"Soft immutability" and "imputed gay identity": recent developments in transgender and sexual-orientation-based asylum law.

• Author: Landau, Joseph

INTRODUCTION

Owing to a number of recent developments, U.S. asylum law is one of the most hospitable legal arenas for lesbian, gay, bisexual, and transgender ("LGBT") litigants. (1) Gays and lesbians have been protected as a "particular social group" since 1990, (2) and it is now beyond cavil that the law of asylum protects immigrants who face persecution on account of sexual orientation no less than those whose persecution is based on race, religion, nationality, or political opinion. (3)

Two recent decisions by the Ninth Circuit (4) extend these gains by protecting within that jurisdiction many, if not all, male-to-female ("MTF") transgender asylum seekers. (5) These cases demonstrate a developing jurisprudence of transgender asylum protection based on an asylum seeker's expression of gendered traits, including a person's hairstyle, clothing, demeanor, use of makeup, and choice of names. In these cases, the court honors such expression as a true and honest depiction of identity and self-determination, extending protection to litigants because the traits they exhibit are integral to their identities.

These cases evidence a "soft immutability" standard that, while requiring the asylum seeker to prove a "fundamental" transgender identity, allows a more relaxed set of criteria that adjust to the context of the particular asylum seeker's case and circumstances. The conception of identity advanced in these cases eschews a standard biological approach of protecting only innate characteristics like chromosomal makeup, internal sex organs, or "birth sex" (the gender assigned to an individual at birth), extending protection based on characteristics adopted over time--including behaviors, character traits, and forms of dress.

In addition to taking advantage of this developing case law, transgender asylum seekers can marshal at least two additional arguments on their behalf. First, they can assert that they qualify under prevailing definitions of "particular social group"; second, they can assert a claim based on an "imputed gay identity." (6) Under the "imputed gay identity" theory, individuals who do not identify as gay or lesbian but who are labeled and persecuted as such can still litigate an asylum claim based on sexual orientation. Transgender applicants, for example, who do not identify as gay, but who are nevertheless perceived by those around them as gay, can take advantage of this theory. The imputed gay identity is not limited to LGBT asylum seekers; heterosexuals can bring (and have brought) such claims as well. (7)

This Article surveys the law of LGBT asylum as it has developed over the past fifteen years, first, with the landmark case of Matter of Toboso-Alfonso, which recognized homosexuality as a "particular social group"; second, with the Ninth Circuit's recent cases adopting a soft immutability standard of identity and expanding asylum protection to transgender individuals; and third, with a discussion of the "particular social group" analysis as it applies to transgender asylum seekers and the emergence of the "imputed gay identity" category as an alternative basis for relief for those litigants who do not identify as gay or lesbian but who nonetheless face anti-gay or anti-lesbian persecution.

Given the staggering number of new asylum claims making their way through the various courts of appeals, (8) one can expect more developments in the near future. These changes, while crucial to asylum litigators and commentators on immigration law, can also contribute to the development of LGBT law and scholarship in other statutory and constitutional contexts like employment discrimination and constitutional equal protection challenges. (9)

1. THE STRUCTURE OF ASYLUM LAW

   "Asylum" is a legal remedy available to legal and illegal immigrants who seek protection from persecution they faced or would face in their home country on account of some protected ground. (10) Not all immigrants are protected from persecution; rather, the persecution must have a connection to protected characteristics. Currently, those include race, religion, nationality, political opinion, and membership in a "particular social group." (11) An asylum request is automatically considered an application for an alternative claim of withholding of removal. (12) Both forms of relief require the applicant to demonstrate a certain quantum of persecution that the individual suffered in his or her home country or would suffer if returned there, and both require a "nexus" between that persecution and one of the protected grounds mentioned above. (13)

   1. Asylum Versus Withholding of Removal

   Asylum and withholding of removal appear nearly identical but have important differences: asylum is subject to the Attorney General's discretion, (14) while withholding of removal, once proven, is a mandatory form of relief. (15) A person granted asylum may be eligible for permanent residency; (16) consequently, most litigants prefer asylum. Withholding of removal, by contrast, guarantees only that the person will not be forcibly returned to his or her country of origin and does not preclude the possibility of being removed to a third country. (17)

   1. Asylum

      Under the Immigration and Nationality Act of 1956, (18) an alien may be granted asylum if, at the discretion of the Attorney General, the alien is a "refugee" within the meaning of the statute. (19) A "refugee" is

      any 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. (20) An applicant may establish eligibility by proving past persecution, which creates a rebuttable presumption that a well-founded fear exists, (21) or by demonstrating a "reasonable possibility" of future persecution. (22) An applicant who belongs to a particular social group can meet this standard if she can establish that in her country of origin, there is a pattern or practice of persecuting a group of persons similarly situated to the applicant. (23)

   2. Withholding of Removal

      An applicant qualifies for mandatory withholding of removal when he demonstrates that his life or freedom would be threatened upon return to his homeland on account of his membership in a particular social group. (24) To establish eligibility for withholding of removal (25) the applicant faces a somewhat higher burden--he must demonstrate that future persecution is "more likely than not" to occur. (26) Thus, an applicant can obtain withholding by proving that he belongs to a particular social group and that it is more likely than not that he would be persecuted on account of his membership in that group if returned to his country of origin. (27)

      Consequently, in order to bring a successful claim for asylum or withholding of removal, an applicant must first establish participation in one of the statutorily or judicially created categories; in the case of LGBT persons, the individual must prove membership in a particular social group. Upon doing so, the applicant must demonstrate the nexus between that particular social group and persecution.

   3. Proving "Social Group" Standards

      The Immigration and Nationality Act does not define "particular social group," leaving interpretation to the Board of Immigration Appeals ("B.I.A.")--the highest administrative body for interpreting and applying immigration laws (28)--and the federal courts. In Matter of Acosta, the B.I.A. defined "particular social group" as "a group of persons all of whom share a common immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared experience...." (29) The characteristic must be something "the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences." (30)

      Many federal circuits borrow the Acosta definition of "particular social group" while other circuits have developed slightly alternative formulations. The First, (31) Third, (32) and Seventh (33) Circuits explicitly follow the Acosta analysis, which defines "particular social group" through the lens of innate and immutable characteristics. The Second and Ninth Circuits have developed variations on the standard B.I.A. definition that are arguably broader than the Acosta formulation. (34)

      In Gomez v. INS, the Second Circuit defined "particular social group" as one "comprised of individuals who possess some fundamental characteristic in common which serves to distinguish them in the eyes of a persecutor ... or in the eyes of the outside world in general." (35) This standard expands upon the Acosta analysis in two ways. First, it protects characteristics that are not innate and immutable, but "fundamental"--a category that potentially incorporates a broader range of characteristics. Second, by focusing on the persecutor's perception, the Gomez formulation recognizes the extent to which outsiders' perceptions of an individual--real or imaginary--form the basis of that person's persecution. Gomez captures an important reality underlying much persecution (not to mention discrimination): namely, that actual identity is often less relevant than presumed identity. (36) After Gomez, asylum seekers in the Second Circuit do not have to prove actual membership in one of the protected groups; rather, they need only demonstrate that they face persecution because outsiders presume that they are members of such a group. This definition of particular social group overlaps with a larger principle of asylum law discussed below--the theory of "imputed" identity. (37)

      The Ninth Circuit for many years applied a test for particular social group that was at...