So, What Should I Ask Him to Prove that He's Gay?': How Sincerity, and Not Stereotype, Should Dictate the Outcome of an LGB Asylum Claim in the United States

• Author: Kimberly D. Topel
• Position: J.D., The University of Iowa College of Law, 2017; B.S., Seton Hall University, 2013
• Pages: 2357-2384

TOPEL_PP_FINAL (DO NOT DELETE) 7/26/2017 12:09 AM

2357

“So, What Should I Ask Him to Prove that

He’s Gay?”: How Sincerity, and Not

Stereotype, Should Dictate the Outcome

of an LGB Asylum Claim in the United

States

Kimberly D. Topel*

ABSTRACT: Many LGB persons from around the world come to the United

States in search of a safe haven from violence and persecution. Some of those

persons end up in deportation proceedings where they need to prove their

sexual orientation before they can be granted asylum. Many immigration

judges are understanding and receptive to the plights of these persons.

However, while adjudicating claims, some judges stereotype and bully these

persons with inappropriate questions about their sexual and other histories to

adjudicate their claims. Since appellate courts have recently thrown out such

bizarre and harmful questions and assumptions in religious asylum cases in

favor of gauging a claimant’s sincerity, this Note argues that courts should

apply the same deference and standard to LGB claims. This would provide

immigration judges a framework to obtain the information necessary for a

proper decision, while also maintaining the proper level of respect for LGB

asylum seekers.

I. INTRODUCTION & BACKGROUND ................................................ 2358

A. THE ASYLUM PROCESS ........................................................... 2359

1. Eligibility for Asylum ................................................... 2361

i. Persecution .............................................................. 2362

ii. An LGB Person’s Membership in a Particular

Social Group ............................................................ 2363

* J.D., The University of Iowa College of Law, 2017; B.S., Seton Hall University, 2013.

Thank you to Immigration Equality for sparking my interest in immigration law, especially sexual

orientation-based asylum claims. Thank you to the excellent immigration and clinical faculty at

the University of Iowa College of Law, most notably Professor Bra m Elias, for inspiring me to

advocate for updates to the law where I see discrimination. Thank you to the editorial staff at the

Iowa Law Review, especially Matthew Hardin, for assistance during the writing and publishing

process. This Note is dedicated to my grandfather, Thomas Giaimo, who so desperately wanted

to read it, but passed away before it was finished.

2358 IOWA LAW REVIEW [Vol. 102:2357

iii. “On Account of” ...................................................... 2365

2. Filing for Asylum: Affirmative vs. Defensive

Filing ............................................................................ 2366

B. THE ROLE OF THE PARTICIPANTS IN A REMOVAL

PROCEEDING ......................................................................... 2367

II. THE INAPPROPRIATE QUESTIONING OF AND ASSUMPTIONS

ABOUT RESPONDENTS IN REMOVAL PROCEEDINGS ..................... 2370

A. THE CREDIBILITY OF THE RESPONDENT .................................. 2370

B. THE INAPPROPRIATE QUESTIONS AND ASSUMPTIONS ABOUT

LGB GROUP MEMBERSHIP ..................................................... 2372

C. WHY IT IS A PROBLEM ........................................................... 2374

D. INAPPROPRIATE QUESTIONING ABOUT RELIGIOUS BELIEFS:

A WORKING METHOD ............................................................ 2376

1. The Inappropriate Questions Posed to

Respondents Claiming Asylum Based on

Their Religious Beliefs ................................................ 2377

2. Sincerity Over Stereotype in Religion Claims ........... 2378

III. SINCERITY OVER STEREOTYPE FOR SEXUAL ORIENTATION

CLAIMS ........................................................................................ 2380

A. THE CREDIBILITY DETERMINATION—MEASURING SINCERITY

IN VERBAL AND NON-VERBAL COMMUNICATION ...................... 2380

B. POSSIBLE IJ QUESTIONS: WHAT WORKS .................................. 2381

1. Questions About Sexual or Other History are

Irrelevant ...................................................................... 2382

2. Proving Social Visibility Without Resorting to

Stereotype .................................................................... 2383

IV. CONCLU SION .............................................................................. 2384

I. INTRODUCTION & BACKGROUND

It is an unfortunate reality that many members of the lesbian, gay, and

bisexual (“LGB”)1 community all around the world still face discrimination,

and even violent persecution, for their sexual orientation. While

circumstances are not perfect for the LGB community in the United States,

many LGB persons are able to find a safe haven in the United States where

they are less likely, at least ideally, to be subjected to violence than in their

1. Because this Note deals only with issues of sexual orientation, and not issues of gender

identity, it only advocates for members of the LGB community. In this Note, the acronym “LGB”

refers to all persons who identify in a way other than heterosexual. The acronym “LGB” is not

meant to disparage other such identities, such as pansexual, etc., but is merely a colloquialism

meant to reach the widest audience.