SEXUAL MINORITIES AND THE VARYING OF PRECEDENT OF PERSECUTION

Last semester my Refugee Seminar student, Brittni Willis, wrote an excellent paper concerning persecution of sexual minorities. It is quite a compelling piece. Ms. Willis has given me permission to post it here. Read it and learn more about the world.

SEXUAL MINORITIES AND THE VARYING OF PRECEDENT OF PERSECUTION

Brittni Ke’Ona Willis

INTRODUCTION

Sexual minorities include all persons seeking protection from persecution on account of heteronormativity, irrespective of their precise sexual identities or sexual behaviors. This includes those who identify as lesbian, gay, bisexual, or transgender. Not until the last quarter century have sexual minorities become relevant in refugee law. Facing harassment, violence, and even death because of their gender identify and or sexual orientation, many sexual minorities are forced to flee their countries and seek refuge in countries that are welcoming and consciously aware of this issue.

As of May 2015, seventy-five countries across Africa, Asia, Latin America and Caribbean, and Oceania have made homosexual acts illegal and have prosecuted people on the basis of their sexual orientation. [1] The death penalty has be codified and implemented in six of these countries.[2] Five of these countries – Mauritania[3], Sudan[4], Iran[5], Saudi Arabia[6], and Yemen[7] – impose the death penalty countrywide and in Iraq,[8] vigilantes, whom are non-state actors, issue the death sentence for same sex behaviors. Twelve northern states in Nigeria and the southern parts of Somalia impose the death penalty for engaging in homosexual acts provincially.[9] In 2016, the country of Brunei in Asia are to implement the death penalty for same-sex behavior countrywide. [10] Other countries, such as Malaysia[11]and Tanzania[12] inflict irrational and violent punishments such as whipping, stoning, and imprisonment for long periods of time. These countries listed are only those where homosexuality is illegal, but in other countries where homosexuality is not an illegal law of the land, the government may persecute unofficially or not provide adequate protection from other individuals who may persecute on the account of a person’s sexual orientation.

“The expansion of grants of political asylum, based on sexual orientation and gender based violence,” is a welcomed trend in U.S. law because it is now recognized that “basic human rights require justice even for those who are persecuted in their country of origin on account of their sexual identity, their sexual conduct, or as a result of gender violence.”[13] Until 1990, U.S. immigration laws barred homosexuals as “sexual deviants,” using an outdated and abandoned psychological classification of homosexuality as a mental disorder.[14] However, the harassment and abuse of sexual minorities have become increasingly accepted as grounds for legal asylum in the United States.[15] Such asylum protection represents recognition of their basic rights as human beings. “An integral part of [U.S.] . . . immigration law is the implantation of rules of human rights allowing those prosecuted in their homeland to seek protection in the United States.” [16]Despite the facial improvements in U.S. immigration laws in respect to sexual minority asylum seekers, the asylum process poses challenges that sexual minority applicants face in proving their persecution. “Asylum and human rights doctrines are intertwined in that how a country defines persecution reflects its beliefs about what constitutes human rights violations.”[17]

This article is written to showcase the inequalities and struggles that sexual minority asylum seekers face when seeking refuge status in the United States. This article asserts that the requirements necessary to be met in order to be granted asylum are restrictive and confusing as there remains differing standards of law. This article proposes that the U.S. adopt the standard for persecution followed by Canada, New Zealand, and the United Kingdom which focuses on the failure of government protection as opposed to persecutory intent. Part II outlines the history of the Refugee Convention, including the introduction of asylum law to U.S. immigration law. Part III lays the framework for seeking asylum in the United States and identifies the turning point in asylum law that lead to the multiple standards of persecution. Part IV establishes the foundation in which a sexual minority asylum seeker must set in order to be identified as a member of a particular social group. Part V identifies the differing precedents and their history in determining what establishes a well-founded fear of persecution. Part VI provides an analysis of Canada, United Kingdom, and New Zealand’s standards in assessing persecution.

  1. HISTORY ON ASYLUM LAW

The 1951 Convention relating to the Status of Refugees has remained the fundamental legal framework for protecting refugees. When the 1951 Convention was drafted, the focus was on European countries harboring millions of displaced persons who had been uprooted by the Second World War and were unlikely to leave their new country of residence. The major purpose of the Convention was to clarify questions of status for these refugees already in place. [18] Under the 1951 Convention, a “refugee” is:

[A]ny person who . . . owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence . . . is unable or, owing to such fear, is unwilling to return to it.[19]

 

Most of the articles of the Convention describe in detail specific rights that refugees receive once they are “lawfully in” or “lawfully staying in” the territory. The drafting history of the Convention does not indicate that countries were expected to grant lawful status to persons simply because they met the definition of refugee. Therefore, in this respect, countries have discretion. Nonetheless, core rights, including nonrefoulment[20] and access to courts[21], may be claimed by refugees even if they are not lawfully present. These protections and future refugees were later expanded in the Protocol Relating to Refugees passed in 1967.[22]

The United States Congress implemented today’s immigration law, the Immigration and Nationality Act (INA), as amended, in 1952 and is codified in the United States Code.[23] The United States acceded to the Protocol in 1968,[24] but Congress did not enact its own Refugee Act until 1980.[25] Not until 1980 did the word “asylum” ever appear in the immigration laws of the United States. The Act made a few important improvements respecting asylum. The 1980 Refugee Act added a new § 208 to the INA that specifically establishes asylum status, also called asylee status. In 1980 the United States government also codified the Protocol of 1967 as part of the immigration law at section 101(a)(42) of the INA.[26] An applicant for asylum must have “(1) a well-founded fear of persecution; (2) the fear must be based on past persecution or the risk of future persecution; (3) the persecution must be on account of race, religion, nationality, membership in a particular social group, or political opinion; and (4) the persecutor must be the government or someone whom the government is unwilling or unable to control.”[27] “Asylum seeks to uphold individual human dignity in the face of persecution in one’s country of origin.”[28] This is a welcomed expansion of U.S. basic and traditional immigration laws.

