No Gaiety Here: The Plight of Undocumented LGBT Youth in America

No Gaiety Here: The Plight of Undocumented LGBT Youth in America

Eviana Englert

Vermont Law School, J.D. Candidate 2015

E-mail: evianaenglert@vermontlaw.edu

At least 267,000 undocumented Lesbian, Gay, Bisexual, and Transgender (LGBT) adults currently live in the United States.[1] This figure does not include those undocumented LGBT immigrants under the age of eighteen.[2] Placing these youth in immigration limbo only compounds the high rates of violence at home, familial rejection, and homelessness that LGBT-identified youth already face as compared to heterosexual and cisgender children.[3] All immigrants confront overwhelming roadblocks to obtain lawful immigration status in the United States, but LGBT immigrant youth also “must endure the same ‘coming out’ process as their American counterparts, . . . [while] living undocumented or facing deportation if their families reject them.”[4] Moreover, an individual’s sexual orientation or gender identification itself may become an issue in the immigration process.

Particular challenges facing undocumented LGBT youth include:

• Denial of asylum based on non-conformance with asylum officers’ stereotypes of what it means to be LGBT;[5]

• Deficiency of culturally-sensitive social services and the need for collaboration between local agencies, organizations, churches, and community centers;[6]

• A lack of beds in the foster care system, especially those available to transgender girls and boys, which funnels youth into homelessness and prostitution;[7]

• Unavailability of and desperate need for better access to counsel and more tailored representation;[8]

• Exclusion from accessing federal health care benefits, such as the purchase of insurance through exchanges established by the Affordable Care Act;[9]

• Unacceptable conditions in mandatory detention centers, which are particularly threatening to LGBT detainees;[10]

• The one-year deadline to file for asylum under current immigration law, which may be tolled for minors in some circumstances;[11] and

• No achievable road to citizenship or access to education.[12]

Part I of this Note provides a history of protections and services provided to undocumented LGBT youth in the United States, and an overview of current federal immigration policy. Part II discusses the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S. 744)—proposed immigration reform that passed the United States Senate last year—what it does to further the progress of LGBT youth advocacy, whom it helps, and whom it leaves unprotected. Senator Patrick Leahy’s proposed bills, including the Refugee Protection Act, respond to current shortfalls in the law and provide a new model for immigration, improving protections for refugees and asylum seekers.[13] Aligning with such proposed legislation, this Note culminates in Part III with a practical component addressing the unique difficulties confronting undocumented LGBT youth, such as establishing a new immigration court system specific to LGBT youth, establishing better detention facility standard-operating procedures through investigative regulations and enhanced consequences, and increasing federal funding for comprehensive training and oversight of legal advocates.

This article is copyrighted by the Institute for Migrant Rights. It was published in full by the Indonesian Journal of International & Comparative Law. Eviana Englert, No Gaiety Here: The Plight of Undocumented LGBT Youth in America, 1 Indon. J. Int’l & Comp. L. 1011 (2014). It is available in electronic format on HeinOnline and at http://international.vlex.com/vid/no-gaiety-here-the-541167506.

[1] Gary Gates, LGBT Adult Immigrants in the United States, The Williams Institute of UCLA (March 2013), http://williamsinstitute.law.ucla.edu/research/census-lgbt-demographics-studies/us-lgbt-immigrants-mar-2013/.

[2] Burns et al., supra note 2, at 6.

[3] Susan Hazeldean & Pradeep Singla, Out in the Cold: The Challenges of Representing Immigrant Lesbian, Gay, Bisexual, and Transgender Youth, 7 Bender’s Immigr. Rev. 642, 642 (2002) (“LGBT young people are more likely to face violence in their homes, to be rejected by their families, and to end up living on the streets than heterosexual children. LGBT immigrant youth must endure the same ‘coming out’ process as their American counterparts, but they also face the additional burden of living undocumented or facing deportation if their families reject them.”), available at http://www.urbanjustice.org/pdf/publications/lesbianandgay/OutintheCold.pdf.

[4] Id.

[5] See Immigration Basics: Thorny Issues in LGBT/H Asylum Cases, Immigration Equality (2006), http://immigrationequality.org/issues/law-library/lgbth-asylum-manual/thorny-issues/ (noting that adjudicators may approach asylum applications with personal biases, and that if an applicant “looks gay,” it may be “more likely that the applicant will win the case”); see also Susan Hazeldean, Confounding Identities: The Paradox of LGBT Children Under Asylum Law, 45 U.C. Davis L. Rev. 373, 409 (2011) (discussing the way in which heterosexism and popular views of sexuality influence asylum decisions), available at http://lawreview.law.ucdavis.edu/issues/45/2/Articles/45-2_Hazeldean.pdf.

