(In)credible Subjects: NGOs, Attorneys, and Permissible LGBT Asylum Seeker Identities. (original) (raw)
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Queer Refuge: The Impacts of Homoantagonism and Racism in U.S. Asylum Law
Georgetown Journal of Gender and the Law, 2017
U.S. asylum law is intended to provide protection to individuals who fear persecution on account of five protected classes, including membership in a particular social group. Since 1990, asylum law has recognized sexual orientation as a “particular social group” and has since expanded to cover other people under the lesbian, gay, bisexual, transgender, and queer (LGBTQ) umbrella. Despite this development, LGBTQ asylum seekers continue to face discrimination from immigration officials and judges who make decisions based on racialized sexual stereotypes and culturally specific notions of homosexuality. This article demonstrates how the use of these stereotypes is not an unfortunate accident but the inevitable consequence of the inherent homoantagonism and racism in U.S. immigration law and policy. From the Chinese Exclusion Act of 1882 to the HIV travel ban of 1987, racial quotas and homophobic exclusions have formed the basis of much of U.S. immigration law. Although the asylum process has been cleaned up into facially neutral language, these discriminatory provisions have been institutionalized in the law. There are also structural elements within the asylum framework that encourage adjudicators to use stereotypes in their decision-making, and doctrinal barriers that foreclose relief from this discretionary abuse. The combination of institutionalized discrimination of the past and contemporary structural and doctrinal barriers work together to elevate the use of stereotypes from an unfortunate influence to a decisive factor in an applicant's success. This results in biased, inconsistent decisions and ultimately a failure to uphold the human rights of LGBTQ asylum-seekers. This Article is divided into three parts: it analyzes the particular difficulties that LGBTQ applicants face in asylum law, and underscores the need for institutional reform. Part I begins with a brief history of discrimination in immigration and asylum law, noting how the intersection of racial and sexual exclusions is doubly burdensome for LGBTQ immigrants of color. This Part concludes with a review of the general procedure for seeking asylum, and identifies how the traditional understanding of a refugee is inadequate in addressing the nature of sexual orientation and gender identity (SOGI) in asylum claims. Part II analyzes systemic problems that LGBTQ immigrants face, namely how the lack of clear statutory definitions and other structural barriers encourage the use of stereotypes, and how the Chevron and plenary power doctrines facilitate the use of these stereotypes by insulating decisions from judicial review. Finally, Part III offers some solutions that target the institutional level, such as improved training for immigration judges and new Department of Homeland Security regulations that effectively bar the use of racial sexualized stereotypes, as well as strategies which asylum-seekers can adopt in the interim to improve their chances of success.
Legally Queer: The Construction of Sexuality in LGBQ Asylum Claims
Using court decisions, interviews with legal actors, and ethnographic observations , this paper analyzes the development of sexual identity classifications for sexual minorities seeking asylum in the United States and argues that the adjudication of such claims works to consolidate and regulate sexual identities but also creates possibilities for recognizing marginalized queer identities. Asylum seekers must prove their sexual identities, and immigration officials must classify claimants as belonging to a protected group. At the inception of queer asylum law in 1990, protected categories were highly circumscribed, but the indeterminacy of the law allowed advocates and asylum seekers to challenge existing categories and stake out new claims based on their sexualities. Against the backdrop of extant criticisms of the asylum process for queers, this paper suggests that the way asylum law has been elaborated, adapted, and interpreted , particularly in approximately the past decade, offers possibilities for making unique identity claims that are not recognized in existing scholarship.
Queer legibility and the refugee status determination process
Queer legibility and the refugee status determination process, 2023
It is well documented that LGBTIQ+ applicants face a multitude of stereotypes and biases from decision-makers worldwide. We build on literature that argues that there is an unspoken component of credibilityto what extent the applicant is legible to the decision-maker. Based on interviews with legal representatives of LGBTIQ+ people seeking asylum in Australia, we observe that if the applicant's narrative and label of their lived experience is familiar to the decision-maker, they are more likely to be understood by the decision-maker. Those whose experiences fall outside Western, and specifically Australian, conceptualisations of sexuality and gender identity categories are less legible to the decision-maker, than those who present a dominant, definitive, and stable identity narrative that is 'out and proud'. Importantly, this paper also found that legal representatives shepherd applicants towards a clear label to perform an identity that is understood, or knowable to decision-makers.
