asylum officers or IJs whose decisions = are not=20 precedential. Interviews before the asylum office are not = transcribed or=20 recorded, and there is no substantive written decision when asylum = is=20 recommended. Likewise, asylum hearings in immigration court are = generally=20 closed proceedings. In most cases, the IJ issues an oral decision, = which,=20 like the proceedings themselves, is recorded, but is only = transcribed if=20 there is an appeal. The vast majority of BIA decisions also are=20 unpublished. Some commentators believe that the BIA intentionally=20 publishes more cases denying asylum than cases granting asylum to = avoid=20 providing a =93blueprint=94 for a successful asylum case.[42]

There is = an increasing=20 number of federal court decisions on asylum matters available = through=20 commercial legal research companies. Many of these decisions are=20 unpublished, but under recent changes to federal court rules, most = circuits now permit some citation to unpublished circuit court=20 decisions.

Under = immigration law,=20 the BIA is the administrative body that hears appeals from final = decisions=20 of IJs.[43]Precedential BIA decisions are binding across the = country=20 unless the federal circuit in which the applicant lives has issued = a=20 conflicting opinion.[44]Appeals=20 from the BIA in asylum, withholding, and CAT cases are taken = directly to=20 the U.S. Court of Appeals.[45]

To date, = there has not=20 been a published BIA decision that directly addresses a claim for = asylum=20 based on transgender identity. There have, however, been several = federal=20 court decisions that deal with transgender or otherwise=20 gender-nonconforming asylum-seekers. The first published decision = that=20 dealt with a transgender applicant was Hernandez-Montiel v. = INS.[46]Geovanni=20 Hernandez-Montiel is identified as a =93gay male with female = sexual=20 identity=94[47]from=20 Mexico. Hernandez-Montiel was detained, sexually assaulted, and = threatened=20 by the Mexican police because they considered him homosexual and = because=20 he was wearing female clothing.[48]The IJ=20 framed Hernandez-Montiel=92s particular social group as = =93=91homosexual males=20 who wish to dress as a woman [sic]=92=94 and found that the = applicant=92s choice=20 to sometimes wear female clothing was =93volitional=94 and, = therefore, not=20 immutable.[49]Fortunately, the U.S. Court of Appeals for the = Ninth=20 Circuit recognized that Hernandez-Montiel=92s outward expression = of his=20 gender identity through his attire was a manifestation of his = fundamental=20 identity, and as such, persecution for this reason qualified him = for=20 asylum. The court wrote, =93Gay men with female sexual identities = outwardly=20 manifest their identities through characteristics traditionally = associated=20 with women, such as feminine dress, long hair and fingernails =85 = Their=20 female sexual identities unite this group of gay men, and their = sexual=20 identities are so fundamental to their human identities that they = should=20 not be required to change them.=94[50]Thus, in=20 the Ninth Circuit, it was established that a gender-nonconforming=20 individual who could frame one=92s transgender identity in terms = of sexual=20 orientation would fit into a recognized particular social=20 group.

In = Reyes-Reyes v.=20 Ashcroft, the Ninth Circuit again recognized that =93gay men with = female=20 sexual identities=94 formed a particular social group, this time = in the=20 applicant=92s native El Salvador.[51]Reyes-Reyes had dressed like a woman for 16 years = prior to=20 his application for immigration relief. He wore make-up, a = woman=92s=20 hairstyle, and female clothing.[52]As a=20 teenager, Reyes-Reyes was kidnapped by a gang, beaten, and raped = on=20 account of his homosexuality. Because Reyes-Reyes had missed the = one-year=20 filing deadline, he was not eligible for asylum. However, the = Ninth=20 Circuit remanded the case for further review of his withholding = and CAT=20 claims. Importantly, the court determined that even though there = was no=20 allegation that members of the Salvadoran government had = themselves=20 tortured Reyes-Reyes, the court found that if the government was = willfully=20 blind to the type of harm Reyes-Reyes suffered, this could be = sufficient=20 to meet the CAT standard.[53]The court=20 further remanded to determine whether the harm Reyes-Reyes had = suffered=20 qualified as past persecution, or, in the alternative, whether he = had=20 demonstrated a likelihood of future persecution.[54]

In = Reyes-Reyes, the=20 court again grappled with an applicant=92s gender identity and its = connection to sexual orientation. In a footnote, the court=20 wrote:

It is not = clear from=20 the record whether Reyes=92s female sexual appearance was fully = manifest at=20 this age [16]. We note, however, that Reyes=92s sexual = orientation, for=20 which he was targeted, and his transsexual behavior, are = intimately=20 connected. As we have recognized, it is well-accepted among social = scientists that =91sexual identity is inherent to one=92s very = identity as a=20 person =85. Sexual identity goes beyond sexual conduct and = manifests itself=20 outwardly, often through dress and appearance.[55]

It is = important to bear=20 in mind that some applicants will view their transgender identity = as an=20 outgrowth or manifestation of their sexual orientation, as, = apparently,=20 Reyes-Reyes did. Other applicants may identify as heterosexual and = see=20 their gender identity as an issue entirely distinct from sexual=20 orientation. Because this area of law and human experience is so=20 complicated, it is important for the practitioner to be an = educator as=20 much as an advocate in putting forward these claims.

In = Ornelas-Chavez v.=20 Gonzalez, the Ninth Circuit again considered the case of a gay = male with=20 =93female sexual identity=94 from Mexico.[56]Ornelas-Chavez also framed his claim as being = based on his=20 homosexuality and female sexual identity. He had suffered various = harms=20 including beatings and rapes at the hands of private = actors.[57]The IJ=20 and BIA found that Ornelas-Chavez had failed to establish = persecution=20 because the government was not directly involved other than one = minor=20 police detention. The BIA further faulted Ornelas-Chavez for = failing to=20 report the harms that he had suffered to the police. The Ninth = Circuit=20 again remanded, finding that an individual who has faced = persecution is=20 not required to report the persecution if doing so would be futile = or=20 would subject one to further harm.[58]This=20 holding is important for the many transgender asylum-seekers who = are=20 afraid to even set foot in the police stations of their home = countries=20 because cross-dressing is illegal or because they know that the = police=20 themselves may harm them without any repercussions.

