Refugee Roulette: Wagering on Morality, Sexuality, and Normalcy in U.s. Asylum Law

• Publication year: 2021

92 Nebraska L. Rev. 627. Refugee Roulette: Wagering on Morality, Sexuality, and Normalcy in U.S. Asylum Law

Refugee Roulette: Wagering on Morality, Sexuality, and Normalcy in U.S. Asylum Law

Angela DeVolld

TABLE OF CONTENTS

I. Introduction .......................................... 628

II. State Asylum Obligations Under International and Domestic Law ......................................... 630

III. Current Application of Asylum Law in Sexually Controversial Asylum Claims .......................... 635
A. Victims of Forced Prostitution and Sex Trafficking as Asylum Applicants ............................. 636
B. Sexual Minorities as Asylum Applicants ........... 640

IV. Identifying Sources of "Morality" in Sexually Controversial Asylum Claims .......................... 644
A. The American Understanding of Nonconforming Sexual Experiences is Severely Limited ............ 644
B. Inconsistent Interpretations Lead to Unfettered Discretion in Interpreting "Particular Social Group" ............................................ 647

V. Fulfilling International and Humanitarian Obligations
Through Redrafting and the Legislative Process ....... 650
A. Domestic Redrafting ............................... 651
B. International Redrafting ........................... 652

VI. Conclusion ............................................ 654

"[H]uman displacement has become a far more complex issue. . . . We must not lose sight of the individual people who are fleeingpersecution."(fn1)

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I. INTRODUCTION

Public morality and sexual norms have no place in asylum law; yet, the influence of both in the fates of sexually controversial asylum applicants is undeniably present. For instance, a young victim of an attempted kidnapping for sex trafficking will be sent back to risk cycling through vicious prostitution rings.(fn2) The stakes are just as high for transgender immigrants, as no published immigration decision recognizes transgender identity in the asylum context.(fn3) At the same time, despite inconsistent applications of the law, asylum claims for gay men and lesbian women based on sexual orientation have only recently become commonplace.(fn4)

When it comes to the fates of refugee applicants, the influence of public morality cannot be contained in a manner that would allow fair and consistent outcomes for each person. Although the consideration of societal norms is important in the admission of immigrants, the adjudication of asylum applications requires a special degree of international perspective and cultural fluency.(fn5) The consideration of these norms, particularly those surrounding sex, can inhibit, and even endanger, the lives of numerous applicants seeking asylum under the protected ground of "membership in a particular social group."(fn6) This includes sexual minorities and victims of forced prostitution.(fn7) A decision maker's perceptions of what is moral should not justify the abandonment of desperate individuals truly in need of refuge. To accept the influence of public morality and sexual norms in asylum law is to subject desperate individuals to a ruthless game of "refugee roulette,"(fn8)

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where many applicants receive the metaphorical bullet when a court pulls the trigger and issues its decision.(fn9)

In order to understand the influence of public morality in asylum law, it is important to understand what public morality is. There is no set definition of public morality; however, it is undisputed that it concerns the regulation of the moral conduct or character of individual persons through the law.(fn10) Public morality attempts to justify the enforcement of a particular society's ethical and moral standards of right and wrong. As a result, the concept of what is moral may vary from state to state or region to region.(fn11) In the United States, public morality often manifests itself in the government regulation of sex, including adultery, homosexuality, and prostitution.(fn12)

At first blush, having judicial decisions reflect popular societal norms appears to be a good idea. Society would maintain its distinct culture, and a majority of the population would be satisfied with the result. However, when a judge begins to adhere to popular norms, we are no longer a country of law, but instead a country of arbitrary rulings based on no standard at all. Without objective law, there can be no voice for the minority, no positive change, and no progression of society.

This Note highlights how public morality hides under the guise of judicial discretion in asylum decisions involving interpretations of "membership in a particular social group." Part I discusses the United States' current asylum obligations under both international and domestic law. Part II highlights the current influence of morality in two types of controversial sex-based claims:(fn13) those based on identification as a sexual minority and those involving victims of forced prostitution

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and sex trafficking.(fn14) Part III analyzes how morality has found its way into the asylum courtroom. Specifically, common misconceptions surrounding sex and inconsistent interpretations of statutory language have allowed judges and agency decision makers to exercise great discretion in evaluating asylum claims, often leading to unjust and arbitrary results. Finally, Part IV proposes solutions to the issues raised by the influence of public morality and sexual norms in asylum law, including amendments to domestic refugee statutes and international instruments.

II. STATE ASYLUM OBLIGATIONS UNDER INTERNATIONAL AND DOMESTIC LAW

Immediately following the tragedies of World War II, the United Nations (U.N.) faced an increased demand to focus on the numerous war victims and displaced persons seeking international refuge.(fn15) Specifically, the devastated and overwhelmed countries of Europe called for a revision of previous international agreements regarding refugee and asylum matters, as well as a standard international definition of "refugee."(fn16) In 1951, the U.N. responded to these demands by adopting the Convention Relating to the Status of Refugees.(fn17) Under this Convention, the U.N. defined a refugee as any person who

owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside of the country of his [or her] nationality and is unable, or owing to such fear, is unwilling to avail himself [or herself] of the protection of that country.(fn18)

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The 1951 Convention also adopts the obligation of nonrefoulement, which is the responsibility of a state not to return any person whose "life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group, or political opinion."(fn19)

However, the original scope of the Convention was extremely limited by both time and space.(fn20) Under Article 1(A)(2), a refugee had to prove that his or her fear was a "result of [the] events occurring [in Europe] before 1 January 1951."(fn21) Because of these restrictions, the Convention could not properly address the needs of the international refugee community during the first decade of its existence. Due to the ever-changing scheme of refugee applicants throughout the next decade, the U.N. adopted the 1967 Protocol Relating to the Status of Ref-ugees.(fn22) Contrary to popular belief, the Protocol did not "add" to the 1951 Convention; rather, it operated as an independent international instrument under which State Parties agreed to apply Articles 2 through 34 of the Convention.(fn23) Thus, the Protocol eliminated the spatial and temporal limitations of the refugee definition in Article 1 of the Convention.(fn24) The United States is a signatory to the Protocol and, pursuant to its international obligations, has adopted a nearly identical version of the 1951 Convention.(fn25)

The United States' domestic version of the 1951 Convention is found in sections 101(a)(42), 208, and 241(b)(3) of the Immigration and Nationality Act of 2000 (INA). Under United States asylum law,(fn26) there are two procedural avenues to "refugee" relief: asylum under INA § 208 or withholding of removal under INA § 241(b)(3). Although asylum and withholding of removal are closely related, each form of relief requires different procedures and carries a different burden of proof.(fn27) Asylum grants relief to applicants and paves a path to

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lawful permanent residency and citizenship.(fn28) It is, however, a form of discretionary relief. The United States government, via judges and agency decision makers, may still exercise great discretion in determining whether an applicant qualifies for asylum.(fn29) Even if an applicant successfully establishes that he or she is a refugee under the INA, the federal government still has the authority to grant or deny asylum based on the circumstances of each case.(fn30)

Withholding of removal, on the other hand, is the United States' version of nonrefoulement . Unlike asylum, withholding of removal is not discretionary. If an applicant qualifies for withholding of removal, INA § 241(b)(3) compels the United States government to either find a third country within which the applicant may safely relocate or provide the necessary refuge itself.(fn31) However, the burden of proof for withholding of removal(fn32) is much...