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
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. 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. 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. This body of research supports Goodman’s conclusion that “adjudicators in refugee determinations will retain considerable leeway to develop their interpretations of the law.”
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.” 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. 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. 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. 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. 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.
9 Connie Oxford, Queer Asylum: U.S. Policies and Responses to Sexual Orientation and Transgendered Persecution, Shifting Control: Gender and Migration Policy, 1917-2010. Marlou Schrover & Deidre Moloney (eds.) (Forthcoming).
II. Michael Kagan is an expert in immigration and asylum law who spent ten years building legal aid programs for refugees throughout the Middle East and Asia. He held previous teaching positions at Tel Aviv University Faculty of Law and the American University in Cairo. Kagan’s research on refugee credibility assessment has been cited by multiple Courts of Appeal, and he has also written extensively about international refugee law and humanitarian policy and the Arab-Israeli conflict. He co-directs the Immigration Law Clinic at UNLV.
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 and Australian 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. 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.
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.
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. 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. 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.
In his foundational text on sexual orientation in human rights law, Rob Wintemute notes that between 1955 and 1967 there were at least nine complaints made under the European Convention of Human Rights by men in Germany and Austria, all titled “Mister X”, who had been imprisoned for terms between 15 months and 6 years for the crime of consensual gay sex. Each one of these applications was declared inadmissible as ‘manifestly ill-founded’ on the basis that “the Convention allows a…Party to punish homosexuality since the right to respect for private life may, in a democratic society, be subject to interference … for the protection of health and morals..” Human rights law requires an acknowledgement of humanity before a grant of rights.
International human rights jurisprudence is as political, and as personal, as the domestic jurisprudence of every nation. It continues to hedge and fumble with equality claims regarding family life for lesbians and gay men, in particular affirmative rights to have and to care for children. Refugee law and human rights law are, and should be, in close dialogue – but Ryan Goodman, and John Tobin in his piece also, rightly establish that Hathaway and Pobjoy rest too much of their analysis on human rights standards which they themselves acknowledge are still in development.
I would go further and contend that such standards in relation to sexual orientation are still plainly underdeveloped. As with the cases of the Misters X from Austria and Germany, we will look back at many of the unsuccessful equality claims of the 1990s and 2000s with chagrin. International law has not been quick to affirm gay humanity. In fact when I read through the ECtHR
s of the past decade, it strikes me that my 93 year-old grandmother in Yeovil got there before a number of eminent human rights jurists managed it. There are occasions in which refugee law should lead and not always follow human rights developments.
1 X v Germany (No 530/59)(1960) 3 YB 184 at 194, Wintemute 1997: 92.
IV. Victoria Neilson is the Legal Director of Immigration Equality and an adjunct professor teaching the LGBT Rights Clinic at New York University School of Law. Mathew Schutzer is a law student at New York University School of Law, J.D. candidate 2012, and the author of Bringing the Asylum Process Out of the Closet: Promoting the Acceptance of LGB Refugees, forthcoming in the Georgetown Journal of Gender and the Law.
Professor Goodman critiques the nexus test suggested by Hathaway & Pobjoy (hereinafter H&P) as, among other flaws, too vague. The nexus test all but requires a judge’s personal feelings about sexual orientation and identity to play an unduly large role in a decision by calling for an evaluation of whether the applicant’s activities and behaviors are integral to the applicant’s sexual identity. Ultimately the test does little more than replace the behavioral discretion requirement with another form of adjudicative discretion. H&P acknowledge this weakness, arguing that international law can “limit the scope for decision-makers to import their own subjective understandings of sexuality into their consideration of what might fall within the protected interest of sexual orientation.” Goodman correctly, in our view, deconstructs this argument. We join his critique that international law is not suited to this task.
The proposed nexus test brings to the forefront the problem of adjudicative discretion. However the fact of the matter is that even legal standards which do not explicitly require the judge to apply his or her own notions of sexuality and identity still engage those opinions and biases on an implicit basis. Cases from the U.S., that apply a legal standard that does not require an evaluation implicating the adjudicator’s biases, illustrate this point.
