Abstract

Excerpted From: Jin S. Park, Pink Asylum: Political Asylum Eligibility of Gay Men and Lesbians under U.S. Immigration Policy, 42 UCLA Law Review 1115 (April, 1995) (242 Footnotes) (Full Document)

In China, the “cure” for homosexuality is electric shock “therapy,” which some believe is a favorable alternative to the misery and suicide that can result from homosexual identification. Random kidnaping, murders, and sexual assaults upon gay men by the police or roving vigilante groups targeting those perceived to be homosexual are rampant in Brazil, Argentina and several other Latin American countries. Gay Romanian men have the option of becoming informants against other gays or being castrated, and must sometimes submit to both. Gay Iranian men are beheaded upon proof of committing homosexual acts; lesbian Iranians are stoned to death. Countless countries around the globe impose extremely severe sanctions including life-imprisonment of gay men and lesbians merely for engaging in consensual homosexual activities.

This sampling of global anti-gay violence illustrates the hostile environment in which gay men and lesbians live in many parts of the world. Faced with such harsh treatment from their government and society, gay men and lesbians often attempt to escape discrimination, intolerance, and life-threatening violence rampant in their native countries. Frequently, their survival depends on finding refuge outside their countries, in foreign nations that provide asylum protection to those who receive no protection from their own governments.

In the tradition that brought so many of our ancestors to the United States, some of these men and women have renounced life-long ties to their countries of origin and sought better lives in the United States. Although far from “an asylum to the oppressed and the needy of the earth,” the U.S. does provide lesbians and gay men with a greater chance of freely loving whom they choose than many other nations.

The United States asylum law grants asylum to refugees who demonstrate a “well-founded fear” of “persecution” on the basis of race, religion, nationality, membership in a particular social group, or political opinion. An asylum applicant, therefore, must show that she has a subjective fear of persecution that is objectively well-founded, and that the persecution she fears is due to one of the five enumerated categories.

Historically, however, the United States' exclusion of homosexual aliens under its immigration policy precluded any asylum claim for persecution based on homosexuality because homosexuality was considered a mental illness. The Immigration Act of 1917 (“1917 Act”) first set out the provision which excluded individuals that an examining physician certified as “mentally defective” or afflicted with a “constitutional psychopathic inferiority.” Homosexuals were banned from entering the United States under this provision, because for years after the 1917 Act, the Public Health Service classified homosexual aliens as mental defectives or psychopathic inferiors.

After the 1952 Immigration and Nationality Act, homosexual aliens continued to be excluded on medical grounds under the general category of “aliens afflicted with a psychopathic personality, epilepsy or mental defect.” In 1965, Congress further clarified its intent to exclude homosexuals by adding “sexual deviation” to this category. The exclusion of homosexual aliens remained in force until 1990, when the entire section in which this category appeared was finally eliminated by the Immigration Act of 1990 (“1990 Act”).

Soon after the passage of the 1990 Act, three gay and lesbian aliens presented asylum petitions claiming eligibility for asylum on the ground that they were members of a social group subject to persecution, namely, the social group of gay men and lesbians.

The issue of gay and lesbian asylum eligibility has gained considerable momentum since the adoption of the 1990 Act. Although a precise count is unavailable, asylum lawyers and gay rights activists estimate at least a couple dozen gay and lesbian asylum claims are pending in U.S. courts. Also, the issue appears to be receiving increasingly more attention from the public and government.

Two recent cases, In re Tenorio and In re Toboso-Alfonso, have held that gay men and lesbians can receive protection under U.S. asylum policy. In July of 1993, San Francisco Immigration Judge Phillip Leadbetter granted asylum to Marcelo Tenorio, a gay Brazilian who feared persecution by paramilitary groups in Brazil, based on the theory that gay men and lesbians were persecuted as a social group.

