Uncharted territory: choosing an effective approach in transgender-based asylum claims.

• Author: Neilson, Victoria

PRELUDE

A client steps into your office to discuss an immigration matter. The client, Geovanni, appears to be an effeminate gay man, but Geovanni tells you that she is transgender and considers herself to be female. (1) As a result of her transgender identity, she has endured tremendous mistreatment in her country, beginning with physical and verbal abuse in school that escalated in frequency and violence as she got older. Geovanni was harassed and forced to pay bribes to the local police on many occasions. Eventually, a police officer took Geovanni into custody, brought her to a remote location, and raped her. Based on the years of abuse she has suffered on account of her transgender identity, Geovanni wants to apply for asylum. (2)

INTRODUCTION

This Article uses the term "transgender" identity to refer to individuals who feel a discord between their gender identity and their anatomical sex--that is, those who were born anatomically male but believe that their gender is female or those who were born anatomically female but believe that their gender is male. Some transgender individuals take affirmative steps to physically change their anatomical sex, undergoing such procedures as hormone therapy, electrolysis, and sex reassignment surgery. (3) This Article uses the term "transsexual" to define such individuals. Many commentators have argued for a broader definition of "transgender," which would include virtually any individual who does not conform in appearance or behavior to societal expectations for their gender. (4) This Article will focus more narrowly, however, on individuals like Geovanni who believe that they were born with the wrong anatomical sex and who suffer persecution as a result of their transgender identity. (5)

This Article will discuss existing precedent in the context of transgender asylum seekers and suggest possible theories for framing successful transgender asylum claims. (6)

Generally, there are very few published decisions for successful asylum cases. (7) Of those few cases, the number addressing lesbian, gay, bisexual, and transgender ("LGBT") issues is minuscule. In fact, there have been only eight published cases involving LGBT asylum claims: seven circuit court cases and one Board of Immigration Appeals (B.I.A.) decision. (8) Moreover, only two of these five cases address a claim for asylum by a transgender applicant, and then only indirectly. (9) This Article will discuss existing precedent in the context of transgender asylum seekers, suggesting ways that the case law could be used to frame a successful transgender asylum claim.

Part I of this Article will explain the legal standard for asylum claims. (10) This section will specifically focus on the definition of the "particular social group" category of protection within asylum law because this is the category under which Geovanni and other transgender applicants would put forward their asylum claims. (11) Part I also emphasizes the requirement under asylum law that a nexus exist between the applicant's protected characteristic and the persecutor's motivation to harm. (12) Establishing such a nexus may be a particularly difficult aspect of transgender asylum cases. (13)

Part II will focus directly on Geovanni's claim. (14) It will first argue that transgender identity meets the legal definition of "particular social group." (15) It will then explore the requirement of proving a nexus between the harm Geovanni suffered and her transgender identity. (16) Finally, Part II will argue that regardless of whether or not a transgender applicant actually identifies as homosexual, she should also put forward a claim based on her perceived identity as a homosexual if she believes that her persecutors thought her to be gay. (17)

1. BACKGROUND ON ASYLUM LAW

   A foreign national who fears returning to her country because she has suffered past persecution or has a well-founded fear of future persecution (18) on account of her race, religion, nationality, membership in a particular social group, or political opinion may apply for asylum in the United States. (19) If successful, she is granted asylum status, which allows her to remain lawfully in the United States, to be accompanied or followed by a spouse or children, (20) and to petition for authorization to travel (21) and work. (22) A year after her grant of asylum, she can apply for legal permanent residence. (23)

   Historically, the term refugee "came of age during the Cold War," when it was most commonly used to refer to political dissidents from Soviet bloc countries. (24) During the last decade, however, there has been a shift, and increasing numbers of foreign nationals are seeking asylum based on less traditional grounds--as members of "a particular social group." (25) In 1994, Attorney General Janet Reno designated a 1990 B.I.A. decision, Matter of Toboso-Alfonso, as precedent. (26) This case recognized that homosexuality could form the basis for membership in a particular social group, allowing lesbians and gay men to qualify for asylum if they could demonstrate persecution based on their sexual orientation. (27) Likewise, the last ten years have seen landmark asylum cases recognizing gender-based violence, such as female genital mutilation and domestic violence, as potential grounds for asylum. (28) Since gender is not one of the five protected categories under asylum law, the gender-based persecution cases also must rely on expansive definitions of the "particular social group" category.