In 2007, = the Ninth=20 Circuit issued another decision concerning a transgender = asylum-seeker. In=20 Morales v. Gonzalez, the Ninth Circuit again remanded the case to=20 determine whether the applicant met the standard for withholding = of=20 removal or CAT.[59]This is=20 the only published decision in the asylum realm that uses the term = =93male-to-female transsexual=94 rather than the awkward =93gay = man with female=20 sexual identity=94 employed in prior cases. Morales was a native = of Mexico=20 who began dressing as a woman and working at a bar at the age of=20 15.[60]She was=20 arrested for working in a bar as a minor on two occasions, and on = one of=20 these occasions, was raped while in jail, with her cries for help = going=20 unanswered.[61]

While = much of the=20 decision analyzes Morales=92s statutory eligibility for asylum and = withholding because of a crime she committed in the United States, = the=20 court also found that the IJ and BIA had employed the wrong = standard in=20 her CAT claim. The court remanded for consideration of all claims, = particularly the fact that the IJ=92s decision had made no = reference to the=20 police=92s role in failing to protect Morales while she was in = jail, and=20 instead actually laughing and ignoring her screams while she was=20 raped.[62]The=20 decision is significant because transgender prisoners are often = subjected=20 to violence and rape, and here the court holds the Mexican = government=20 accountable for the police=92s failure to intercede. The case also = is=20 important in that Morales=92s claim for protection was based = directly on her=20 transsexual identity, without the court finding any need to tie = the harm=20 she suffered explicitly to her sexual orientation. Notably, too, = this is=20 the first in the line of Ninth Circuit transgender cases where the = female-identified applicant is referred to in the decision by the = female=20 pronoun.

To = prevail on an asylum=20 claim, an applicant must prove that he or she meets the definition = of=20 =93refugee=94:

[A]ny = person who is=20 outside any country of such person=92s nationality =85 and who is = unable or=20 unwilling to return to, and is unable or unwilling to avail = himself =85 of=20 the protection of, that country because of persecution or a = well-founded=20 fear of persecution on account of race, religion, nationality, = membership=20 in a particular social group, or political opinion =85.[63]

Thus, an = applicant can=20 establish refugee status by showing that: (i) one was persecuted = in the=20 past; or (ii) one has a well-founded fear of present or future = persecution=20 upon return to the home country; and (iii) the past and/or future=20 persecution is on account of one of the statutory = grounds.[64]An=20 applicant for asylum also must show that he or she applied within = one year=20 of his or her last arrival in the United States or meets one of = the=20 exceptions to the one-year filing deadline.[65]

An = applicant must first=20 prove that the fear of persecution is on account of a ground = protected by=20 refugee law. While the most common ground for asylum is probably = political=20 opinion, the =93particular social group=94 category has expanded = greatly in=20 recent years. This category encompasses many nontraditional areas = of=20 asylum law, including female genital cutting, domestic violence, = sexual=20 orientation, and gender identity-based claims.

In 1994, = former=20 Attorney General Janet Reno designated as precedent the BIA = decision=20 Matter of Toboso-Alfonso.[66]Toboso-Alfonso involved a gay Cuban man who had = suffered=20 numerous abuses at the hand of the Cuban government, including = regular=20 check-ins with a government official and forced labor. In this = case, the=20 board held that sexual orientation could constitute a particular = social=20 group for purposes of asylum or withholding of removal.

Although = there has not=20 been a precedential decision directly addressing the question of = whether=20 transgender identity constitutes a particular social group, there = have=20 been several Ninth Circuit cases involving transgender applicants, = three=20 of which have framed the applicant=92s social group as =93gay man = with female=20 sexual identity.=94[67]

Practice = Tip: Although=20 the above‑mentioned wording may sound awkward, =93gay man = with female sexual=20 identity=94 may be a useful way to frame your client=92s claim = since it has=20 been specifically recognized by the federal court. For example, it = might=20 be an appropriate social group formulation if you are working with = a=20 transgender woman who had romantic relationships with men in her = country=20 of origin and identified and continues to identify at least in = part as a=20 gay man.

Even = presuming that the=20 Ninth Circuit cases are not accepted in other circuits, or that = they do=20 not conclusively state that transgender identity constitutes a = particular=20 social group, strong arguments can be made that transgender = identity does=20 form the basis for membership in a particular social group. The = leading=20 BIA case on defining particular social group is Matter of = Acosta.[68]In=20 Acosta, the BIA determined that the qualifying characteristic = =93must be one=20 that the members of the group either cannot change, or should not = be=20 required to change because it is fundamental to their individual=20 identities or consciences.=94[69]A=20 practitioner could certainly argue that there is almost no other=20 characteristic more fundamental to one=92s identity than his or = her gender=20 identity and that transgender identity therefore clearly falls = within this=20 definition.[70]

Practice = Tip: It is=20 important to bear in mind that as an attorney working on = transgender=20 issues, your role is not just to advocate for your client, but = also to=20 educate the adjudicator about what it means for your client to be=20 transgender. For example, in Hernandez-Montiel, the BIA was = willing to=20 accept that Hernandez-Montiel=92s sexual orientation could be = grounds for=20 asylum, but was unconvinced that the persecution Hernandez-Montiel = suffered for dressing as a woman was on account of a protected=20 characteristic. Fortunately, the Ninth Circuit recognized=20 Hernandez-Montiel=92s attire as directly related to gender = identity. It is=20 important to bear in mind that an adjudicator may not make this=20 connection, and you should be prepared to do so.

Moreover, = since=20 precedent in transgender asylum cases is so much more limited than = precedent in sexual orientation-based cases, it is often a good = strategy=20 to include a claim based on perceived sexual orientation as well = as=20 transgender identity. For example, if a female-to-male (FTM) = applicant was=20 perceived as a masculine female growing up and now has romantic=20 relationships with women, he would likely be perceived as a = lesbian if=20 forced to return to his home country, even though he identifies as = a man.=20 In 2001, legacy INS issued proposed regulations governing the = particular=20 social group category that recognize the possibility of = =93perceived=20 membership in a particular social group.=94[71]To date,=20 those regulations have not been promulgated. However, one federal = court=20 has explicitly stated that imputed sexual orientation can serve as = the=20 basis for an asylum claim.[72]In Amanfi=20 v. Ashcroft, a heterosexual man from Ghana engaged in a homosexual = act to=20 escape a ritual sacrifice and thereafter feared persecution as a = perceived=20 homosexual. Thus, if it is factually possible to frame the = applicant=92s=20 claim based on imputed sexual orientation, it is generally a good = idea to=20 include this as an alternative theory of the case.

