Panel 1 of the NYU JILP Vol. 44:2 Online Symposium
Victoria Neilson is the Legal Director of Immigration Equality and an adjunct professor at New York University School of Law.
Reading Queer Cases Make Bad Law, by James C. Hathaway and Jason Pobjoy, (hereinafter “Hathaway/Pobjoy article”) my first reaction is to feel fortunate that I practice asylum law in the United States and not in Australia, the U.K., or other European countries that have imposed a duty of so-called “discretion” on asylum seekers to avoid harm. U.S. courts have rejected the notion that a gay man should be saddled “with the Hobson’s choice of. . . either (1) facing persecution for engaging in future homosexual acts or (2) living a life of celibacy. Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005). And in the recently released United States Citizenship and Immigration Services Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims, USCIS instructs asylum and refugee officers that:
Being compelled to abandon or conceal one’s sexual orientation or gender identity, where this is instigated or condoned by the state, may amount to persecution. LGBTI persons who live in fear of being publicly identified often conceal their sexual orientation in order to avoid the severe consequences of such exposure — including the risk of incurring harsh criminal penalties, arbitrary arrests, physical and sexual violence, dismissal from employment, and societal disapproval. (LGBTI module at 20-21).
While asylum law in the United States is by no means perfect, I think that the subjects of the Hathaway/Pobjoy article, HJ and HT, could have won asylum here under the existing legal framework. Thus, rather than re-envision asylum and refugee law as the article suggests, to focus on the “endogenous” harm that comes from leading a forced life of secrecy and suppression, I suggest that European countries look to the United States as a model for analyzing these types of cases.
Under U.S. asylum law, applicants are most likely to be successful if they can prove past persecution. Doing so creates a presumption of future persecution, shifting the burden to the government to prove that the applicant will not face further persecution. As a practical matter, the government rarely argues against granting asylum where past persecution has been established.
In situations where the applicant has not suffered persecution in the past, the inquiry is entirely forward-looking. Does the applicant have a well-founded fear of future persecution? It is then incumbent upon the applicant to demonstrate either that he or she will be singled out for future persecution or that there is a pattern and practice of persecution of those that share the applicant’s protected characteristic. 8 C.F.R. 208.13(b)(2).
Cases based on a pattern and practice argument are decided almost entirely on country conditions documentation. U.S. courts have been reluctant to grant “pattern and practice” cases, probably because of the obvious “floodgates” concern that if one applicant with a particular protected characteristic can win asylum based solely on pattern and practice, then presumably all applicants who share that characteristic could also win. Thus, gay applicants have lost “pattern and practice” claims where evidence of treatment of LGBT people is mixed, such as claims from Peru (Salkeld v. Gonzales, 420 F.3d 804 (8th Cir. 2005)), Zimbabwe, (Kimumwe v. Gonzales, 431 F.3d 319 (8th Cir. 2005)), and Mexico (Castro-Martinez v. Holder, 641 F.3d 1103 (9th Cir. 2011)).