Follow-up to NYU JILP Symposium on LGBT Asylum and Refugee Law

In response to the online symposium on LGBT asylum and refugee law held two weeks ago by the NYU Journal of International Law & Politics and Opinio Juris, the Journal received several additional pieces of commentary. The contributions below specifically tie to Professor Ryan Goodman’s article, Asylum and the Concealment of Sexual Orientation, which also appears in issue 44:2:

“To counteract some of these concerns, [Hathaway & Pobjoy] place great faith in international human rights and anti-discrimination law pertaining to LGBT rights to constrain decision-makers’ reliance on their own subjectimve understandings of sexuality.  However, it is unclear that international law can bear such a weight in this particular context.” Goodman, 44 N.Y.U. J. Int’l. L. & Pol. 407, at 441 (2012):

Thank you again to Opinio Juris for its critical support on this important issue, and also to all of the authors.  Below are four new contributions to the dialogue by:

• Connie Oxford, State University of New York, Plattsburgh
• Michael Kagan, William S. Boyd School of Law, UNLV
• Jenni Millbank, University of Technology Sydney
• Victoria Neilson, Immigration Equality & NYU School of Law; & Mathew Schutzer, NYU School of Law, J.D. candidate 2012

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I. Connie Oxford is Assistant Professor of Gender and Women’s Studies at the State University of New York, Plattsburgh. Her publications include Queer Asylum: U.S. Policies and Responses to Sexual Orientation and Transgendered Persecution in Shifting Control: Gender and Migration Policy, 1917-2010. Marlou Schrover and Deidre Moloney (eds.) Amsterdam, Netherlands: Amsterdam University Press.

Professor Ryan Goodman argues that James C. Hathaway and Jason Pobjoy “place great faith in international human rights and anti-discrimination law pertaining to LBGT rights to constrain decision-makers’ reliance on their own subjective understandings of sexuality” in their article Queer Cases Make Bad Law.^[1] My own research on asylum, particularly gender-based asylum claims, underscores Goodman’s critique.  Over the past decade, I have observed dozens of asylum hearings in the U.S. Immigration Courts in Los Angeles, California and New York City, New York.  I have also done extensive ethnographic work with asylum seekers, their attorneys and service providers, and human rights activists, as well as interviews with U.S. asylum officers and U.S. immigration judges.

I have found that the interpretation of the law, rather than the law itself, is what matters most in asylum cases.^[2] It matters most because it determines the outcome of a case.  Some scholars argue that one’s adjudicator is the sole determining factor in the outcome of an asylum case in the U.S. asylum offices and immigration courts.^[3] This body of research supports Goodman’s conclusion that “adjudicators in refugee determinations will retain considerable leeway to develop their interpretations of the law.”^[4]

Goodman’s uneasiness about individual decision-makers’ subjective interpretations is expressed in the context of his critique of one of the contradictions of Hathaway and Pobjoy’s findings that “the body of international law specifically concerning sexual orientation discrimination is both limited and evolving.”^[5] While I agree with Goodman, I want to extend his critique with the following two points.

First, I have found that decision-makers rely on subjective interpretations of asylum law regardless of whether the law is evolving or settled.  While asylum law may appear settled at times, I would argue that asylum law is always evolving and therefore subject to Goodman’s concerns.  For example, in 1996 Fauziya Kassindja was granted asylum for fleeing a forced circumcision.  Her case, Matter of Kasinga (1996) was published by the Board of Immigration Appeals (BIA) and therefore set a precedent for all U.S. immigration courts and asylum offices.^[6] Matter of Kasinga was considered “settled” law for over a decade for women fleeing a forced circumcision and for those who had already been cut, until 2007 when the BIA found in Matter of AT that because the harm of genital cutting is ‘inflicted only once’ that asylum seekers cannot demonstrate a well-founded fear of persecution because they will not be subjected to it again.^[7] Therefore, women seeking relief on the grounds that they had been persecuted were no longer eligible for asylum.  One year later in 2008, the Second Circuit Court of Appeals ruled in Bah v. Mukasey that female genital mutilation was continued persecution and that women who had been cut were indeed eligible for asylum.^[8] In 2009, the BIA remanded Matter of AT to the lower court for reconsideration in light of the 2009 ruling.  These cases show how the law is never completely settled but instead shifts and changes over time.