Practice = Tip: Remember,=20 it is fine to put forward more than one potential ground of asylum = simultaneously. Thus, it is acceptable for an applicant to frame = the claim=20 as, for example, belonging to the particular social groups of = =93transgender=20 women and perceived gay men.=94

Practice = Tip: Asylum=20 cases are always based on the facts presented. If you have a = client who=20 does not identify as gay or lesbian and has never identified this = way,=20 don=92t try to frame the case in a way that makes one = uncomfortable or that=20 will be inconsistent with one=92s testimony. That being said, you = may be=20 able to help your client to understand that a claim based on = =93imputed=20 sexual orientation=94 does not mean that one is actually gay or=20 lesbian.

To = succeed in an=20 application for asylum, the burden of proof rests on the asylum = applicant=20 to demonstrate either that he or she has suffered persecution in = the past,=20 or that there is a well-founded fear of future = persecution.[73]The term=20 =93persecution=94 is not defined in the INA, but a definition has = evolved=20 through case law. Generally, =93persecution=94 encompasses = physical harm,=20 including, physical assaults, female genital mutilation, and=20 torture.[74]To rise=20 to the level of persecution, the harm must be perpetrated directly = by the=20 government or by private individuals that the government is unable = or=20 unwilling to control.[75]Police=20 officers, the military, and government-run schools generally are=20 considered to be arms of the government. Private individuals = including=20 armed militia, death squads, gangs, and family members also may = qualify as=20 persecutors if the government is unable or unwilling to protect = the=20 applicant from them.[76]

In the = lesbian, gay,=20 bisexual, and transgender (LGBT) context, harm that has risen to = the level=20 of persecution has included: being forced to report all sexual = activities=20 to a government official, being detained, and being confined in a = labor=20 camp for 60 days;[77]being=20 forced to undergo electroshock therapy in an effort to =93cure=94 = the=20 applicant of her lesbianism;[78]being=20 raped at gunpoint by a police officer;[79]and being=20 raped by nongovernment actors whom the government is unable or = unwilling=20 to control.[80]

Establishing an=20 applicant=92s past persecution creates a rebuttable presumption = that one=20 will be persecuted in the future.[81]Thus, if=20 an applicant establishes past persecution, the burden of proof = shifts to=20 DHS to prove that the applicant should not be granted = asylum.[82]The=20 regulations list two grounds for rebutting the presumption of = future=20 persecution: (a) a fundamental change in circumstances such that = the=20 applicant no longer has a well-founded fear of persecution in his = or her=20 country; or (b) the applicant could relocate to another part of = the=20 country to avoid persecution, and such relocation would be = reasonable=20 under all of the circumstances of the case.[83]If the=20 past persecution was at the hands of the government, there is a=20 presumption that internal relocation is unreasonable.[84]

Practice = Tip: As a=20 practical matter, it is much easier to win an asylum case where = there was=20 past persecution than to win a case based wholly on future = persecution.=20 For obvious reasons, it is easier to prove that something already = happened=20 in the past than to prove its likelihood of happening in the=20 future.

Even if = an applicant=20 has not experienced harm in the past, he or she may still prevail = on the=20 case by demonstrating that there is a =93well-founded fear=94 of = persecution.=20 The U.S. Supreme Court has held that to meet this standard, a = showing of a=20 10 percent likelihood of future persecution may be = sufficient.[85]Although=20 10 percent sounds like a fairly low threshold, as the regulations = spell=20 out, cases based on future persecution alone can be difficult to = win. The=20 regulations explain that an applicant can prevail based on future=20 persecution if he or she can demonstrate either that he or she = will be=20 singled out for persecution or that there is a pattern and = practice of=20 persecution of a group that is similarly situated to the applicant = of=20 which the applicant is a member.[86]

Thus, in = a typical=20 claim by a transgender applicant, he or she could succeed without = showing=20 past persecution if he or she could demonstrate some reason to be = singled=20 out and persecuted in the future. For example, if one is now = taking=20 hormones and is presenting and living as a male, or if one has = appeared in=20 a newspaper article about transgender issues and has thus, been = =93outed,=94=20 these outward manifestations and proclamations could make one = newly=20 susceptible to persecution. If there is no way to show that the = applicant=20 would be singled out, one could still prevail if one can = demonstrate a=20 pattern and practice of persecution against transgender = individuals in the=20 home country=97a fact pattern that is often easy to show for = transgender=20 applicants.[87]

Note: One = IJ speaking=20 on a continuing legal education panel stated that she uses an = imaginary=20 sliding scale in her mind in order to determine future = persecution=97the=20 worse the country conditions, the less individualized harm an = applicant=20 needs to show; the better the country conditions, the worse the=20 individualized harm must be.

Practice = Tip: One=20 reason that future persecution cases may be more difficult than = past=20 persecution cases is that the adjudicator may reasonably ask the=20 applicant, =93If you weren=92t persecuted in the many years you = lived in your=20 country before, why should I believe you=92d be persecuted now?=94 = If your=20 client had not yet begun to live in his or her corrected gender, = or had=20 not done so full time, the fact that he or she is now doing so and = would=20 thus be more of a target may be a compelling answer.

The = asylum applicant=20 also must demonstrate that there is a nexus between the harm = suffered and=20 the protected ground. Under the REAL ID Act that was enacted in=20 2005,[88]an=20 applicant must prove that one of the five protected grounds =93was = or will=20 be at least one central reason for persecuting the = applicant.=94[89]Thus, an=20 applicant must establish not only that he or she is transgender = and that=20 he or she has been harmed or fears future harm, but also that the = harm is=20 =93on account=94 of his or her membership in a recognized = particular social=20 group.

Practice = Tip: The=20 =93nexus=94 requirement is another reason that it may be helpful = to posit an=20 alternative particular social group of =93perceived sexual = orientation.=94 For=20 example, if your client grew up in her country perceived as an = effeminate=20 gay man before beginning to transition, the harm she suffered may = have=20 been based on the persecutor=92s belief that she was a gay man. In = retelling=20 the story of an incident of harm, your client may explain that the = assailant called her =93faggot=94 or a similar term, so it is = important to=20 demonstrate the connection between this harm and your client=92s = current=20 identity.

