Punishing masculinity in gay asylum claims.

• Author: Hanna, Fadi

In re Soto Vega, No. A-95880786 (B.I.A. Jan. 27, 2004).

Does a homosexual asylum seeker need to prove he is "gay enough" to win protection from a U.S. court? Increasingly, and troublingly, the answer is yes. In In re Soto Vega, (1) the Board of Immigration Appeals (BIA) denied a gay man's application for asylum because he appeared too stereotypically heterosexual. The decision is representative of a trend in immigration law to equate visibility with the potential for antihomosexual persecution.

This Comment argues that visibility should be irrelevant in sexual-orientation-based asylum cases. As I discuss in Part I, cases such as Soto Vega punish homosexuals who "cover" their sexual identity and reward those who "reverse cover," or act more visibly "gay." This system of incentives is inconsistent with the purpose and structure of asylum law for at least two reasons. First, as I argue in Part II, covering one's sexual orientation is a natural response to homophobic persecution. Thus, the visibility requirement punishes asylum applicants for exhibiting a symptom of persecution and is therefore inconsistent with the fear-based standard of asylum. Second, the visibility requirement assumes that conspicuous homosexuals have fundamentally different identities than inconspicuous homosexuals, such that they constitute a different social group for asylum purposes. This belief is grounded in a performance-as-identity model--suggesting that identity is determined by behavior rather than by immutable characteristics. As I argue in Part III, however, asylum law protects homosexuals on the basis of their immutable sexual orientation and thus precludes the performance-as-identity model.

I

Under the Refugee Act of 1980, a successful asylum applicant must establish a "well-founded fear of persecution on account of" a protected characteristic, which includes "membership in a particular social group." (2) The BIA's decision in In re Toboso-Alfonso, (3) later made binding precedent by then-Attorney General Janet Reno, (4) designated homosexuals as a "particular social group" within the meaning of the Act. Since then, several hundred applicants have been awarded asylum based on sexual orientation. (5)

Applying the "well-founded fear" standard, the BIA recently denied the asylum application of a thirty-three-year-old gay man, Jorge Soto Vega, adopting in full the opinion of the immigration judge (IJ). (6) While accepting that Soto Vega was homosexual, the IJ reasoned that he was not stereotypically gay enough to objectively fear identification as such, remarking that "I didn't see anything in his appearance, his dress, his manner, his demeanor, his gestures, his voice, or anything of that nature that remotely approached some of the stereotypical things that society assesses to gays." (7) In other words, Soto Vega's homosexuality was invisible to an ordinary person with no prior knowledge of it: "[I]t would not be obvious that he [is] homosexual unless he made ... it obvious himself." (8) Based on this lack of visibility, the IJ concluded that Soto Vega had failed to "demonstrate[] a reasonable fear of future persecution" (9) on the basis of his homosexuality, and therefore denied asylum. (l0) Other recent IJ opinions that have been affirmed by the BIA and federal courts echo, albeit more subtly, the Soto Vega IJ's reasoning. (11)

Jorge Soto Vega freely admitted his homosexuality in both the United States and his native Mexico but, in the eyes of the IJ, skillfully concealed his orientation on a day-to-day basis--in essence, by acting "normal" rather than "queer." This is homosexual covering: the process by which gay individuals alter their conduct by, for example, displaying only gender-typical traits to allow others to ignore their sexual orientation. (12) Reverse covering, on the other hand, occurs when "[s]traights ... ask gays to perform according to stereotype." (13) The demand that gay asylum applicants reverse cover in order to obtain asylum is eerily explicit in Soto Vega.

In articulating a demand to reverse cover, Soto Vega is not an outlier so much as the continuation of a disquieting trend in sexual-orientation-based asylum law. The case employs elements of the reasoning used in the landmark decision Hernandez-Montiel v. INS, in which the Ninth Circuit distinguished between subsets of the Mexican homosexual population. (14) The court granted the asylum application of a man who began dressing and acting like a woman at age twelve. (15) It characterized his "'particular social group'" as "[g]ay men with female sexual identities," which it called a "subset of the gay male population," (16) and based its decision on the claim that female-acting homosexual men are subject to higher levels of abuse than male-acting homosexual men. (17) The Ninth Circuit has since reconfirmed this reasoning, in Reyes-Reyes v. Ashcroft. (18)

In granting asylum to an effeminate gay man precisely because he was so effeminate, the Hernandez-Montiel court rewarded reverse covering. Standing alone, that decision said nothing about gay men who did cover; effeminacy simply helped to articulate the social group narrowly. (19) But when the IJ in Soto Vega actually punished covering, the other shoe dropped. Taken together, Hernandez-Montiel and Soto Vega suggest that courts perceive gay asylum applicants on a covering spectrum stretching from those who "act straight," or cover, to those who "act gay," or reverse cover. Grants of sexual-orientation-based asylum increasingly depend on where the applicant lies on this covering spectrum. Soto Vega involved a gay man with a male sexual identity...