 

  1. SEEKING ASYLUM IN THE U.S.

Asylum seekers are individuals who have fled to the United States from their country of origin due to a fear of persecution. Both documented and undocumented aliens may seek asylum. Applicants for asylum bear the burden of proof in establishing their asylum claim. They may seek a temporary refugee status in order to remain in the United States, and may eventually seek permanent residency.[29] Under the Immigration and Nationality Act (INA), individuals may seek refugee status in three different ways: (1) through an affirmative application for asylum[30]; (2) through a defensive application for withholding of removal if they are in removal proceedings[31]; or (3) through an application for withholding of removal if they are in an expedited removal proceeding.[32]

Applicants who are not currently in removal proceedings may file an affirmative application.[33] An affirmative application begins with the filing of Form I-589 with the Regional Service Center (RSC), a branch of the Bureau of Citizenship and Immigration Services (USCIS) within the Department of Homeland Security (DHS).[34] This form will require the applicant to provide information pertaining to the reason they fled their country and what may happen upon returning.[35] Further, the applicant will be asked about their families, friends and personal experiences of harm, mistreatment, or threats.[36] Upon completion of this form, the RSC will schedule a non-adversarial interview with an asylum officer,[37] which must be conducted within forty five days of the filing of the application.[38] The asylum officer must find the applicant eligible for an affirmative grant of asylum under section 101(a)(42)(A) of the INA. Thus, the asylum officer must find that the applicant is “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”[39] In addition to fulfilling this statutory requirement, the Attorney General must exercise his or her discretion in favor of the applicant in order for asylum to be granted.[40]

If the applicant is not found to qualify and is unlawfully in the United States at the time of the interview, the asylum officer will not formally deny the applicant but refer the applicant to immigration court where the asylum claim will be processed as a defensive application in the course of a removal proceeding.[41] If the applicant is lawfully in the United States at the time of the interview and is not found to qualify, the asylum officer will issue a denial, stating reasons for the decision.[42] Such applicants may renew their asylum claim if they are ever to be subject to a removal proceeding.[43]

If an applicant is already subject to a removal proceeding, the applicant can apply for asylum or withholding only by presenting a defensive application that is heard exclusively by the immigration judge (IJ).[44] The applicant may make known at their first appearance in immigration court their wish to seek asylum or withholding of removal as a form of relief. [45] The IJ will then grant a specified period of time within which the I-589 must be filed.[46] This matter will proceed in a more formal setting, essentially a court trial where the examination and cross examination by the applicant’s counsel, if afforded, and the DHS trial attorney will take place.[47]

Asylum and withholding are similar concepts with distinct differences. As mentioned above asylum is subject to the discretion of the U.S. Attorney General.[48] “[W]ithholding of removal, [if] proven, is a mandatory form of relief.”[49] An applicant is eligible for withholding of removal under section 241(b)(3)(A) of the INA  when “the Attorney General decides that the [applicants] . . . life or freedom would be threatened in [the] country [to which he would be returned] because of the [applicants] . . . race, religion, nationality, membership in a particular social group, or political opinion.” [50] An application for withholding of removal is not subject to the discretion of the Attorney General.[51] “Withholding of removal guarantees only that the person will not be forcibly returned to their country of origin and does not preclude the possibility of being removed to a third country.”[52] “A person granted asylum may be eligible for permanent residency in the United States after one year as an asylee.”[53] The standard of proof in a withholding of removal is also higher than in an asylum proceeding. In order to obtain withholding of removal, the claimant “must show a clear probability of persecution” and for asylum is only a “well-founded fear of persecution.””[54]

Lastly, an applicant is subject to expedited removal proceedings, INA§ 235(b)(1), if they arrive at the “port of entry or are brought to the U.S. after interdiction at sea”, or fall into a specified class of “entrants without inspection who have been in the country for less than two years.”[55] “These applicants are subject to removal on the order of an immigration officer, not an immigration judge, if found inadmissible under INA § 212(a)(6)(C) or (7) for having false or inadequate documents or for other fraud or misrepresentation, even at an unrelated time in the past.”[56] The applicant must express a fear of return to their country of origin or ask to seek asylum to be referred to an asylum officer. The asylum officer will interview them within forty eight hours to determine whether they have a “credible fear of persecution,”[57] as defined in INA § 235(b)(1)(B)(v) as a “significant possibility . . . that the alien could establish eligibility for asylum.”[58] If the asylum officer believes that the applicant does have a credible fear, the applicant is given a full hearing in immigration court as a defensive application for asylum.[59] If found to not have a credible fear of persecution, they are ordered removed.[60] This negative determination may be reviewed upon request by an immigration judge within seven days, and within twenty four hours if practicable.[61] The immigration judge will consider the asylum officer’s report and conduct a review in person, by video, or by telephone.[62] “Judicial review of the immigration judge’s decisions is available only in limited circumstances.”[63]

The IJ’s decision on either a defensive asylum claim or a referred affirmative claim may be appealed to the Board of Immigration Appeals (BIA).[64]The BIA is “an administrative appeals tribunal that is part of the Executive Office for Immigration Review in the Department of Justice (EOIR). The [BIA] has never been recognized by statute; it is entirely a creature of the Attorney General’s regulations, and the Attorney General appoints its members.”[65] “The BIA has several options [with respect to appeals]: [i]t can reject the [claim] on appeal, [it may] remand a case to the [IJ] with instruction to follow [an] appropriate course of action, or [it may] grant asylum directly.” [66] “Although “[t]he BIA hands down a large volume of appellate decisions each [year], [o]nly a small fraction are designated as precedent decisions for inclusions in the official reports.””[67] Certain BIA determinations such as precedential decisions are binding on all other agencies under INA § 103(a)(1), which states that “determination and ruling by the Attorney General with respect to all questions of law shall be controlling.”[68]