In = addition to meeting=20 the legal standard for asylum, an applicant also must demonstrate = that he=20 or she merits a favorable exercise of discretion.[90]Thus, the=20 applicant must convince the adjudicator that, viewing all the = relevant=20 facts, he or she =93deserves=94 asylum. Issues that could prevent = a favorable=20 exercise of discretion include criminal convictions or prior fraud = in=20 immigration matters, such as a =93fake=94 marriage-based = application or use of=20 fraudulent documents. Conversely, it is important for the = practitioner to=20 highlight any favorable discretionary factors, such as close = family=20 members who are USCs or LPRs, work history, school attendance, = attendance=20 at a place of worship, public service, etc.

Practice = Tip: If your=20 client=92s background includes any negative factors, such as a = prostitution=20 conviction, it is best to include this information in the = declaration and=20 testimony. It is always best to let your client explain anything = negative=20 in his or her own words, and to put the most favorable light on a=20 difficult situation. For example, your client may have engaged in=20 prostitution for a brief period of time after being thrown out of = her=20 family=92s home once she started dressing as a woman. If you can = demonstrate=20 that this is something she did in the past out of desperation and = that she=20 has since turned her life around, it probably will not prevent a = favorable=20 exercise of discretion.

An asylum = applicant=20 also must prove that he or she filed an asylum application within = one year=20 of his or her last entry into the United States or qualify for an=20 exception to this rule.[91]The=20 burden of proof is on the applicant to establish that he or she is = filing=20 within one year of his or her last arrival. Unless one can do so, = one is=20 ineligible for asylum but may be eligible for withholding of = removal or=20 relief under the CAT.[92]

Practice = Tip: In most=20 instances, an applicant will have entered with a visa and the = stamp in the=20 passport will be proof of the entry date. If, however, your client = crossed=20 the border without inspection, he or she will need to prove his or = date of=20 entry. This is easiest to do if there is any documentary proof = that one=20 was outside of the United States such as employment records, = medical=20 records, proof of sale of property, etc. Often, individuals = seeking to=20 cross the Mexican border are caught, fingerprinted, and released = into=20 Mexico before they ultimately succeed in crossing. If this = happened to=20 your client, you may be able to obtain records of the earlier = crossing=20 attempt to help corroborate the date of entry.

There is = an exception=20 to the filing deadline if the applicant can demonstrate changed=20 circumstances.[93]This=20 exception is intended to cover an applicant who, during his or her = first=20 year in the United States did not fear persecution in his or her = country,=20 but because of recent changes, now does fear persecution. In = addition to=20 demonstrating a changed circumstance, the applicant must show that = he or=20 she is filing within a reasonable period of time following the=20 change.[94]=93Reasonable period of time=94 is not defined = and is analyzed=20 on a case-by-case basis. However, the application should be filed = within=20 six months of the changed circumstances whenever possible and = should not=20 be filed more than one year after the change unless there is no = other=20 option, for example, if the applicant is already in removal=20 proceedings.

This = exception=20 encompasses both changed country conditions and individual changed = circumstances.[95]Thus, an=20 exception could be found if the foreign government recently = enacted a law=20 criminalizing cross‑dressing. It is more likely that a = changed=20 circumstances exception for a transgender individual will be based = on=20 personal circumstances. For example, if the applicant has only = recently=20 begun to live full-time as a man, or if the applicant has recently = had a=20 mastectomy, an adjudicator could find that these events constitute = changed=20 circumstances. Even if the applicant=92s past experience of harm = based on=20 transgender identity is insufficient to meet the asylum standard, = it may=20 be possible to argue that recent medical steps in transitioning = would now=20 make it impossible for him to =93pass=94 as his birth gender in = his home=20 country.

A recent = HIV diagnosis=20 also could constitute a changed circumstances exception if the = applicant=20 is able to demonstrate that he or she also fears persecution on = this=20 basis. Often, such claims can help bolster the LGBT claim and vice = versa,=20 in that an applicant who is HIV-positive may be assumed by medical = providers and community members to be LGBT, thus subjecting him or = her to=20 greater future harm.

The other = exception to=20 the one-year filing deadline is for extraordinary = circumstances.[96]The=20 purpose of this exception is to excuse late filing if something = prevented=20 the applicant from filing within one year. Examples of this = exception=20 include: serious medical problems such as recurring=20 hospitalizations,[97]serious=20 mental health problems,[98]ineffective assistance of counsel that prevented = timely=20 filing,[99]and=20 maintaining lawful immigration status.[100]

Probably = the most=20 common exception to the one-year filing deadline is a claim based = on=20 mental health-related extraordinary circumstances, for example, = post=20 traumatic stress disorder (PTSD), severe depression, or mental=20 illness.[101]Since so=20 many asylum-seekers have suffered severe trauma in their home = countries,=20 it is hardly surprising that many asylum-seekers suffer from PTSD = or other=20 mental health issues. In order to prove a mental health exception = to the=20 filing deadline, it is imperative to have a detailed affidavit = from a=20 psychiatrist or psychologist. If the case is in immigration = proceedings,=20 it is best if the mental health professional can testify at the=20 hearing.

Practice = Tip: It is=20 sometimes possible to combine a changed circumstances exception = with an=20 extraordinary circumstances exception. For example, a changed = circumstance=20 may be that the applicant only began to live full-time as a woman = two=20 years ago, but doing so may have caused her family to disown her, = and=20 thus, may have caused her to spiral into a deep = depression.

Another = common=20 =93exceptional circumstance=94 is maintaining lawful nonimmigrant = or immigrant=20 status. Thus, a student who attends college in the United States = is not=20 required to file during his or her first year of study. One can = wait until=20 one is graduating, and if afraid to return to his or her country = at that=20 point, one need only file within a reasonable period of time after = his or=20 her lawful status expires. Likewise, a long-term LPR who is placed = in=20 removal proceedings for having committed a crime may be able to = apply for=20 asylum if he or she maintained lawful status here, although the = crime that=20 leads to the loss of LPR status also may result in a denial of the = asylum=20 application.[102]

The same = form that is=20 used to apply for asylum, Form I-589, is used to apply = simultaneously for=20 withholding of removal.[103]As with=20 asylum, an applicant for withholding must prove that he or she = will face=20 persecution on account of one of the five protected = grounds.[104]Unlike=20 asylum, a grant of withholding is mandatory, not discretionary, if = the=20 applicant meets the higher standard.[105]To=20 prevail on a claim of withholding of removal, an applicant must=20 demonstrate that it is =93more likely than not,=94 that is, at = least 51=20 percent likely that one will face persecution in one=92s = country.[106]As with=20 asylum, proof of past persecution carries a presumption of future=20 persecution.[107]There is=20 no one-year filing deadline for withholding = applications.

