Legally Queer: The Construction of Sexuality in LGBQ Asylum Claims

Author(s): Stefan Vogler

Source: Law & Society Review , DECEMBER 2016, Vol. 50, No. 4 (DECEMBER 2016), pp.
856-889
Published by: Wiley on behalf of the Law and Society Association

Stable URL: [Link]

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@[Link].

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
[Link]

Wiley and Law and Society Association are collaborating with JSTOR to digitize, preserve and
extend access to Law & Society Review

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 856

Le
LG

Stefan Vogler

Using court decisions, interviews with legal actors, and ethnographic observa-
tions, this paper analyzes the development of sexual identity classifications for
sexual minorities seeking asylum in the United States and argues that the
adjudication of such claims works to consolidate and regulate sexual identities
but also creates possibilities for recognizing marginalized queer identities. Asy-
lum seekers must prove their sexual identities, and immigration officials must
classify claimants as belonging to a protected group. At the inception of queer
asylum law in 1990, protected categories were highly circumscribed, but the
indeterminacy of the law allowed advocates and asylum seekers to challenge
existing categories and stake out new claims based on their sexualities. Against
the backdrop of extant criticisms of the asylum process for queers, this paper
suggests that the way asylum law has been elaborated, adapted, and inter-
preted, particularly in approximately the past decade, offers possibilities for
making unique identity claims that are not recognized in existing scholarship.

hat constitutes sexual identity according to the state, and

how does the law construct sexual identity categories? This paper
addresses these questions through an analysis of asylum claims
based on sexual orientation, or queer asylum, made in the United
States.1 Just as asylum seekers can apply for protection from per-
secution based on race or religion, so too can they apply based
on sexual orientation. Though judges have been reluctant to
define sexuality (Goldberg 2002), this is precisely what adjudica-
tors must do when they decide whether an asylum claimant's sex-
ual identity is credible. Thus, queer asylum provides a glimpse
into how the state understands sexuality. Specifically, it allows us
to see how the state legally classifies claimants with non-
normative sexualities, how those classifications change over time,
and how those categories variously reflect and contest existing
schémas.

Please direct all correspondence to Stefan Vogler, Department of Sociology, Northwest-

ern University, 1810 Chicago Avenue, Evanston, IL 60208; e-mail: svogler@[Link]-
[Link].

1 For analytical ease I use the term "queer" throughout this paper as a capacious term
encompassing all non-heterosexual identities.

Law fc? Society Review , Volume 50, Number 4 (2016)

© 2016 Law and Society Association. All rights reserved.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 Though
crimina
2002; Sh
recentl
"except
country
of Imm
to allow a Cuban man to remain in the United States because of
persecution he had faced on account of his homosexual identity.2
Since then, asylum has provided entry to the United States for
increasing numbers of queers each year (Gesaman 2009), with
the largest queer immigration organization, Immigration Equality,
reporting that it has helped over 1,100 people seek asylum since
2004 (Millman 2014). Asylum, though not without problems, has
become an important new route to citizenship for queers (Cantu
2009; Carrillo 2010; Epstein and Carrillo 2014; Randazzo 2005).
Although asylum directly affects a relatively small number of peo-
ple, it is important to examine developments in this arena
because the law sends larger symbolic messages about what is and
is not acceptable (Ewick and Silbey 1998), including which sexual
identities are state-sanctioned (Bernstein et al. 2009). Moreover,
because queers must prove their sexual identities to attain protec-
tion, asylum highlights processes of normalization and resistance
(Cantú 2009; Murray 2014) and the incremental accretion of
legal change within the bureaucratic state.
Despite queer asylum's rich cultural significance, no systemat-
ic studies examine how understandings of sexuality in this body
of law develop over time in the United States.3 Most existing
U.S. -based research relies on a handful of appellate decisions or
a small number of interviews.4 My study offers a more nuanced
understanding of legal development by systematically analyzing
153 appellate decisions, but more importantly, by also including
interviews with legal actors and observing asylum hearings in
immigration court where the majority of claims are adjudicated.
Additionally, 18 months of participant-observation with a large
immigration law practice yielded insight into the workings of
administrative immigration law. This methodological approach
allowed me to observe "law in action" - that is, to see how various
legal actors interact with and interpret formal written law on a
day-to-day basis and, in this instance, how legal categories of

2 See Matter of Toboso-Alfonso ( 1 990).

3 Though see Berg and Millbank (2009) for a systematic review of cases in the UK,
Australia, New Zealand, and Canada.
4 Notable exceptions include Böhmer and Shuman (2007), Shuman and Böhmer
(2014), which rely on extensive field work.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
858 The Construction of Sexuality in LGBQ Asylum Claims

sexual identity are constructed through the interaction of

"bottom up" and "top down" forces.
My findings demonstrate considerable flexibility in bureau-
cratic state categorization. Scholars such as James Scott (1998)
argue that states create broad and abstract classifications to sim-
plify and manage their populations. Yet legal scholars have shown
that such abstract categories allow for many interpretations, and
therefore, that law-on-the-books often looks very different in
practice. Queer asylum claims, where adjudicators often carve idi-
osyncratic classifications out of broad categories, illustrate this
interpretive process as it relates to sexuality. While adjudicators'
categories still often do not perfectly capture the lived reality of
claimants, neither do they force claimants into bureaucratically
over-determined boxes. As administrative law bureaucrats with
substantial autonomy, immigration judges can craft classificatory
schémas that more accurately portray the rapidly changing reality
of sexual identities as they are lived in our society. Consequently,
I show that queer asylum law works as a mechanism for the legal
consolidation of sexual identities but also creates possibilities for
wider recognition of marginalized queer identities. Specifically,
the law requires that petitioners prove their sexual orientations
and subsequently that immigration officials classify claimants as
belonging to a "particular social group." This requirement results
in the codification of specific sexual identities in asylum law,
which allows state actors to regulate aspects of the asylum process
and render sexual subjectivities visible to the state (Shuman and
Böhmer 2014). At the same time, the flexibility of the "particular
social group" category allows petitioners to stake out new claims
based on their unique sexualities. Thus, asylum serves as a site
for the proliferation of state-recognized sexual identities and may
legitimate broader understandings of sexuality in society writ
large. It also speaks to on-going debates about the etiology of sex-
uality: is it essential and unchanging or constructed and fluid?
These questions of identity have become central in appeals to the
state for lesbian, gay, bisexual, transgender, and queer (LGBTQ)
rights. Though scholars have shown how lawyers frame rights
claims in legal parlance to gain protections for sexual minorities,
much less attention has been devoted to examining how legal cat-
egories of sexual identity are created, maintained, and changed.
This paper begins filling that gap.
In what follows, I first discuss the relationship between sexu-
ality, identity, and law, before providing an overview of the asy-
lum process and critiques regarding sexual identity in asylum
claims - namely that the law views sexuality as immutable, uses
Western identity categories, and prioritizes identity over conduct.
Following a description of my methodology, I reevaluate these

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 Vogler 859

critiques. My findings suggest that the legal terrain is shifting,

and that while many critiques correctly characterized particular
moments and situations (and some still do), the current context
requires a réévaluation of the applicability of extant criticism.