   1. Defining Particular Social Group

      The phrase "membership in a particular social group" is not defined in the Immigration and Nationality Act. (29) Case law has offered guidance, however, in fashioning a definition. In Matter of Acosta, the B.I.A. determined that the characteristic that defines the group "must be one that 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) In Acosta, the B.I.A. held that the applicant, a Salvadoran taxi driver who was opposed to work stoppages, and thus targeted for harm by guerillas, did not fall within this definition. (31) The Board found that since Acosta was free to change his occupation, and that taxi driving was not fundamental to his identity, the proposed social group to which he claimed membership did not warrant a grant of asylum. (32)

      Following the Acosta decision, the Ninth Circuit addressed the issue of membership in a particular social group in Sanchez-Trujillo v. INS. (33) In Sanchez-Trujillo, the applicants proposed a particular social group of "young, urban, working-class males of military age" in El Salvador who faced potential persecution because they did not actively support the government by serving in the military. (34) The Ninth Circuit rejected this formulation of a "particular social group," and promulgated its own definition, adding a "voluntary associational relationship" requirement among group members, which the proposed group did not meet. (35) In a subsequent case, Hernandez-Montiel v. INS, the Ninth Circuit decided that membership in a particular social group could entail either voluntary relationships or an "innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it," bringing it in line with the B.I.A. definition. (36)

      In 2001, the Immigration and Naturalization Service proposed regulations that would, in part, provide guidance on determining membership in a particular group. (37) The proposed regulations would harmonize existing case law and provide definition to one of the least defined areas of asylum law. (38) While it remains to be seen when or if the regulations will be finalized, (39) because former Attorney General Ashcroft's commentary to the proposed regulations states that they do not change the law but rather codify "existing administrative interpretation," (40) the proposed regulations have guided decisions by federal courts in subsequent asylum cases. (41)

   2. Sexual Orientation as Membership in a Particular Social Group

      In the Matter of Toboso-Alfonso, the B.I.A. held that sexual orientation could be a basis for membership in a particular social group. (42) Toboso-Alfonso was a gay Cuban man who had suffered repeated abuse by his government because of his homosexuality. (43) He was detained by police on several occasions, disproportionately sentenced to sixty days of hard labor for missing work, and forced to appear for a "hearing" with the government every two to three months, all because of his sexual orientation. (44) The immigration court granted Toboso-Alfonso withholding of deportation, which is a form of relief similar to asylum. (45) The Immigration and Naturalization Service ("INS") appealed the decision to the B.I.A., arguing that granting Toboso-Alfonso immigration status in the United States based on his homosexuality "'would be tantamount to awarding discretionary relief to those involved in behavior that is not only socially deviant in nature, but in violation of the laws or regulations of the country as well.'" (46) The B.I.A. found, however, that Toboso-Alfonso was targeted by the Cuban government for his "status" (47) as a homosexual and not for any homosexual conduct. (48) The B.I.A. accepted the immigration judge's finding that homosexuality is "immutable" because the INS did not challenge it on appeal. (49) As a result of this decision, homosexuality was unequivocally recognized as a "social group" for asylum purposes and thousands of gay men and lesbians have been able to seek asylum in the United States based on persecution they suffered on account of their sexual orientation. (50)

      Unlike sexual orientation claims, there has yet to be a precedential decision establishing transgender individuals as members of a particular social group. The inclusion of sexual orientation as a...