Ironies and constraints in US asylum cases
Héctor Carrillo
Every year, more than one million foreign nationals become permanent residents in the USA. A report from the Department of Homeland Security stated in 2006 that ‘nearly two thirds (or 63 per cent) were granted permanent residence based on a family relationship with a US citizen or legal permanent resident of the United States’ (Jefferys 2007a: 1). Among them a considerable number were the spouses of US citizens (339,843 people in 2006) and still others were spouses of legal permanent residents (Jefferys 2007a). This means that being or becoming the spouse of a US citizen or legal resident constitutes the single largest path through which foreign nationals immigrate legally to the USA today.
These figures are of enormous significance for US citizens and foreign nationals involved in same-sex binational relationships. Lesbian, gay, bisexual and transgender (LGBT) US citizens and legal immigrants are barred from sponsoring their same-sex partners for immigration purposes (Schulzetenberg 2002; Howe 2007).1 Cymene Howe (2007: 96) has noted that the 1996 Defense of Marriage Act (DOMA) ‘continues to prohibit same-sex binational marriage claims because, for immigration purposes, the DOMA legislation defines marriage as a relationship between a man and a woman’. This same act has perpetuated a form of state discrimination toward a considerable proportion of American citizens (Reed 1996). Ironically, in 1993 the US government began to grant visitor visas to the same-sex partners of nonimmigrant foreigners who are legally in the country. The poignant consequence is that long-term non-immigrant foreigners have been conferred a right that is not extended to US citizens or legal immigrants (Schulzetenberg 2002).
Taken together, these policies symbolise the unequal position of sexual minority populations. Most importantly, as a result of these policies the most common path for immigration to the USA among adults has been rendered unavailable to gay and lesbian foreign nationals unless they break the law and engage in sham heterosexual marriages. Furthermore, because it is often much more difficult to obtain other types of immigrant visa that are based on employment or other forms of familysponsored immigration, the possibilities for LGBT individuals to immigrate to the USA legally are greatly reduced.
LGBT immigrants have had to explore alternative avenues to pursue legal immigration to the USA. Because many of them have been badly mistreated due to their sexual orientation in their countries of origin, beginning in the late 1980s they and their lawyers began to test whether they could attain permanent residency through asylum. These efforts coincided with a federal policy change in 1990 that ended the exclusion of homosexual foreign nationals from the USA (a policy that had been put in place by two separate US Immigration Acts in 1917 and 1952) (Bennett 1999). That same year, the Board of Immigration Appeals granted asylum to a gay Cuban immigrant by the name of Toboso-Alfonso who convincingly claimed that he had been persecuted in Cuba due to his sexual orientation and feared future persecution if he returned (Russ IV 1998; Cantú et al. 2005).
Since this first successful case, a growing number of LGBT individuals have obtained immigrant visas through asylum in the USA. As one legal scholar has recently noted: ‘Owing to a number of recent developments, US asylum law is one of the most hospitable legal arenas for lesbian, gay, bisexual and transgender (“LGBT”) litigants’ (Landau 2005: 237). However, being granted asylum is not easy.
In this chapter, I examine the use of asylum as an immigration strategy for LGBT immigrants in the USA. Based on the existing legal literature on the topic, I discuss the practical limitations of this strategy and, at a more conceptual level, the problematic nature of assumptions about homosexuality that typically accompany LGBT asylum cases. Successful arguing of these cases often has involved great oversimplification in ways that disregard the nuance and complexity found in anthropological and sociological studies of same-sex sexualities around the world. My discussion refers to cases in the USA, although this legal strategy has also been used in other rich countries that have large immigrant communities from the developing world. While aspects of the analysis may be generalisable, the specific implementation of LGBT asylum varies from country to country, reflecting the characteristics of local legal systems and policies. Therefore my conclusions should be taken to apply only to the US experience.
The issues that I discuss here are relevant to both sexual minority men and women. It is striking, however, that most successful cases of LGBT asylum have involved gay men and male-to-female transgender individuals (Millbank 2003; Neilson 2005b). One possible explanation for this disparity is that lesbian lifestyles, like those of other women, often are less public than those of men (Chisholm 2001; Millbank 2003; Neilson 2005b).
