EDGE on the Net

With the help of Columbia University law students, a Peruvian woman living with her wife in New York was granted asylum on May 15. Students argued she faced significant persecution and danger in her home country for being openly lesbian.

Karina de Jesus obtained asylum despite missing a crucial one-year application deadline for applicants already in the United States. Students of Columbia Law School’s Gender and Sexuality Clinic proved that trauma from her past in Peru, combined with her recent marriage, caused her to miss the deadline.

"Karina’s experience as a lesbian in Peru, supported by friends and family who still live there -- as well as by reports and news articles -- shows that the Peruvian government does not protect LGBT individuals from sexual orientation-based crimes," said Julia Braker, a student who worked on the case. "Lesbians face both physical and sexual violence, and the Peruvian police fail to address this persecution."

Someone is killed every seven days in Peru due to sexual orientation or gender identity, according to a recent study by Peruvian gay rights group Movimiento Homosexual de Lima.

"It is quite difficult to obtain asylum in the U.S.; most applicants are rejected by the Department of Homeland Security," Columbia Law Professor Suzanne Goldberg told EDGE. "An applicant’s chances of obtaining asylum increase if they are represented because advocates and lawyers can help the asylum seeker present their strongest case."

Every semester, the clinic takes up a case of an LGBT or HIV-positive applicant.

De Jesus is among a small community of LGBT asylum seekers, and an even smaller community of binational LGBT couples with one partner who is seeking asylum. Most don’t decide to apply until well after the one-year filing deadline.

"This is a great win for Suzanne Goldberg’s clinic, it’s one of the most difficult kinds of cases," said Lavi Soloway, a leading LGBT immigration attorney who has represented hundreds of asylum seekers.

"It’s gratifying to see that the system could see how that change [marriage] in Karina’s life would change her perspective on going back to her country."

He said the one-year filing deadline hinders otherwise qualified asylum seekers who may suffer from post traumatic stress disorder or didn’t come out for several years after arriving in the U.S. The deadline has only been around for 14 years.

"The burden that’s placed on the applicant to justify filing beyond the one year is like being penalized, which was not its intention," he added.

Asylum applications are just some of the cases Soloway handles for binational LGBT couples. Much of his work focuses on preventing them from being torn apart by deportation. Today there are some 36,000 married binational couples, who cannot sponsor spouses for citizenship because of the Defense of Marriage Act, which defines marriage as between one man and one woman.

Some of them launched a campaign in 2010, called Stop the DOMA Deportations, to draw attention to their plight. Things were looking up last summer when the Obama Administration announced new guidelines for Immigration and Customs Enforcement to consider in deportation proceedings that set aside cases of low priority. Several high profile cases were even halted.

But the new criteria doesn’t explicitly specify LGBT couples and families, and ICE’s interpretation varies from case to case, so many couples don’t benefit.

The hurdle of DOMA means some spouses resort to seeking asylum.

"If you’re married to an American citizen and you’re from a country that you’re afraid to go back to, asylum should be your remedy of last resort," Soloway said. "You shouldn’t have to play asylum roulette."

Another issue for binational LGBT couples is their recognition under the law as strangers.

"The United States does not treat those couples as it treats different-sex couples; instead, U.S. law treats these couples as legal strangers, even though our immigration law, overall, commits itself to ’family reunification,’" Goldberg said.

When children are thrown into the mix -- and Soloway estimates one-fourth of the 36,000 couples are raising kids -- things get even more complicated.

There’s also the issue of binational couples living separately who are unable to obtain fiancé visas and settle down together in the U.S.

And while repealing DOMA could solve many of the problems that separate families and put LGBTs back in harm’s way, Soloway said it’s important not to wait around.

"It’s not necessary that we think, ’Well, DOMA’s unconstitutional and it’ll eventually be gone and we can move on.’ It really takes just a little but of ingenuity to think about what can we do within the regulations that exist now to ensure that those crises aren’t happening," said Soloway.

For more information, visit www.law.columbia.edu/media_inquiries/news_events/2012/may2012/asylum-peru-clinic