Alla Pitcherskaia


U.S. Board of Immigration Appeals

Decided March, 1995 The following report was filed in the Washington Blade, March 24, 1995 by Lisa Keen:


The U.S. Board of Immigration Appeals heard arguments last week concerning whether a Russian woman who fears persecution for being a lesbian should be granted political asylum in the United States. The case represents the first time a Gay person's request for political asylum has reached this level of appeal.

A three member panel of the Board of Immigration Appeals (BIA) heard the case of Alla Pitcherskaia, a 33-year old Lesbian from Russia, on March 16. Her attorney, Ignatius Bau of the lawyers Committee for Civil Rights told the panel that Pitcherskaia had been repeatedly arrested, subjected to involuntary psychiatric treatment, expelled from medical college, kidnapped and assaulted because she is a Lesbian and has a high visibility role in Gay Activism in Russia.

Pitcherskaia is associated with at least two Gay political organizations in Russia and operated a small goods store, whose success apparently also brought her trouble. According to her attornies, she was repeatedly harassed by the Russian Mafia, and arrested and charged with 'hooliganism' by the police. She came to the United States in March 1992, with plans to return; but while here, she learned that the Russian Mafia had burned down her store. Pitcherskaia applied for asylum, but her application was denied, first by the Immigration and naturalization Service (INS) and then on appeal last June, by an immigration judge. The immigration judge ruled that while Pitcherskaia had been subjected to harassment and discrimination, those incidents did not constitute persecution per se.

In response to a question from one of the panelists, Bau conceded that the sexual orientation discrimination alone would not necessarily constitute persecution. But, he said, the "totality of circumstances" in Pitcherskaia's case do. Bau said he was not arguing that all Gay men and Lesbians are persecuted in Russia, but that Pitcherskaia is being harassed because of her sexual orientation, her membership in a social group comprised of gays and lesbians and her voluntary association with other gays.

The United Nations requires countries to grant asylum to individuals who face persecution for at least one of five reasons:

Steve Briggs, representing the INS, argued that Pitcherskaia did not seek asylum from the United states until the Russian mafia attacked her business. That attack, said Briggs, was a "criminal act" based on economic motives, and should not be considered an act of political persecution. Asked by a panelist whether he thinks sexual orientation is an immutable characteristic, Briggs said he had "no evidence" on that point but he was "willing to concede" that a person's sexual orientation is "closely identified" with their fundamental identity.

The first person to win an appeal to stay in this country because of persecution for being gay was a gay cuban man. An immigration judge in Houston in 1986 barred the INS from deporting him. Although the INS appealed, the BIA, in March 1990, affirmed the judge's decision, which recognized Gays as a 'particular social group.' The man had not sought asylum, Bau said, because he was ineligible, having been convicted of a crime; but the decision did prevent him from being deported.

In July 1993, another immigration judge, this one in San Francisco, granted asylum to a Brazilian Gay man. And, in March 1994, a Mexican Gay man became the first to win an asylum order directly from the INS. Still, the INS had not adopted the policy that Gays would be considered a "particular social group" for the purposes of seeking asylum. Instead, they considered each person on a case-by-case basis.

But in June 1994, U.S. Attorney General Janet Reno announced that the Department of Justice, under which the INS operates, would accept, as policy, that people persecuted for being Gay could be considered as people being persecuted because of membership in a social group. That eliminated the necessity of each Gay person seeking asylum to prove that his or her case fell under the "social group" category.

Two months after Reno's order, an immigration judge in New York City granted political asylum to a Pakistani Gay man. Bau said the INS has since granted asylum to four other Gay men.

Lambda Legal Defense and Education Fund attorney Suzanne Goldberg, who served as co-counsel for Pitcherskaia, says Pitcherskaia's application hit rougher waters primarily because she filed it before Attorney General Reno's policy change. But, said Goldberg, if Pitcherskaia had sought asylum based on any other ground other than sexual orientation, "her application would likely have been granted, because she has experienced past persecution and there is a clear threat that she would be persecuted for being a Lesbian if she were returned to Russia."

Goldberg said it may be helpful to other cases that INS counsel Briggs ackowledged that sexual orientation "is a fundamental aspect of personhood." "That's important," said Goldberg, "because it recognizes that sexual orientation is not a matter of fleeting sexual preference or superficial desire, but rather an integral part of someone's identity."

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