[6] See 8 U.S.C.A. § 1621 (West) (“[A]n alien who is not—(1) a qualified alien, (2) a nonimmigrant under the Immigrations and Nationality Act, or (3) an alien who is paroled into the United States for less than one year, is not eligible for any State or local public benefit.”).

[7] See David Wagner, Nowhere to Go: Issue Brief on Gay and Transgender Youth Homelessness, Center for American Progress (Aug. 10, 2010), http://www.americanprogress.org/issues/lgbt/report/2010/08/10/8224/nowhere-to-go/ (“The demand for shelters that adequately address the specific needs of homeless gay and transgender youth far exceeds the scant number of shelters that provide such services.”); see also Carl Siciliano, Denied Shelter Beds, Many of NYC’s Homeless Youth Turn to Prostitution, Huffington Post (Oct. 9, 2012), http://www.huffingtonpost.com/carl-siciliano/denied-shelter-beds-many-of-nycs-homeless-youth-turn-to-prostitution_b_1949526.html (criticizing New York City’s failure to provide sufficient shelter housing for homeless youth, forcing them into prostitution).

[8] See Ian Urbina & Catherine Rentz, Immigrant Detainees and the Right to Counsel, The N.Y. Times (March 30, 2013), http://www.nytimes.com/2013/03/31/sunday-review/immigrant-detainees-and-the-right-to-counsel.html?_r=0 (“[P]eople who are detained do not typically have lawyers because immigration law, unlike criminal law, does not provide a right to counsel. Immigrant detainees are allowed to hire lawyers, but more often than not, they cannot afford counsel or are shuffled through the system before they have a chance to find help.”)

[9] Crosby Burns, Ann Garcia & Philip E. Wolgin, Living in Dual Shadows: LGBT Undocumented Immigrants, Center For American Progress i, 9 (March 8, 2013), http://www.americanprogress.org/wp-content/uploads/2013/03/LGBTUndocumentedReport-5.pdf, citing Ruth Ellen Wasem, Noncitizen Eligibility for Federal Public Assistance: Policy Overview and Trends, Congressional Research Service (2012), available at https://www.fas.org/sgp/crs/misc/RL33809.pdf.

[10] See Brief for Detention Watch Network et al. as Amici Curiae in Support of Petitioner-Appellee, Sylvain v. Attorney General, 714 F.3d 150 (3d Cir. 2013) (No. 11-3357) (“While in detention, noncitizens, particularly LGBT noncitizens, often face hostile and unsafe detention conditions that deprive them of access to medically necessary treatments and leave them vulnerable to abuse. Also, detained noncitizens are routinely transferred far from available counsel and family to remote and rural detention facilities, where the noncitizen faces insurmountable odds in defending against a removability charge.”).

[11] 8 C.F.R. § 208.4 (including an exception to the one-year filing deadline if extraordinary circumstances exist, which may be demonstrated by legal disability, such as the applicant was an unaccompanied minor); see also Asylum Officer Basic Training Course: One-Year Filing Deadline, USCIS 1, 15 (March 23, 2009) (“Keeping in mind that the circumstances that may constitute an extraordinary circumstance are not limited to the examples listed in the regulations, the Asylum Division’s policy is to find that all minors who have applied for asylum, whether accompanied or unaccompanied, also have a legal disability that constitutes an extraordinary circumstance.”), available at http://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/AOBTC%20Lesson%20Plans/One-Year-Filing-Deadline-31aug10.pdf; see also Immigration Basics: The One-Year Filing Deadline, Immigration Equality (2006), http://immigrationequality.org/issues/law-library/lgbth-asylum-manual/one-year-deadline/ (“The argument that unaccompanied minors have a legal disability could potentially be extended to include accompanied minors as well, particularly for LGBT/H youths who are afraid to inform their families of their sexual orientation and are not reasonably able to pursue their asylum claims until they have left the family household.”).

[12] See Open Letter in Support of the October 5 National Day of Dignity and Respect for Humane Immigration Reform, American Civil Liberties Union (ACLU) 1, 1 (Oct. 1, 2013) (calling for immigration reform that includes a pathway to citizenship), available at https://www.aclu.org/sites/default/files/assets/final_lgbt_endorsement_letter_day_of_dignity_and_respect.pdf; see also Overview of the DREAM Act, Dream Act 2013, http://www.dreamact2013.com (last visited Nov. 16, 2013) (noting that undocumented children are not permitted to attend college in many states).

[13] Press Release, Senator Patrick Leahy (D-Vt.), Leahy and Lofgren Lead Bicameral Introduction of Refugee Protection Act (March 21, 2013), http://www.leahy.senate.gov/press/leahy-and-lofgren-lead-bicameral-introduction-of-refugee-protection-act.