The denial of an asylum claim by the BIA may be appealed to the Federal Circuit Court of Appeals with jurisdiction over the area in which the proceeding was held. However, the court of appeals will review the BIA determination under a deferential standard.[69] The Attorney General’s decision whether to grant asylum “shall be conclusive unless contrary to the law and an abuse of discretion.”[70]

Nonetheless, circuit courts have discretion when deciding on how to adjudicate an asylum case on appeal. The court may remand the case back to the BIA “with orders to rule in accord with the circuit’s findings” or “may adopt a different rule of the case” which will be “applied within that court’s circuit in future cases.” [71] Therefore, because of the differing interpretations and inconsistent rulings amongst various circuits, circuit courts remain split regarding the same legal issues and the BIA and IJ’s vary in their application of the law depending on the circuit court precedent in their jurisdiction.

 

  • FITTING INTO A PARTICULAR SOCIAL GROUP

The definition of refugee in the INA requires the applicant to be a member of one of the five protected classes: race; nationality; religion; political opinion; or particular social group.[72] The category, membership of a particular social group, is a contentious concept for refugee law. It is unclear on whom the intended beneficiaries of this provision are. It is also unclear on whether the provision makes the other four categories illustrative examples of social groups, or is meant to include additional discrete bases of persecution.[73] It is argued that a particular social group was introduced as a means of including non-traditional refugees and non-traditional forms or circumstances of persecution alongside the other four traditional definitions.[74] Contrarily, it is argued that “their purposes was anything but the creation of a regime to address new, future injustices . . . the Convention was designed simply as a means of identifying and protecting refugees from known forms of harm.”[75] The importance of the particular social group definition is that it allows non-traditional refugee applicants who do not fall under the others four criteria to seek asylum.

Sexual minorities must seek asylum under the category of particular social group since it is not enumerated specifically as a protected class. Neither Congress nor the Executive Branch have defined the term particular social group in the U.S. Code or Code of Federal Regulations. This shifts the tasks of articulation onto other aspects of the legal process such as judicial interpretation, the Attorney General’s discretion, and evolution of the phrase in international law.

In 1985, the BIA decision Matter of Acosta was the first and most influential in establishing a definition for a particular social group. In this decision, the BIA defined a particular social group as a group sharing a “common, immutable characteristic”[76], stating:

“The shared characteristic might be an innate one such as sex, color or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities and consciences.”[77]

 

The First, Third, and Seventh Circuits subsequently adopted Acosta’s immutability standard.[78] In 1986, the Ninth Circuit Court of Appeals departed from the Acosta immutability standard in Sanchez-Trujillo v. INS.[79]This was not a case regarding sexual minorities, but a claimant alleging to be a member of a particular social group. Sanchez Trujillo sought asylum as relief in a removal proceeding.[80] As a claimant from El Salvador, he feared returning to his country of origin because he believed he might be drafted by the government to fight against the guerillas.[81] He pled to be a member of a “particular social group consisting of young, urban, working-class males of military age who had never served in the military or otherwise expressed support for the government of El Salvador.”[82] “The court rejected the petitioner’s claim of asylum and held that “the phrase particular social group implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group.”[83]

The definition of particular social group was further developed in Hernandez-Montiel v. INS.[84]The Ninth Circuit reconciled the Acosta and Sanchez-Trujillo definitions of particular social group into one standard definition, holding “that a particular social group is one united by a voluntary association . . . or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.”[85]Hernandez-Montiel defines particular social group in a way that embraces individuals who are actually persecuted – even if they fail to qualify for asylum under the statute’s other enumerated categories.”[86]

In 1990, Tobosco-Alfonso was the first judicial interpretation granting asylum based on sexual orientation under a particular social group. In Toboso-Alfonso, the BIA upheld the grant of asylum to a Cuban gay man based on the finding that sexual minorities in Cuba have experienced a pattern of anti-gay discrimination and persecution.[87] Fidel Armando Tobosco missed one day of work and because he was gay, he was sentenced to 60 days in a forced labor camp.[88] Tobosco was threatened that if he did not leave immediately he would have to serve four years in the penitentiary for being a homosexual.[89] Tobosco fled Cuba that very same day.[90] The Cuban government’s discouragement of homosexuality contributed to the applicant’s well-founded fear of persecution.[91] The Immigration and Naturalization Service (INS) argued that homosexuality should not be considered a particular social group because recognition would give credence to socially deviant behavior and this was not within the scope of the Refugee Act.[92] The BIA rejected this view and found that homosexuality met Acosta’s immutable standard in that it is a characteristic that the applicant either cannot or should not be required to change.[93]

In 1994, the “INS reversed its position in Tobosco-Alfonso and formally recognized sexual minorities as a particular social group.”[94] Following this decision, Attorney General Janet Reno exercised her discretion and designated the Tobosco- Alfonso case as precedent in all proceedings involving the “same issue or issues.”[95] Thus, sexual orientation may constitute a particular social group for the purpose of seeking asylum in the United States.[96] Not all of the controversy in sexual minority asylum cases is whether sexual orientation is a legitimate ground for granting asylum. Instead the issue lies in whether the applicant has adequately established a well-founded fear of persecution, and whether this fear is in fact “on account of” their sexual orientation.

