LGBTQ Immigrants Face Excruciating Waiting Game Under Federal Rule

At his most recent hearing in late 2018, Rudenko was interrogated by an immigration judge for five and a half hours, only to be denied his request for a Green Card (officially known as a Permanent Resident Card) because the judge didn't believe a particular detail in his recollection of his first days in the U.S. more than two decades ago.

"The judge grilled him about what time he flew from Los Angeles to LaGuardia on the day after he arrived in the U.S., and Dmitri said that he arrived at night," Karbler explains. "It was 20-some years ago, and he's asking minute details about a particular day. The judge looked it up and saw that it was a red-eye flight that got into LaGuardia at like 6:00 a.m. — so simply because of that contradiction, he declined our submission."

Rudenko's next hearing is now scheduled for May 2022, until which time he remains in nation-less limbo. He can leave the Unites States, but to do so would be considered self-deportation, and he wouldn't be allowed back in for at least ten years. Instead, as Rudenko stays and endures a protracted legal quagmire, he's allowed to have a work permit and a driver's license — but that license stipulates that it's not to be used as a federal ID, so he can't currently board a domestic flight, or even ride Amtrak beyond Colorado.

"People who we know, who love us, they tell me, 'You deserve to be here, you're just like us, you're just like an American," says Rudenko. "They say, 'You pay taxes, you act American, you joke, you understand our sense of humor.' But even after 22 years, I can't really feel American quite yet. When you get called a liar [by your immigration judge], it's hard to start the fireworks yet."

"A gay man just wants to live a free life. How hard is that to understand?"

Across America, LGBTQ immigrants of all ages and backgrounds are experiencing similarly long legal limbos. "The majority of our clients don't fit the narrative that the Trump administration has tried to push about who an asylum seeker is or what they might look like," says Tess Feldman, manager of the Immigration Law Project at the Los Angeles LGBT Center. "One of our clients is a biomedical technologist from Zambia who fled to the United States because of the anti-LGBT policy there. She would have preferred to stay and work in Zambia if it were safe for her to do so as a lesbian woman. We also just finished a citizenship application for a trans woman from Jamaica. She's in college to teach English as a second language, and she's studying Korean because when she got to Los Angeles, she just loved living near Koreatown, and felt really connected to that community."

Feldman says that while The Center was successful in some 99 percent of its cases last year, many LGBTQ immigrants aren't fortunate enough to have such strong representation — and even the lucky ones who do are forced to endure openly hostile policies that raise the survival bar for immigrants to almost unbearable levels. Next month, for example, the Department of Homeland Security will implement a new rule requiring asylum seekers to wait 365 days before applying for a work permit, more than doubling the current wait time of 180 days. Meanwhile, applicants will be expected to somehow fend for themselves without working for an entire year.

"Under current rules, asylum seekers are allowed to apply for a work permit six months after they filed their application," says Feldman. "They're able to get a Social Security number, work legally, pay their taxes, and become functioning members of their community. So, to double the waiting time just further marginalizes LGBTQ people, since LGBTQ asylum seekers who flee their homes are most often not coming to the United States to reunite with supportive or understanding families. If they're going to be on their own, that work permit is essential."

Crafters of the new DHS rule were clearly aware of the hardships it will create. "Asylum seekers who are concerned about homelessness during the pendency of their employment authorization waiting period," one section of the rule reads rather pointedly, "should become familiar with the homelessness resources provided by the state where they intend to reside."

The U.S. Supreme Court, meanwhile, has been offering lukewarm support at best for immigrants, siding with the Trump administration in immigration matters as often as it sides against it. A mid-June decision upheld Obama-era protections for young people brought to the U.S. by their parents (under DACA, or Deferred Action for Childhood Arrivals) — but just one week later, the same court authorized fast-track deportations, effectively denying many immigrants the right to ever have their asylum cases heard before a judge. Would-be LGBTQ asylum seekers arriving at border crossings will now be expected to prove on the spot — to a border agent rather than an actual immigration judge — that they have a credible fear of persecution in their home countries. If they can't, they'll face immediate deportation.

"This is a very dangerous precedent and decision that will dramatically impact access to justice and due process for many, many LGBTQ asylum seekers," says Feldman. "The credible-fear interview functions like a gate through which people need to pass, and to expect people to be able to tell their story to someone who's not a judge, without counsel, without preparation, without a good explanation in their native language of what the process is about — it's an impossible standard for survivors of trauma and violence, who have likely recently escaped severe harm and highly lethal situations in their home countries. That's why they've presented at the border in the first place, to ask for protection in the United States."

[READ: For LGBTQ Immigrants, the Pandemic Threatens Lives Already in Dangerous Limbo]

For those who have made it past the border and into the immigration court system, the already-prolonged wait times for hearings are now being extended even further by the coronavirus pandemic. "It's pushing back a lot of court dates that had already been going for a long time," says Feldman. "I had a case for a trans woman from El Salvador, for which we had done countless hours of preparation, that was scheduled for June 30. She had waited four years for that final court date, and it's now been rescheduled for next year. Fortunately, she'll have a work permit, but our clients want to get their cases over with. When your entire future is just continuing to get rescheduled, to have that weight on your shoulders is so difficult."

For Rudenko, who's already been bearing that weight of uncertainty for more than two decades, the wait has been long enough. "If I'm rejected again next time and told that I'm going to have to wait for several more years, I would probably say, 'Forget it,'" he laments. "I'm tired of it, and I would probably say, 'No, I would like to move to New Zealand.' I can't imagine that they would be so harsh on my story there, that a gay man just wants to live a free life. How hard is that to understand?"

Karbler agrees, and is prepared to leave the U.S. behind with his husband should it come to that. "I think we need to have a serious look at our immigration system and make it function, because this is ridiculous," he says. "I mean, what happened to the Statue of Liberty? People who've come here from other countries are being described as thugs and drug dealers and criminals, which is a crazy notion. When did that happen? Where did we turn that corner?"