Transgender Immigration Rights Under the Law
Transgender immigrants come to the United States for numerous reasons, including economic motivations and to seek safety from persecution. A number of transgender immigrants use legal processes to immigrate and have documents verifying their authorized immigration. Others are unable to obtain legal permission through official channels and become undocumented immigrants to the United States.
It is believed that between 15,000 to 50,000 undocumented LGBTQ+ immigrants are transgender, and that estimate could be higher due to transgender immigrants' fears of identifying themselves as transgender due to the risk of discrimination, among other reasons. The concern is warranted, in that the transgender population is more vulnerable to abuse than are other individuals in immigration detention centers.
Updating Immigration Documents With New Name or Gender Marker
If you're a documented transgender immigrant, you may need to change your name or gender marker at some point. The first step in many states is to apply for a court order for a name change or new gender marker. In some instances, you can use a letter from a licensed physician that certifies there has been a change in gender based on appropriate clinical treatment for gender transition.
The United States Citizenship and Immigration Services (USCIS) accepts gender designation letters, but only from a licensed doctor or licensed osteopath. The letter needs to be on the physician's official letterhead and include the doctor's license number and DEA registration number. It is not required that the letter specify a specific course of treatment, such as sex reassignment surgery, and USCIS recognizes that there are a range of approaches that may constitute appropriate clinical treatment for gender transition.
Other documents that may need to be changed are employment authorization cards, permanent resident cards, and a naturalization certificate. Each of these involves different requirements and applications. To change your gender on an employer authorization card, you will need to pay a filing fee or submit a fee waiver, as well as a Form I-765, two passport photographs and other supporting documentation, such as a court order or a letter from a licensed physician certifying the gender change. To change your gender on a permanent resident card, you will need to submit a Form I-90, pay a filing fee or submit a fee waiver, and include supporting documentation. To change your gender on a naturalization certificate, you will need to submit a Form N-565, pay a filing fee or submit a fee waiver, and include two passport photographs and any supporting documentation.
Asylum Claims for Transgender Refugees
Fear of persecution based on gender identity can be the basis for asylum. For many transgender refugees, however, there can be a reluctance to disclose their transgender status to the government. In order to obtain asylum, you will need to provide documentary proof related to your claims. In other words, you will need to prove that you are transgender. Proof may consist of your own testimony, as well as testimony from past romantic partners, and personal involvement in LGBTQ+ organizations. It may also be necessary to present testimony from a psychologist or psychiatrist.
If you are not able to obtain asylum, you may be able to apply for withholding of removal or relief under the Convention Against Torture (CAT). The former is a more limited order than asylum, but unlike asylum, which requires you to apply for relief within one year of entering the United States, there is no time limit in which you must file to be eligible for withholding of removal or relief.
Even if you've been sentenced to five or more years of imprisonment because of aggravated felony convictions or drugs sales or a serious nonpolitical crime outside the United States, you may be able to obtain relief under the Convention Against Torture. If you meet the heightened standard for relief under CAT, you cannot be removed to a country where you will face torture, regardless of your criminal history in the United States. However, you can be placed in indefinite detention here if you are considered a threat to the community.
In 2015, a Ninth Circuit decision recognized that transgender women face unique challenges distinct from those faced by the gay, lesbian, and bisexual community. The court recognized that transgender asylum seekers are especially vulnerable and need to be assessed differently than gay, lesbian, and bisexual asylum seekers. It consequently granted relief under CAT to a transgender woman. To date, however, there is no Supreme Court precedent on this issue. If you are applying for asylum or withholding of removal or relief under CAT, it is important to retain the services of an attorney experienced in both LGBTQ+ issues and immigration law.