 

  1. PERSECUTION

The level of fear that an applicant bears the burden of proving to establish a well-founded fear of persecution differs depending on whether he or she is applying for asylum or withholding of removal.[97] In INS v. Cardoza-Fonseca, the Supreme Court interpreted this standard and explained the level of fear required for each. An applicant for affirmative asylum has a more lenient standard than that of a defensive applicant for withholding of removal. The affirmative asylum standard looks to the subjective fear, the mental state of the applicant to determine whether his fear is well-founded. The Court held that an applicant’s fear may be well-founded even if there is a minimum chance of him being persecuted because the test was on the applicant’s subjective belief.[98] The withholding of removal standard requires objective evidence that the applicant will more than likely face persecution upon return to their country of origin.[99] Cardoza-Fonseca’s use of both a subjective and objective standard is relevant to sexual minority asylum claims because both standards can have an effect on the success of a sexual minority asylum claim depending on their each individual experiences. The use of a subjective standard may suggest that even when a country’s intention is not to persecute, their actions may or may not be deemed persecutory. The objective standard may have a negative effect when a sexual minority asylum seeker tries to establish a well-founded fear of future persecution without past actual harm.

Cardoza-Fonseca’s subjective standard was later developed upon by the Supreme Court in Elias-Zacarias v. INS[100] in which at this time the circuit courts split regarding intent was inadvertently laid.[101] Eighteen year old Elias- Zacarias fled Guatemala’s anti-guerrilla revolutionaries in fear of forced recruitment.[102] He was denied asylum by both an immigration judge and the BIA,[103] but later reversed by the Ninth Circuit whom held that the guerrillas’ practice of forced recruitment would lead a reasonable person to believe their statements as threats.[104] The INS appealed to the Supreme Court, arguing that Elias-Zacarias had failed to produce whether the guerillas had a subjective intent and that his state of mind was irrelevant to the guerrillas attempt to recruit him.[105] The INS further argued that “it is the motivation for imposing harm that distinguishes persecution from all other forms of oppression.”[106] The Supreme Court agreed with the INS position and held that a “claimant is not required to provide direct proof of the persecutor’s motivations, but a claimant “must [produce] some evidence of [the persecutors’ motive whether] direct or circumstantial.”[107] Additionally, the Court held that because the phrase “persecution on account of” referred to the opinions held by the persecuted and not the persecutor, in order to establish persecution, it would have to be proven that the forced recruitment was on the “account of” Elias-Zacarias’ political opinion.[108]

This Supreme Court holding that the persecutors motive is important to an asylum case has further confused the definition of persecution and has left the courts split on whether persecution requires a punitive intent or just actual harm. This is a very important question when analyzing sexual minority claims for asylum because often the intent of the persecutor is hard to prove.  This is because they are more often than not present nor available to appear at the asylum hearings or may offer an excuse for their actions.

The BIA has defined persecution as “a threat to the life or freedom of, or the infliction of suffering or harm upon” an individual in order to punish him for possessing a belief or characteristic a persecutor seeks to overcome.[109] Persecution may include harm committed by a state actor or government or those the government is unwilling or unable to control because of the victim’s immutable characteristic. The Ninth Circuit in Pitcherskaia v. INS[110] expanded the standard needed to adequately protect sexual minorities to include more than a mere intent to punish. Alla Pitcherskaia was a thirty five year old Russian national who applied for asylum in the U.S. on the ground that she was a Russian lesbian.[111] She testified to events of being arrested on multiple occasions for failing to retrieve permits for a gay-rights protests, being under surveillance due to her dad’s political activism, and “forced psychiatric counseling to cure her of her homosexuality.”[112] She was not granted asylum.[113]

On appeal to the BIA, her claim was again denied based on the finding that “Pitcherskaia had not been persecuted because, although she had been subjected to involuntary psychiatric treatments, the militia and psychiatric institutions intended to “cure” her, not to punish her, and thus their actions did not constitute “persecution” within the meaning of the Act.”[114] On appeal to the Ninth Circuit, the issue was “whether the INA requires an applicant to prove that the persecutor harbored a subjective intent to harm or punish when persecuting the victim.”[115] The Ninth Circuit held that the “definition of persecution was objective, and that although many asylum cases involved persecutors with a subjective punitive or malignant intent, this was not essential for a showing of persecution.”[116] “The court found the BIA’s interpretation of persecution to be ‘arbitrary, capricious, [and] manifestly contrary to the statute’ [which allowed] the court [to] overrule [the BIA’s] definition and impose another.”[117]

[T]he court noted that neither the Supreme Court nor the Ninth Circuit has ever required an asylum applicant to show that her persecutor had the intention of inflicting harm or punishment. The court found that the term “punishment” implied that the perpetrator believed the victim did some wrong or committed a crime. As a result, the perpetrator . . . took action in retribution. Persecution, on the other hand, only required that the perpetrator caused the victim suffering or harm. Although many asylum cases involved situations where the persecutor had a subjective intent to punish, the court concluded that punitive intent was not required in order to establish persecution. In clarifying the new legal standard, the court stated that the definition of persecution is objective. [118]

 

The Ninth Circuit reversed and remanded the case back to the BIA to be reconsidered in accordance with this opinion.[119] This Ninth Circuit holding shifted the focus away from the persecutors intent and towards focusing on the actual committed harm. Motive was only to be considered insofar as to prove intent to persecute based on, in this case, a particular social group (or one of the five protected grounds).