Second, asylum law regarding claims of sexual persecution is limited, in part, because of its narrow focus that often excludes gender.  This has been particularly evident in cases where one flees persecution based on sexuality and gender.^[9] Transgendered cases are such an example.   The introduction of asylum laws and policies regarding persecution based on the social group of “sexual orientation” came on the heels of those that recognized gender-based persecution in the U.S.  Yet asylum policies for homosexuals conceived as a social group (i.e. category of identity) have been far less fraught than those for gendered persecution.  U.S. asylum law recognized homosexuals as a social group while women’s claims of persecution based on their gender were denied.  It is therefore no surprise that gendered asylum cases of the sexually oppressed (if conceived broadly) are often shoehorned into claims exclusive to sexuality.  Clever immigration attorneys working with queer asylum seekers caught on to the bifurcation in U.S. asylum law regarding sexuality and gender.   Why argue that your client was subjected to gendered persecution (a far less “settled” area of the law) when she/he was also subjected to harm based on sexuality (an ostensibly more “settled” aspect of asylum law)?

The law has a way of dealing with only one or the other in most U.S. case law.  Yet the reality of people’s lives is far more complex, given that gender and sexuality are inextricably linked.  Based on my research on gender-based asylum claims, I think that Goodman’s concerns about Hathaway and Pobjoy’s “faith in international human rights and anti-discrimination law” are very real, yet they are hardly specific to sexual orientation asylum claims nor are they new to refugee determination.

Professor Goodman has offered a cogent critique of Hathaway and Pobjoy’s article, and yet I believe it is possible to agree substantially with both.

Hathaway and Pobjoy highlight a genuine flaw in the way the leading UK^[1] and Australian^[2] courts have explained the availability of refugee status for LGBT asylum-seekers who are fleeing pervasive homophobic persecution in their countries of origin. There can be no protection under the 1951 Refugee Convention without a well-founded fear of being persecuted. Yet the texts of the Australian and British decisions appear to suggest the opposite, and this is indeed a weakness. If taken literally, it would be a legal error.

And yet, as Goodman explains, the holdings of these decisions are entirely consistent with existing jurisprudence, and not only in cases concerning sexual orientation.  For the purposes of refugee law, there should be little difference between a person who would be open about his or her identity in the face of persecution and a person who would try to hide to avoid persecution. When a robber says, “Your money or your life,” you do have a choice, but it is not a free choice and your rights will be violated either way. This is precisely the predicament of LGBT asylum-seekers from countries that persecute sexual minorities, and there is nothing especially problematic about a court finding that they can win asylum regardless of which choice they would make.

Goodman also raises an important question about the factual underpinnings of the UK and Australian decisions – that a gay man might be able to avoid physical harm by remaining in the closet. The lower courts had concluded that the claimants would keep their LGBT status concealed upon return, and thus would remain physically safe. This then produced an interesting question of law, but a question based on a dangerous empirical assumption. The real question should be: When a characteristic is fundamental to identity and persecution is so pervasive that a person can be physically safe only by hiding that characteristic, how long can we really expect an average person to remain safe? But the courts instead started from the assumption of physical safety, since this is the scenario developed by the lower courts. The common law tradition of separating fact from law, and dealing only with law on appeal, forced the high courts into resolving a hypothetical problem detached from reality. Sometimes civil procedure makes bad law.

Because Hathaway and Pobjoy also start from the assumption of physical safety, they rely instead on the internal psychological pain of such repression and self-denial to show a risk of persecution. This is a valid basis for refugee status in my view, but it is not the only basis, and it should not be thought of as the primary one in most LGBT cases. Much is made of the analogy to Anne Frank, whose famous confinement to an attic hideout is used as a symbol of the pain of self-denial.^[3] But to focus on that would miss the essence of Nazi persecution.  Anne suffered in the attic, no doubt. But she was caught and murdered, and that is the real point.

