From Caravans to the Courts: a Practical Guide to Matter of A—b—'s Implication for Transgender Women on the Northern Triangle

• Publication year: 2020

Sarah Houston^*

Abstract: On June 11, 2018, former Attorney General Jeff Sessions overruled the 2014 precedent decision, Matter of A—R—C—G—, which had opened the door to asylum claims based on domestic violence as a product of deeply entrenched patriarchal norms. In Matter of A—B—, Sessions held that "[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum." This paper is a practical guide for attorneys representing transgender asylum seekers from the Northern Triangle after Matter of A—B—. In order to understand and address the new obstacles facing transgender women seeking safety in the United States, this paper examines the history of transgender asylum claims in the United States and then presents some of the most effective alternative arguments available for overcoming A—B—'s heightened standard.

If it is dangerous to be gay, it is almost always more dangerous to be transgender. Transgender women are uniquely vulnerable and subject to gender and racial profiling. They need decision-makers in our immigration system to understand their distinct struggles.

—Aaron Morris, Legal Director, Immigration Equality

Introduction: The Caravan of New Identity

In August 2017, the first trans/gay migrant caravan reached the U.S. border in Arizona, made up of 17 transgender¹ and gay asylum seekers who have come to be known as the "Rainbow 17."² The Rainbow 17 met in Mexico, where they began to organize collectively as a response to not only the persecution they had endured in their home countries of Guatemala, Honduras, and El Salvador, but also their subsequent denial of protection from Mexican authorities. When they crossed into the United States, LGBTQ+ activists and social justice organizations such as the Transgender Law Center met them with open arms and giant banners, offering support to the women as they turned themselves over to Immigration and Customs Enforcement (ICE). Groups on both sides of the border waited for news from authorities about their confinement, concerned that the women were being placed in a men's detention center.³ When several of the transgender women were released from custody on parole six weeks later, they were hopeful that they would be able to establish successful asylum claims based on the past psychological and physical abuse they had suffered because of their gender identity.

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The ability to raise such gender identity-based persecution claims is a relatively recent legal phenomenon. Starting in the late 1980s, immigration judges (IJs) began to use their discretion to recognize gender-based violence and gang violence claims as a cognizable foundation for asylum.⁴ Central Americans from Guatemala, Honduras, and El Salvador fleeing gang and domestic violence targeted at them because of their gender identity have begun to travel northward in larger groups, hoping for safety in numbers as they journey in search of protection as a group. These groups have become known as "caravans." But for so many nonconforming individuals who crossed into the United States (including the transgender women of Rainbow 17, who have now all been released on parole), their valid asylum claims have been called into question following Attorney General (AG) Jeff Sessions's precedent-setting decision in Matter of A—B—.⁵

On June 11, 2018, Sessions issued his opinion in Matter of A—B— (A—B—), vacating the Board of Immigration Appeals' (BIA) decision to grant asylum to a Salvadorian woman who was a victim of unrelenting brutality at the hands of her husband. Sessions rejected the respondent's claim based on her membership in the particular social group (PSG), "El Salvadoran women who are unable to leave their domestic relationships where they have children in common," stating that "[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum."⁶ The AG overruled the 2014 precedent decision Matter of A—R—C—G— (A—R—C—G—), which created precedent for asylum claims based on domestic violence that was a product of deeply entrenched patriarchal norms.⁷

As an increasing number of transgender women from Central America cross the border as a result of humanitarian crises in the Northern Triangle,⁸ they face a higher threshold for asylum as a result of Sessions's precedent-setting opinion. Before A—B—, transgender asylum seekers already faced the significant obstacle of establishing membership in a PSG based on their gender minority status without established precedent for such a distinction. However, because such a large proportion of transgender claims involve domestic violence, forced sex work, and forced sterilization (so-called "corrective rape"),⁹ which fall under the category of gender or gang-based violence, A—B— makes it even more difficult for transgender women to meet the burden of establishing a well-founded fear of persecution on account of a protected ground.¹⁰

Even though Sessions's decision did not specifically address transgender asylum seekers, practitioners should be aware of the decision's impact on this vulnerable group and prepare to push back against A—B—'s application on their claims, even if they are based on sexual identity and not gender.¹¹ In order to understand and address the new obstacles facing transgender women seeking safety in the United States, this paper first presents the history of transgender asylum claims in America. The second section then presents recent statistics that unveil the systemic violence facing transgender women in Honduras, Guatemala, and El Salvador. Finally, it qualifies the legal hurdles that this decision introduced while presenting alternative arguments available for meeting A—B—'s heightened standard.