Sexuality, Identity, and the Law

Questions over identity categories and the etiology of homo-

sexuality have occupied a central place in debates over sexual
rights, both within the LGBTQ movement and in society at-large.
Queers have deployed identity differently in various contexts
depending on several factors, including goals, institutional access,
and available resources (Bernstein 1997). The mainstream LGBT
movement has emphasized the immutability and inherency of
sexual identities, eschewing more nuanced discussions of the con-
structedness of sexuality (Weber 2012), an approach that has
been roundly criticized by queer theorists who advocate a less
reductionist view of identity (for a summary see Jagose 1996).
This paper approaches sexual identity from a Foucauldian per-
spective, viewing sexual identities as products of multivalent dis-
courses generated by "institutional incitements" to speak about
sex. For Foucault (1990), a prime incitement was the confession.
People were compelled to talk about sex, similarly, in fact, to
what we see in queer asylum hearings today. Through these dis-
courses, sexual acts ceased to be solely acts and became instead
defining identities that institutions could use to classify people.
One no longer simply engaged in sodomy but became a
"homosexual" (Foucault 1990: 43). But identity formation is not
entirely top-down; individuals may take up, and in the process
change, categories through "reverse discourses" that challenge
institutionalized norms.
Such insights are consistent with legal realist scholarship
showing that law is remarkably elastic and indeterminate (cf.,
Erlanger et al. 2005; Tamanaha 2010). Scholars attribute this
flexibility to the contradictory nature of law, the ambiguity of
legal categories, and to the fact that law-on-the-books must be
applied to situations that lawmakers cannot fully anticipate (Edel-
man 1992; Hagan et al. 2008). Legal indeterminacy is, therefore,
crucial in political struggles over law's meaning. Indeed, entre-
preneurial social movement actors have often viewed law's broad
categories as opportunities to gain institutional recognition of
new identities (Cohen 1985; Melucci 1996; Touraine 1981). Yet
indeterminacy is not unlimited. Though judges make choices and
can manipulate legal rules and precedents, they usually render

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
860 The Construction of Sexuality in LGBQ Asylum Claims

predictable decisions consistent with the rule-bound nature of law

(Tamanaha 2010).
Nevertheless, law's flexibility has profoundly affected cur-
rent conceptions of identity, particularly race and ethnicity. As
Haney Lopez (2006) shows, courts, in the process of determin-
ing who was eligible for citizenship, concomitantly decided what
counted as "white" and "not white" by drawing on a combina-
tion of factors, including skin color, ancestry, scientific opinion,
and common knowledge. Pascoe (2009) similarly demonstrates
how anti-miscegenation laws worked to define, produce, and
reproduce racial categories (also see Sohoni 2007). The law not
only codified racial categories, it also powerfully shaped their
content, what they mean, and what privileges accrue to them.
The same might be said of sexuality. A significant body of
research has examined laws governing sexuality (Ashford 2011;
Bernstein and Schaffner 2005), how and why sexual minorities
seek particular rights (Bernstein and Taylor 2013), how sexual
rights issues get framed when making legal claims (Barclay et al.
2009; Cooper and Herman 2013), and the relationship between
sexuality and citizenship (Richardson 2004; Stychin 2003).
Indeed, research investigating queer asylum has explored some
of these issues, including the way that cultural biases - such as
the view that homosexuality should be kept private - influences
judicial decision-making (Millbank 2005; Millbank 2009a). Other
scholars have shown how the legal context shapes the narratives
of sexual minorities (Berger 2009; Murray 2014; Shuman and
Böhmer 2014) and effaces some identities, such as bisexuality
(Rehaag 2009). However, most of this scholarship does not
examine the U.S. context. Moreover, while work on queer asy-
lum, like the larger body of sociolegal scholarship on sexuality,
analyzes the general relationship between sexuality and law, it
dedicates less attention to how sexual identity categories are
constructed within the law and even less to how legal actors use
the ambiguity of the law to challenge and expand those
categories.
Immigration policy, however, has been one of the most visible
markers of national exclusion for sexual "others" throughout
much of U.S. history (Cantú 2009; Epps et al. 2005) and has,
therefore, significantly contoured state and public understandings
of sexual identity. In trying to identify "sexual degenerates," the
immigration system contributed to the creation and regulation of
sexual norms, identities, and behaviors (Luibheid 2002). For
instance, the Immigration Act of 1891 brought immigration
under federal control and defined exclusionary criteria, including
provisions barring persons guilty of crimes of moral turpitude.
Though "moral turpitude" was never fully defined, it was

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 Vogler 861

understood to encompass (and used to exclude) sexual deviants

(Canaday 2003). Canaday (2009) further suggests that U.S. citi-
zenship and sexual identity have been intertwined in military,
welfare, and immigration policy since at least the end of the nine-
teenth century and that the homo/hetero binary structured citi-
zenship in many ways, including defining the proper citizen as
heterosexual. Key court decisions, such as Bowers v. Hardwick
(1986), 5 and government policies, such as "Don't Ask, Don't Tell"
(DADT), have also worked to define sexual identity (Halley
1999). DADT introduced the status/conduct distinction as an
answer to Hardwick' s holding that states could criminalize
"homosexual sodomy" (i.e., homosexual conduct but not homo-
sexual status or identity). After Hardwick judges and litigators
behaved as though status and conduct were alternative bases for
military anti-gay policy. Accordingly, when plaintiffs made argu-
ments that they were dismissed based on status, they won, and
when the dismissal was based on conduct, they lost. However, the
majority in Hardwick really treats sodomy as a metonym for
homosexual personhood (Halley 1996). Through such legal pro-
cesses, the law delimits certain sexual expressions and experien-
ces that are limited and narrowly constructed, yet appear as
social fact. Because the institutional processes are masked, partic-
ular sexual expressions take on the appearance of naturally
occurring phenomena that are discovered, not created (Zylan
2011).
Given these insights, it is clear that the law has shaped mod-
ern sexuality, but might it also be used to challenge existing cate-
gories and make new ones? Asylum law is a rich source of data to
help answer this question because the asylum process requires
explicit discussion of group and individual sexual identity.

