Safe Harbor Project Helps Transgender Client Win Asylum Case

A transgender woman from a totalitarian nation has been granted asylum in the United States thanks to the work of students in Brooklyn Law School’s Safe Harbor Project clinic.

Students in the clinic began working with this client in fall 2009, gathering evidence of the client’s anti-government activities in her home country. But as they were preparing the asylum application, the client was taken into custody by Immigration and Customs Enforcement. The client remained in custody for almost a year, during which time the case was heard in Immigration Court over the course of seven court sessions. Professor Stacy Caplow and clinic students made several bond applications, and the client was finally released just in time for the asylum application to be denied in September 2011. A subsequent appeal was also denied by the Board of Immigration Appeals.

In the meantime, the client came out as a transgender woman.

“Had she been able to share this information, this would have presented another, even stronger, claim for asylum because her home country was a well-documented violator of human rights of LGBT individuals,” said Caplow, who wrote the Closing Argument column for the fall 2015 issue of Brooklyn Law Notes about the case. “She had totally new grounds for fearing persecution.”

The Board of Immigration Appeals rejected a motion to reopen her case, arguing that she should have raised this claim previously because she must have been aware to some extent of her gender identity. At the Court of Appeals for the Second Circuit, the clinic lost appeals of both the original denial and the denial of the motion to reopen. In the fall of 2014, the Circuit Court said the client should have raised the claim originally and that the only changed circumstance was that her outward appearance now conformed to her gender identity.

“What the court said seemed outrageous, ignorant, and insensitive, but it was the last word,” said Caplow. “Nevertheless, we couldn’t accept that.

The client faced deportation, so the clinic made a last-ditch effort to have the asylum application reopened in light of the fact that by 2015 she had medically and legally changed her gender identity. The case was finally reopened in May 2015 and remanded for a new hearing, which took place before a different judge in September 2016.

On June 21, 2017, the client was finally granted asylum after almost eight years of continuous representation.

Read Professor Caplow’s Closing Argument about the case here.