July 27, 2010 -- By the time Mohammad Abdollahi figured out he had been living in the United States illegally for more than a decade, he also knew that his personal safety would depend on being able to stay in the country he calls home.
Abdollahi, a 24 year-old Iranian who was raised in Ann Arbor, Michigan, came to the U.S. as a child when his parents immigrated to study at a state university. He says he learned of his undocumented status in high school, which is also when he first began identifying as a gay man.
"It wasn't until I was 17, 18 that I began connecting the dots," he said of his situation. "I grew up in a very Muslim family. I didn't know what 'gay' meant. ... I didn't understand the gap."
Abdollahi is now facing that "gap" head on, with the looming prospect of deportation to Iran where homosexuality is a capital crime. He was detained by Immigration and Customs Enforcement authorities after a protest in May, and his removal proceedings are scheduled to commence later this summer.
"It's not something I can imagine," he said of the thought of returning to Iran. "It would be a very scary thing because I haven't hidden my sexuality in talking with friends or the media."
Abdollahi is one of thousands of illegal immigrants each year who seek asylum in the U.S. from physical threats abroad while simultaneously facing imminent deportation by immigration authorities.
Iran has a documented record of persecuting gays and lesbians, including by death, according to U.S. government officials and international human rights groups.
Still, Abdollahi's case for asylum is not cut and dry: As an undocumented U.S. resident for twenty years, he missed the one-year window of opportunity by law to proactively apply for protected status. He now faces the more difficult task of appealing defensively before an immigration judge.
More than 13,000 immigrants in situations such as Abdollahi's requested so-called "withholding removal" status in U.S. immigration courts last year, according to the Justice Department's Executive Office for Immigration Review. But only 14 percent of the requests were granted, reflecting a much more stringent standard than that applied to asylum applications filed by people not facing deportation.
"He's looking at having to prove greater than 50 percent chance of persecution, a clear probability of persecution," said D.C.-based immigration attorney Kimberley Schaefer, who handles asylum cases.
Gay Iranian Optimistic Despite Low Odds for Asylum
The risk of physical harm must also be demonstrably linked with either his race, religion, nationality, membership in a social group or political opinion, according to U.S. Citizenship and Immigration Services guidelines.
Sexual orientation is loosely classified under "membership in a social group," according to immigration officials, and has been recognized by the courts as a protected category since 1994.
"Homosexual acts are considered a crime in Iran," said Hossein Alizadeh of the International Gay and Lesbian Human Rights Commission, who received U.S. asylum as a gay Iranian in 2001.
"Even if you're not charged, however, you face the threat of honor killings by family members and vigilantes. The government does nothing to protect these individuals."
The U.S. Citizenship and Immigration Service, which processes asylum applications, received 198 petitions from Iranians last year of which 91 were granted. But it's unclear how many, if any, were based on an individual's sexual orientation because the agency does not track those statistics.
Rachel Tiven, executive director of Immigration Equality, which advocates for gay and lesbian asylum seekers, said the group handled more than 200 cases last year, including several from Iran.
"We see an artificially deflated number of cases from the Middle East because the opportunity for single, Arab men to get here after 9/11 is very low," she said. "But we do see them."
The extension of asylum to individuals such as Abdollahi has critics, however, who warn that the system is prone to fraud and abuse, employing too loose a standard to ensure protection of a worthy few. Two recent high-profile cases in Washington State and Pennsylvania exposed rings of asylum seekers appealing for and receiving asylum based on phony claims of persecution and sexual orientation.
Still, Abdollahi, who dreams of being a social worker in his Michigan community, says he's confident, with the help of his pro bono attorney, that a judge will look favorably on his case.
"The two vectors in his case, like most glbt asylum cases, is 'are you who you say you are, are you gay?' and the other piece is 'how bad is it in the country you left?'," said Tiven.
A judge will decide whether the accumulated record of human rights abuses in Iran and testimonies from Abdollahi and his friends about his sexuality are incompatible and sufficient reasons to allow him to stay.