Queer Asylum

The possibility of receiving asylum because of persecution on

account of one's sexuality is a quite recent development. The
1951 United Nations Refugee Convention established five catego-
ries of asylum protection: race, religion, nationality, political opin-
ion, and membership in a particular social group (PSG).
However, the United States maintained policy focused on admit-
ting refugees fleeing communist countries or the Middle East
until passage of the 1980 Refugee Act, which brought U.S. asy-
lum policy in line with the UN Convention. Under the new

5 This Supreme Court case ruled that state laws prohibiting sodomy were
constitutional.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
862 The Construction of Sexuality in LGBQ Asylum Claims

guidelines, petitioners must prove

well-founded fear of future persecuti
protected grounds. The 1990 landm
Alfonso, a Cuban man who claimed p
sexual identity, established thāt sexua
PSG. Then-attorney general Janet R
precedential in 1994, meaning that se
had to prove on a case-by-case basis t
tutes a PSG. However, queers must de
to a protected PSG and that the PSG
in practice they must prove their sexu
look at the asylum process more closel
The asylum process can begin in o
ing on a petitioner's status. If a migr
at a port of entry and immediately cl
his or her home country, or voluntar
within one year of arrival in the Uni
for asylum affirmatively. This mean
confrontational hearing with an asylu
grant asylum directly or deny the cla
tion court. If the applicant is granted
dency and the ability to begin the na
later. If s/he is not granted asylum,
an immigration judge, at which point
tical to that of a defensive applicat
petitioner is already in deportation p
asylum. In a defensive application, an
sarial hearing before an immigration
of Homeland Security (DHS) lawyer
ant. If the immigration judge deni
may appeal the decision to the Boar
(BIA). If that too fails, the claimant m
of Appeals. An asylum seeker can also appeal to the U.S.
Supreme Court, but the Court has yet to hear a queer asylum
claim.6
A successful applicant must prove two things: (1) his/her sex-
ual identity as the basis for membership in a PSG and (2) either
past persecution or well-founded fear of future persecution on
account of that identity. Evidence of a same-sex relationship is ide-
al, but the burden of proving one's sexual orientation can also be
met with testimony from family and friends or evidence of activi-
ty in queer social/activist groups, which can present significant
challenges for queers who were closeted in their country of

6 It is important to note that appeals can only be made based on errors of law.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 origin.
requirem
symptom
ties (Ma
22 wher
who can
persecut
The law
tute pro
want corroboration.
To meet the second requirement, queers must prove past
persecution or well-founded fear of future persecution on
account of their sexualities. Though neither the Convention nor
the Refugee Act explicitly define persecution, it is widely under-
stood to be "sustained or systemic violation of basic human rights
demonstrative of a failure of state protection" (Hathaway 1991:
104-05). Thus persecution cannot be sporadic incidents but must
be sustained persecution by the government or such that the gov-
ernment is unwilling or unable to stop it. U.S. jurisprudence dic-
tates that persecution may be emotional, psychological, or
physical and that adjudicators must consider the cumulative sig-
nificance of experienced harm (Anker and Ardalan 2012). Alter-
natively, fear of future persecution must be demonstrated by
subjective evidence (i.e., personal testimony) and objective evi-
dence, such as reports on abuse against sexual minorities from
human rights groups and, ideally, the U.S. State Department.
Though no statute outlines precisely how to determine the level
of future threatened persecution, the Supreme Court has ruled
that asylum seekers must only prove a "well-founded fear," which
is considered a lower threshold than the "clear probability"
requirement for withholding of removal.7 A petitioner's country
of origin also bears heavily on his likelihood of success given that
a judge is unlikely to find credible an asylum seeker's stated fear
of persecution in a country like France as opposed to one such as
Iran.

Given the apparent difficulty of proving one's sexuality and

persecution on account of it, some critics have asserted that queer
asylum claims are more challenging to win, though others,
including some judges and advocates, argue that queer claims
require the same level of proof as any other claim and are

7 See INS v. Cardoza-Fonseca. Withholding of removal is a lesser form of protection

than asylum (e.g., it does not grant residency) but is mandatory if there is a "clear proba-
bility" that the petitioner will be persecuted and has not committed a serious crime in the
United States.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
864 The Construction of Sexuality in LGBQ Asylum Claims

therefore mostly treated fairly under the law (Harbeck 20 IO).8 It

is difficult to substantiate either claim because the DHS does not
track the number of asylees granted protection as sexual minori-
ties. In 2013, approximately 14 percent of the 25,199 successful
asylees - about 3,500 individuals - fell under the PSG classifica-
tion (Martin and Yankay 2014; Millman 2014), but we cannot
know how many were unsuccessful or how many successful claims
were for sexual minorities. However, the overall grant rate for
asylum in the United States averages about 50 percent, though it
varies dramatically by jurisdiction (Ramji-Nogales et al. 2009).
Critics have decried many other aspects of the asylum process, as
well, including the need for petitioners to characterize their
home countries as uniformly oppressive (Carrillo 2010; Shuman
and Böhmer 2014) and the use of reductive scholarship to
"prove" such conditions (Cantú 2005). For the purposes of this
paper, I outline three critiques which directly concern sexuality
and that I will reconsider in my findings section: the immutability
of identity, sexual stereotypes, and a status/conduct distinction in
sexuality.
Many critics contest the assertion that sexual identity is fixed
or immutable; this is perhaps the most widespread critique of
queer asylum law (see Berg and Millbank 2009; Cantu 2005;
Randazzo 2005). Queers are eligible for asylum under the provi-
sion that permits a member of a "particular social group" facing
persecution to seek refuge in the United States. However, the
BIA definition of social group describes membership as being
based on an "immutable characteristic" or one that an applicant
should not be compelled to change. While this definition ostensi-
bly leaves open the possibility for social constructionist accounts
of sexuality, critics argue that the discourse around asylum deci-
sions is largely essentialist, portraying sexuality as inherent and
unchanging. This could serve to naturalize a "gay" identity,
downplaying cultural difference in sexuality and depicting a
"transnational gayness" (Miller 2005: 146). Some detractors sug-
gest that requiring fixed and permanent categories is characteris-
tic of the neoliberal state, which seeks clarity and avoids
ambiguity (Rimmel and Llewellyn 2012), while others contend
that maintaining rigid boundaries contributes to an othering of
queers and preserves the distinction between homosexual and
heterosexual (Hinger 2010).

8 Most of my interviewees felt that queer claims were not treated significantly differ-
ently than other claims. Some scholars, however, contend that the "credibility" requirement
is particularly difficult for queer asylum seekers (cf., Lewis 2014; Millbank 2009b). Though
it bears on some of the issues I consider in this paper, I do not fully address this aspect of the
asylum process due to space limitations.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 Vogler 865