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To best represent transgender women from the Northern Triangle, our system must distinguish sexual orientation from gender identity in asylum law. But how can attorneys do this while being the best advocates for their clients? This practical guide for immigration lawyers argues that it is more important than ever for practitioners to put forth both a strong offense and defense. Offensively, advocates should push forward novel conceptions of the PSG and social visibility requirements that more accurately represent transgender women's lived experiences. Defensively, however, they must differentiate each of the facts in their case from A—R—C—G—.

History: Transgender Identity Misunderstood

PSG Mischaracterization

In 1990, U.S. asylum law first created the precedent that "sexual orientation" could act a PSG for LGBTQ+ asylum seekers.¹² In Matter of Toboso-Alfonso, the BIA rejected the INS's argument that the gay respondent should not be granted withholding of removal because his sexually deviant behavior violated U.S. law, clarifying that the respondent was subject to persecution because of his identity as a gay Cuban man and not because of his sexually deviant behavior.¹³ Since then, numerous federal circuit and immigration courts have held that gay men can constitute a PSG.¹⁴

While claims based on sexual orientation are now widely accepted as valid grounds for asylum, courts have only recently begun to understand and recognize claims based on gender identity. IJs have routinely conflated sexual orientation and gender identity, often categorizing transgender asylum seekers as "gay men with female sexual identities."¹⁵ In Hernandez-Montiel, the Ninth Circuit rejected the word "transgender" to describe the respondent even though she was taking hormones and had dressed in women's clothing from a young age.¹⁶ Instead, the court chose to accept "gay men with female sexual identities" as the basis for her claim. This PSG became the standard that courts employed when analyzing all transgender claims, referring to them by male pronouns even though their gender identity was female.¹⁷ It was not until 2015 in Avendano-Hernandez that the Ninth Circuit finally recognized the difference between sexual orientation and gender identity.¹⁸ Unfortunately, although the decision referred to the petitioner as a transgender woman from Mexico, the court did not have the opportunity to decide if transgender people could constitute a cognizable PSG.¹⁹ No court has expressly recognized transgender people as a PSG since then.²⁰

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This gap in asylum case law is a consequence of the entrenched biases within the U.S. immigration system that institutionalize a particular view of homosexuality and race within the system, encouraging judges to use these stereotypical categories when making decisions while perpetuating rigid doctrinal obstacles that strengthen these stereotypes.²¹ Deborah Morgan finds that the "facially neutral asylum process conceals the fact that immigration officials and IJs make decisions based on racialized sexual stereotypes and culturally specific notions of homosexuality."²² In the aftermath of World War II as countless Europeans from Cold War countries fled, the drafters of the 1951 UN Convention Relating to the Status of Refugees designed protection laws with survivors of World War II in mind, forming a strong association between "refugee" and "war, masculinity, and political dissent" that has led to an enduring gender bias in asylum law.²³ The 1951 Convention also allowed signatories to exclude any non-European refugees from their borders without having to mention race.²⁴ The laws did not address the layered, multidimensional forms of racial, sexual, and gender oppression experienced by those outside the Western context.²⁵

Judges unconsciously imbue their own "culturally specific white constructs of sexuality [as they] attempt to mold the various expressions of sexuality into a gay identity" with which Americans are familiar.²⁶ The American "substitutive model" of LGBTQ+ identity perpetuates a dangerous and fixed idea of sexual minority status based on upper-class white male...