AILA welcomes this blog post from Diversity, Equity, and Inclusion Committee Law Student Scholarship recipient Abby Leigh, part of a series intended to highlight the important ways in which diversity, equity, and inclusion inform immigration law and policy. More information about AILA’s DEI Committee and its important work is available on AILA’s website.

In more than 70 countries, some aspect of being lesbian, gay, bisexual, transgender, or queer (LGBTQIA+) is a crime. Many LGBTQIA+ people face harassment, discrimination, and violence that force them to flee. As U.S. immigration law evolved, sexual orientation and gender identity became a valid basis for an asylum claim. However, these asylum laws were still developed through the lens of straight relationships and cisgender perspectives.  As a result, asylum laws in the United States significantly disadvantage queer migrants, particularly transgender and non-binary individuals.

To start, a lack of an explicit acknowledgement that LGBTQIA+ is a protected ground within asylum means otherwise valid claims can fall through the cracks.  Sexual orientation and gender identity are not specifically enumerated as protected grounds for asylum, though they do often qualify as members of a Protected Social Group. Due to the lack of explicit inclusion, LGBTQIA+ asylum seekers often do not realize their sexual orientation/gender identity are grounds for asylum and are hesitant to speak up for fear they will experience the same persecution from which they fled. The one-year filing restriction on asylum claims and other expedited procedural constraints only make matters worse, as applicants with valid claims may not have sufficient time to file after learning they have a valid claim. To help remedy this problem, sexual orientation and gender identity should be explicitly adopted into the definition of refugee, and asylum officers should have an obligation to communicate this to applicants.

Beyond definitional limitations, the lack of culturally sensitive “credibility” determinations for asylum leaves the door open to improper judgment and mischaracterization. Because asylum is discretionary, adjudicators heavily rely on their own biases to determine whether an applicant’s described persecution is credible, often discounting queer identities that fall outside of what would be familiar to mainstream – often white – Americans.  The expectation of white Western gender and sexuality performance is not only demeaning, but it also narrows the likelihood of eliciting valid asylum claims.

Furthermore, studies demonstrate that immigration adjudicators conflate sex with sexuality, routinely discrediting applicants without sexual or romantic histories. As a result, asylum practitioners are often forced to limit and contextualize their description of persecution to fit within the confines of white Western culture. Adverse credibility findings are further exacerbated by applicants’ hesitancy to discuss their sexual orientation/gender identity with an asylum officer, especially if they are unaware that their identity forms the basis of a valid asylum claim. Thus, additional leeway should be granted for minor inconsistencies between asylum applications and an applicant’s testimony. The evidentiary standard of corroboration should also be relaxed, particularly for applicants who were forced to conceal their identities in their country of origin and may be hesitant to reveal their true identities once in the United States. Furthermore, sexual orientation, gender identity, sex assigned at birth data, and HIV status should be integrated into U.S. registration and data management systems that process asylum claims. Demographic questions should be subject to change throughout the asylum process without negative repercussions for the applicant.

Decision-makers are hesitant to grant asylum claims that allege violence similar to what is experienced domestically because it disrupts the illusion that the United States is the “good guy.” This leaves applicants walking a strategic tightrope, forced to perform their gender/sexuality in a manner satisfactory to the American adjudicator. Similarly, the theory of the case requires casting the applicant as a “good” or “deserving” gay, a narrative that juxtaposes the unspoken converse of a “bad” or “less-deserving” gay.

There is a need for more research and publicly available data, as federal agencies do not publish statistics on asylum claims based on sexual orientation, gender identity, or HIV status. As U.S. State Department country conditions reports are heavily considered in determining asylum (and often contain no information about the LGBTQIA+ community or those living with HIV), decision-makers should examine country-specific laws, policies, and cultural attitudes towards each subpopulation of the LGBTQIA+ community as well as those living with HIV when relevant. Immigration judges should also proactively submit evidence from credible sources sua sponte, especially for pro se litigants or when U.S. State Department reports lack proper evidence. Finally, because most immigration officers and immigration judge’s ideas about LGBTQIA+ identity are based on U.S. norms and stereotypes, all immigration officials must receive queer-sensitive interview training.

Research shows that the process of applying for asylum can by itself have “deleterious effects on LGBTQI+ persons, and immigration policies harm them based on the compounding effects of their intersectional identities.” It is important to address the challenges faced by queer migrants in the asylum process, including the need to “come out” in a way that is “credible” and “legible” to asylum adjudicators, as well as harmful stereotypes that question the validity and realness of these identities. Until our laws move beyond the existing cis-heteronormative legal structure, they cannot offer LGBTQIA+ asylum seekers a meaningful chance to claim protection and live up to America’s promise of safety for those fleeing persecution.