A second issue, closely related to the first, is the use of stereotypes

and Western identity categories. In her analysis of lesbian asylum
claims, Susan Berger (2009) argues that claimants' narratives must be
transformed into something understandable to American immigration
officials to be successful. Similarly, several scholars assert that adjudica-
tors rely on mannerisms, dress, and stereotyped conceptions of West-
ern gay identity in deciding if claimants are truly queer (Hinger 2010;
Rimmel and Llewellyn 2012; Lewis 2014; Miller 2005). For instance, if
a claimant purporting to be gay seems "too masculine," he runs the
risk of being denied asylum (Epstein and Carrillo 2014; Hanna 2005).
Hinger (2010) suggests that gay men who are not effeminate may be
denied asylum for two reasons. First, adjudicators may read his ability
to avoid maltreatment as evidence that gays are not sufficiently perse-
cuted as a group. Second, they may find that non-feminine gay men
fall outside the bounds of the social group of homosexuals: "If the cate-
gory of homosexuality incorporates more than individuals whose sexu-
al orientation is readily visible (and thus readily targeted for
persecution), a clear social group boundary becomes difficult to draw,
and identifying the core of the fiindamental identity likewise becomes
more difficult" (Hinger 2010: 397). Adjudicators who rely on stereo-
types conflate gender and sexuality, concluding that sexuality becomes
visible through gender nonconforming behavior. While this is not nec-
essarily true, it is important to note that many countries, like the United
States, do take gender nonconformity to signal queerness, so such
ideas arise in asylum hearings, frequently, as I will discuss, from claim-
ants themselves when explaining why they were persecuted.
Finally, some critics problematize the fact that asylum explicitly
protects identity and not conduct. Theoretically, someone could be
denied asylum if they were punished for gay behavior as opposed
to identity (Pfitsch 2006) or if they reject an LGBT label (Southam
2011). In practice, as I will show, courts have not sustained these
fears but have, rather, tended to collapse identity and conduct,
though scholars have also argued that it is problematic to assume
that conduct implies identity and vice versa (Halley 1999).
While the critiques outlined above are not without merit, my
findings both update the picture and provide a more nuanced
perspective. Moreover, my findings show that legal systems signif-
icantly impact the construction of sexual identity categories and
(re)produce particular understandings of sexuality. But first I
turn to a brief discussion of my data and methods.

Data and Methods

I conducted a comprehensive case analysis along with 18

months of field observations and 10 supplemental interviews to

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
866 The Construction of Sexuality in LGBQ Asylum Claims

explore how sexuality is understood in queer asylum claims. I

began by collecting appellate court decisions regarding queer asy-
lum by conducting a Lexis Nexis search for cases containing any
of the following keywords: sexual orientation, homosexuality, gay,
lesbian, sexuality, homosexual, or sexual preference.9 I further
narrowed these results by selecting only cases dealing with asy-
lum and then cross-referenced each set of search results with the
others to eliminate duplicates, creating a final list of 153 cases. I
adopted a holistic coding method, using both inductive and
deductive approaches in analyzing court decisions. I began cod-
ing for particular themes, such as status/conduct distinctions in
sexuality, discussion of stereotypes, and identity categories that
were derived from the prevailing critiques of asylum discussed
above, but I allowed other themes to emerge from the data. I
also collected the one publicly available BIA decision regarding
queer asylum, U.S. Citizenship and Immigration Services
(USCIS) training documents, immigration court guideline man-
uals, and various other government documents that I coded in
the same way.
Limiting my analysis to appellate and BIA decisions is some-
what problematic because it selects for cases that have been
rejected by an immigration judge and appealed at least once.
However, immigration court records and most BIA decisions are
not published. Appealed cases may be somewhat different from
those that do not get appealed. At a minimum, appealed cases
have been denied at least once, and those who appeal unfavor-
able decisions are more likely to have legal representation.10 But
by accounting for these limitations published cases can still be
extremely informative (Siegelman and Donohue 1990). To cor-
rect for any bias introduced by my use of BIA and appeals deci-
sions, I supplemented my document analysis with 18 months of
participant observation at Advocates for Immigrant Rights
(AIR), 1 an immigrant rights organization with a national pres-
ence on queer immigration issues that provides legal representa-
tion to queer asylum seekers. I provided research assistance in
exchange for being allowed to observe their weekly case update
meetings where the legal team discusses the status of their cases

9 I conducted this search on July 8, 2013, so my results reflect cases as of that date. I
excluded search terms such as "transgender" because I am specifically interested in cases
dealing with sexuality rather than gender identity.
10 According to Ramji-Nogales et al. (2009), approximately two-thirds of asylum
seekers are represented by attorneys at the immigration court level. By contrast, 84% of
petitioners in my sample of appellate cases had legal representation.
1 1 For confidentiality, this is not the organization's real name. My observations with
AIR occurred between July 2013 and December 2014.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 Vogler 867

as well as client intakes from that week and makes decisions on

which cases to accept, reject, retain in-house, and send to their
network of pro-bono attorneys. Through AIR, I was also able to
observe eight asylum merits hearings, which allowed me to see
the workings of hearings in real-time at the immigration court
level (as opposed to the BIA or appellate level that my other data
concern). In addition to the on-going informal questioning I
engaged in with the legal team at AIR, I conducted more formal
semistructured interviews with two attorneys and two paralegals
in the practice. For ethical reasons, I refrain from direct discus-
sion of AIR' s decisions regarding particular clients, though my
observations with them do inform my analysis, particularly in
regard to lawyer's goals and their framing of arguments. Further-
more, I assign pseudonyms for asylum seekers, paralegals, and
judges that I describe in my field work.
Finally, I conducted five semistructured interviews with immi-
gration lawyers from various parts of the United States and with
one immigration judge.12 Interviewees were chosen for their
national presence on queer immigration issues or their consider-
able experience with queer asylum claims, or both. Interviews
lasted about one hour, and I transcribed and coded each inter-
view using the coding scheme derived from my document analy-
sis. Unlike other people involved in this study, I use the actual
names of lawyers I interviewed because they gave the interviews
in their capacity as public experts and granted permission for
their names to be used.

Findings

Immutable Identities, Fixed Categories

Setting the standard for what constitutes a "particular social
group," the BIA stated in Matter of Acosta (1985: 233) that
"whatever the common characteristic that defines the group, it
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." This definition is more
flexible than many critics assume. One could include religion, a
category explicitly protected by the 1980 Refugee Act, in this def-
inition of immutable. Even though one can change religions, it is
protected as a trait that one should not be compelled to change.
Sexual orientation is similar in this respect. In fact, the USCIS
training module for adjudicating queer asylum claims makes this

12 Though I attempted to recruit additional judges, most declined to be interviewed.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
868 The Construction of Sexuality in LGBQ Asylum Claims

clear in its definition of a "particular social group": "the group is

comprised of individuals who share a common, innate character-
istic-such as sex, color, kinship ties, or past experience-that mem-
bers cannot change or . . . the group is comprised of individuals
who share a characteristic that is so fundamental to the members'
identity or conscience that they should not be required to change
it" (USCIS 2011: 16). The manual goes on to state that asylum
officers can choose whether to classify sexual orientation, gender
identity, or intersexuality as either innate or fundamental but
that both characterizations are protected.
Bisexual claimants frequently disrupt preconceived notions of
sexuality as either heterosexual or homosexual and fixed. As the
Immigration Equality Asylum Manual13 states of bisexual peti-
tioners, "Asylum adjudicators often want the issues in cases to be
black and white. It is not hard to imagine an asylum adjudicator
taking the position that if the applicant is attracted to both sexes,
she should simply 'choose' to be with members of the opposite
sex to avoid future persecution." Indeed, while questioning José
Lopez, a bisexual Guatemalan man, whose hearing I observed,
the DHS attorney asked, "So being with a man is something you
can control or not?" to which José, slightly confused by the ques-
tion, answered yes. During redirect his lawyer corrected the
confusion:

Lawyer: "The government attorney asked you earlier if you

can control who you're with, and you said yes. But you can't
control how you feel, right?"
José: "No."
Lawyer: "And how do you feel?"
José: "I notice pretty girls, but I am more attracted to men."