Other circuits have held the view of the INS and elaborated on the motivation standard established in Elias-Zacarias. Preceding the Ninth Circuit opinion in Pitcherskaia, the Fifth Circuit in INS v. Faddoul,[120] found persecution only to be when the perpetrator acts with the intent to punish the victim.[121] Joseph Faddoul was a thirty-three year old Palestinian man born and raised in Saudi Arabia.[122] He alleged persecution based on his nationality. Saudi Arabians practice jus sanguinis which grants citizenship rights only to residents of Saudi Arabian ancestry so Faddoul argued that as a non-citizen living in Saudi Arabia he would be unable to own property or a business or attend a university and as a result this constituted persecution.[123] “The Fifth Circuit affirmed the BIA’s denial of . . . Faddoul’s asylum [claim] and held that persecution required both a showing of the infliction of harm and intent to punish based on one of the five protected  . . . grounds set out in the statute”[124] “The court found no evidence that Faddoul had ever been “arrested, detained, interrogated, or . . . harmed” because of his ancestry.”[125]  In defining its own standard, the Ninth Circuit expressly rejected the punitive intent requirement that the Fifth Circuit applied in Faddoul.[126] This is especially important to sexual minority asylum seekers. As mentioned earlier, “the specific intent to punish is not always present, as in Pitcherskaia.”[127]

The Seventh Circuit set out to define its own standard as well which rests in between that of the Ninth and Fifth Circuits. Thus far, the Ninth circuit holds a standard that is more so externally objective and the Fifth Circuit at opposite requires a punitive intent.

“In Sivaainkaran v. INS[128], the court ruled that an asylum [claimant] could demonstrate persecution by a showing of either the persecutor’s motivation to punish or, more generally, the infliction of harm for one of the five protected. . . grounds [of the statute]. . . . The specific use of the term “punishment” suggests that, for the second requirement, “infliction of harm,” punitive intent is not required. . . . The Seventh Circuit’s definition comes from a 1970 case in the Sixth Circuit, a jurisdiction that has yet to address the question of punitive intent and uses the Webster’s Dictionary definition of persecution.”[129]

 

Until the Supreme Court addresses this issue of whether punitive intent is required in addition to an objective intent, the INS will be able to invoke the Elias-Zacarias punitive intent requirement upon all other circuits that have not yet established their own standard. Thus, sexual minority asylum seekers are injured by the inconsistencies in the law, their rights limited, and persecution continued.

 

  1. PERSECUTION IN CANADA, NEW ZEALAND, AND THE UNITED KINGDOM

The standards enforced when assessing a well-founded fear of persecution should be modified to include evidence of a states’ practices and treatment of the members of certain groups, in particular sexual minorities seeking refuge on the ground of a particular social group. Other countries have expanded upon their definition of persecution to be more in accord with the intention of the Convention.

The intention of the drafters . . . of the 1951 Convention . . . was not to protect persons against any and all forms of even serious harm, but was rather to restrict refugee recognition to situations in which there was a risk of a type of injury that would be inconsistent with the basic duty of protection owed by the State to its own population. As a holistic reading of the refugee definition demonstrates, the drafters were not concerned to respond to certain forms of harm per se, but were rather motivated to intervene only where the maltreatment anticipated was demonstrative of a breakdown of national protection.[130]

 

Countries such as Canada, the United Kingdom and New Zealand, have taken a progressive stance in determining the standard of persecution, not by the persecutors punitive intent or mental state of mind, but the “sufficiency or effectiveness of state protection”.[131] Canada’s Supreme Court was the first to establish a state rule that was binding on all its jurisdictions. The Supreme Court in Canada v. Ward held that “persecution includes situations where the state tolerates the persecution of citizens or is unable to protect individuals from such behavior.[132] Additionally, “. . . that such proof could consist of testimony of ‘past personal incidents in which state protection did not materialize’ or ‘of similarly situated individuals who were let down by the state protections arrangement. The focus of the inquiry is on determining whether there is objective evidence outlining inadequate state protection.”[133]

The United Kingdom’s House of Lords ruled similarly in the case of Shah and Islam.[134] Two Pakistan women sought asylum in the United Kingdom escaping persecution because of false adultery charges.[135] They feared “both criminal proceedings and private violence if they returned to Pakistan.” [136] The House found in favor of the two women holding that “while the state-imposed punishment was important, the failure of state protection was pivotal in asylum analysis. The House ruled that persecution [was] comprised [of] serious harm and the failure of state protection” [137] “The Shah and Islam standard shifts the focus of the asylum claim away from the intent of the persecutor and towards the inaction of the state in protecting the applicant from persecution.”[138] This standard aids in successful sexual minority asylum claims because it protects sexual minorities from the government ‘affirmatively’ imposing punishment based on sexual orientation.[139]

A later House of the Lords case further clarified the Shah and Islam standard extending more protection to sexual minorities.[140] In Horvath v. Secretary of State for the Home Department, the court ruled that persecution, as understood in the Convention, “implied a failure by the state to make protection available against the ill-treatment or violence which had been suffered at the hands of the persecutors.”[141] The sufficiency of state protection is a central issue to an asylum claim.[142]

New Zealand defined persecution in D.G. of Wellington v. Refugee Status Appeals Authority[143] as “the sustained or systemic violation of basic human rights demonstrative of a failure of state protection.”[144] Distinguishable from Horvath, the assessment is on the effectiveness of the state protection, whether it worked rather than the availability and sufficiency.[145] However, the standard by which persecution should be assessed with regards to sexual minority claimants almost sounds “identical” to that of Shah and Islam and Horvath. “The critical difference is that in Horvath, the threshold for evaluating surrogacy was whether a government protection system was available.”[146] Unfortunately under the definition of Horvath an applicant may be returned to their country of origin despite having a well-founded fear of persecution.[147]

Despite the minor distinguishable differences amongst Canada, the United Kingdom and New Zealand’s setting precedent set in defining persecution and their effect on sexual minority asylum cases, they all have one commonality. They have made a shift from the subjective intent and considering the punitive intent to the state’s protections against externally objective intent. The 1951 Convention intended to grant asylum when there was a “violation of individual rights.”[148] With regards to sexual minorities, the providing of state protection is also defending of their basic human rights.