Making asylum work for LGBT applicants in the USA has been an arduous process for immigration lawyers. Asylum decisions are made at various institutional levels within the US legal system. Petitions are made to the Department of Homeland Security, where an asylum officer approves or denies the petition. Denied applicants who do not have a valid legal status in the USA are placed on removal procedures and referred to an immigration judge in the Department of Justice, who can uphold or overturn the decision by the asylum officer. If the immigration judge upholds the denial, an appeal can be filed with the Board of Immigration Appeals, and if the appeal fails the petitioner’s lawyer can then try to bring the case to the US Court of Appeals (Leitner 2004; Randazzo 2005; Jefferys 2007b).
Since the 1990 Toboso-Alfonso case, which was decided by the Board of Immigration Appeals (Henes 1994; Russ IV 1998; Bennett 1999; Landau 2005), other published cases have marked important turning points in the history of LGBT asylum. In 1993, for the first time, an immigration judge granted asylum directly on the basis of sexual orientation. This was the case of Marcelo Tenorio, a gay man from Brazil. The case also constituted the first time that an immigration judge recognised homosexuals as members of a ‘particular social group’ that is targeted for persecution, which is a requirement of asylum law (Henes 1994; Davis 1999; Anderson 2001; Landau 2005). However, the Tenorio case was not deemed to establish a legal precedent that immigration judges were obliged to recognise. One year later a Mexican man, José García, was granted asylum on the same grounds – the first time that LGBT asylum was granted directly by the Inmigration and Naturalisation Service2 rather than at a higher level (Randazzo 2005; Cantú et al. 2005). Soon afterward, Attorney General Janet Reno ordered immigration boards to adopt Matter of TobosoAlfonso as precedent (Henes 1994; Bennett 1999; Landau 2005; Randazzo 2005).
As part of the Tenorio case, the immigration judge deemed homosexuality to be an immutable characteristic that the applicant cannot reasonably be expected to change (Bennett 1999; Randazzo 2005). Demonstrating persecution due to an immutable characteristic is another requirement to establish grounds for asylum. This early discussion in LGBT asylum cases of whether homosexuality is an immutable characteristic involved some degree of consideration of the still largely unresolved questions about whether sexual orientation is innate or a matter of personal choice (Henes 1994; Queer Law 1999). Questions about immutability were central to LGBT asylum cases during the 1990s. But in 2000, in the case of Hernández-Montiel, the Ninth Circuit Court of Appeals set precedent by ruling that both sexual orientation and sexual identity are immutable characteristics (Martin 2001).
The need to legally establish the immutability of homosexuality required a pragmatic form of oversimplification. It required those supporting LGBT asylum to side with essentialist and biological views of homosexuality as innate. This alignment, which has become common in the pursuit of other forms of LGBT rights in the USA (Epstein 1987), leaves little room for consideration of social constructionist nuance in relation to the aetiology of sexual orientation, which would be perceived as muddying the arguments about immutability.
With the need to prove membership in a particular social group out of the way, individual applicants must still make a convincing case that they were persecuted by the state (or by state inaction) due to their sexual orientation and that they have had a well-founded fear of persecution should they return to their home country. This additional requirement has led immigration courts to ask questions about whether the persecution occurs nationwide, i.e. whether the applicant could return to a different part of the country and not fear persecution. Here, a second kind of oversimplification became necessary. Applicants typically have been forced to engage in a wholesale vilification of their countries of origin, so as to not leave any room for the suggestion that they could go back and not be persecuted (Wei and Satterthwaite 1998; Solomon 2005).
Government lawyers have increasingly utilised reports of the changing conditions with regard to LGBT rights in various countries as proof that the fear of persecution is not well founded. Conceptually, the problem is that the question is simply put in either/or terms, and without leaving much room for nuance about the diversity of same-sex experiences that exist within specific countries. As a result, home countries appear flat and homogeneous, which runs contrary to everything that anthropological and sociological studies of homosexuality have revealed about the variety of LGBT experiences within and among countries.