When I asked Victoria Neilson, former Legal Director for

Immigration Equality, if she had ever had a client who had past
heterosexual relationships and how she went about showing that
the client could still be queer, she offered a response that I quote
at length for its edifying power:

Sure, that comes up with some frequency. I think . . . some

people are bisexual, and ... I think that identity is probably
more misunderstood than L, G, or T. I think there's sort of a
different narrative if somebody had a, say, heterosexual mar-
riage in the past. One is like, "Well I didn't come out until

13 Available online at [Link]

manual/

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 later in
could be
marry t
marry t
think a
to under
worked
now I'm in love with a woman, and that's who I want to be
with the rest of my life." I think that is also true in some
instances, but I think that can be harder for an adjudicator to
understand, how like your sexual orientation is immutable
and fundamental to identity if it's mutable.14

Though Neilson admits that bisexual claims are often more

difficult, they are by no means impossible. Indeed, all of my
interviewees had successfully represented bisexuals or claimants
with past heterosexual experiences - sometimes even spouses and
children. These cases depend heavily on claimants' credibility
and how they will be perceived in their home country. As immi-
gration attorney Michael Jarecki stated: "[Tļhere's just a hetero-
normative understanding of lifestyle in a lot of these countries
and then there's 'other.' And that 'other' can be everything else,
like anything from any different sexual desire from maybe
cross-dressing to leather, to any of these - that's all grouped
together ... "15 Thus, if one can show that a bisexual will be per-
ceived as "other" in his/her home country, claims are winnable.
To complicate matters further, Aaron Morris, Legal Director for
Immigration Equality, was also in the process of putting together
a claim for a couple, one of whom identified as a bisexual woman
while the other identified as genderqueer16 with an ambiguous
sexual orientation. That is, he uses masculine pronouns but is
biologically female, keeps many identification documents under a
female name, and presents androgynously. Cases like these dis-
rupt notions that gender and sexuality are static and essential.
Some appellate decisions also suggest that the immutability
standard has some flexibility. In 2005, the Ninth Circuit ruled on
the case of Miguel Pozos, a (possibly) gay man from Mexico.
Pozos admitted homosexual conduct while living in Mexico (part
of his persecution claim included being forced to work as a pros-
titute) but insisted that he had not engaged in any homosexual
sex since coming to the United States. He testified that he

14 Author interview with Victoria Neilson, August 13, 2013, New York City, NY.
15 Author interview with Michael Jarecki, February 7, 2014, Chicago, IL.
16 Genderqueer is a term that some adopt to signal that they do not identify with any
specific gender.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
870 The Construction of Sexuality in LGBQ Asylum Claims

continued to have sexual fantasies about both men and women

and disavowed a homosexual identity. The decision states that
"Both Pozos and the social worker who examined him testified
that they did not know what Pozos's sexual orientation was," and
later that "[Pozos] was diagnosed with sexual aversion disorder,
and has eschewed sexual relations with either gender" (Pozos v.
Gonzales 2005: 632). The court ultimately granted Pozos asylum
based on imputed homosexual identity without ever settling on
what his sexual orientation was. This case is unique but suggests
that rigid sexual identity categories viewed as immutable are not
always necessary for successful asylum claims.
Nevertheless, and as my observations with AIR corroborate,
lawyers do not routinely make strong constructionist arguments
about sexuality in asylum hearings for at least two reasons. First,
it is more pragmatic to leave undisturbed the notion that sexuali-
ty is inborn and immutable for most cases; the Immigration
Equality Asylum Manual even advises lawyers to avoid phrases
like "sexual preference" or "lifestyle" so as not to imply choice.
These risk-reduction strategies fit readily with prevailing notions
of sexuality in the Western world and are easily digestible for
adjudicators (Berger 2009; Murray 2014). Second, many asylum
seekers themselves view their sexualities as inborn and constitu-
tive of their true selves. For instance, Maria, a lesbian claimant
from Mexico, said in response to being asked why she wanted to
stay in the United States that "I want you to give me the oppor-
tunity to be me," and Liu, a gay Malaysian asylee, said that being
in the closet would be "going against who I am."17
Yet narratives suggesting more fluidity and choice in sexual
identity can be valid, and as the above cases show, asylum adjudi-
cators are increasingly recognizing this. Indeed, the immigration
judge I interviewed evinced an extremely sophisticated view of
sexuality and had even granted protection to some petitioners
claiming "queer" as their identity. It is certainly tentative, but
wider recognition of fluid and ambiguous sexual identities
requires us to update some critiques of asylum law, particularly
those suggesting that bisexual and sexually fluid applicants can-
not be successful (cf., Sin 2015; Southam 2011). This issue dove-
tails with another prominent critique of asylum law, which
contends that petitioners must adopt Western identity categories
and conform to Western stereotypes of gay identity to make suc-
cessful claims, and that such stereotyping can serve as the basis
for the universalization of identity categories.

17 Author observations. For the privacy of claimants, I do not provide dates or loca-
tions of the asylum hearings observed.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 Vogler 87 1

Stereotypes Are My Best Friend and My Worst Enemy

No one involved in queer asylum would maintain that gender

stereotypes do not play a role, and that is not my assertion here.
Attorneys often describe their clients as gender nonconforming when
it is true, and they do so for a reason.18 As Aaron Morris states,
"[Stereotypes are my best friend and my worst enemy. If you walk in
and you are like a male dancer hair stylist who is especially effeminate
and meets the expectation of what a gay guy might look like, probably
they're not going to be that concerned about your sexual ori-
entation." Conversely, he continues, "If you are more of a linebacker
with a wife and two kids who has either naturally developed almost
no stereotyped sexual orientation aspect or attribute or has tried very
hard not to do those things, then it's harder."19 Moreover, gender
nonconformity often plays into persecution claims for queer claim-
ants, as one exchange from my field notes illustrates:

Lawyer: Are people who are merely perceived to be gay likely

to be targeted for violence?
Expert witness: Yes, male bodied people who engage in gen-
der non-conforming behavior are likely to be assumed gay. It
is really gender non-conformity that is punished and assumed
to mean gay in Malaysia.

