A recent article in the Wall Street Journal (“WSJ”) posits that the number of gay and lesbian people receiving asylum in the United States based on their sexual orientation has surged in recent years and that most such people come from countries in Central America where homosexuality is not criminalized (as opposed to places like Ugandan, where loving the wrong person is a hanging offense). The article, by Joel Millman, concludes that LGBT asylum cases from Mexico and Central America are more likely to be granted than most other types of asylum cases from those countries.
Heaven forbid that I should agree with the WSJ (Slate certainly didn’t in a piece that pretty clearly misreads the Journal article), but the anecdotal and statistical evidence supports the notion that more people are seeking asylum based on sexual orientation and that those claims are often more likely to succeed than claims by other people from the same countries. But of course, as a certified curmudgeon, I cannot completely agree with the Journal piece, and indeed, I have a few points to take issue with. Then I’d like to pose a question: Is it really easier–as the WSJ claims–for LGBT applicants to obtain asylum in the United States?
First, the issues. To reach his conclusion that more LGBT people are seeking asylum, Mr. Millman relies on two main sources—statistics from the U.S. government and information from Immigration Equality, probably the premier LGBT asylum organization in the country.
As to the statistics, the government does not keep data on the number of people who receive asylum based on sexual orientation. As a rough proxy, the WSJ looked at the percentage of cases granted based on “particular social group” or PSG, the protected category most often used in LGBT asylum cases. The Journal found that as a percentage of total cases, the number of PSG cases has increased over the last several years (from about 12% at the end of the G.W. Bush Administration to 15.7% today).
I am not convinced that this metric tells us a whole lot about the number of gay asylum cases, however. Many people seek asylum based on PSG–gays and lesbians, victims of domestic violence, people fleeing gang persecution, victims of female genital mutilation, to name the most obvious–and so an increase in the percentage of asylum seekers relying on PSG does not necessarily mean that the number of LGBT asylum seekers has gone up. Also, concurrent with our country’s more liberalized approach to LGBT asylum claims, we have expanded protection for other categories of people who fall under PSG. So while the modest increase in asylum seekers relying on PSG supports the notion that LGBT claims are up, I don’t think this data is incredibly significant.
In my opinion, the anecdotal evidence for an increase in the number of LGBT cases is more convincing. According to the WSJ: “Last year, just one New York-based advocacy group, Immigration Equality, helped put 279 LGBT foreigners into the asylum process, a 250% increase from 2009.” That pretty well comports with what I’ve been seeing in DC and what I’ve heard from other lawyers, and so I believe the number of LGBT claimants is up, but by how much, we don’t really know (I have harped on this before, but this lack of reliable data again illustrates the need for better information about asylum seekers).
Another quibble with the article is the WSJ’s comparison of LGBT asylum seekers from Mexico and Central America, where homosexuality is not illegal and—in fact—where laws theoretically protect gay people, with other countries whose governments condemn homosexuality or make it illegal. The article notes that of the top 10 countries with the most PSG grants (where PSG is a proxy for LGBT), only three have laws against homosexuality. This all strikes me as basically meaningless. We receive many more asylum seekers from our own neighborhood, so there is no surprise that most PSG claims come from nearby countries. And while it is interesting that three distant countries (Kenya, Ethiopia, and Guinea) with anti-gay laws produce large numbers of PSG asylees, we have no way of knowing how many of these cases are LGBT; particularly since all three countries have high instances of female genital mutilation, which also falls into the PSG category.
The bottom line for me is that, while the increased number of PSG cases is consistent with an increase in LGBT claims, the statistics don’t really tell us much. But based on the anecdotal evidence and my own experience, it seems clear that more people than before are seeking asylum based on sexual orientation. Whether this constitutes a “surge” in LGBT claims, as the WSJ concludes, is debatable given the lack of data.
Finally, do LGBT claimants have an easier time winning asylum than others?
As the WSJ points out, an LGBT case from Central America is certainly more likely to succeed than the average case from the region. According to the Journal, Immigration Equality’s “success rate for closed cases [is] 98%, roughly quadruple the batting average of the typical asylum-seeker.” (Though I would be curious to know how they define “success” when they came up with this figure). Of course, many cases from Central America are based on gang persecution, which does not easily fit within a protected category for purposes of asylum. Since LGBT asylum seekers fall within a protected category–PSG–it is not surprising that they have a higher success rate than average. I would imagine that other cases where there is an obvious protected ground–like political cases, for example–are also much more likely to succeed than the average case.
Also, as the Journal points out, for LGBT asylum seekers, the likelihood of success is particularly high because country conditions are particularly bad. In our office, we see a decent number of LGBT asylum applicants, and they often have been subject to severe physical and psychological violence. So based on my own experience, the information in the WSJ piece rings true.
In the end, we don’t have the data to make a firm conclusion about how much “easier” it is for LGBT claimants to obtain asylum, but it seems likely that the success rate for such cases is higher than for many other types of cases. Given the threats and violence against gay people around the world, it seems to me that a high asylum grant rate is completely justified.