In June of 1994, United States Attorney General Janet Reno issued a directive to U.S. immigration boards (“Reno Directive”) to adopt as precedent In re Toboso-Alfonso, a 1990 Board of Immigration Appeals (“B.I.A.” or “Board”) decision which refused to deport a Cuban refugee, Fidel Armando Toboso-Alfonso, based on the theory that gay men and lesbians were a social group eligible for political asylum in the United States. The Tenorio case and the Reno directive illustrate that the U.S. may finally grant asylum to homosexuals on account of persecution as a social group.

While Attorney General Reno's directive is useful and authoritative for immigration boards, it does not bind federal district and circuit courts that have their own definitions of a social group. Because decisions of the B.I.A. may enter the federal courts via subsequent appeals, it is advisable for B.I.A. and the federal courts to have a uniform interpretation of the social group category. Further, because congnizability as a social group is only one aspect of a successful asylum claim, it is unclear what would happen if an asylum applicant appeals his or her claim to a federal court that has a different interpretation of a social group from the B.I.A. Thus, as more persecuted gay men and lesbians seek protection under U.S. asylum policy, it is still imperative to examine whether various courts' interpretations of the social group category will accommodate gay and lesbian asylum claims.

This Comment argues that the U.S. should be able to grant asylum to gay men and lesbians as a social group when they are subject to a well-founded fear of persecution in their native country. The biggest challenge in establishing the claim that gay men and lesbians are persecuted as a social group is recognizing them as a “social group.” Part I presents various courts' definitions of “social group,” including the B.I.A. definition as adopted by the Reno directive, and proposes that courts should consider the persecutor's criteria for targeting a particular group of victims rather than the nature of the victim's characteristics in defining “social group.” The next level of challenge is showing that the particular situations gay men and lesbians are facing rise to the level of “persecution.” Part II explores the meaning of “persecution,” specifically focusing on the qualities or characteristics of the persecutor and the circumstances surrounding the persecution, to conclude that the adversity many gay men and lesbians face constitutes persecution. Finally, Part III discusses the various ways to meet the standard of proof for “well-founded fear,” and concludes that this standard is easily met by any homosexual who succeeds in establishing the first two requirements for asylum.

[. . .]

The United States has been a self-proclaimed “haven” for refugees from other countries for essentially all of its history. The Refugee Act of 1980 provides asylum for refugees who show “well-founded fear” of “persecution” on the basis of race, religion, nationality, membership in a particular social group, or political opinion. The rise of global anti-gay violence and oppressive regimes that punish homosexuals have forced many gay men and lesbians to seek asylum in foreign nations, especially the U.S.

As more gay and lesbian asylum applicants seek protection under the U.S. asylum policy, it is critical for U.S. courts to adhere to a cogent, uniform interpretation of the social group category. Because focusing on the criteria that persecutors use to single out a particular group of victims is the most sensible approach, the proper definition of “social group” should reflect the Second Circuit's persecutor-perspective test. This approach is superior to the B.I.A.'s approach, incorporated in the Reno Directive, which considers solely the nature of the victim's characteristics, and the Ninth Circuit approach, which is internally inconsistent and overly restrictive. Under the Second Circuit's asylum policy, gay men and lesbians fleeing from persecution can qualify for asylum as members of a persecuted social group.

The situation that gay men and lesbians face in their native countries, such as rampant violence by vigilante groups, official violence, and extremely severe criminal sanctions, are factors that the United States courts should recognize as “persecution.” Finally, the severity and the pervasiveness of such persecution will almost always meet the requirement that the fear be “well-founded.” Although various combinations and the interplay of the above factors will make a stronger case for some asylum claims than others, many gay men and lesbians are eligible for asylum under the standards most recently established by courts interpreting the Immigration and Nationality Act.

Moreover, at a time of increasing human rights violations against gay men and lesbians, granting asylum to gay men and lesbians fleeing persecution is even more imperative. The U.S. government's act of accepting gay and lesbian refugees is an act that goes beyond the survival of an individual asylum applicant. It is an acknowledgement that being lesbian or gay is a fundamental human identity that should not subject anyone to persecution in any country.

Third year law student and Editor of the UCLA Law Review at UCLA School of Law.