Even so, being an effeminate man does not guarantee a suc-

cessful claim, and being masculine does not guarantee an unsuc-
cessful one. As all of my interviewees proclaimed, and my
observations corroborated, being "feminine" may help, but
regardless of a claimant's gender expression, it is the overall nar-
rative and evidence that make or break a claim. Daniel Tenreiro,
an immigration attorney, said:

I know there's been some controversy, and I totally disagree with

some of the - like a New York Times article that was out there a few
years ago that basically said you have to femme it up. I think, unless
you're a drag queen, then by all means be a drag queen and be
who you are. But if you're not, I think that can actually really back-
fire because it's not going to be believable.20

A variety of advocates have provided input, suggesting ways

besides "common sense" understandings of sexuality to

18 In four of the eight hearings I observed, claimants described themselves or were

described by their lawyers as gender nonconforming.
Author interview with Aaron Morris, August 13, 2013, New York City, NY.
20 Author interview with Daniel Tenreiro via telephone, September 16, 2013.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
872 The Construction of Sexuality in LGBQ Asylum Claims

adjudicate queer asylum claims, and, in turn, reliance on stereo-

types and Western identity categories has decreased over time.
In 2011, Immigration Equality, the most prominent national
advocacy organization for queer immigrants, helped USCIS rede-
sign its training for asylum officers; in fact, the Legal Director of
Immigration Equality now trains all new asylum officers on han-
dling queer asylum claims and even trains some immigration
judges in the New York City area.21 Reflecting the input of advo-
cates, the training manual now includes explanations of LGBT
terms. Seeking to address the issue of sexualized stereotypes, the
manual states, "Some adjudicators mistakenly believe that social
visibility or distinction requires that the applicant 'look gay or act
gay.' In this context, social visibility or distinction does not mean
visible to the eye. Rather, this means that the society in question
distinguishes individuals who share this trait from individuals
who do not" (USCIS 2011: 16). The manual goes on to explain
that applicants may express themselves differently than LGBTQ
people in the United States and may claim to be visible as a sexu-
al minority in his or her home country even though s/he does
not seem stereotypically gay by U.S. standards. It further elabo-
rates that cultural cues regarding sexuality vary from culture to
culture and that some applicants may not even identify with
labels such as "gay" and "lesbian." Addressing this issue during
our interview, Victoria Neilson said, "[S]omebody might not
come in and say, Tm a transgender woman from Ecuador.' She
might just come in and say I'm a woman' or 'I'm an effeminate
gay man' even though they look like a woman . . . they don't have
to adopt the . . . politically correct New York/San Francisco lan-
guage to have an identity that should be protected."22 As this
suggests, it is not necessary to adopt a Western identity or enact a
stereotypical gender performance to make an asylum claim, and
adjudicators are increasingly aware that they cannot base univer-
sal notions of what it means to be gay on Western stereotypes.
Attorneys, in turn, capitalize on this increasing understanding of
cultural relativism to begin framing inchoate social constructionist
understandings of sexuality. The following appellate case demon-
strates this point.
Critics widely cite the case of Geovanni Hernandez-Montiel as
problematic because, they argue, it conflates gender and sexuality and
bifurcates gay men into "feminine" and "masculine" groups (Rimmel

21 This came about through a "listening session" held by the DHS where Immigration
Equality suggested that there should be training for LGBT issues to which DHS agreed.
Immigration Equality subsequently provided trainings and worked with USCIS to produce
a training module.
22 Author interview with Victoria Neilson, August 13, 2013, New York City, NY.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 and Llew
merit, bu
insights
who soug
his fami
police. Du
ferent gr
Gay men
ject to g
female s
judge, h
"homosex
ed that h
not beca
classifyi
who dress as females" and further that "he was mistreated because of
the way he dressed (as a male prostitute) and not because he is a
homosexual" {Hernandez-Montiel 2000: 1089). The Ninth Circuit
issued a decision in 2000 that roundly criticized both the judge and
the BIA. Drawing on Professor Davies' expert testimony, the court
ruled that "gay men with female sexual identities" constitute a particu-
lar social group in Mexico: "Their female sexual identities unite this
group of gay men, and their sexual identities are so fundamental to
their human identities that they should not be required to change
them" (ibid: 1094). The court further noted that "Gay men with
female sexual identities outwardly manifest their identities through
characteristics traditionally associated with women, such as feminine
dress, long hair and fingernails" (ibid: 1094). Hernandez-Montiel was
rescripted from a cross-dressing prostitute to someone with a funda-
mental sexual identity manifested through his physical appearance.
As noted above, one line of critique against this decision
revolves around the apparent conflation of gender and sexuality
in the court's ruling. Sexualities scholars have argued for a dis-
tinction between gender and sexuality for some time (cf., Sedg-
wick 1990), so to suggest that sexuality manifests through gender
presentation seems only to reinscribe stereotypes of feminine gay
men and masculine lesbians. Critics subscribing to this view seem
to prefer to classify Hernandez-Montiel as a transsexual. This
construction is overly narrow. First, Hernandez-Montiel self-iden-
tified as a "gay man with a female sexual identity."23 Second,
queer communities in Mexico use a variety of classificatory
schémas to construct sexual identities, some based on gender
role, others based on object choice, and still others, like

23 Author interview with Aaron Morris, August 1 3, 20 1 3, New York City, NY.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
874 The Construction of Sexuality in LGBQ Asylum Claims

Hernandez-Montiers, that are a hybrid of the two (Carrillo

2002; Prieur 1998), and none of these necessarily map squarely
onto institutionalized U.S. identity categories. Once contextual-
ized, critiques centering on gender and sexuality conflation
become somewhat flaccid. Rather, the decision sets a precedent
for accepting sexual identities that are unfamiliar to Americans
and pushes adjudicators to carefully consider cultural
context.24
The second concern with Hernandez-Montiel - that it dichoto-
mizes gay men into feminine and masculine groups where the
feminine is subject to greater abuse - was borne out in some cases
at the immigration court and BIA levels, but appellate courts cor-
rected these cases. Noting that some immigration judges had
been misinterpreting the Hernandez-Montiel decision, the Ninth
Circuit wrote in Karouni v. Gonzales (2005: 1172):

Though the issue presented in Hernandez-Montiel was nar-

rowly cast to encompass only 'gay men with female sexual
identities in Mexico,' Hernandez-Montiel clearly suggests that
all alien homosexuals are members of a 'particular social
group' within the meaning of the INA . . . Thus, to the
extent that our case-law has been unclear, we affirm that all
alien homosexuals are members of a 'particular social group'
(emphasis in original).

