Is "beating the gay out of me" persecution for purposes of obtaining asylum in the U.S.

Infliction of harm can be considered persecution even in cases where the persecutor was trying to "help" the victim.

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Question

I was born and lived in Warsaw, where I was a good Catholic girl and very involved in my community church. I never had a boyfriend and realized I was a lesbian when I fell in love with another teenage girl. I shared news that we were dating with my parents, who proceeded to beat me to save my soul. My parents told the priest, who announced my sin to the congregation. I was attacked numerous times to “beat the gay out of me” and even hospitalized against my will for a while. I finally escaped to the United States and want to apply for asylum.

Answer

Severe harm is persecution regardless of whether the persecutor intended to harm you or to help you. The Immigration Judge or Asylum Officer who reviews your asylum application and speaks with you personally should start by examining the type of harm and how it affected you in order to make a decision on whether you have been persecuted. The judge or asylum officer should look at the beatings you received and how severely you were physically harmed. Importantly, the judge or officer should then look at how the priest’s announcement to the congregation made you feel as well as how you felt when your community turned against you. Explain what it feels like to be cast out from your family and friends.

Once it is decided that the harm you suffered is severe enough to constitute persecution, the analysis moves to the second part of the equation. This is the connection between the persecution and your race, religion, nationality, membership in a particular social group, or political opinion; these being the five grounds mentioned in the Immigration and Nationality Act (I.N.A. Section 101(a)(42)). At this point, the judge or officer looks at the motivation of the persecutor to determine whether there is a tie to one of the five grounds. The judge or officer in your case should find that you were persecuted on account of your membership in a particular social group, defined as lesbians.

The U.S. court system has decided in, many asylum cases that harm can be persecution even if the persecutor was trying to help the asylum applicant. The most famous of these cases is Matter of Kasinga, 21 I&N Dec. 357 (B.I.A. 1996). In this case, a girl was forced to undergo female genital mutilation as her tribe tried to help her become more acceptable. In another case, a Russian woman was forced into a mental institution to cure her of her sexual orientation (see Pitcherskaia v INS, 118 F.3d 641 (9th Cir. 1997)). The courts in both cases found that these women had been persecuted even though the persecutors were trying to help them.

As with any other asylum claim, you should gather any documentation that backs up your account of what happened and why, such as medical records, photographs, and even affidavits from friends and family.

You should also find information about treatment of gays and lesbians in your country. If you know anyone else in your country who experienced a similar problem, ask that person for an affidavit, or to testify as a witness (if he or she is in the U.S. now). Submit copies of all such documents with your asylum application.

Learn more about LGBT rights under Immigration Law.

You must testify credibly before the judge in proceedings or officer at the asylum office. This means your testimony must be detailed, consistent, and plausible. The officer or government attorney who questions you should be sensitive, especially when discussing your sexual orientation. You should not have to answer questions that make you feel uncomfortable.

If you credibly testify that you are a lesbian and that you suffered persecution in your country, you may be able to get asylum. You should not have to prove that the persecutor intended to punish you.

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