Six years and counting: LGBTQ asylum seekers sue to get out of limbo

July 26, 2023 Rob Abruzzese

Photo: Brooklyn Eagle

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In an effort to address a backlog of more than 700,000 unheard asylum applications, Legal Services NYC and WilmerHale have filed lawsuits against the United States Citizenship & Immigration Services (USCIS).

The lawsuits are on behalf of two LGBTQ asylum seekers, Denys Nikonov from Ukraine and Vadim (Nate) Esin from Russia, whose asylum hearings have not been scheduled due to USCIS’s “Last In, First Out” (LIFO) policy. Both plaintiffs have been waiting for over six years.

The LIFO policy, a legacy of the Trump Administration preserved under President Biden, is intended to deter new asylum seekers. However, it leaves existing applicants, like Nikonov and Esin, in a state of constant uncertainty, unable to establish stable lives in the U.S., and living in fear of being returned to their home countries, now ravaged by war.

The plaintiffs escaped their countries in 2017 due to severe persecution for their LGBTQ status, enduring physical assaults and sexual abuse. Their requests for asylum have been in limbo for over six years, preventing them from achieving lawful immigration status and the accompanying benefits, such as the right to work legally, own property, receive financial aid for college and apply for citizenship.

Roopal Patel, an attorney at Legal Services NYC on the case, called the LIFO policy “inhumane.” She emphasized that a fair and timely hearing is not just the humane action, but also a legal requirement under the Immigration and Nationality Act, which mandates an asylum hearing within 45 days of an application and a claim adjudication within 180 days.

These lawsuits are seeking to force USCIS to schedule asylum interviews for the plaintiffs, allowing them to move on with their lives. The growing backlog of applications due to the LIFO policy, however, makes this increasingly unlikely, leading to these legal actions.

WilmerHale filed the suit on behalf of Esin in the U.S. District Court for the Eastern District of New York, while Legal Services NYC filed Nikonov’s suit in the U.S. District Court for the Southern District of New York. USCIS, the U.S. Secretary of Homeland Security, the Secretary of the Director of USCIS and others are named as defendants.

Attorneys from WilmerHale and Legal Services NYC, including Serena Li, Jeremy Alder, James Fawcett, Ying Song, Renoj Zachariah, Roopal Patel, Rex Chen, Stephanie Cordero, Luis Henriquez and Sara Manaugh, are representing the asylum seekers. WilmerHale is providing pro bono representation for its clients as part of the firm’s ongoing commitment to ensuring equal access to justice for underserved communities worldwide.

Legal Services NYC, the largest free civil legal services provider in the nation, fights for social, economic and racial justice for low-income New Yorkers. Wilmer Cutler Pickering Hale and Dorr LLP is an international law firm providing legal representation across a wide range of practice areas.