Withholding of removal=20 can be granted only by an IJ.[108]Thus,=20 for example, if an applicant who has missed the one-year filing = deadline=20 files affirmatively for asylum and the asylum office does not = believe=20 there is an exception to the filing deadline, he or she will be = placed in=20 removal proceedings in immigration court. There, the applicant = will=20 present his or her asylum application de novo, along with the = application=20 for withholding of removal. If the IJ finds that the applicant did = not=20 demonstrate a one-year exception, the best the applicant can hope = for is=20 withholding of removal. Winning withholding means that the IJ = orders the=20 applicant removed (deported) but =93withholds=94 enforcement of = that order as=20 to the country of feared persecution. This means that an = individual with=20 withholding has lawful status in the United States, can work = legally (with=20 DHS work authorization),[109]and=20 receive certain federal financial benefits (such as welfare), but = also=20 will have a final order of removal against him or her, and thus, = can never=20 apply for legal permanent residence or citizenship.[110]Likewise, one cannot ever travel outside the = United States,=20 because with a final order of removal, one will not be permitted=20 reentry.[111]

For many = individuals,=20 the ability to work lawfully makes withholding of removal a much = better=20 status to have than being here unlawfully, but it is very = important for=20 applicants who obtain this status (or accept this status through = =93plea=20 bargaining=94 with ICE attorneys) to understand its = limitations.

An = individual who has=20 been convicted of a =93particularly serious crime=94[112]is=20 statutorily barred from receiving withholding of removal or=20 asylum.[113]In=20 determining whether a crime is =93particularly serious,=94 the = court will look=20 to: the nature of the crime; the circumstances surrounding the = crime; the=20 length of the sentence; and whether the crime indicates = dangerousness to=20 the community.[114]

Another = form of relief=20 related to asylum and withholding is relief under CAT.[115]As with=20 withholding, only an IJ can grant CAT relief, and it also is = applied for=20 on Form I-589. There is no criminal bar to receiving CAT but the = standard=20 is very difficult to meet. An applicant must demonstrate that if = he or she=20 is returned to his or her country, it is more likely than not that = he or=20 she will be tortured either directly by the government or with the = government=92s acquiescence.[116]There is=20 no requirement to demonstrate that the torture will be on account = of one=20 of the protected grounds, and there is no one-year filing=20 deadline.

Because = the standard is=20 so high in these cases, CAT applications are generally claims of = last=20 resort for applicants with such serious criminal convictions that = they are=20 barred from asylum or withholding.[117]

Most = asylum=20 applications consist of several hundred pages worth of materials = that=20 include the asylum application itself (Form I-589), a detailed = declaration=20 from the applicant, corroborating documents specific to the = applicant=92s=20 case, country conditions materials, and, sometimes, a legal brief. = A=20 comprehensive guide to preparing these documents is beyond the = scope of=20 this manual; again, the reader is directed to the LGBT/H asylum = manual=20 available on Immigration Equality=92s website.[118]

In order = to apply for=20 asylum, an applicant must submit Form I-589.[119]Although=20 it is important to submit all of the documents discussed below in = order to=20 succeed in an application for asylum, technically, all that is = required to=20 file is the I-589. Thus, if an applicant is close to the one-year = filing=20 deadline, it is sometimes advisable to file a barebones I-589 and = submit=20 the remaining documentation on the date of the asylum=20 interview.

The = practitioner must=20 be careful to complete every box in the background sections of the = application form, or the entire submitted application may be = returned as=20 incomplete. It also is important to put enough information in the = =93essay=20 questions=94 in the second-half of the form for the adjudicator to = understand the nature of the claim.

Practice = Tip: Often,=20 the asylum officer literally reads the =93essay=94 questions aloud = as the=20 substantive questions at the interview. It is thus best practice = to=20 greatly condense the answers to these questions to fit in the = space=20 provided on the form and then give a fuller explanation of the = applicant=92s=20 story in the declaration. If the answers spill over onto the = additional=20 pages provided with the form, it is harder for the adjudicator to = follow=20 along. Likewise, the answers should be succinct but complete; it = is never=20 advisable to simply fill in =93see attached = declaration.=94

In order = to be=20 recognized as the attorney of record, counsel must submit a Notice = of=20 Appearance Form. For applications filed affirmatively, this is = Form=20 G-28,[120]which=20 should be submitted on blue paper, if possible. If the case is in=20 immigration court already and the applicant is filing a defensive=20 application, the representative must file Form EOIR 28,[121]preferably on green paper.

Practice = Tip: In the=20 past, DHS has only recognized one attorney of record at a time on = a case.=20 Thus, if a =93team=94 of attorneys was working on the case, only = one attorney=20 would be permitted to file a Notice of Appearance form on behalf = of the=20 client. The Executive Office for Immigrant Review recently issued = the=20 Immigration Court Practice Manual that became effective July 1, = 2008.=20 According to this manual, each of the attorneys working on a case = must=20 file Notices of Entry of Appearance annotated to reflect which = attorney is=20 the primary attorney, and only the primary attorney should expect = to=20 receive correspondence about the case from the court. [122]

The = declaration is the=20 applicant=92s opportunity to tell the story in his or her own = words. This is=20 probably the single most important piece of evidence in the case, = and the=20 attorney=92s primary role in preparing the application is to work = with the=20 applicant until the declaration reaches its best possible form. = The=20 declaration should be paragraph-numbered and should generally be = anywhere=20 from 15 to 30 pages, depending on the applicant=92s age and life=20 history.