The only time the U.S. looks to state protection is when the persecutor is a non-state actor and the persecuted is trying to prove a well-founded fear of past persecution. This standard requires an objective intent. Where an applicant for asylum proves a pattern of past persecution of people who fall in to the same particular social group to which they belong, courts have held that there is a rebuttable presumption that their fear of persecution is well-founded.[149] The government only then looks to the country of origin to establish the countries conditions in respects to the claimants particular social group to find either a fundamental change in the circumstances of the country such that the applicant no longer has a well-founded fear or whether the applicant can reasonably be relocated within their country of origin.[150] In order for persecution at the hands of nongovernmental actors to qualify, the IJ must find that the government was unable or unwilling to protect the applicant.[151] Further, the Eighth Circuit in Nabulwala v. Gonzales held that specific findings regarding the government’s inability or unwillingness to protect an applicant is necessary when the harm in inflicted by nongovernmental actors. [152] This can be a difficult standard to meet.

 

  1. CONCLUSION

Although there has been an advancement in the protection afforded to members of the LGBT community, persecuted sexual minorities still face a dilemma when seeking refuge status in the United States. This dilemma is complex in that these individuals must deal with the normal obstacles of seeking asylum, but they also must deal with the unprecedented and vary case law that governs their asylum claims.

The United States immigration laws in respect to asylum claims for sexual minority refugee seekers are convoluted with multiple case precedents, standards for persecution, and defining terms for particular social group. The U.S. Supreme Court has not ruled on a definition of persecution or particular social group to enact in a statute. There are too many decision makers including the BIA, INS, Attorney General and circuit court opinions. Circuits in particular are split on the definition of persecution in whether it includes only an objective intent, or includes a subjective, punitive intent; also what constitutes a particular social group. For each circuit that has defined these terms, their definitions are specific those particular circuits.

The United States needs to set a standard that would reconcile and harmonize these definitions and make them uniform for all immigration courts and the BIA. This will ensure that all asylum seekers, especially those claiming on the basis of a particular social group, will receive the same just and fair result. Furthermore, the U.S. should adopt the progressive views of Canada, New Zealand, and the United Kingdom in assessing what establishes persecution. They have laid the appropriate foundation to fairly evaluate the characteristics of sexual minority persecution. They hold the failure of state protection as being a pivotal component of the asylum analysis. Persecution should be comprised of serious harm and the failure of state protection. In when assessing a sexual minority asylum claim, one can prove actual harm and the lack of the effectiveness, sufficiency, and or the availability of state protection, the element of persecution should be considered met. Persecution motivated by one of the five criteria remains. This would allow for the development of a refined and harmonious standard in which circuits can rely upon and rule with consistency in deciding asylum claims for sexual minority refugees. Grants of asylum should rest on the basic hum

[1] Aengus Carroll & Lucas Paoli Itaborahy, Int’l Lesbian, Gay, Bisexual, Trans & Intersex Ass’n, State-Sponsored Homophobia: A World Survey of Laws: Criminalization, Protection and Recognition of Same-Sex Love 28 (2015), available at http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2015.pdf

[2] Id.

[3] An English translation of the statute reads: “Any adult Muslim man who commits an impudent act against nature with an individual of his sex will face the penalty of death by public stoning.” Code Penal [C. Pen] art 308 (Mauritania), available at http://www.droit-afrique.com/upload/doc/mauritanie/Mauritanie-Code-1983-penal.pdf.

[4] Penal Code [1991], art. 148 (Sudan), available at https://www.ecoi.net/file_upload/1329_1202725629_sb106-sud-criminalact1991.pdf (“Whoever commits sodomy shall be punished with flogging one hundred lashes . . . If the offender is convicted for the third time he shall be punished with death or life imprisonment.”).

[5] Haads [Penal Code] [1991], art. 110 (Iran), available at http://www.iglhrc.org/sites/default/files/UNHCR%20Refworld%20Iran%20Penal%20Code.pdf (“Punishment for sodomy is killing; the Sharia judge decides on how to carry out the killing.”).

[6] Saudi Arabia has adopted Shari’a law, which punishes sodomy with death by stoning if committed by married men or between non-Muslims and Muslims. Carroll & Itaborahy, supra note 1, at 81-82.

[7] The Death Penalty Worldwide: Death Penalty Database [Yemen] available at http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Yemen#a21-3 (Homosexual sodomy caries the death penalty by stoning. These punishments are predicated upon extreme evidentiary showings; otherwise, homosexual acts cannot be punished by death.”) See also Yemen Republican Decree Concerning Crimes and Penalties, art. 264, Law No. 12 of 1994.

[8] Carroll & Itaborahy, supra note 1, at 10.

[9]  Id. at 29.

[10] Text of the law is available at: www.agc.gov.bn/aGc%20images/Laws/Gazette_pdf/2013/en/syariah%20penal%20code%20

order2013.pdf; see also, the open letter from international commission of Jurists to the prime minister of Brunei darussalam at: http://icj.

wpengine.netdna-cdn.com/wp-content/uploads/2014/01/Brunei-open-letter-on-2013-penal-code.pdf.

[11] Laws of Malaysia, Act 574, Penal Code [2006], art. 377B, available at http://www.agc.gov.my/Akta/Vol.%2012/Act%20574.pdf (“Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable for whipping.”)

[12] The Sexual Offences Special Provisions Act (1998), sec. 154 (Tanzania), available at http://www.hsph.harvard.edu/population/trafficking/tanzania.sexoffenses.98.pdf (“Any person who . . . has carnal knowledge of any person against the order of nature; or . . . permits a male person to have carnal knowledge of him or her . . . is liable to imprisonment for life and in any case to imprisonment for a term of not less than thirty years.”).

[13] Leonard Birdsong, Give Me Your Gays, Your Lesbians, and Your Victims of Gender Violence, Yearning to Breathe Free of Sexual Persecution: The New Ground for Grants of Asylum, 32 Nova L. Rev. 357, 360 (2007-2008)

[14] Deborah A. Morgan, Not Gay Enough for the Government: Racial and Sexual Stereotypes in Sexual Orientation Asylum Cases, 15 Law & Sexuality: Rev. Lesbian, Gay, Bisexual & Transgender Legal Issues 135, 138 (2006).