Likewise, in Pena-Torres v. Gonzales (2005), the Ninth Circuit

again clarified that "homosexual males in Mexico" constituted a
particular social group. In Boer-Sedano v. Gonzales (2005), where
an immigration judge ruled that the majority of anti-gay violence
in Mexico was against transvestites and that as a "low-profile,
non-transvestite gay man," Boer-Sedano would not be subject to
persecution, the Ninth Circuit once again corrected the judge
and BIA. A judge rendered a similar judgment in Comparan v.
Gonzales (2005), which was also remanded by the Ninth Circuit
on the same grounds. Notably, after these cases, all of which
reached the Ninth Circuit in 2005, no further cases have reached
an appeals court due to misinterpretation of Hernandez-Montiel.
Unfortunately, cases where judges used inappropriate stereotypes
did continue, but as the following cases will show, such decisions
are routinely vacated by appellate courts.25

24 Though one might note that this case could also be misinterpreted to suggest that
Latin American sexualities are fully defined along gendered lines, risking a problematic
neocolonial rendering of non-U.S. residents as "less modern" or "more traditional others."
25 This may mean that the most vulnerable, including those without legal representa-
tion, may more frequendy be subjected to stereotyping, though it is difficult to know with
certainty given data limitations.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 Vogler 875

In the Eighth Circuit case Shahinaj v. Gonzales (2007: 1028),

for instance, an immigration judge had ruled that "Neither
[Shahinajļ's dress, nor his mannerisms, nor his style of speech
give any indication that he is a homosexual, nor is there any
indication that he engaged in a pattern or practice of behavior
in [sic] homosexuals in Albania, which gives expression to his
claim at present." The Eighth Circuit vacated the decision due
to the judge's use of stereotypes and remanded with instruc-
tions that the case go to a different judge. In an especially egre-
gious case involving a man from Guyana, the immigration
judge wrote that "violent dangerous criminals and feminine
contemptible homosexuals are not usually considered to be the
same people" (Ali v. Mukasey 2008: 487) before going on to
berate the claimant. This decision, too, was struck down by the
Second Circuit. An immigration judge's adverse credibility deci-
sion based on her conception of how an Iranian gay man would
act was similarly vacated by the Ninth Circuit (Hassani v. Muka-
sey 2008). In the highly cited Razkane v. Holder the Tenth Circuit
remanded the case based on the judge's inappropriate use of
stereotypes to discredit the claimant. The unanimous decision
included a strongly worded admonishment of such arbitrariness
in the law:

To condone this style of judging, unhinged from the prereq-

uisite of substantial evidence, would inevitably lead to unpre-
dictable, inconsistent, and unreviewable results. The fair
adjudication of a claim for restriction on removal is depen-
dent on a system grounded in the requirement of substantial
evidence and free from vagaries flowing from notions of the
assigned [immigration judge]. Such stereotyping would not be
tolerated in other contexts, such as race or religion (2009:
1288).

Citing this passage, the Eleventh Circuit struck down another

decision dependent on an immigration judge's personal percep-
tion. In Todorovic v. U.S. Attorney General (2010: 1323), the IJ had
written that "the Court studied the demeanor of this individual
very carefully throughout his testimony in Court today, and this
gentleman does not appear to be overtly gay." Though appeals to
circuit courts are rarely successful, it is notable that every time a
case came before an appellate court where the IJ used stereo-
types to determine a claimant's sexual orientation, it was vacated
and remanded. It is also noteworthy that Todorovic in 2010 was
the last case in my dataset to involve stereotyping issues. While
this certainly does not mean that stereotyping is no longer an
issue - indeed, my interviews demonstrate the opposite - it does

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
876 The Construction of Sexuality in LGBQ Asylum Claims

suggest that stereotyping may be less of an issue than it previous-

ly was and that gender boundaries may not be getting policed as
strictly as they once were. The efforts of advocates educating
courts combined with precedential appellate decisions may
account for this change.
Nonetheless, while advocates are open to unfamiliar sexual
identities and allow clients to use whatever terminology they wish
in their personal affidavits, lawyers themselves may impose famil-
iar labels on clients to make them legible to the court (Berger
2009). As immigration attorney Keren Zwick said:

A lot of our, especially our Spanish speaking clients ... if they

don't use the word "gay" then we use the words that they
use because . . . being effective is really in my mind a matter
of . . . using the terminology that they feel most comfortable
with. And sometimes it's a matter of educating them. So
explaining ... do you feel . . . inside like you identify as
female? And if they answer the questions that are markers of
being a transgender person even though they've never per-
haps used those words to describe themselves . . . explaining
to them that in the United States this is what that word
means, and this is how you can use it if you want.26

Similarly, in discussing how she handles Latino men who

themselves "gay" but fit American understandings of transgen
Julie Birch, a paralegal at AIR, suggested:

I would probably say transgender in the brief. I think it's a

little bit easier to just put it in terms of this is a word that we
know describes what they're trying to say to us. And so it's
kind of easier as far as explaining it to the person who's adju-
dicating their case.27

Even though interviewees indicated that they sometim

guide clients toward Western categories, all also suggested t
they would still help a claimant who did not adopt such label
immigration attorney Aneesha Gandhi explained:

But when it comes to the law ... I think that we are trying to
fit it into this very small grouping of case law that we have so
far. So I think that making a new argument, while I know
our project would do it if the opportunity arose . . . right now
at least we're not trying to push because we don't have a

26 Author interview with Keren Zwick, January 24, 2014, Chicago, IL.
27 Author field observations.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 Vogler 877

dient really that is saying "I'm queer" or something like that.

We're not trying to push that.28

Thus, all of my interviewees suggested that oftentimes it is a

matter of educating clients about available identity categories,
and for claimants who do not already use Western labels, it is fre-
quently because they simply had not heard the words before or
are reluctant to use them because of the negative connotations
they carried in their home countries (Berg and Millbank 2009).
Though lawyers sometimes guide clients to Western labels, my
interviewees all asserted that they do not force labels on claimants
and are willing to do whatever works for the applicant. Indeed,
AIR recently accepted a client who identifies as "pansexual" and
rejects gendered pronouns.29 Nevertheless, "educating" clients
about Western labels may involve subtle coercion on the part of
lawyers, even if it is unintentional.
Taken together, these data indicate several changes in queer
asylum in the past 15 years. First, it appears that gendered ster-
eotypes of gayness are less prominent than they once were, and
when such erroneous methods are used to determine a claim-
ant's sexuality, they are routinely remanded by appellate courts
Second, Western sexual identity categories are not prerequisite
for successful asylum claims. Finally, courts are not straigh
forwardly universalizing Western identity categories. Rathe
non-Western sexual identities are being incorporated into legal
conceptions of sexuality in the United States via asylum cas
law and the migration of immigrants to the United States. Nev
ertheless, my data also show that asylum seekers are still catego
rized using Western categories, even when courts use such
labels in strange ways, such as labeling someone a "gay ma
with a female sexual identity." Encouragingly, some jurisdiction
are beginning to classify queer asylum seekers simply as "sexu
minorities" rather than attempting to fit each person into a par
ticular identity.30 Though guidelines and precedential cou
decisions direct government actors not to use stereotypes, it is dif-
ficult to know how much officials are still influenced by their pre-
conceived notions of what it means to be queer, and, as my dat
show, immigration attorneys often take advantage of "masculin
lesbians" and "feminine gay men" stereotypes if they believe i
will help their cases. Claimants may even use such stereotyp

28 Author interview with Aneesha Gandhi, January 24, 2014, Chicago, IL.
29 This client qualified for another form of immigration relief and is therefore unlike
ly to make an asylum claim.
30 Author interview with Aaron Morris, August 13, 2013, New York City, NY. Also see
USCIS (201 1).