Freedom To Be: Assessing the Claims of LGBTQ Asylum Seekers
2013
In refugee status assessment, the process of proving the 'truth' of one's sexual orientation (and proving that one will be persecuted on account of this) is often infected by the cultural biases of individual decision-makers. Assessors may, for example, expect self-identifying homosexual or bisexual asylum seekers to act in a particular manner (conforming to Western assumptions about sexual behaviour or identity), or expect an unreasonable degree of detail and consistency with regard to asylum seekers’ experiences in their countries of origin. Alternately, assessors may conflate various forms of sexual identity (such as homosexuality and transgender status, or different forms of sexual expression from other cultures) under the blanket label of 'LGBT' or ‘LGBTQ’ (and assess risks accordingly). This paper assesses contemporary dilemmas in the assessment of asylum claims based upon sexual identity, including international legal challenges to previously-prevailing notions that lesbian, gay, bisexual, transgender and queer (“LGBTQ”) asylum seekers may escape persecution through ‘discretion’; difficulties faced in credibility assessment; and the need for greater receptivity to diversity of lived sexual identities across cultural barriers. It draws upon the author’s own experiences as researcher for an Australian law firm specialising in refugee law and advocacy.
Legal Hostilities: Navigating Queerness, Emotion, and Space in Asylum Law
Crime, Media, Culture, 2024
Asylum laws, policies, and bureaucracies are structured by spatializing logics of emotion such as compassion, sympathy, fear, anxiety, and hostility. For lesbian, gay, bisexual, transgender, intersex, and queer (LGBTIQ) people who seek asylum, legal recognition as a refugee is contingent on the extent to which receiving states believe they are deserving of compassion and care. This materializes spatially through racialized legal and administrative cartographies of safety and danger that position LGBTIQ people as being at risk of a "well-founded fear" of persecution. Meanwhile, those LGBTIQ people who seek asylum in a "disorderly" manner or present "disrupted" narratives of either their identity or persecution generate administrative anxieties and hostilities as states seek to "guard" the border from disingenuous claims and dangerous bodies. For LGBTIQ people who seek asylum in the United Kingdom (UK), these affective tensions become apparent in the hostile bordering practices of law that seek to narrowly codify sex, gender, sexuality, race, culture, and harm. Drawing on a rich data set of LGBTIQ asylum cases from the UK, this paper adopts hostility as a novel analytic lens to map carefully how: (1) hostility materializes as a substantive object of legal or administrative scrutiny when understanding the nature of LGBTIQ identity and persecution and (2) hostility emerges procedurally through status determination processes as an "emotional grammar" to limit the possibilities of legal recognition. This affective critical work is normatively significant if we (as scholars and lawyers) are to create spaces within law and policy to support LGBTIQ people who seek asylum.
ACME, 2020
A burgeoning interest in lesbian, gay, bisexual and trans (LGBT) rights has been noted to raise among the World Bank and supranational institutions such as the EU Parliament dealing with the allocation of monetary funding, as well as within the corporate world at a global scale. The LGBT acronym thus gains new meanings, as it is used and valorized by capital institutions and corporations. Importantly, the re-signification of the LGBT category has also occurred within the system of international protection and immigration policies at a time of strong immigration restrictions. In this article, we examine how neoliberalism reshapes the LGBT signifier as a valorized protection category by looking at the case of asylum for gender and sexual minorities within EU geopolitics. By specifically analyzing the French asylum system, we want to address the question of why and how refugee-granting processes erase or flatten locally-situated queer histories, experiences and social worlds. We argue that it is important to move away from an analysis aimed at reinforcing the 'sexual democratic' values of some countries versus what is cast as the 'cultural homo/transphobia' of others. Through a particular attention to the mapping of homophobia, the article will aim to unpack how queer asylum claimants are situated in a giuridico-legal interstice from which they cannot challenge a colonial structure of thought about the schematic geography of homo/transphobia.
Displaced Subjectivities: the Queer Refugee Body in Law
Validating asylum claims on the basis of a person’s sexual orientation rely on discerning what constitutes sexuality and a ‘well founded fear’ of persecution. However, the way these questions assume relevance and are interpreted in asylum law is fraught with epistemological challenges. Authenticating refugees on the basis of sexuality relies on suturing narratives of ‘functioning’ sexuality as causally related to specific incidents of persecution. Emotion, desire and feeling are obscured by a culturally coded administrative method of verification, a narrative process which produces a caricatured, ethnocentric and over determined legal trope of the gay or lesbian asylum seeker. Responding to this, my paper will examine how and why the queer refugee remains grounded in these narratives of fixed identity. Moving beyond such a parochial legal imaginary, I will consider the possibilities of conceiving queer refugee experiences through relational representations and affect.