Constructing Sexuality and Gender Identity For Asylum Through a Western Gaze: the Oversimplification of Global Sexual and Gender Variation and Its Practical Effect on Lgbt Asylum Determinations

NOTES

CONSTRUCTING SEXUALITY AND GENDER

IDENTITY FOR ASYLUM THROUGH A WESTERN

GAZE: THE OVERSIMPLIFICATION OF GLOBAL

SEXUAL AND GENDER VARIATION AND ITS

PRACTICAL EFFECT ON LGBT ASYLUM

DETERMINATIONS

MICHAEL KAREFF*

TABLE OF CONTENTS

INTRODUCTION ......................................... 616

I. OVERVIEW OF U.S. LGBT ASYLUM . . . . . . . . . . . . . . . . . . . . . . 619

II. PSG-BASED ASYLUM IN THE TRUMP AND POST-TRUMP ERA AND ITS

IMPACT ON JUDICIAL DISCRETION IN CREDIBILITY DETERMINATIONS FOR

LGBTQþASYLUM-SEEKERS . . . . . . . . . . . . . . . . . . . . . . . . . . 622

III. DIVERSE EXPERIENCES, LIMITED IMAGINARIES: QUEER GLOBAL

EXPERIENCES AND WESTERN (HOMO/TRANS)NORMATIVITY . . . . . . . 625

IV. IMPACT OF CONTEMPORARY IMMIGRATION POLITICS, VAST JUDICIAL

DEFERENCE, AND ASYLUM CASE LAW ON CREDIBILITY

DETERMINATIONS IN THE LGBT ASYLUM PROCESS . . . . . . . . . . . . . 626

* Michael Kareff, J.D. Candidate, Georgetown University Law Center, 2021; Bachelor of Political

Science and Peace and Justice Studies, Tufts University, Cum Laude, 2015. © 2021, Michael Kareff.

615

A. Case Law and (Im)Permissible Factors in Credibility

Determinations for the Purposes of LGBT Asylum Claims . . . . 626

B. Practical Effects of Contemporary Immigration Politics,

Judicial Discretion, and Case Law on Credibility

Determinations in LGBT Asylum Cases. . . . . . . . . . . . . . 628

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629

INTRODUCTION

There is not much legal authority or legal scholarship that explicitly dis-

cusses credibility determinations for LGBTQþasylum-seekers in the United

States immigration system. Most scholarship about credibility and the

LGBTQþasylum experience exists in social science f‌ields like anthropology

and sociology and addresses the LGBTQþasylum experience in other juris-

dictions. There is thus a need for scholarship that addresses the essential

question of what boundaries the legal system has drawn between credible

LGBTQþidentities and experiences and incredible LGBTQþidentities and

experiences for the legal purposes of asylum.

1

There are some clear determi-

nations in case law and in Article I courtrooms that determine whether or not

LGBT asylum-seekers will be found to be “credibly” LGBTQþ.

2

However,

it is unclear which LGBTQþasylum-seekers have identities and lived expe-

riences that are credible or incredible for the purposes of seeking asylum.

This matters because what constitutes acceptable proof that an individual

identif‌ies as gay, lesbian, bisexual, transgender, gender nonconforming, or

queer is more than just an intellectual evidentiary discourse; it ref‌lects how a

given society identif‌ies and def‌ines queer people, queer identities, queer nar-

ratives, and queer lived experiences.

In Legally Queer: The Construction of Sexuality in LGBTQ Asylum

Claims, Stefan Vogler argues that the way in which U.S. queer 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.”

3

In his article Vogler argues that the

indeterminacy of the law surrounding LGBT asylum “allow[s] advocates and

asylum seekers to challenge existing categories and stake out new claims

based on their sexualities.”

4

After interviewing legal actors and reading case

law,

5

Vogler argues that “queer asylum claims, in particular, often seem to

push the boundaries of established conceptions of sexuality in order to

1. See KAREN MOULDING ET AL., SEXUAL ORIENTATION AND THE LAW § 9:13 (2020).

2. “Credibly” or “incredibly” a member of the LGBTQþcommunity for the purposes of claiming a

fear of persecution on the basis of membership in a particular social group.

3. Stefan Vogler, Legally Queer: The Construction of Sexuality in LGBTQ Asylum Claims, 50(4) L.

& SOC’Y REV. 856, 856 (2016).

4. Id.

5. Id.

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