The = declaration should=20 detail the applicant=92s entire life, including, but not limited=20 to:

Under the = REAL ID Act=20 of 2005,[123]rules=20 regarding corroborating evidence in asylum cases have become more = strict.=20 Essentially, all documents that the adjudicator would reasonably = want to=20 see must be provided, or the applicant must explain the steps = taken to try=20 to get them and why he or she has been unable to obtain them. For = example,=20 if the applicant states that he or she was arrested and charged = for=20 =93lascivious behavior=94 for hanging out in a park with other = transgender=20 people, he or she will need to either obtain the arrest record or = provide=20 a detailed account of why doing so is impossible. Maybe in his or = her=20 country only family members can obtain such records, and he or she = is=20 estranged from his or her family because of his or her transgender = identity, or maybe the friends a_Toc211075769re too afraid to ask = for such=20 records because they would be perceived as transgender or gay=20 themselves.

In any = event, one of=20 the first steps an attorney should take in meeting with a = potential asylum=20 applicant is to brainstorm about corroborating documents that can = be=20 submitted. These can and should include affidavits or letters from = other=20 people (friends, family, partners, etc.) who were present during = past=20 instances of harm or who saw the applicant shortly thereafter and = can=20 confirm injuries or distress that they observed that the applicant = had=20 suffered. Likewise, if the applicant describes being forced to = sell his or=20 her home after receiving threats, it would be very helpful to have = a copy=20 of the deed of sale that confirms the date.

Any = documents that are=20 not in English must be translated into English along with a = notarized=20 certificate of translation by someone other than the applicant = that=20 attests to the translator=92s proficiency in both languages and = that the=20 translation is true and accurate. Both the original and the = translation=20 must be submitted.[124]

If the = applicant has=20 taken any medical steps to begin transitioning, medical records or = a=20 letter from the treating physician should be included. This will = help=20 confirm the applicant=92s membership in the social group of = transgender=20 individuals. Also, the more permanent the transition steps are, = the easier=20 it is to refute any notion that the applicant could =93pass=94 as = his or her=20 birth sex if returned to his or her country.

Submitting a report by=20 a mental health expert can be crucial to the asylum case, = especially if=20 the applicant missed the one-year filing deadline and is claiming = an=20 =93extraordinary circumstances=94 exception. A mental health = expert can=20 explain in an affidavit (and via live or telephonic testimony if = the case=20 is in court) any mental health difficulties the applicant has = suffered,=20 such as PTSD or depression, as a result of the harm endured in his = or her=20 country. A mental health expert also can be very helpful to = confirm the=20 applicant=92s transgender identity, especially if the client is in = the early=20 stages of transitioning.

Practice = Tip: Make full=20 use of your mental health expert. Have the expert review as many = documents=20 that you have submitted as possible. For example, if your client = has a=20 history of mental illness, have the expert review all of your = client=92s=20 medical records. It can even be helpful to have the school = records,=20 letters from friends and family, and, of course, the applicant=92s = declaration reviewed. The broader the range of evidence the expert = can=20 cite in writing a report or giving live testimony, the more weight = that=20 evaluation will be given. Also, if the mental health expert = concludes that=20 your client suffers from PTSD, severe depression, or has another = mental=20 health diagnosis, it is important that your client seek ongoing = treatment=20 for these issues and document compliance with the = treatment.

An = applicant for asylum=20 must prove that his or her fear of return to his or her country is = objectively reasonable, in addition to proving a subjective fear = of=20 return.[125]Thus, it=20 is essential to submit documentation of country conditions for = transgender=20 individuals in the applicant=92s country of origin. These = conditions should=20 include the most recent DOS Report on Human Rights for the = applicant=92s=20 country.[126]These=20 reports are often given great weight by the adjudicator, though=20 frequently, they have little or no information about the treatment = of=20 transgender individuals. Reports from human rights organizations = such as=20 Human Rights Watch, Amnesty International, and the International = Gay and=20 Lesbian Human Rights Commission, also are very helpful. The = application=20 also should include newspaper articles either from local press or = from=20 international press (including the LGBT press) about any incidents = of=20 mistreatment of LGBT individuals.

Practice = Tip: Remember,=20 your job is to make it as easy as possible for the adjudicator to = grant=20 the asylum case. Asylum officers and IJs are dealing with several = asylum=20 applications a day, so it is crucial that all country conditions = be=20 well-organized (generally in reverse chronological order) and = indexed with=20 the most relevant sections of the articles excerpted in the index = and/or=20 highlighted with a highlighter on the documents = themselves.

If there = are few or no=20 country conditions materials available for the country, or if the = case is=20 in immigration court, it can be extremely helpful to have a = country=20 conditions expert. The expert can prepare a written report about = the=20 conditions and may be able to testify live or telephonically in=20 immigration court. This testimony will often make the difference = in a=20 case, especially if the judge has a particular concern, such as = whether=20 some regions in the country are safer than others or whether = conditions=20 overall are improving. Most experts are affiliated with academic=20 institutions. Some charge a fee, while others will provide reports = or=20 testimony for free, particularly for pro bono cases.

In some = cases, it can=20 be helpful to provide the adjudicator with a legal brief. Many = asylum=20 officers are not attorneys, and all asylum officers are very = familiar with=20 the general standards for asylum, thus a brief that accompanies an = affirmative application should really focus on the facts of the = case,=20 including country conditions, and how these facts meet the asylum=20 standard. Briefs for affirmative cases are most useful if there is = a=20 specific legal issue to be addressed, such as a one-year filing = deadline=20 exception.

If the = case is in=20 immigration court, the stakes are higher since a loss will mean = that the=20 applicant will be ordered deported. Since these proceedings are = more=20 formal and there is a judge and opposing counsel involved, it is = generally=20 best practice to submit a legal brief. Again, the judge will be = most=20 interested in why the specific facts of the case meet the standard = for the=20 relief requested. If there are any negative factors in the case, = it is=20 best to set forth the legal arguments for why the applicant is = still=20 eligible for relief.

<= SPAN=20 class=3Dmaintext>Back to Table of Contents=20

^{^[1]}For a more comprehensive manual on LGBT/HIV = asylum,=20 see Immigration Equality=92s manual at=20 = www.immigrationequality.org/manual_template.php.

^{^[2]}INA =A7209(a)(1); 8 USC = =A71159(b)(2).

^{^[3]}INA =A7316(a); 8 USC =A71422(a). Applications can = actually be=20 submitted three months prior to the four-year=20 anniversary.

