The following are practice tips and suggestions for immigration practitioners working with transgender asylum seekers.
Build Client Trust and Honesty from the Beginning of the Attorney-Client Relationship
Overcoming the One-Year Filing Bar
Researching Precedent and Laying the Foundation for the Application
Combatting Stereotypes and Presenting a Persuasive Application
Ensuring Clients' Safety While Claim is Adjudicated
Other Suggestions
Build Client Trust and Honesty from the Beginning of the Attorney-Client Relationship
- Client-centered advocacy will help you and your client work together more effectively to tell the client's story, empower the client, and meet the client's goals.
- Acknowledge the barriers to client-centered advocacy that may exist when working with transgender asylum-seekers, including cultural differences, trauma, distrust of the law and lawyers, and the potential private nature of sexual identity.
- Deliberately create a safe space to engage with your client so that he or she feels comfortable discussing his/her gender identity and sexual orientation. Stress the confidentiality of your relationship with the client and the need for open communication in order to present an effective asylum claim. Be aware of your own biases, consider disclosing your gender identity and/or sexual orientation, and carefully craft non-judgmental questions.
- Pay attention to language, and use language that the client uses.
- In interviewing and counseling a transgender asylum seeker client, discuss when he or she first realized he or she was transgender, when he or she began living as his or her gender identity, and if the client has taken medical steps to transition, recognizing that most transgender people have not.
Overcoming the One-Year Filing Bar
- If the applicant has missed the one-year filing deadline, he or she must demonstrate “either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing the application" to overcome the bar. If a transgender clients has recently taken medical steps toward transitioning and believes that his/her risk of persecution has increased because of the transition, he or she may qualify for an exception. Consider other potential arguments for changed circumstances or country conditions, such as increased enforced of anti-transgender laws in the home country. All changed or extraordinary circumstances must be thoroughly documented.
- Consider advocacy efforts that include outreach to LBGT immigrant communities to educate potential asylum seekers about LGBT status-based persecution as grounds for asylum.
Researching Precedent and Laying the Foundation for the Application
- It is especially important that attorneys working with transgender applications research precedent to determine how best to frame their case.
- Identify each element of the definition of the refugee and ensure that your client fits (in one way or another) the description. "Social group" is often the hardest term to define, so it essential that you and your client are able to articulate which social group the client falls into, as clearly and simply as possible.
- When necessary, be creative in constructing persuasive legal arguments.
Combatting Stereotypes and Presenting a Persuasive Application
- Where a transgender applicant does not fit U.S. stereotypes of transgender individuals, it is especially important that the applicant's affidavit provide extensive corroboration of the applicant's transgender status.
- With your client, prepare an affidavit that tells the applicant's life story completely and persuasively. Include information about the applicant's experience of realizing his or her transgender identity and expressing it, as well as his or her feelings about his or her gender identity. Provide detailed accounts of persecution and reasons for the applicant's fear of future harm because of his/her transgender status.
- In the affidavit, address challenging facts and negative issues that you think the adjudicator will focus on. For example, if a transgender asylum seeker was previously married, address the marriage and the reasons for it in the affidavit in order to counter potential stereotypes the adjudicator might have about the gender identity and sexual orientation of the application.
- Make sure that the affidavit is factually accurate and tells the client's story in a way the client is comfortable with.
- In the face of limited country conditions information on the treatment of transgender individuals, provide affidavits or letters from any of the applicant's family, friends, or current/former partners who are aware of the applicants' transgender status and can speak to the persecution faced by transgender individuals there. Consider expert testimony on gender and sexuality norms in the home country as well as providing research on the social invisibility of transgender individuals.
- Where issues of identity documentation arise, it is especially important to establish clear chains of custody. Understand and be able to explain what options exist or do not exist in the home country for obtaining new identity documents if an individual's gender identity differs from his or her birth sex.
- Be prepared to challenge judges' stereotypes of transgender individuals. Be prepared to explain terminology, know the case law, and humanize your client.
Ensuring Clients' Safety While Claim is Adjudicated
- To the extent possible, make sure that your detained transgender clients are safe from abuse by guards and other detainees. Ensure that solitary confinement is not being used unless no other safety measures are available and, even then, that it is used as briefly as necessary.
- Make sure that detained and non-detained transgender clients receive critical medical care, including hormone therapy.
Other Suggestions
- If working with an interpreter, be cognizant of the affect of the interpreter's gender expression, ethnic background, and cultural norms on the client's willingness to discuss his or her transgender identity and the persecution suffered because of it.
- Consider potential HIV status. Learn more about representing HIV-positive LGBT asylum seekers.
Winning Asylum, Withholding and CAT Cases Based on Sexual Orientation, Transgender Identity and/or HIV-Positive Status, a comprehensive practice guide produced by Immigration Equality and the National Immigrant Justice Center, is a great resource for immigration advocates working with transgender asylum seekers.
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Immigration Equality and Transgender Law Center's Immigration Law and the Transgender Client is a helpful manual for immigration practitioners representing transgender clients.
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