As Victoria Neilson noted in her response to H&P, immigration judges do from time to time deny asylum applications when the applicant’s appearance is not stereotypically (to the adjudicator) gay or flamboyant, assuming the applicant would not be singled out for persecution if returned to their country of origin. U.S. courts of appeal, relying on domestic administrative law principles, and not international human rights law, have roundly rejected this reasoning. Judicial review is an invaluable tool to correct asylum determinations contaminated with the immigration judge’s misguided understandings of sexual orientation. But notice that the need for judicial review arises even under a legal standard that does not include the noxious nexus test or anything similarly requiring the exercise of significant adjudicative discretion.
Moreover, it would be impossible to come up with any kind of one-size-fits-all international standard for behavior which is “core” to a person’s sexual orientation. In our experience, the types of behaviors lesbian and gay people engage in as part of their country’s LGB community (if their country even can conceive of having such a community) varies enormously. One asylum seeker may tell us people will know he is gay because he wears designer jeans; another because he is a dancer; a woman may say that “the way she walks,” signals she is lesbian. While one could try to pick and choose – designer jeans, too frivolous; dancer, find another job; “way she walks,” probably cannot change – what would be the point of this exercise? An individual should be able to express his or her sexual orientation freely, period
Thus, finding the right legal standard is only half the battle. Goodman is right that H&P’s nexus test is wrong, but the right standard will not, by itself, assure that all of the right cases are accepted and the wrong cases rejected. Experience from Australia supports this argument. Professor Millbank’s review of LGBT asylum decisions in Australia following S395 found “a significant increase in the proportion of Australian decisions where the applicant’s claim of a gay, lesbian or bisexual identity was specifically doubted or disbelieved.” This would suggest that the discretionless (in both the adjudicative and behavioral sense) standard still left room for asylum adjudicators to bring doubt into the equation. In other words, the rest of the problem Goodman identifies cannot be resolved only with a new legal standard—H&P’s, Goodman’s, or anyone else’s. In addition to relying on judicial review to extract an adjudicator’s personal views on sexual identity from an asylum decision we should also be providing those adjudicators with the necessary tools and support to ensure that they reach the right decisions in the first instance.
How do we do this? A variety of ways:
- Train adjudicators to be acutely aware of the sensitive nature of these applications. This training can take several forms. One is formal guidance documents issued to all asylum officers, such the recently written USCIS training module or the Swedish Migration Board’s (Migrationsverket) Guidelines for sexual orientation based asylum claims. Another is a strategic partnership between advocates and adjudicators. The Migrationsverket works with Sweden’s Equality Ombudsman, the National Institute of Public Health and RFSL (Sweden’s leading LGBT rights organization) to organize staff development days. These training days bring together advocates and Migration Board supervisors to, inter alia, “attract suggestions and ideas regarding how investigations and reception” can develop.
- Ensure that official country condition reports, such as Department of State Country Reports on Human Rights Practices, engage in a thorough exploration of the treatment of gays and lesbians in the home countries. These reports are generally considered authoritative and accurate within their jurisdictions. Persuasive reporting to the atrocities committed against gays and lesbians in their countries of origin can counteract biases in some cases. At the same time, and under the heading of training above, adjudicators must be made aware of the very real limitations of these reports. If the country report indicates that no one was executed in a given year in a country which makes consensual sodomy a capital crime, that fact does not mean that it is safe for a gay man or lesbian to express his or her sexual orientation there.
- Develop institutional expertise. Belgium’s Commissioner-General for Refugees and Stateless Persons (CGRA) established a gender unit to centralize the generation of expertise in gender (including sexual orientation) based claims for asylum. Unit officers train case workers on how to respond to the unique features of sexual orientation claims, become regional experts on the treatment of women and sexual minorities, and serve as references to case workers on individual cases, providing an experienced eye to review the claim and comment on its merits.
Engaging with decision-makers in these, and other, ways, can promote accurate and positive understandings of sexual identity that, when inevitably engaged in the adjudication of individual cases, result in more protection for those in need of it.