Immigrants have a right to counsel in immigration court and immigration proceedings, but unlike in criminal courts, indigent immigrants are not provided attorneys at the government’s expense. Nonetheless, every self-represented immigrant in removal proceedings faces a government attorney arguing for deportation, and the immigrant must advocate for their own rights and a fair trial without prior legal training.
Asylum is a form of humanitarian relief that allows immigrants with a well-founded fear of harm in their home countries to stay in the United States. Those seeking asylum in the United States will find that it is a difficult and tedious process, especially for those who are unrepresented. Usually, the process results in denial: In fiscal year 2019, 69% of asylum seekers in the United States were denied relief.
Still, represented immigrants fared far better during all stages of the legal process: 33% of asylum applicants represented by an attorney were able to receive asylum or other relief, while only 16% of unrepresented asylum applicants were able to do the same.
The lack of representation for immigrants in court is a staggering and worrying gap in our legal system, especially because deportation poses a high risk for asylum seekers escaping violence or punishment in their home countries. Asylum seekers can face torture, imprisonment or even death if forced to return home, meaning that the consequences of deportation are often as severe as, if not more severe than, those of criminal conviction in the United States.
Legal representation for asylum seekers can be the difference between being deported and receiving asylum or other relief. Once immigrants arrive in the United States, they often do not know the nuances of the legal framework surrounding asylum claims. This is especially true for LGBTQ+ immigrants who have fled their home countries at risk of persecution.
Clients we’ve worked with at the LGBT Asylum Project have said they were unaware that fearing harm in their home countries as a result of being a part of the LGBTQ+ community meant that they could be eligible for asylum in the United States.
Even once unrepresented immigrants begin their legal battles, they often face other legal hurdles in a rather unforgiving, ever-evolving U.S. immigration system.
Typically, asylum applicants have fled their home countries under stressful circumstances, and so they may not have been able to gather proper documentation that might prove their asylum claims. But still, asylum applicants bear the burden of developing and presenting their claims, and all applicants, represented and unrepresented, are held to the same standard for demonstrating past persecution or a well-founded fear of future persecution.
LGBTQ+ clients can find it especially difficult to apply for asylum, as doing so may require them to recount past harmful experiences to effectively present their cases. These LGBTQ+ asylum seekers are also vulnerable because they often lack financial, emotional or familial support. Often, the families of LGBTQ+ asylum seekers are the ones who threatened or harmed the individuals in the past.
For unrepresented LGBTQ+ asylum seekers, who often don’t “come out” in their home countries, it can be difficult to prove that others in the community harmed them or threatened to harm them because of their sexuality or gender identity.
Again, even if unrepresented applicants can effectively demonstrate eligibility for asylum, they face myriad challenges related to navigating the immigration system alone. Missing a court hearing has serious consequences in the immigration system, including an order of removal, under which an asylum seeker with a potentially valid asylum claim is deported to their home country without having the opportunity to present their case in court.
Recent trends appear to show that change is happening in the right direction: In 2019, more than 84% of asylum seekers were represented, compared to about 76% of asylum seekers five years ago. This increase occurred despite a significant increase in asylum cases that were adjudicated in 2019.
Still, this does not mean that the work is over. Rather, we must continue to see that every single asylum applicant is given access to free or low-cost legal representation.
Hiring legal representation can be costly and difficult because asylum seekers often do not have a legal means to work. The LGBT Asylum Project estimates that hiring private legal representation to provide the level of services we provide our clients would cost between $4,000 and $15,000 per case — a significant sum for asylum seekers who arrive with little to no financial resources.
The U.S. legal system must approach the issue of asylum in a way that adequately recognizes the dire danger asylum seekers face in their home countries. The United States should be a place of refuge and safety, where asylum seekers find community, support and tolerance — where their unique challenges, barriers and past traumas can be recognized. Instead, our legal system has created an environment where indigent asylum seekers are left to fend for themselves.
This must change. At the LGBT Asylum Project, we are proud to have a 100% success rate in getting asylum granted to LGBTQ+ immigrants. We must all work to ensure that LGBTQ+ asylum seekers can live full and healthy lives in the United States.
Norjmoo Battulga is a legal services funders network legal fellow at the LGBT Asylum Project, the first and only immigration agency located in San Francisco’s Castro District offering free to low-cost legal services for LGBTQ+ individuals seeking asylum in the United States.