To be clear, I agree that psychological suffering can constitute persecution if it is severe enough. But I do not see any reason to make this the central focus of LGBT asylum claims. There is definitely a problem with the way the UK and Australian courts explained their reasoning in these cases. But this problem does not require the radical surgery proposed by Hathaway and Pobjoy. The decisions at their core break little new ground, and the holdings can be explained without the logical gap that Hathaway and Pobjoy expose. As a jurisprudential matter, Goodman’s explanation of these decisions is more persuasive because it seeks to find the common rationale across a long line of holdings, rather than treat two poorly explained decisions as outliers.

As a practical matter, I fear that the approach Hathaway and Pobjoy propose – relying extensively on the internal harms of repressing one’s fundamental identity to show that there is a genuine risk of persecution – could cause unnecessary practical problems for LGBT asylum-seekers. To understand why, it is helpful to look at how courts understand gay identity.

For all the sober reflections on Anne Frank, the most memorable passage from these court decisions is probably this one, from the UK Supreme Court:

[The] right to live freely and openly as a gay man involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates.^[4]

To give Lord Rodger and the Court their due, this passage is part of a welcome trend in which courts have begun to recognize that equality for LGBT people is about much more than just sex. But there is something cringeworthy about such an esteemed court reciting what it knows to be “trivial stereotypes.” Justice Kennedy of the U.S. Supreme Court was able to make substantially the same point in Lawrence v. Texas without stooping to this level.^[5]

The problem with engaging with such stereotypes is that sometimes they turn out not to be so trivial. Lord Rodger’s recitation of the assumed lifestyle of prototypical gay Brits has unseemly echoes of an older Australian decision where the adjudicator at first instance concluded that an Iranian refugee claimant was not actually gay because he failed to display certain stereotypical tendencies. The adjudicator in that case referenced a taste for Bette Midler and Madonna, among other stereotypes.^[6] That particular claimant eventually prevailed on appeal, but the fact that any adjudicator in a major asylum country would use stereotypes in this way should serve as a warning.

My fear is that rooting LGBT asylum claims solely in the psychological harms of self-repression may in practice heighten the burden of proof that refugee claimants will be expected to meet. A gay man should be able to win refugee status by presenting two main types of evidence. First, he would need to show that there is pervasive persecution of gay men in his country of origin, a burden that he would typically be able to meet through publicly available human rights reports. Second, he would need to show that he is, in fact, a gay man. It is in this second significant part that credibility assessment becomes critical, and credibility assessment is often a source of faulty decision-making.

My worry is that under the approach proposed by Hathaway and Pobjoy, there would be, de facto, a third demand that the asylum-seeker also show that being forced to be discrete would be particularly harmful to him. Adjudicators would be invited to wonder whether claimants who do not so obviously fit gay stereotypes would have to suffer to the same extent in order to hide their identity. With courts having embraced a broader conception LGBT self-expression, I worry that some claimants will be told, in effect, that they are not “gay enough” to be able to prove that they would suffer sufficient psychological harm. To be clear, I do not worry that Hathaway and Pobjoy or the judges on the House of Lords would stray in this direction. But credibility assessment at the front lines of refugee status determination is already a messy business, with adjudicators often tempted to probe the intimate lives of asylum-seekers more than they should.^[7] I fear any interpretation of the refugee definition that might increase the risks of degrading lines of questioning and of errant rejections of genuine refugee claims.

When an identity is fundamental – as gender and sexual identity certainly is – it is simply unreasonable to expect any person to be able to hide it for long. If we know that an asylum-seeker is gay and that he comes from a country where gay men (or any other sexual minority) are frequently victims of physical harm, we should be able to conclude that the asylum-seeker has a well-founded fear of falling victim to this same physicadl harm. He may also be in danger of severe psychological suffering if he were to try to hide his identity to avoid physical attack. But we need not rely on this silent, invisible pain in order to protect him from the more obvious risks of persecution.
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