The limitations of this approach become readily apparent if we consider the treatment of LGBT people in the USA itself. It would not be hard to argue that persecution toward LGBT people exists in the USA – in other words, that LGBT persecution exists in the very same country being asked to grant asylum to those escaping LGBT persecution. Several scholars have offered examples of such persecution, including the exclusion of gays from the military, the Defense of Marriage Act and even specific, very dramatic, cases such as one involving a Mexican transgender woman who, after being denied asylum, was placed on deportation procedures in a detention centre in Florida, where she was repeatedly raped by her prison guard (Halatyn 1998; Russ IV 1998; Miluso 2004; Symposium 2000/2001; Martin 2001; Solomon 2005). Indeed, some of the experiences that LGBT people have could be construed as evidence of widespread persecution toward LGBT people in this country, and perhaps could constitute grounds for asylum cases elsewhere if US citizens were to migrate. But, by definition, LGBT asylum cases in the USA must present that country as enlightened, and the applicants’ home countries as backward, which some legal analysts and social scientists have depicted as a revival of a colonialist mentality (see Rahman in Wei and Satterthwaite 1998; Long 2000/2001; Cantú et al. 2005).
An additional problem confronting asylum seekers is that, for the most part, LGBT asylum cases are adjudicated by asylum officers and immigration judges who have full discretionary power (Morgan 2006). The possible pitfalls of such discretionary power – in terms of the adjudicators’ biases – are not exclusive to such cases. However, in this particular case the adjudicators’ negative views on homosexuality (possibly including their own homophobia) may pose a particularly difficult barrier to overcome. As one legal analyst has put it: ‘[I]t really depends on the asylum officer and the immigration judge. You can tell from the moment you sit down. Sometimes the officers or judges are not accepting of gay claims’ (Neilson, quoted in Pfitsch 2006: 73).
The subjectivity involved in the adjudicators’ decisions seems further compounded by their own culturally specific views about what constitutes homosexuality, which may strongly inform their interpretations of specific cases. Lavi Soloway, of the Lesbian and Gay Immigration Rights Task Force (Soloway 2000/2001), illustrates this issue well with the example of an immigration judge who could not understand that in a case involving sex between men only the partner who identified as gay (who was effeminate and whose sexual preferences included being penetrated) was persecuted, while his masculine, non-gay-identified male partners were not. This forced the applicant and his lawyer to lecture the judge on culturally based interpretations of homosexuality (Soloway 2000/2001). In the end, this judge understood that the disparity in stigma according to sexual roles did not minimise the validity of the applicant’s claims, but other judges could have concluded the opposite: that the lack of stigmatisation of the masculine partner meant that (1) the persecution of homosexuals was not wholesale in that country; (2) that effeminate men could avoid persecution by acting masculine; and (3) that this applicant’s persecution was caused by his acting effeminately and making his difference public.
LGBT applicants and their lawyers often find themselves in the position of needing to educate immigration judges about cross-cultural models of homosexuality. But, in an ironic twist, the achievement of this sort of ‘cultural sensitivity’ on the part of judges also has led to a different form of oversimplification. Once judges see genderbased forms of homosexual interaction as a different cultural model, they may reify it and decide, for instance, that masculine gay men in any given country are not ‘gay enough’ – that they are never stigmatised and thus are by definition ineligible for asylum (Hanna 2005; Morgan 2006).
This divergence in adjudicators’ interpretations about the degree of stigmatisation of masculine and feminine gay men has been consequential in recent landmark cases. In 2000 the Ninth Circuit Court established precedent by adding the term ‘sexual identity’ to the definition of particular social group, which in one case, that of Hernández-Montiel, they described as ‘gay men with a female sexual identity’ (Leonard 2000: 560; see also Martin 2001; Hanna 2005; Randazzo 2005). This new definition created an opening for transgender individuals to submit asylum petitions (Neilson 2005a). As a result, in 2004, based on that same definition, an applicant named Reyes-Reyes, who identified as transgender, was granted asylum. But the shift seems to have had considerable negative consequences in cases involving masculine gay men. In the 2005 case of Soto Vega, the applicant was denied asylum by the Board of Immigration Appeals because ‘he appeared too stereotypically heterosexual’ (Hanna 2005: 249).
Immigration lawyers are now assessing the potential for success in gay male asylum cases, based in part on subjective perceptions of the clients’ degree of masculinity or femininity. But this contradicts the notion that all homosexuals are part of a particular social group. The case of one man who participated in my recent ethnographic study with Mexican gay and bisexual immigrants illustrates this case.3 Discussing why he had been unable to pursue asylum as a bisexually identified man, he said:
They didn’t give me any hope … because I identify as bisexual. They said ‘it would be hard’… because I don’t look effeminate. They said, ‘You don’t have a good argument to say that you can’t go back to your country’. They said, ‘You actually scared me, because you look so straight’ … So they had thought of me as straight. And I say, ‘Well, I am not very feminine, I don’t like to show it’ … I am quite reserved and I only tell the person [the man] that I want to have sex with.
