Queer Cases Make Pretty Good Law – at Least in the United States: Victoria Neilson Responds to James Hathaway & Jason Pobjoy

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)).

Courts have, however, allowed for the possibility of “pattern and practice” claims from countries where the level of harm that LGBT people face is truly egregious.  Thus in Bromfield v. Mukasey, 543 F.3d 1071, 1077 (9th Cir. 2008), the Court found a pattern and practice of persecution against gay men in Jamaica where, “the [U.S. Department of State] Country Report does not describe random violence.  Rather, it makes clear that homosexuals are the victims of targeted violence on account of their sexual orientation.”  The Court based this conclusion both on the level of violence gay men in Jamaica face and on the fact that consensual, same-sex, sexual activity is criminalized.

Likewise, a strong argument could be made that applicants like HJ and HT who come from Iran and Cameroon, countries that also criminalize homosexual activity and inflict severe harm on LGBT people, should win asylum under U.S. law based on their countries’ pattern and practice of persecuting gay men.  In countries that not only criminalize LGBT sexual activity, but enforce the death penalty, anyone who can prove that he is LGBT should be able to prevail in an asylum claim.

Nonetheless, because most pattern and practice claims fail when country conditions are mixed, applicants can and should demonstrate to the adjudicator how they will be “singled out” for future persecution.  This is probably the area of U.S. asylum law that comes closest to interacting with the European notion of “discretion.”  While there is no requirement that the applicant hide his or her sexuality to avoid harm under U.S. law, it is incumbent on the applicant to demonstrate to an adjudicator how a would-be persecutor would come to know that the applicant is LGBT.

In U.S. jurisprudence, we have seen cases that deal with an outgrowth of “discretion” — stereotyping by the adjudicator.  That is, in some cases, adjudicators have found that because the applicant does not fit the LGBT stereotype that the adjudicator expects, the adjudicator does not believe that the applicant will be singled out for future persecution.  This can be reformulated as the judge determining that to his or her eye because the applicant’s appearance is “discrete,” in that it is not stereotypically gay or flamboyant, no harm would come to him or her.  Fortunately, this analysis and stereotyping have been roundly rejected by U.S. courts of appeal.  See Ali v. Mukasey, 529 F.3d 478 (2nd Cir. 2008); Razkane v. Holder, 562 F.3d 1283 (10th Cir. 2009); Todorovic v. U.S. Atty. Gen., 621 F.3d 1318 (11th Cir. 2010).

Another aspect of U.S. jurisprudence which dovetails somewhat with the “discretion” doctrine is the notion of “social visibility.”  The Board of Immigration Appeals has held that in order to recognize a particular social group for asylum purposes,the group must have some visibility in society outside of the members’ shared claim of persecution.  Thus, in In Re C-A-, 23 I&N Dec. 951 (BIA 2006), the Board found that “former noncriminal drug informants working against the Cali drug cartel” in Colombia did not meet the particular social group threshold because there was no independent group visibility.  Some commentators have voiced concern that this social visibility notion will hurt LGBT applicants who may not be “out” (and thus could be categorized as “discrete”).  But this concern is misplaced:  the jurisprudence concerning social visibility refers to the group – the group must be recognized as such and must exist as a group beyond being defined by the shared persecution.   It would be hard to envision a country where LGBT individuals are not recognized as a visible social group.

The biggest problem I see with the “endogenous” model that Hathaway and Pobjoy propose is that asylum seekers must demonstrate a nexus between the harm that they suffer and the persecutor.  While there are countries, like Iran, where external country conditions documents (proof of the death penalty for consensual gay relations) may be sufficient to demonstrate that nexus, for LGBT individuals in many countries it would be impossible to demonstrate what the government has done to cause the psychological harm that accompanies a life of secrecy or deprivation.  The “endogenous” harm standard is both under-inclusive and over-inclusive.

Throughout the world, even in countries from which LGBT individuals would never win asylum, like the United States, there are LGBT people who lead closeted lives.  They may do so consciously for reasons of their career, they may do so because of deeply held, irreconcilable religious beliefs, or they may feel deep, internalized homophobia.  LGBT teenagers within the U.S. are disproportionately likely to commit suicide; there is no question that the pain and desperation they experience before taking their lives would rise to the severity of persecution under the “endogenous” standard, but it would be impossible to find a nexus between this pain and the U.S. government.

Even in countries where conditions are severe enough to claim that the government is the cause of the endogenous harm, how could an applicant prove the government’s role in the harm or the government’s unwillingness or inability to protect the applicant?  In a country where conditions for LGBT people are bad, but don’t rise to the level of a potential death sentence, how could an applicant demonstrate the he or she would choose to live a life of secrecy because of the actions or inactions of the government?  It can already be difficult to hold the government accountable when an asylum seeker suffers exogenous harm from private actors; as a practical matter, what sort of proof could an applicant who testifies that he or she would choose to forego sexual relations submit to hold the government accountable for that decision?  If the government has no idea that the applicant is LGBT, and will never learn that he or she is LGBT, how can the applicant ever demonstrate nexus?

Hathaway and Pobjoy talk about the psychological harm that Anne Frank must have suffered being confined to an attic and argue that this psychological harm should suffice for a finding of persecution.  However, under the U.S. asylum framework, Anne Frank could surely have won asylum based on the egregious “pattern and practice” of the Nazi German government persecuting Jewish people.  And, as we sadly saw in Anne Frank’s life, despite her efforts to remain hidden from the Nazis, in the end her attic hideaway was discovered.  As Jenni Milbank argues in The Right of Lesbians and Gay Men to Live Freely, Openly, and on Equal Terms Is Not Bad Law:  A Reply to Hathaway and Pobjoy, despite the best efforts at concealment that LGBT people may make in repressive regimes, the danger of discovery always exists.  So long as that danger produces a well-founded fear, the asylum seeker can and should win asylum without re-envisioning the established foundations of asylum law.