Immigration Law Trends — Asylum For Gay Persons 2

     When the United States of America came into being with the signing of the Declaration of Independence in 1776, there were no immigration laws. There were no such laws for almost 100 years.  In 1875 the first immigration law was passed by Congress and Americans have been debating who should be allowed to legally immigrate to the United States and who should be excluded. 

                The Immigration Act of 1917 was the first U.S. law to exclude lesbian and gay aliens from entry into the United States. Congress excluded lesbians and gay men because of the medical and psychiatric communities’ belief that homosexuality was a disease.  Congress ended the general exclusion of lesbian and gay aliens in 1990, which has allowed refugees to escape sexual orientation based persecution in their home countries.   Also in 1990, the Board of Immigration Appeals (BIA) affirmed an immigration judge’s (IJ’s) decision to withhold deportation of a gay Cuban marielito in the case of In re Toboso-Alfonso.  This was the first known instance in U.S. immigration law where a homosexual was cast as a member of a particular social group, namely that of Cuban gays, and permitted to successfully allege persecution on that basis so as to conform with the statutory definition found in the law. Fidel Armando Toboso said that because he was gay, he was sentenced to 60 days in a forced labor camp. Later, at the time of the Mariel boatlift  he was threatened by the Cuban government that if he did not leave Cuba immediately he would have to serve four years in prison for being a homosexual. The Immigration and Naturalization Service (INS) argued that homosexuality should not be considered a particular social group.  The BIA rejected this argument.  Four years later then Attorney General Janet Reno issued an order declaring that Toboso-Alfonso was to be considered precedent in all proceedings involving the same issue or issues.

                In regard to human rights violations inflicted on women, courts have recognized new categories of “social groups,” one of the grounds on which asylum may be granted or deportation withheld.  The consequences of these decisions have been that more women may be granted asylum in the United States.    The seminal case in this area is In re Fauziya Kasinga.  In Kasinga, the BIA reversed an immigration court’s denial of asylum for a young Togolese woman who fled her homeland to escape female genital mutilation (FGM). The BIA made very detailed and specific findings, but its most interesting findings surrounded the adoption of the following standard: “[T]he practice of female genital mutilation, which results in permanent disfiguration and poses a risk of serious, potentially life-threatening complication, can be the basis for a claim of persecution.”  The court also found that “young women who are members of the Tchamba-Kunsuntu tribe of northern Togo who have not been subjected to female genital mutilation, as practiced by that tribe, and who oppose the practice, are recognized as members of a particular social group within the Immigration and Nationality Act.” Thus, in very particular and finite cases, women fleeing female genital mutilation may be granted asylum in the United States based on a reasonable fear of persecution.  The BIA immediately designated the decision  as precedent to be followed by all one hundred and seventy nine immigration courts in the country.

                The expansion of grants of political asylum based on sexual orientation and gender based violence is a welcome trend in our law because we, as a society, have come to realize that basic human rights require justice even for those who are persecuted in their country of origin on account of the their sexual identity, or their sexual conduct, or as a result of gender violence.  Political asylum seeks to uphold individual human dignity in the face of persecution in one’s country or origin.  This is a welcome expansion of our basic and traditional immigration laws. Our basic immigration system is based on a complicated set of quantitative and qualitative laws passed by Congress over the years regulating and limiting legal immigration to our country. The immigration law is codified in both the Immigration and Nationality Act (INA), as amended, that was first passed in 1952, and in the United States Code. An integral part of our immigration law is the implementation of the principle of political asylum.

                The principle of political asylum – allowing foreign nationals into one’s country because they are persecuted in their homelands – rests upon an understanding that human beings possess certain “rights” that all nations must respect.  Political asylum and human rights doctrines are intertwined in that how a country defines persecution reflects its beliefs about what constitutes humans rights violations. Harassment and abuse of LGBT persons, as well as persecution of women who are victims of gender violence have become increasingly accepted as grounds for legal asylum in the United States.[1]  This is so despite the fact that the country is experiencing a period of conservative judicial activism, fear of HIV/AIDS, and increased scrutiny of all who wish to legally enter the United States.[2] For persecuted LGBT persons and women subjected to persecution because of their gender such asylum protection represents recognition of their basic rights as human beings.


[1]  See, Pamela Constable, Persecuted Gays Seek Refuge in U.S., Washington Post, Tuesday, July 10, 2007, at p. A06.

[2]  Id.

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