[15] Birdsong, supra note 13, at 360.

[16] Id.

[17] Id. (quoting John A. Russ IV, The Gap Between Asylum Ideals and Domestic Realty: Evaluating Human Rights Conditions for Gay Americans by the United States’ Own Progressive Asylum Standards, 4 U.C. DAVIS J. INT’L L. & POL’Y 29, 47 (1998)).

[18] Goodwin-Gill, The Future of International Refugee Law, Refugees, Oct. 1988, at 28. (“The 1951 Convention was originally intended to establish, confirm or clarify the legal status of a known population of the displaced. This met the needs of the time, and most provisions focus on assimilation, or are premised on lawful residence or tolerated presence. There is nothing on asylum, on admission, or on resettlement.”)

[19] Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150, art. 1(A)(2) (entered into force April 22, 1954) [hereinafter 1951 Convention].

[20] Article 33 of the Convention (“No contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”)

[21] Article 16 of the Convention (“ A refugee shall have free access to the courts of law on the territory of all Contracting States”)

[22] Protocol Relating to the Status of Refugees, Jan. 31, 197, 19 U.S.T. 6223, 606 U.N.T.S. 267 [hereinafter 1967 Protocol].

[23] (“The Immigration and Nationality Act, or INA, was created in 1952. The McCarran-Walter bill of 1952, Public Law No. 82-414, collected and codified many existing provisions and reorganized the structure of immigration law.”) http://www.uscis.gov/laws/immigration-and-nationality-act.

[24] Supra note 20

[25] Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102.

[26] Refugee Act § 201(a) (codified as amended at 8 U.S.C. § 1101(a)(42) (2000)).

[27] Morgan, supra note 14, at 140 (citing 8 U.S.C.A. § 1101(a)(42) (2005)).

[28] Birdsong, supra note 13, at 360.

[29] THOMAS ALEXANDER ALEINIKOFF ET AL., IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 828 (6th ed. 2008).

[30] 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A).

[31] 8 U.S.C. § 1231(b)(3) (2006).

[32] 8 U.S.C. § 1225(b)(1)(A)(i) (2006).

[33] Aleinikoff et al., supra note 29, at 850.

[34] Id.

[35] Id.

[36] Id.

[37] See id. at 850; 8 C.F.R. § 208.9 (2010).

[38] See Aleinikoff et. al., supra note 29, at 850; 8 U.S.C. § 1158(d) (2006).

[39] 8 U.S.C. § 1101(a)(42) (2006).

[40] Birdsong, supra note 13, at 364 (citing Joseph Landau, “Soft Immutability” and “Imputed Gay Identity”: Recent Developments in Transgender and Sexual-Orientation-Based Asylum Law, 32 FORDHAM URB. L.J. 237, 241 (2005) (citing 8 U.S.C. § 1101(a)(42)).

[41] Aleinikoff et at., supra note 29, at 851; See 8 C.F.R. § 208.14(b).

[42] Id.

[43] Id.

[44] Id.; 8 C.F.R. § 208.2(b).

[45] Id.

[46] Id.

[47] Id.

[48] Birdsong, supra note 13, at 364.

[49] Id. See also 8 U.S.C. § 1231(b)(3)(A) (2006).

[50] 8 U.S.C. § 1231 (b)(3)(A) (2006).

[51] Id.; INS v. Cardoza-Fonseca, 480 U.S. 421, 429 (1987) (determining that the INA “removed the Attorney General’s discretion” to withhold an application of removal).

[52] Birdsong, supra note 13, at 364 (citing DAVID WEISSBRODT & LAURA DANIELSON, IMMIGRATION LAW AND PROCEDURE IN A NUTSHELL 15 (5th ed. 2005).

[53] Birdsong, supra note 13, at 364 (citing 8 U.S.C. § 1159 (a)(1)(b)).

[54] Id.

[55] Aleinikoff et al., supra note 29, at 852.

[56] Id.

[57] Id.; 8 U.S.C. § 1225 (b)(1)(B).

[58] Id.; 8 U.S.C. § 1225 (b)(1)(B)(ii).

[59] Aleinikoff et at., supra note 29, at 852.

[60] Id.

[61] Id.; INA § 235 (b)(1)(B)(ii)(III).

[62] Id.

[63] Id.; INA §§ 242(a)(2)(A), 242(e).

[64] Id. at 853.

[65] Birdsong, supra note 13, at 366 (citing DAVID A. MARTIN ET AL., FORCED MIGRATION LAW AND POLICY xi-xii (2007).

[66] Id. (citing Alan G. Bennett, Note, The “Cure” That Harms: SexualOrientation-Based Asylum and the Changing Definition of Persecution, 29 GOLDEN GATE U. L. REV. 279, 279 (1999).

[67] Id. (citing MARTIN ET AL., supra note 64.).

[68] Aleinikoff et al., supra note 29, at 284-85.; 8 U.S.C. § 1103 (a)(1) (2006).

[69] 8 U.S.C. § 1252 (b)(4).

[70] Id.

[71] Birdsong, supra note 13, at 366 (quoting Bennett, supra note 65, at 285).

[72] 8 U.S.C. § 1101(a)(42).

[73] Donald P. Gagliardi, Inadequacy of Cognizable Grounds of Persecution as a Criterion for According Refugee Status, The, 24 Stan. J. Int’l L. 259, 269 (1987-1988).

