BigLaw Attorneys On Navigating LGBTQ Asylum Cases

By Aebra Coe | July 7, 2023, 7:03 PM EDT ·

Paul Shortell
Paul Shortell
Kelly Herbert
Kelly Herbert
Alex Moss
Alex Moss
Elizabeth Perkins
Elizabeth Perkins
Taking on asylum cases for LGBTQ immigrants can truly be life-or-death in many cases, with asylees facing persecution, criminalization and even death as a result of their sexual orientation and gender identity in their home countries.

That fact does not escape the lawyers at large law firms who have taken on such cases in recent years. Several have shared their perspectives with Law360 Pulse on how they have met the challenge and won asylum cases for their clients.

Attorneys from Skadden Arps Slate Meagher & Flom LLP, Gibson Dunn & Crutcher LLP and Davis Polk & Wardwell LLP have all contributed numerous pro bono hours to helping LGBTQ individuals find safe harbor in the U.S.

Here, four of those attorneys share their reflections on the challenges involved with these cases and the motivating factors that drive them to continue fighting for their clients. The interviews have been edited for length and clarity.

What are some of the legal hurdles and other challenges you face in securing asylum for your clients?

Paul Shortell, Davis Polk: Asylum representations often entail difficult conversations with our clients regarding past trauma. Reliving painful memories in a conversation with lawyers is no easy task in the first place, and LGBTQ individuals can encounter particular barriers to recounting their experiences. Our clients may be understandably reluctant to express details about their identity, health or prior mistreatment when they have spent much of their lives hiding those details in order to avoid further discrimination and harm.

Kelly Herbert, Gibson Dunn: A key hurdle for any asylum matter is the wait: Most asylum applicants are forced to wait years for an interview date with no guarantee of the outcome. In some cases you are the only person they have to turn to in the United States as they work to build a life in a country that they are not sure they will be able to call home. It is a big responsibility as an attorney to use the time you have before the interview date to effectively tell each asylee's story and compile and package the necessary evidence so that an asylum officer has little choice but to grant the application.

How do you approach the challenges involved with these cases?

Alex Moss, Davis Polk: Because LGBTQ clients are often leaving situations in which they were isolated, establishing relationships and trust is vital. We are often among the first people with whom a client is sharing their identity and the most intimate aspects of their past — clients often have not shared these stories with even close friends and family. I believe one of the most important steps to establish trust is to let the client dictate the pace of initial conversations. Some clients understandably take time to feel comfortable discussing these matters, while others are almost looking forward to finally having a chance to talk openly about their identities. We never really know before the conversation starts.

Elizabeth Perkins, Skadden: After all the challenges my client has faced and conquered in her life, she worried constantly about the length of time it took USCIS to review her application and what the outcome would be. While her application was pending, my client faced obstacles, including questions by employers as to her status in the United States and the inability to easily visit her family. One of my roles as her counsel was to ensure that my client remained hopeful and felt heard, both through advocating for her and finding solutions to meet her needs. Although it took 2½ years, my client is now a lawful permanent resident.

Shortell: When engaging with LGBTQ individuals seeking asylum, I try to be mindful about structuring our conversations in a way that allows clients to see me as an ally, not just a lawyer. As many LGBTQ clients may not be out in their country of origin or to individuals they know in the United States, explaining that attorney-client confidentiality prevents disclosure of information outside of the asylum process can help to ease clients' concerns about the safety of entrusting us with details about their identity or health.

What inspires you to continue fighting on behalf of LGBTQ asylum clients?

Herbert: My LGBTQ+ asylum clients have fled countries they called home, leaving family, friends, and whole lives behind in the hope of finding safety — the freedom to be who you are and love who you love without fear of violence, persecution or death. Many live in fear of being forced to go back to countries to face continued persecution simply for being who they are. As an LGBTQ+ attorney, it is a privilege to serve them, and a great responsibility.

Perkins: Having a green card will make it easier for my client to live in the United States and will allow her to apply for U.S. citizenship. As a testament to her kindness, my client called to congratulate me for never letting her give up hope and for always advocating for her. My client's empathy, tenacity and faith reminds me that legal advocacy is not a job, it is a privilege.

Moss: Our clients have already undergone immense personal struggle to get to where they are, refusing to accept the status quo in their home countries. I find myself energized by clients' resilience and continued hope for a better life in which they can be their complete selves, and their determination motivates me to help them tackle their remaining hurdles.

--Editing by Brian Baresch.

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Correction: Previous versions of this story misattributed one of the attorneys' quotes and transposed two words. The errors have been corrected.

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