11/22/16 – Legal and Other Barriers to Protection for Transgender Asylum-Seekers in the US

Thanks to all who attended the USC Law & Global Health collaboration event on November 22, 2016. See below for a summary of the day’s proceedings.

Sofia Gruskin began the session by introducing Niels Frenzen, Clinical Professor of Law and Director of the Immigration Clinic at the USC Gould School of Law. Prof. Frenzen opened his presentation by noting that since Election Day, he has had to rearrange some of this talk, as when it comes to the health and rights challenges faced by transgender asylum seekers, the President-elect will certainly raise new legal and other barriers that will need to be addressed. In a broad sense, this is because a lot of statutory authority has ben conferred by Congress on the Secretary of the Department of Homeland Security and on the Attorney General, and thus there is a lot that can happen with those appointments that will affect immigrants and noncitizens more broadly, and will very likely impact trans asylum seekers.

Prof. Frenzen noted that has been teaching at USC since 2000, and his primary duty is to oversee the Immigration Clinic with upper level law students (in their second and third years). For much of this time, he has been helping to represent gay, bisexual, and trans asylum seekers in the Clinic. In this time, they have won protection for over 150 GBT clients. The typical profiles of the Clinic’s clients are trans women, mostly from Mexico and Central America, though some are also from Eastern Europe and countries in Africa. Many of their clients have similar stories: they were often singled out for sexual and physical abuse as children for presenting differently than expected gender norms. A client from a small village in Mexico related some of the fear experienced: “I fear my grandparents, my uncle, the school teacher, the police man, and the priest.” Often these young boys have left their home, survived doing domestic work, working in tiendas, or as sex workers. Then often there is an event–sometimes really horrific that triggers their flight to the US. Examples have included a gang rape, the murder of a friend. Often people will come at age 14-15, as a result of this event in their lives. Some clients had gone to the police and been turned away or attacked. Some had avoided police.

Most of their trans clients are in in Immigration and Customs Enforcement detention facilities. On this point, Professor Frenzen noted that the Obama administration has drastically expanded the use of for-profit prisons, which is a harmful step as they are much less controlled and less likely to be fully respectful of the rights of detainees.

Professor Frenzen then expanded on asylum eligibility. The Attorney General *may* grant asylum to an applicant determined to be a refugee. Note the permissive “may.” Often a response will be: “ok USC client, you have three prostitution charges and a meth charge. I’m going to deny asylum as a matter of discretion.” To be eligible, a person must show serious past harm, persecution, or likelihood of future harm, based on a protected category: race, religion, nationality, membership in a particular social group, or political opinion. A person has one year to apply after arrival, or they are barred. Moreover, the persecutor (from whom the applicant is fleeing) must be a government or state actor, or someone who the government is unable or unwilling to control. A typical factual experience would be harm from policemen or soldiers; if it’s a neighbor or a mob, the applicant must establish that the government is unable or unwilling to control that private party. Finally, the burden is on the applicant to prove the elements. This is done in an immigration court setting—which is essentially a small court proceeding with a judge and a prosecutor. An individual has the statutory right to a lawyer, but if done privately this would be $5,000-$15,000 USD, which is a very large barrier to asylum protection. Thus, many applicants look for free legal aid (e.g. the USC Immigration Clinic).

Convention Against Torture (CAT) protection is another way for an applicant to establish eligibility but it is much more difficult to prove. However, even if a client has a serious criminal history, if a Judge is amenable CAT could provide relief. One must demonstrate that the client is likely to experience torture (a more severe form of harm than persecution), and must show that the perpetrator is a state actor. It must occur by or at the instigation of or with the consent or acquiescence of a public official or person acting in an official capacity.

Professor Frenzen shared that as a country we’ve come a long way on gender based asylum claims. Trans applicants were simply not recognized, and immigration judges viewed their claims in an odd manner until a decade or so ago. The 9th Circuit Court of Appeals defined “particular social group” in a way that is useful for trans applicants. A simplified version is that one must show that this group is united by an involuntary association or involves an innate characteristic that is fundamental to the identities or consciences of its members, and that members either cannot or should not be required to change it.

Professor Frenzen then discussed cases that set precedent for trans individuals to receive asylum in the United States, including the truly shocking fact pattern and legal battle surrounding Hernandez-Montiel v. INS, which set the precedent across the US. As late as 2000, what an applicant was wearing to court was determinative, and a pattern of horrific treatment still may not have constituted persecution. At this point, gender identity is recognized at least here in California to constitute a particular social group. However, there is still lots of work to be done on how things play out in immigration court. Here in Los Angles, judges have varying degrees of comfort with trans women or trans men. If someone is non-conforming or doesn’t appear to the judge to conform to the judge’s notion of the gender identity they are claiming, that person’s credibility may be questioned. The difficulty is that judges often have a desire to keep people in binary gender categories, e.g. if an applicant doesn’t want gender reassignment surgery, it may raise doubts in the judges’ mind as to the validity of their claim.

Clients also face many other related issues, some not of a legal nature, but certainly impacting health. Body image is part of who we are— and breast implants, including mineral oil or saline injections may be a part of a clients expression—but also many trans clients are undocumented and poor, and in many cases these procedures are done on the streets or in low-cost places in ways which are extremely harmful to physical health. Sometimes clients need emergency medical help.

Professor Frenzen summarized other issues faced by their clients in detention centers. Access to counsel is challenging, and hearings are often early and far from where attorneys and clients live. Disrespect and insults are common from guards, though physical violence seems to thankfully have been reduced in recent years. Many clients need hormone treatment; both accessing doctors and continuing treatment are challenges. Many clients are HIV positive, and need access to services. And finally, there are new and continuing legal barriers: a big issue is the continued conflation of gender identity and sexual orientation, and incompatibility between identity documents and presentation can complicate matters for clients considerably.

The floor was then opened for a lively question and answer session. Questions ranged from the impact of proposed Trump policies surrounding the increased use of detention, and Jeff Sessions, the likely incoming Attorney General who is openly hostile to immigrants, to steps that attorneys can take when judges appear to be biased, and areas where more research is needed to protect the health and rights of transgender refugees and asylum seekers.

Many thanks to Niels Frenzen for leading such an informative and interesting discussion. The next event will be held on January 25th in Room 130 at the Law School, and is focused on Generating Research to Support Transgender Populations. Please join us!