Gaining Asylum After India’s Ban on Gay Sex

 

The Wall Street Journal

23/01/2014

 

By Nikita Lalwani

 

On Dec. 20, 2013, less than ten days after India’s top court  recriminalized homosexual acts, Jagdish Kumar and Sukhwinder Sukhwinder, a gay Indian couple, won asylum in the U.S.

 

The pair had fled India in June 2012, fearing for their lives, according to their lawyer, and traveled through a litany of countries — including Cyprus and Dubai — before reaching the Texan border a year later.

 

U.S. authorities detained Mr. Kumar and Mr. Sukhwinder for just over six months while Immigration Equality, a New York-based advocacy organization that defends lesbian, gay, bisexual, transgender and HIV immigration rights, fought for their release.

 

The reinstatement of Section 377 of the Indian Penal Code, a colonial-era law banning gay sex, likely strengthened their grounds for asylum, according to Immigration Equality.

 

Gay rights activists in India say the Supreme Court ruling leaves gay people vulnerable to harassment, social stigma and extortion by police, family and neighbors.

 

Though the U.S. does not keep statistics on the grounds upon which asylum was won, Immigration Equality says asylum pleas granted on the basis of sexual orientation likely number in the hundreds. Each year, the organization says it fields inquiries from several thousand foreign nationals who are LGBT or HIV-positive about their options under U.S. immigration law.

 

Of these inquiries, only a small number are from Indians: somewhere between 15 to 25 a year. But after the Section 377 ruling, that number appears to be increasing; Immigration Equality has already fielded seven calls since the beginning of this year.

 

In a telephone interview, Immigration Equality lawyer Clement Lee, who advocated for the couple, spoke to The Wall Street Journal about how the 377 ruling might affect asylum cases from India, why the two men felt unsafe in the subcontinent, and how they are settling into American life.

 

The Wall Street Journal: Jagdish Kumar and Sukhwinder Sukhwinder received asylum about a month ago and have settled in Wisconsin. How are they adjusting?

Clement Lee: They are, first and foremost, happy to be living in a community where they do not fear physical violence because of their sexual orientation. Now that they’ve won asylum, their immigration problems have been solved, but as LGBT individuals, they still face an adjustment to their new community. I think adjusting will be an ongoing challenge for Jagdish and Sukhwinder as they grow more and more accustomed to a life where they can live openly as gay men.

 

WSJ: Why did they flee India?

Mr. Lee: Like many of our Indian clients, Jagdish and Sukhwinder had a well-founded fear of persecution based on their sexual orientation. In India, Jagdish faced extreme pressure from his family to marry a woman. He feared being poisoned or strangled by family members if he did not do so. One of his uncles was actually beaten and hospitalized, not because he was gay, but just because he chose not to get married. Jagdish felt this extreme societal pressure, and he feared for his life.

 

Jagdish met Sukhwinder in Chandigarh, in the northern state of Punjab, where they faced discrimination in housing and feared that being together placed them in danger of physical violence. They had fallen in love after meeting at a dance class, but because of this increasing hostility, they felt they had no choice but to leave India. In June 2012, they fled to the United States, a journey that would take about a year to complete.

 

WSJ: But after they reached the U.S., they faced new obstacles.

Mr. Lee: Right. Jagdish and Sukhwinder reached the border in El Paso, Texas, on June 8, 2013, and asked for asylum immediately. They had a ‘credible fear’ interview, where an asylum officer interviewed them at the border to determine if they had a credible fear of persecution in India. The officer believed that they did, and referred them to a judge.

 

Jagdish and Sukhwinder expected to be detained for a few days at most, but they ended up being detained at El Paso Detention Center — and housed in separate wings — for six months. This was quite distressing for them because, even when they had faced difficulties in the past, they had always had each other for solace. Here they were behind barbed wire and dressed in jumpsuits. Their requests for parole were denied four times because Jagdish was thought to be a flight risk, even though he has a cousin who lives here. Luckily, they were able to win asylum on Dec. 20, 2013.

 

WSJ: On Dec. 11, 2013, the Indian Supreme Court reinstated Section 377 of the Indian Penal Code, recriminalizing homosexual acts. What role did that ruling play in their asylum case?

Mr. Lee: For Jagdish and Sukhwinder, the court decision in India to recriminalize same-sex conduct made their case all the more compelling. We are seeing these sorts of laws globally — think of the anti-gay laws in Russia, for instance — and they underscore that although we’ve seen gains in gay rights in the United States, the situation in various countries is worsening.

 

Like all asylum seekers, Jagdish and Sukhwinder had to prove their claim — in this case, not only that they were gay, but also that it was dangerous for them to live in India. Luckily, they were able to testify in each other’s cases, and spoke cogently about the roles they had played in each other’s lives. Many asylum seekers are not so lucky, arriving in the United States without photos, emails, letters, or other things that could help prove their persecution.

 

Jagdish and Sukhwinder were lucky that they were able to obtain evidence for their claim despite the dangers they faced in detention. As is often the case in immigration detention, they were housed among others from the same country. As Indian gay men fleeing persecution in India, they were distressed to be housed so near other Indians. In gathering evidence, they had to find people to attest to their sexual orientation, and they lived in constant fear that their sexuality would be publicized within the detention center, thus making them vulnerable to homophobic violence.

 

WSJ: With 377 back on the statute book, do you anticipate more gay Indians will seek asylum in the U.S.?

Mr. Lee: Yes, I do. With Section 377 recriminalizing same-sex conduct, gay and lesbian Indians have a better chance of showing a judge how well-founded their fears of persecution are. The last decision in 2009, which struck down 377, made Indian asylum cases more difficult to prove. With this recent reversal, it is very clear that anti-gay laws are on the books and enforceable. If someone is afraid of being imprisoned or subject to criminal penalties, he or she can point to tangible changes in Indian law that support that fear.

 

WSJ: Looking ahead, do you think Mr. Kumar and Mr. Sukhwinder will stay in Wisconsin, a state that doesn’t recognize gay marriage? Do they hope to settle somewhere they can be legally married?

Mr. Lee: Once a person is granted asylum, there may be the misconception that all their problems have been solved. But they still face very pragmatic problems related to basic needs. The one relative they knew in the United States, Jagdish’s cousin, lives in Wisconsin, so they felt they had no other choice but to settle there.