Finding the fundamental: shaping identity in gender and sexual orientation based asylum claims.

• Author: Hinger, Sarah

Within the United States and globally, gender and sexual orientation form the basis of an increasing number of rights claims and protections. Both grounds, which reflect the expanding notions and challenges of identity-based rights, have been incorporated into United States asylum law with varying success. The extension of asylum to include some claims based on gender and sexual orientation has real and immediate significance for many individuals. However, securing protection in an individual case sometimes creates precedents that make it more difficult to prevail in future asylum claims, and that limit conceptions of gender and sexual orientation within the broader movement for human rights.

To obtain asylum in the United States, an applicant must be a member of a particular social group targeted for persecution on the basis of a characteristic so fundamental to identity that it cannot or should not be required to change. J Applying this standard, adjudicators seek to understand what about gender or sexual orientation unites a group of people to the extent that it places members collectively at risk of persecution. Thus, the surest way for applicants and advocates to demonstrate that the asylum standard is met is to put forward a familiar and universalized picture of the persecuted woman, lesbian, or gay man, minimizing variability or complicating factors in the individual case. These firm but under-theorized depictions of gender and sexual orientation create and reinforce limited conceptions of identity and culture that make it more difficult to raise new asylum claims within these established categories. Existing asylum law should incorporate a more careful analysis of the harms that occur in these claims, particularly the successful ones, in order to find and permit a more robust view of identity and culture.

Part I of this Article examines the development of U.S. asylum law and its incorporation of new identity-based claims based on gender and sexual orientation. Part II uses gender-based asylum claims to illustrate that the implicit search for fixed and fundamental characteristics to identify a particular social group creates a limited narrative of how identity is shaped and operates within culture. Part III argues, using examples of sexual-orientation-based asylum claims, that the current asylum analysis used by U.S. administrators and courts, which focuses on defining a fundamental identity characteristic, erases expressions of variability. Thus, gay men and lesbians are molded, through their individual asylum claims, into a particular, western characterization of queer identity.

This possible narrowing of gender and sexual orientation based asylum claims is not a necessary outcome of the asylum process. In Part IV, this Article proposes a new method of analyzing asylum claims, which this Article terms an axis-oriented approach. This method posits that in assessing whether a social group possesses a fundamental characteristic that binds its members, as required by the asylum standard, adjudicators should explicitly identify the generalized axis of identity, such as gender or sexual orientation, before turning to the applicant's specific articulation of identity. This importantly shifts the focus away from an isolated inquiry into the scope and persecution of the subordinate identity. By recognizing a broader framework, the adjudicator can assess the existence of a particular social group within the context of a dominant identity norm, such as heterosexuality or gender hierarchy, to evaluate the persecution claim with more analytical rigor. Axis-oriented analysis serves as an alternative to analyses that attempt to enforce a dominant norm. This approach protects individuals without requiring asylum-seekers to show that the society they are seeking relief from has completely institutionalized certain norms. It also allows the asylum standard to remain open to iterations of an identity trait recognized as fundamentally important to humanity.

1. ASYLUM AS A REGULATORY PARADIGM

   1. The Origins of U.S. Asylum in International Human Rights Law

      Although asylum law developed after World War II with a focus on civil and political rights, it has now evolved to include expanded notions of human rights. Yet, asylum is also standards-based, meaning it creates a secure status and calls for a response to human rights abuses but bases the status and abuses on limited standards. Thus, the act of defining the particular social group and the shared fundamental characteristic of that group in new identity claims both expands and reestablishes limits to asylum. Each asylum claim seeks to demonstrate the fixity of the protected group and the individual's inclusion therein.

      U.S. law defines a refugee as:

      [A]ny person who is outside any country of such person's nationality ... and who 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. (2) This can be parsed into two basic requirements. To obtain asylum, an applicant must (1) have a well-founded fear of persecution, (2) on account of a protected characteristic.

      The particular developments of domestic asylum law incorporate common foundational principles from international human rights law. The United States asylum statute substantively resembles the United Nations law, (3) which it enacts domestically. (4) As mentioned previously, asylum law was designed with the atrocities of the Nazi State in mind. (5) International asylum law invoked human rights to protect individuals from abuses of state power infringing on familiar categories of civil and political rights. (6) In supplying a standard for when the protections of asylum should be afforded, international asylum law also limited the responsibilities of each individual state, legitimizing the use of inherently limited state resources to aid some, but not all, non-citizens in plight. (7) While U.S. asylum law delineates specific and limited grounds for protection, it remains tied to conceptions of international human rights, which continue to evolve.

      Global human rights law has broadened in outlook, particularly with problems related to gender (8) and sexual orientation (9)--amongst others and developing more complex understandings of what protecting human rights entails. (10) Relying on the expansion of human rights discourse, advocates can press for asylum law to likewise extend its protections. (11) While the persecution requirement precludes arguments for extending asylum on certain human rights grounds, such as severe economic hardship, the open language of "particular social group" allows room to argue for the inclusion of a range of identity categories.

      In theory, and according to precedent, (12) the particular social group need not be recognized explicitly elsewhere in human rights law. Eliminating physical suffering is not the end purpose of asylum law; for instance, it does not provide a remedy for those suffering due to natural disasters or extreme poverty. (13) It is instead the characteristics included under asylum that form the focus of its protections. Thus, these bases for granting the limited right to protection from physical harm cannot be arbitrary. (14) The accepted categories have normative resonance, whether imbued by an understanding of universal human rights or by the political motivations of individual states. (15) The push to expand the protections of asylum law is evidence of the potential of asylum law to extend affirmation and legitimacy to recognized identity characteristics.

      While the expansion of human rights can be invoked to extend asylum protections, the increasing global scope of immigration strengthens the impetus to limit access to asylum. (16) Anti-immigration feelings mean that applicants for asylum must emphasize that the shared identity characteristic they are being persecuted for is fundamental. Expansion of the particular social group category has been least successful where characteristics appear as matters of choice without deep personal and societal significance, (17) and it becomes more successful if the social group descriptive can be framed as an inherent human trait such as sex or sexual orientation. (18) As the example of sex or gender shows, (19) the characteristic must be seen not only as inherent but also as having some greater significance to the individual through its innateness. Thus, the debate within asylum law becomes one of defining the valid parameters of human identity and expression capable of protection through a human rights framework.

      These competing facets of asylum law, to limit the scope of response measures required of asylum-granting states and to provide broader protection of basic human rights, do not manifest within the case law as two discrete and concretely opposed approaches. Adjudicators and attorneys may have a particular bent towards a more or less inclusive asylum policy, yet the two tensions must be reconciled when arguing individual cases. To do so requires delineating what characteristics may properly form the basis of a particular social group and, under the current articulation of the standard, also entails defining the scope and content of the specific identity characteristic in question. "Homosexuality," for instance, has been accepted as a basis for asylum; (20) however, debate continues as to what particular actions and mannerisms constitute homosexuality for the purposes of asylum law. The standards for finding persecution and defining those persecuted social groups aim to parse such distinctions.

   2. The Development of the Persecution and Particular Social Group Standards in Contemporary Case Law

      Persecution is characterized as "an extreme concept." (21) Discrimination, including...