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
SUMMARY

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 ... (see full summary)

 
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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.

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