[74] PATRICIA TUITT, FALSE IMAGES: THE LAW’S CONSTRUCTION OF THE REFUGEE 38 (London: Pluto Press eds., 1996). (See also Arthur C. Helton, Persecution on Account of Membership in a Social Group as a Basis for Refugee Status, 15 Colum. Hum. Rts. L. Rev. 39, 45 (1983-1984)) (“the social group category was meant to be a catch-all which could include all bases for, and types of, persecution which an imaginative despot might conjure up”)

[75] JAMES C. HATHAWAY, THE LAW OF REFUGE STATUS 159 (Toronto and Vancouver: Butterworths eds., (1991)).

[76] Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985).

[77] Id. at 54-55.

[78] See Ananeh-Firemoong v. INS, 766 F.2d 621, 626 (1st Circ. 1985); Fatin v. INS, 12 F.3d 1233 (3rd Cir. 1993); Lwin v. INS, 144 F.3d 505, 511-12 (7th Circ. 1998).

[79] Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986).

[80] Id. at 1573.

[81] Id.

[82] Id.; See also Leonard Birdsong, Legislative Rejoinder to Give Me Your Gays, Your Lesbians, and Your Victims of Gender Violence, Yearning to Breathe Free of Sexual Persecution, A, 35 Wm. Mitchell L. Rev. 197, 211 (2008-2009).

[83] Id. at 1576.

[84] Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000).

[85] Id. at 1093; (Birdsong, supra note 81, at 211).

[86] Id. at 1099; (Birdsong, supra note 81, at 212).

[87] Matter of Tobosco-Alfonso, 20 I & N. Dec. 822 (BIA 1990).

[88] Id. at 819.

[89] Id.

[90] Id.

[91] Id. at 822.

[92] Id. at 819.

[93] Id. at 822.

[94] Monica Saxena, More Than Mere Semantics: The Case for an Expansive Definition of Persecution in Sexual Minority Asylum Claims, 12 Mich. J. Gender & L. 331, 358 (2005-2006).

[95] Att’y Gen. Order No. 1895-94 (June 19, 1994).

[96] Id.

[97] INS v. Cordoza-Fonseca, 480 U.S. 421, 428 (1987) (holding that Congress used different, broader language to define the term “refugee,” as used in § 208(a), than it used to describe the class of aliens who had a right to withholding of deportation under § 243(h)).

[98] Id. at 431.

[99] Id. at 430.

[100] INS v. Elias-Zacarias, 502 U.S. 478 (1992).

[101] Id.

[102] Id. (Zacarias was approached at home by two masked and armed men who tried pressuring him and his parents to join the anti-guerrilla revolutionaries. When they refused, the guerrillas warned they would continue their harassment of the family and stating “he should think the offer over well.”)

[103] See 502 U.S. 478; Elias-Zacarias v. U.S. INS, 921 F.2d 844 (9th Cir. 1990).

[104] 921 F.2d at 851-52.

[105] Saxena, supra note 93, at 345 (citing Reply Brief for Petitioner, INS v. Elias-Zacarias, 502 U.S. 478 (1990) (No. 90-1342).

[106] Id.

[107] Birdsong, supra note 13, at 370 (quoting 502 U.S. 478, 483).

[108] Saxena, supra note 93, at 346; Id. at 482.

[109] Matter of Acosta, 19 I. & N. DEC. 211, 211-12 (B.I.A. 1985).

[110] Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997).

[111] Id. at 644.

[112] Id. at 643; Saxena, supra note 93, at 346.

[113] Id. at 645.

[114] Id.

[115] Birdsong, supra note 13, at 370 (quoting Bennett, supra note 65, at 300).

[116] Saxena, supra note 93, at 347 (quoting Pitcherskaia, 118 F.3d 641 at 647).

[117] Birdsong, supra note 13, at 370-71 (quoting Bennett, supra note 65, at 300-01).

[118] Id. at 371; 118 F.3d at 646-48.

[119] Id. at 648

[120] Faddoul v. INS, 37 F.3d 185 (5th Cir. 1994).

[121] 118 F.3d at 648 n.9.

[122] Saxena, supra note 93, at 348; Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994).

[123] Id.

[124] Id.

[125] 37 F.3d at 188.

[126] 118 F.3d at 648 n.9; Id. at 188.

[127] Saxena, supra note 93, at 349; See Pitcherskaia, 118 F.3d at 646.

[128] Sivaainkaran v. INS, 972 F.2d 161 (7th Cir. 1992).

[129] Saxena, supra note 93, at 349 (citing Zalega v. INS, 916 F.2d 1160, 1260).

[130] Hathaway, supra note 74 , at 104.; Derek McGhee, Persecution and Social Group Status: Homosexual Refugees in the 1990s, 14 J. Refugee Stud. 20, 27 (2001).

[131] Saxena, supra note 93, at 350.

[132] Id. at 354.

[133] NICOLE LAVIOLETTE, PROTECTION OF SEXUAL MINORITIES SINCE STONEWALL 320 (Phil C.W. Chan eds., 2010).

[134] Islam (A.P.) v. Secretary of State for the Home Department; R v. Immigration Appeal Tribunal and Another, Ex Parte Shah (A.P.), Session 1998-1999, United Kingdom: House of Lords (Judicial Committee), 25 March 1999, available at: http://www.refworld.org/docid/3dec8abe4.html [accessed 16 December 2015]

[135] LAVIOLETTE, supra note, at 320.

[136] Id.

[137] Saxena, supra note 93, at 351.

[138] Id.

[139] Id.

[140] Id. at 352.

[141] Id.

[142] Id.

[143] DG v Refugee Status Appeals Authority (High Court Wellington, CP213/00, 5 June 2001, Chisholm J)

[144] Id. at 353.

[145] Id.

[146] Id.

[147] Id.

[148]Id. at 351.

[149] 8 C.F.R. § 208.13(b)(1) (2010).

[150] 8 C.F.R. § 208.13(b)(1)(i).

[151] Valioukevitch v. INS, 251 F.3d 747, 749 (8th Cir. 2001).

[152] 481 F.3d 1115, 1119 (8th Cir. 2007).

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