In this quotation, this man refers to another subjective barrier that genderconformant gay, bisexual and lesbian asylum seekers now face: individuals often choose to hide their same-sex sexual attraction in their home countries precisely to avoid persecution, although at the price of not being able to live their sexual orientation openly (Hanna 2005). But adjudicators may interpret their ability to pass as evidence that if they returned to their countries of origin they would not face persecution so long as they keep their sexual orientation private (Henes 1994; Hanna 2005; Morgan 2006). Critics of this argument compare it to saying that political dissidents or religious minorities could avoid persecution by hiding their political or religious affiliations, which runs contrary to the spirit of asylum law (Henes 1994).
Overall, the problem with these kinds of subjective or discretionary judgment is that adjudicators may use their own personal beliefs, stereotypes and biases in deciding who is credible, who is gay, who is gay enough and so forth, and these informal criteria appear to severely impact the outcomes of individual cases. Furthermore, because the legal system tends to create black and white scenarios in relation to the nature of sexual orientation that leave little room for any shades of grey, in arguments about what constitutes credible homosexuality and stigma attorneys and adjudicators regularly resort to oversimplifications that inadequately account for the complexities of sexual attraction, gender roles and social stigma.
It is unclear what may happen to asylum as an LGBT immigration strategy in the USA as the conditions surrounding homosexuality in other countries change, and as LGBT people around the world successfully achieve rights that may surpass those available in the USA. In this sense, the central assumption that requires asylum cases to construct the USA as enlightened and the countries where immigrants come from as backward is extremely problematic. Demonstrating generalised persecution of homosexuals is slightly easier in cases involving countries where homosexuality is still illegal, or where the state engages in overt forms of persecution of LGBT people (or clearly fails to protect LGBT people from persecution). By contrast, the situation is becoming more complicated when immigrants come from countries where LGBT people have been successful at achieving some rights or forms of legal and state protection. In those countries, just as in the USA, persecution of LGBT people may still be widespread, and there may be many situations in which particular individuals cannot return to their places of origin without fear of persecution due to their sexual orientation.
Furthermore, countries other than the USA may have better conditions in relation to some LGBT issues but not others. In this sense, the irony is that a US LGBT citizen who experiences persecution within the USA for not being allowed to serve in the army or to get married to a same-sex partner might find relief by moving to a country where those rights exist. But similarly, citizens from those same countries might not want to return to their countries of origin out of fear of police harassment.
The limitations of asylum seem particularly poignant in the case of binational same-sex couples that involve a US citizen or permanent resident. While their heterosexual counterparts can sponsor their spouses for immigration purposes via a comparatively simpler process, pursuing asylum for the foreign partner may be the only available alternative for some of these couples to live together in the USA. Ironically, that very fact might constitute sufficient evidence for them to request asylum elsewhere on the basis of state discrimination and persecution.
1 In recent years, immigration courts have offered conflicting decisions about what constitutes a same-sex or opposite-sex marriage in cases involving binational couples in which one or both of the partners is a transgender person. At stake are questions about whether the country or US state where the marriage took place recognises the marriage as valid, whether to consider the gender of the transgender partner at birth or at the time of marriage, and how to make decisions consistent with the requirements of federal immigration policy and with the Defense of Marriage Act (see Haines 2005; Lorenz 2005; Immigration Equality and Transgender Law Center 2006; Wenstrom 2008).
2 The Immigration and Naturalization Service became US Citizenship and Immigration Services in 2003, at which point it moved from the Department of Justice to the newly created Department of Homeland Security.
3 This quotation is from an interview conducted for the Trayectos Study, a large ethnographic research project of sexuality and HIV risk among Mexican gay immigrant men in San Diego, California. For this study, my research team and I interviewed 150 men, including self-identified gay and bisexual Mexican immigrant men, US-born Latino men (who constituted a comparison group) and US-born sexual/romantic male partners of Mexican men. The study also included participant observation in locations where Mexican gay and bisexual immigrants socialise. Trayectos was funded by Award Number R01HD042919 from the National Institute of Child Health and Human Development. The content is solely the responsibility of the author and does not necessarily represent the official views of the National Institute of Child Health and Human Development or the National Institutes of Health.
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