^{^[4]}INA =A7208(c)(1)(B); 8 USC = =A71158(c)(1)(B).

^{^[5]}8 CFR =A7208.7(a)(1).

^{^[6]}INA=20 =A7208(a); 8 USC =A71158(a).

^{^[7]}INA =A7274C(d)(7); 8 USC=20 =A71324c(d)(7).

^{^[8]}INA =A7208(c)(2)(D); USC=20 =A71158(c)(2)(D).

^{^[9]}INA =A7208(c)(1)(C); 8 USC = =A71158(c)(1)(C).

^{^[10]}See Appendix I, Form I-589, Application = for Asylum=20 and for Withholding of Removal (with = instructions).

^{^[11]}8 CFR =A7208.9(b).

^{^[12]}8 CFR =A7208.9(d).

^{^[13]}8 CFR =A7208.7(a)(1).

^{^[14]}8 CFR =A7=A7208.14(c)(2), = 1208.14(c)(2).

^{^[15]}See www.uscis.gov (follow = =93Services &=20 Benefits=94 hyperlink; then follow =93Humanitarian Benefits=94 = hyperlink; then=20 follow =93Asylum=94 hyperlink; then follow =93Types of Asylum=20 Decisions=94).

^{^[16]}8 CFR=A7103(b)(8)(iv).

^{^[17]}Supra n. 15.

^{^[18]}INA =A7240(b)(5)(A); 8 USC = =A71229a(b)(5)(A).

^{^[19]}INA =A7212(a)(2); 8 USC = =A71182(a)(2).

^{^[20]}INA =A7212(a)(7); 8 USC = =A71182(a)(7).

^{^[21]}INA =A7212(a)(6); 8 USC = =A71182(a)(6).

^{^[22]}INA =A7240(c)(6)(A); 8 USC = =A71229a(c)(6)(A).

^{^[23]}See in this chapter, One-Year Filing = Deadline=20 section infra.

^{^[24]}See in this chapter, Convention = Against Torture=20 Relief section infra.

^{^[25]}INA =A7240(c)(6)(B); USC =A71229a = (c)(6)(B).

^{^[26]}INA =A7240(c)(5); 8 USC =A71229a = (c)(5).

^{^[27]}See the manual at=20 = www.usdoj.gov/eoir/bia/qapracmanual/BIA_Practice_Man_FullVer.pdf.

^{^[28]}INA =A7242(b)(1); 8 USC = =A71252(b)(1).

^{^[29]}8 CFR =A7208.2(3)(c)(iii).

^{^[30]}BIA Practice Manual at = 56.

^{^[31]}See Relief for Detained Foreign = Nationls=20 section infra chapter 6 for more information about=20 detention.

^{^[32]}8 CFR =A7235.3(b)(5)(iv).

^{^[33]}BIA Practice Manual at = 55.

^{^[34]}8 CFR =A71003.3(c)1.

^{^[35]}8 CFR =A7=A71003.1(d)(3)(ii) and = (iii).

^{^[36]}The grounds for requesting a three-member panel = are laid=20 out in the BIA Practice Manual at 3.

^{^[37]}Id.

^{^[38]}Some foreign nationals with serious felony = convictions may=20 not be able to bring a direct appeal of the removal order. A = discussion of=20 these types of cases is beyond the scope of this manual, but be = aware that=20 if the applicant is only eligible for Convention Against Torture = relief,=20 he or she may have to file a habeas type appeal, arguing = substantial=20 constitutional violations in order for the federal court to have=20 jurisdiction over the claim.

^{^[39]}INA =A7242(b)(4)(B); 8 USC = =A71252(b)(4)(B).

^{^[40]}INA =A7208; 8 USC =A71158 et. = seq.

^{^[41]}8 CFR =A7208 et. seq.

^{^[42]}See E. Ramanathan, =93Queer Cases: A = Comparative=20 Analysis of Global Sexual Orientation-Based Asylum = Jurisprudence,=94 11=20 Geo. Immigr. L.J. 1, 1, n. 2 (1996).

^{^[43]}8 CFR =A71003.1(b).

^{^[44]}8 CFR =A71003.1(g).

^{^[45]}INA =A7242(a)(1), 8 USC = =A71252(a)(1).

^{^[46]}Hernandez-Montiel v. INS, 225 F.3d 1084 = (9th Cir.=20 2000).

^{^[47]}Id. at 1087.

^{^[48]}Id. at 1088. Note: This manual = uses the=20 male pronoun for Hernandez-Montiel because that is the pronoun = used in the=20 decision and in his own briefs to the court.

^{^[49]}Id. at 1089.

^{^[50]}Id. at 1094.

^{^[51]}Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th = Cir.=20 2004).

^{^[52]}Id. at 785. Again, this manual uses = the male=20 pronoun in describing Reyes-Reyes because that is the pronoun used = in the=20 decision.

^{^[53]}Id. at 787. Note: This interpretation by the = Ninth=20 Circuit U.S. Court of Appeals is much more liberal than that of = other=20 circuits.

^{^[54]}Id. at 789.

^{^[55]}Id. at 785.

^{^[56]}Ornelas-Chavez v. Gonzalez, 458 F.3d 1052 = (9th Cir.=20 2006).

^{^[57]}Id. at 1054.

^{^[58]}Id. at 1058.

^{^[59]}Morales v. Gonzalez, 478 F.3d 972 (9th = Cir.=20 2007).

^{^[60]}Id. at 976.

^{^[61]}Id.

^{^[62]}Id. at 984.

^{^[63]}INA =A7101(a)(42)(A); 8 USC = =A71101(a)(42)(A).

[64]8 CFR = =A7208.12.

[65]8 CFR =A7=A7208.4(2),=20 208.4(5).

[66]20 I&N Dec. 819 (BIA 1990).

[67]See Hernandez-Montiel v. INS,=20 Reyes-Reyes v. Ashcroft, and = Ornelas-Chavez=20 v. Gonzalez sections supra in this=20 chapter.

[68]Matter of Acosta 19 I&N Dec. 211 = (BIA=20 1985).

[69]Id. at 233.

[70]For further information on formulating the = particular=20 social group claim for transgender applicants, see =93Uncharted Territory: Choosing an Effective = Approach in=20 Transgender‑Based Asylum Claims,=94 by Victoria = Neilson, originally=20 published at 32 Fordham Urb. L.J. 265 = (2005).

