The unprecedented surge of immigrants seeking refuge in New York City from all over the world right now has inundated GMHC’s immigration legal services team, which assists asylum-seekers living with HIV.
“Being HIV positive alone is not a strong enough claim to get an asylum grant,” said Babatunde Tinubu, the agency’s immigration lawyer. However, most of GMHC’s asylum clients are also LGBTQ and come from countries where people face persecution for their sexual orientation or gender identity.
Most come from Jamaica and Russia, which have anti-LGBTQ laws and homophobic cultures, so these clients can make strong cases about credible threats of persecution for being LGBTQ, Tinubu said. “In Jamaica, if it’s known to the society, that can be a death sentence.”
Tinubu and a team of just three–paralegals Vishal Trivedi and Yanira Gomez-Lopez, and legal assistant Jaileen Polanco–have taken on 125 immigration cases so far this year. “We provided direct legal intake and consultation to every one of the 125 referrals and actively assisted 85 of them on various immigration matters,” he said.
There is no government fee to apply for asylum, but it is a complicated and time-consuming process. “Our biggest need is manpower, more lawyers,” Tinubu said. “We’re a very small unit. We are very overwhelmed. Most cases we can’t take.”
Having a lawyer greatly increases a client’s chances of gaining asylum. For people without legal representation, New York City immigration judges grant asylum for only 49.2% of cases. The grant rate jumps to 84.1% for people with a lawyer, according to Syracuse University’s Transactional Records Access Clearinghouse.
GMHC is one of about 22 New York nonprofits providing free legal aid for asylum clients referred by the NYC Mayor’s Office of Immigrant Affairs. The office has set up screening centers to handle the massive influx of over 50,000 asylum seekers that have flooded New York’s immigration intake system since last spring.
The city’s Right to Shelter law means that it is legally required to accommodate them, and it is providing a place to stay for over 30,000–more than any other city in the nation.
GMHC’S immigration team, which is part of its Legal Department, also receives referrals from the agency’s Testing Center and local hospitals.
Besides the surge of asylum cases, Tinubu and his team assist clients with green cards and applications for citizenship and Deferred Action for Childhood Arrivals (DACA), working with the New York State Office for New Americans and community organizations in Queens and Brooklyn.
Asylum clients must be living with HIV, because of grant requirements, but GMHC’s other immigration services are free to all, regardless of HIV status.
Credible Fear
To gain aslyum, a person must demonstrate that they’ve been persecuted or credibly fear persecution in their native country because of their race, religion, nationality, political opinions, or membership in a particular social group, such as being LGBTQ. This is an eligible social group for asylum, Tinubu said, because the characteristics are immutable.
“If you’re gay, you’re gay,” he said. “You can’t change that.”
To win asylum for a client, “we have to make a solid argument” to a federal asylum officer or immigration judge, Tinubu said. “Discrimination alone is not enough.”
“When you see it, you know–when someone has been arrested or physically attacked because of their sexual orientation. It has to be so consistent and egregious that either the government or society–or both–are treating this person differently and punishing this person because of who they are,” he said.
Such persecution is often accompanied by discrimination, such as being denied employment.
Jamaica, which Time magazine has called “the most homophobic place on Earth,” has an anti-sodomy law that criminalizes sex between men, punishable by up to 10 years in prison. Another law prohibits any type of physical intimacy between men and carries a prison sentence of up to two years.
There are also frequent reported incidents of harassment and violence from homophobic gangs and police, who have wide leeway in enforcing the anti-LGBTQ laws.
While Russia does not have any laws criminalizing sexual relations between men, it is illegal to distribute LGBTQ-positive materials, termed “propaganda about nontraditional sexual relations,” via media, internet, advertising, literature, or film.
In both countries, same-sex marriage is not legal and same-sex couples can’t adopt children. Neither Jamaica nor Russia has any anti-discrimination protections for sexual orientation, gender identity or expression.
GMHC also represents Latin American immigrants, but most whom its legal team talks to are not eligible for asylum, Tinubu said. “They say they want a better life. When we probe more, it turns out they are economic refugees.”
Beyond Asylum Claims
Asylum cases referred to GMHC often are already before the New York Immigration Court, because the Department of Homeland Security has initiated removal proceedings, Tinubu said.
Asylum seekers can also make what’s called an affirmative claim by applying for asylum through U.S. Citizenship and Immigration Services. An asylum officer will conduct a “credible fear” interview and either grant asylum or refer the case to the New York Immigration Court for further review.
Tinubu and his team help asylum seekers obtain work authorization, health insurance, housing and other benefits while their cases are being decided, by establishing that they are “residing under the color of law” in the United States. That means DHS is aware of their presence and is not actively trying to deport them.
A client can gain employment authorization for up to two years while an asylum application is pending, Tinubu said, as long as they are in lawful immigration status or have parole.
For medical care, GMHC’s Advocacy Department connects asylum clients with the New York State AIDS Drug Assistance Program (ADAP), which covers health insurance premiums and medications for people living with HIV. It can also connect them with New York City’s HIV/AIDS Services Administration (HASA) for Medicaid coverage, rental assistance, cash and food stamp benefits, as well as housing services agencies.
Contact legalimmigration@gmhc.org or call (212) 367-1328 or (212) 367-1308 to make an appointment with GMHC’s immigration legal services team.
