The Impossibility of Asylum When You Have a Criminal Record

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This article originally appeared on VICE US

It was about a year ago that Calvin Carter watched his boyfriend murdered in front of him in the home they shared in Jamaica. Since then, he's fled to the United States, in what lawyers and advocates say may amount to the fight for his life. In Jamaica, where sodomy is still illegal, he faces harassment, homophobia, and threats to his life. But in the United States, where he has a criminal record, gaining protective status could be next to impossible.

Carter first came to the US in 1998 on a tourist visa, but he stayed after it expired and built a life and a family in New York City. Years later, after he had been arrested for two misdemeanor offenses—one charge for marijuana possession, and another for domestic violence—Carter was deported back to Jamaica, according to Mark Reid, a paralegal working on his case. That was in 2014.

Carter had dated women for much of his life, and even fathered five children born in the US, but came out as gay a few years ago, just before he was deported. He dated men back in Jamaica, and eventually moved in with his boyfriend, according to Reid.

Around June 2015, neighbors started to give him and his boyfriend trouble. "He went to the police in Jamaica and reported that he'd been harassed, that he'd been violated, these guys had been threatening to kill [him and his boyfriend] every time they came out of the house," Reid told VICE.

But instead of offering protection, the authorities allegedly threatened to arrest Carter for engaging in homosexual conduct, which is still illegal in the country. Soon after, Carter claims to have witnessed his boyfriend being stabbed to death by men in the neighborhood. (Carter's legal team says it has evidence of the murder.) Fearful for his life, Carter fled to the US. He was picked up at the border and has been detained at the allegedly abusive Adelanto detention facility in Adelanto, California, ever since.

Related: Most LGBT Jamaicans Have Suffered Physical Violence Because of Their Sexuality

Despite having no felonies on his record, Carter is considered an "aggravated felon"—and under US immigration law, aggravated felons do not qualify for asylum. So instead, Carter applied for protection under the Convention Against Torture (CAT), which requires applicants to show they are more likely than not to be tortured if deported to their home country. It's a much higher evidentiary standard than is required to gain other forms of protective relief.

Gaining protective status in the US is never an easy task, but for people with Carter's criminal history, the situation can be just short of impossible. According to the Department of Justice, in FY 2013, just over half of asylees won their cases whereas only 2 percent of CAT applications were successful.

Sometimes, though, conditions in Jamaica speak for themselves. "We've had a lot of cases of gay men from Jamaica who were granted CAT protection because the judge deemed it sufficiently dangerous and likely" that they might be tortured, said Aaron Morris, the executive director of Immigration Equality, an LGBTQ immigration rights organization based in New York City. According to news reports, several gay men have been killed in Jamaica in recent months, including one couple allegedly murdered in their home.

Morris told VICE the "number one population" of asylum-seekers his organization sees are from Jamaica. A 2014 Human Rights Watch report found that LGBTQ people in Jamaica faced "a high risk of violence, vulnerability heightened by poverty and family rejection, and mixed responses from both the authorities and the public."

Citing some of these factors, Carter passed a credible fear interview with immigration officials. But that's hardly a guarantee that he'll earn the right to stay in the US when his court date comes later this month. In August, an immigration court upheld that another Jamaican man, Ray Fuller, did not meet the criteria for protection because he "did not credibly establish that he is bisexual." Fuller, who also sought CAT protection and not asylum as a result of his criminal history, had been married to a woman and convicted of sexually assaulting a woman—both facts that the judge pointed to as reasons she did not believe his claims of bisexuality, and therefore his need to flee Jamaica.

While Carter's legal team did not express concern that his claims about his sexuality would be discredited (even though Carter has previously dated and fathered children with women), the two cases taken side by side demonstrate just how difficult it can be for LGBTQ people to gain protection under CAT. Fuller, like Carter, had described the brutal abuses he endured in Jamaica on the grounds of his perceived sexuality, even testifying that he had once been shot by an "anti-gay mob" while he was out partying with his boyfriend.

Related: Canada Accused of Obsessing Over Sexuality of LGBT Refugees

Instead, Carter's legal team is more concerned about his status as an "aggravated felon." In the immigration context, aggravated felons need not to have committed an "aggravated" crime nor a "felony" to be denied a broad range of protections and forms of relief. According to a 2011 law review article by two immigration court judges, "non-violent, fairly trivial misdemeanors are considered aggravated felonies under our immigration laws," including theft, filing a false tax return, or failing to appear in court.

Abraham Paulos, the executive director of Families for Freedom, a New York City–based human rights organization run by and for families fighting deportation, said "there are times when people don't even do a day in jail" and still qualify as an aggravated felon.

"What you're seeing is this insane disconnect between the [criminal] consequences of certain crimes and convictions, and the immigration consequences for [those same crimes]," Paulos told VICE.

Even if Carter does secure protection under CAT, the road ahead will not be easy. People who are granted asylum receive a green card within a year and also gain the right to work and access to public benefits. CAT status, meanwhile, only prohibits Immigration and Customs Enforcement (ICE) from removing the protected individual to the country in which they are at risk. They are not even guaranteed release from immigration detention. (ICE did not immediately respond to a request for comment on this story.)

Reid is deeply concerned about his client's future, which will be determined in court later this month. If he's deported to Jamaica, Reid worries he "will surely die."

Follow Aviva Stahl on Twitter.

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