[71]65 Fed. Reg. 76588 (Dec. 7, = 2000).

[72]Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir.=20 2003).

[73]8 CFR =A7208.13.

[74]See In re S=96A=96, 22 I&N Dec. 1328, = 1335 (BIA=20 2000); In re Kasinga, 21 I&N Dec. 357, 358 (BIA = 1996);=20 Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. = 1997).

[75]In the case of In Re S=96A=96, 22 I&N = 1328 (BIA=20 2000), the BIA found persecution where an abusive father beat, = severely=20 burned, and refused to allow his daughter to leave the home = because she=20 did not adhere to his strict religious beliefs. The BIA agreed = with the=20 applicant that reporting this abuse to the Moroccan government = would have=20 been futile. Id. at 1333.

[76]Matter of = Villalta, 20 I&N Dec. 142 (BIA 1990) (death squads); = Arteaga=20 v. INS, 836 F.2d 1227, 1232 (guerillas); Singh v. INS, = 94 F.3d=20 1353, 1359 (9th Cir. 1996) (gangs); In Re S=96A=96, = id. (family=20 members).

[77]Matter of Toboso-Alfonso 20 I&N = Dec. 819=20 (BIA 1990).

[78]Pitcherskaia v. INS 118 F.3d 641, 645 = (9th Cir.=20 1997).

[79]Hernandez‑Montiel v. INS, 225 F.3d = 1088 (9th Cir.=20 2000).

[80]Reyes‑Reyes v. Ashcroft, 384 = F.3d 782 (9th Cir.=20 2004).

[81]8 CFR =A7208.13(b)(1).

[82]8 CFR =A7208.13(b)(1)(ii).

[83]8 CFR = =A7208.13(b)(1)(i)(A)=96(B).

[84]8 CFR =A7208.13(b)(3)(ii); see also Matter of = D=96I=96,=20 I&N Dec. 448, 450 (BIA 2008).

[85]INS v. Cardoza‑Fonseca, 480 U.S. = 421, 430=20 (1987).

[86]8 CFR =A7208.13(2).

[87]See, e.g., Hernandez‑Montiel v. INS, = 225 F.3d 1088,=20 1089 (9th Cir. 2000).

[88]Pub. L. No. 109-13, 119 Stat. = 231.

[89]INA =A7208(b)(1)(B)(i); 8 USC = =A71158.

[90]8 CFR =A7208.14.

[91]8 CFR =A7208.4.

[92]See Withholding of Removal and Convention = Against=20 Torture Act sections infra this chapter.

[93]8 CFR =A7208.4.

[94]8 CFR =A7208.4(a)(4)(ii).

[95]8 CFR=A7208.4(a)(4)(i).

[96]8 CFR =A7208.4(a)(5).

[97]8 CFR =A7208.4(a)(5)(i).

[98]Id.

[99]8 CFR =A7208.4(a)(5)iii.

[100]8 CFR =A7208.4(a)(5)iv.

[101]See generally L. Piwowarczyk, =93Seeking Asylum: A Mental Health = Perspective,=94 16=20 Geo. Immigr. L.J. 155 (2001).

[102]See Favorable Exercise of Discretion = section=20 supra this=20 chapter.

[103]8 CFR =A7208.3(a).

[104]8 CFR =A7208.16(d)(1).

[105]8 CFR=A7208.16(d)(1).

[106]8 CFR=A7208.16(c)(2).

[107]8 CFR =A7208.16(b)(1)(i).

[108]8 CFR =A7208.16(b)(1)(i).

[109]8 CFR =A7274a.12(a)(5).

[110]INA = =A7212(a)(9)(A)(ii); 8=20 USC =A71182.

[111]INA =A7212(a)(8)(A); 8 USC = =A71181.

[112]In re Frentescu, 18 I&N 2906 (BIA=20 1982).

[113]8 CFR =A7208.16(d)(2).

[114]In Re S=96S=96, 22 I&N Dec. 458 (BIA=20 1999).

[115]United Nations Convention Against Torture and = Other Cruel,=20 Inhuman and Degrading Treatment and Punishment, G.A. Res. 39/46, = Annex,=20 U.N. Doc. A/39/51 (1984) (June 26, 1987).

[116]8 CFR =A7208.16(C)(2).

[117]Cf. Neghes v. Mukasey, 2008 WL = 905347 (6th=20 Cir. Apr. 4, 2008) (man convicted of an aggravated felony argued=20 unsuccessfully that the BIA failed to give appropriate weight to = the=20 evidence in denying his Convention Against Torture (CAT) claim.) = CAT=20 claims have been central in two applications by transgender women. = See Reyes‑Reyes v. Ashcroft, 384 F.3d 782 (9th = Cir. 2004)=20 (granting CAT protections to a transgender applicant from Mexico = who=20 failed to meet the one-year filing deadline for asylum); = Morales v.=20 Gonzales, 478 F.3d 972 (9th Cir. 2007) (finding both that the = IJ erred=20 in the consideration of whether Morales was convicted of a = particularly=20 serious crime and that the IJ applied the incorrect legal standard = in=20 denying CAT relief).

[118]See www.immigrationequality.org/manual_te= mplate.php.

[119]See Appendix I, Form I-589, = Application for=20 Asylum and Withholding of Removal (with = instructions).

[120]See Appendix J, Form G-28, Notice of Entry = of=20 Appearance as Attorney or Representative.

[121]See Appendix K, Form EOIR-28, = Notice of=20 Entry of Appearance as Attorney or = Representative.

[122]See www.usdoj.gov/eoir/vll/OCIJPracManual= /Chap%202.pdf=20 for Immigration Court Practice Manual chapter=20 2.3(e). To purchase a print copy, visit=20 www.ailapubs.org.

[123]Pub. L. No. 109-13, 119 Stat. = 231.

[124]8 CFR =A71003.33.

[125]See INS v. Cardoza‑Fonseca, 480 = U.S. 421=20 (1987); Francois v. INS, 283 F.3d 926, 930 (8th Cir. 2002). = (=93The=20 objective element requires a showing of credible, direct, and = specific=20 evidence that a reasonable person in the alien=92s position would = fear=20 persecution if returned to the alien's native = country.=94)

[126]Department of State reports are available at=20 www.state.gov/g/drl/rls/hrrpt/.