![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
Abstract
In this article, I argue that the US Citizenship and Immigration Services’ current guidelines for LGBTQ+ asylum adjudication are both underinclusive and improperly restrictive. They are underinclusive because they are insufficiently attentive to LGBTQ+ applicants’ right to protection from persecution on the basis of gender expression. They also flatten the concept of gender identity by conflating it with transgender identity, thus reconsolidating a transgender/cisgender binary that impedes asylum officers’ ability to find cognizable those gender identities that exceed these two terms. The guidelines are also improperly restrictive because they forbid specific discussions of sex acts during the asylum interview. To be sure, this proscription is a response to widespread recent reports of abuse of applicants around the world. Nevertheless, it overcorrects for the problem and, in turn, hinders asylum officers’ ability to elicit detailed testimonies as well as impedes, in all likelihood, the ability of some applicants to furnish credible testimonials.
Notes
Acknowledgments
The arguments presented in this article are better than, and in many ways the opposite of, what I had intended to argue when I started writing this article. This course correction is the result of the wisdom of many people. For their acute insights and helpful suggestions, I am grateful to Elizabeth F. Cohen; Gordon Danning; Alexandra Novitskaya; Ryan Thoreson; David Bruce Wilkins; Emily Wills; the attendees of: an APSA (2019) panel, a WPSA (2019) panel, a Faculty Forum at Wagner College, and an online seminar on LGBTQ+ Asylum organized by Patti Lenard and Kerri Woods. In addition, I am eternally grateful for the feedback and insights of scores of students enrolled in various seminars at: Hunter College, The New School, New York University, Smith College, and Wagner College. I thank Wagner College for granting me a sabbatical semester to pursue this project (Fall 2021). I am also grateful to Beatrice Ghosh and Nicolas Velez for their valuable assistance with research and to Jennifer Ibañez Whitlock and Rachel Pulda at the American Immigration Lawyers’ Association for their help in researching and identifying relevant documents. I could not have written this paper without their assistance. Errors, if there are any here, are all mine.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1 One way, among many, to denote groups of individuals who identify as minorities because of their sexual orientation, gender identity, gender expression, and sex characteristics [SOGIESC] (ARC International, International Bar Association’s Human Rights Institute, International Lesbian, Gay, Bisexual, Trans & Intersex Association, 2016; International Lesbian, Gay, Bisexual, Trans & Intersex Association, Citation2022; Nolan, Citation2016), is to use the abbreviation “LGBTQ+” to refer to lesbians, gays, bisexuals, trans* folks, queers, and other SOGIESC minorities (also see Gold, Citation2018). This is how I use this term, here and elsewhere.
2 To be sure, this data point only relates to defensive hearings and not all cases (including affirmative interviews). More on defensive and affirmative claims within notes 5 and 6 below.
3 This policy was intended to render victims of domestic and gang violence ineligible for asylum. It has been blocked by the courts and reversed by the Biden administration (see, e.g., Attorney General, 2021).
4 These are “affirmative” claims and commence when a person proactively files for asylum and for the “withholding of removal” (Hamlin, Citation2014, p. 67).
5 These are “defensive” hearings, intended for those defending against deportation: (1) individuals found at the port of entry without valid travel documents, (2) individuals found by immigration officials to be unlawfully present in the United States, and (3) individuals whose applications have been rejected at the Asylum Office (Hamlin, Citation2014, p. 68).
6 The discretion requirement sometimes presents itself in the guise of an “accommodation” requirement. Thus, in a particular case of a sur place claim in The Netherlands: “In the case of a Sierra Leonese [sic] lesbian woman, asylum was denied because the applicant could be expected to accommodate, i.e., hide [her sexual] orientation after return as she had done so before leaving Sierra Leone” (Baatjes, Citation2013, p. 86; emphasis mine).
7 In certain situations, an applicant can also make a claim based on political opinion or religion, or race and ethnicity, or a nexus between one or more of these convention grounds in addition to membership in a particular social group (see IRB, 2018, p. 10; USCIS, Citation2019, p. 14; also see Cory, Citation2019, note 6).
8 For detailed accounts on the noncompulsory alignment between gender “atypicality” and “orientation atypicality,” see, for example, Valdes (Citation1995) and Ghosh (Citation2018); also see Spijkerboer (Citation2013).
9 This kind of testing, with the use of a penile plethysmograph, is extremely controversial and unreliable; in the United States, it is sometimes seen as a violation of civil and constitutional rights (see Hyde, Citation1997, especially chap. 10).
10 Although this is the stated policy, there is some anecdotal evidence that suggests that officers do, in fact, ask questions about sexual conduct at a high level of abstraction, such as (for example, to a gay male applicant), “Do you have sex with men?” Equally, although it cannot be lumped with “sexual conduct,” officers do allow testimony from applicants who complain that they are unable to “publicly display affection” for their partners in their home country for fear of persecution.
11 Although I do think these provisions are vital, I also recognize that they, alone, will never be enough in offering applicants adequate safeguards against abuse. Given the power asymmetry between the applicant and the officer, it will likely be hard for applicants to refuse to continue responding to a particular line of questioning. It is, however, my fervent hope that this suggestion, together with the others mentioned in this section, will provide something resembling adequate safeguards. I am especially grateful to David Bruce Wilkins and Alexandra Novitskaya for some of the insights that appear in this note and the one prior to it.
Additional information
Funding
Notes on contributors
Cyril Ghosh
Cyril Ghosh is Lloyd B. Politsch ’33 Chair of Law & Associate Professor of Political Science at Clark University. He is the author of The Politics of the American Dream: Democratic Inclusion in Contemporary American Political Culture (Palgrave-Macmillan, 2013), De-Moralizing Gay Rights: Some Queer Remarks on LGBT + Rights Politics in the US (Palgrave-Pivot, 2018), and (with Elizabeth F. Cohen) Key Concepts in Political Theory: Citizenship (Polity, 2019). He also served as chair of the Sexuality and Politics Division of the American Political Science Association during 2020–2021 and is currently (2023-2024) serving as program chair of the Northeastern Political Science Association and as chair of the LGBTQ Caucus of the American Political Science Association.