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
878 The Construction of Sexuality in LGBQ Asylum Claims

when their culture subscribes to them. Kwame Twumasi, a gay

Togolese asylum seeker did just this during his testimony: "I was
like a girl. Only difference is I have a penis."31 This question of
what it means to be queer leads directly to my last line of inquiry,
namely, is sexuality defined by status or conduct?

Status or Conduct?

The question of status versus conduct arose in the first asylum

hearing I observed. Kofi Addai, a young Ghanaian man, testified that
he had sex with another boy when they were both about 12, and since
that time he had not engaged in any sexual intimacy with men
because he was afraid for his life. In fact, he had tried to have a
romantic relationship with a woman, but, according to Kofi, she
broke up with him because he was "like a woman." During cross-
examination, the DHS attorney jumped on the chance to show that
Kofi was not actually gay due to his relationship with a woman, ask-
ing, "Did you have sex with a girl?" Kofi answered that he had tried
to have sex with the woman he dated briefly. The DHS lawyer fol-
lowed up, "Did you have sex through to completion?" He had not.
But even if he had, would that change anything? Kofi ultimately
received asylum, but based on my research, these types of questions
are not uncommon. In Kwame's hearing, introduced above, the DHS
attorney questioned the claimant over his knowledge of the location
of a local gay club. Both of these lines of questioning are examples of
conduct associated with being gay, and they bring us full circle back to
Toboso-Alfonso (1990), the precedent-setting first queer asylum claim,
which took careful pains to distinguish homosexual identity from
homosexual conduct, explicitly protecting only the former.32 But, as
these examples show, courts often rely on conduct to determine iden-
tity, collapsing the two in the process. Commenting on how he proves
sexuality, Aaron Morris speaks to this issue:

You know, there's a judge, for example, in New York who's

very fair, he's kinda old school, like old white guy. He always
wants a letter from a paramour - that's like his catchphrase -
"I need a letter from a paramour." I'm like what if he's never
had a boyfriend? What if he's having clandestine sex in toi-
lets? There's a whole host of things that manifest themselves

31 Author field notes.

The relationship between status and conduct has been an issue in claims based on
religion and political opinion, as well. However, as Anker and Ardalan (2012) point out,
courts have more clearly delineated the types of conduct reasonably associated with reli-
gious practice and political expression while the same is not necessarily true for sexuality
claims. Sexual orientation is also somewhat unique because U.S. audiences tend to view it as
inhering in the body (and also as visible through the body via gender nonconformity, etc.)
and, therefore, not always dependent on conduct.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 Vogler 879

as a gay person that may not meet the expectation of the let-
ter from a paramour. But that judge has a hard time granting
a case unless there's someone in this country who can confirm
your sexual orientation based on the fact that you have been
gay together.33

This question of status versus conduct has been central in

determining queer identities. Aside from gendered stereotypes,
what actually constitutes queer ness? For immigration courts, and
the legal system in general, queer acts seem to signal queer iden-
tities (Halley 1996). Some decisions disrupt this easy connection
while others reinforce it.
USCIS guidance to asylum adjudicators, for instance, states
that, "The applicant's specific sexual practices are not relevant to
the claim for asylum or refugee status. Therefore, asking questions
about 'what he or she does in beď is never appropriate" (USCIS
2011: 34). But in relation to determining persecution, the same
manual states that "punishing conduct or sexual activity between
consenting adults of the same sex is tantamount to punishing a
person simply for being gay. If a law exists in another country that
prohibits intimate sexual activity between consenting adults,
enforcement of the law itself may constitute persecution and not
simply prosecution" (ibid: 19). This seems to suggest, then, that
persecution may be based on sexual activity because it implies iden-
tity, but determining credibility should be based on a claimant's felt
identity. Theoretically, this formula could constrain some asylum
seekers who do not feel they have a queer identity, but in practice
it seems that the status/conduct distinction is more of a traditional
holdover than an exclusionary mechanism. Though imputing a
queer identity onto a claimant may be seen as a form of symbolic
violence, collapsing identity and conduct essentially allows peti-
tioners to make a claim based on either , which actually results in an
expansion of possible queer asylum claims.
This rejection of a status/conduct distinction is laid bare in
Karouni v. Gonzales (2005: 1173) when the Ninth Circuit writes:
"[W]e see no appreciable difference between an individual . . .
being persecuted for being a homosexual and being persecuted
for engaging in homosexual acts. [Either way] the persecution . . .
qualifies as persecution on account of . . . membership in the par-
ticular social group of homosexuals." In this case, the Attorney
General argued that Karouni would only be persecuted in Leba-
non for homosexual acts , not his status as a homosexual. Aside
from the other flaws in the government's argument, the court
goes on to say that "the Attorney General appears content with

33 Author interview with Aaron Morris, August 13, 2013, New York City, NY.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
880 The Construction of Sexuality in LGBQ Asylum Claims

saddling Karouni with the Hobson's choice of returning to Leba-

non and either (1) facing persecution for engaging in future
homosexual acts or (2) living a life of celibacy. In our view, nei-
ther option is acceptable" (ibid: 1173). Facing a slightly different
argument, the Third Circuit also rejected a government assertion
that an Argentinean man was only persecuted because he
attended gay bars (Maldonado v. Attorney General 2006). The gov-
ernment argued that because Maldonado was only persecuted
while engaging in a particular activity (leaving gay bars), he was
free to change that behavior and avoid persecution. The Third
Circuit drew on Karouni to rule that being persecuted for attend-
ing a gay club was tantamount to being persecuted for being gay
because the attackers presumably believed Maldonado to be gay
based on context. In both Karouni and Maldonado , circuit courts
took activities (sex or bar attendance) to imply identity and found
that they were grounds for asylum. Clearly, then, courts view
conduct as a protected aspect of sexuality. However, it also seems
that conduct is not always necessary for identity.
In Ali v. Mukasey (2008: 487), for example, an IJ ruled that
Ali would "need a partner or cooperating person" to even be
identified as homosexual, implying that homosexual sex or cou-
pling was necessary to a gay identity. The Second Circuit explicitly
rejected this statement in its decision, suggesting that gay sex or
relationships may not always be a necessary component of a
queer identity. Similarly, in Razkane, cited above, an IJ ruled that
Razkane would only be persecuted in Morocco if he engaged in
"the type of overt homosexuality that would bring him to the
attention of the authorities or of the society in general" (Razkane
v. Holder 2009: 1286). Though the Tenth Circuit remanded this
case based on the IJ's use of stereotypes, it also suggests that con-
duct or activity is not required to claim a queer identity. Con-
versely, some cases are successful where identity is only imputed
from conduct.
In the case of Miguel Pozos discussed above, for example,
Pozos explicitly stated that he was not homosexual, though he
complicated that statement by saying that he had sexual fantasies
about both men and women. However, part of his persecution
claim involved forced same-sex prostitution. There is thus a dis-
juncture between Pozos' identification and conduct (and we
might add his desires, as well, if we take into account his fanta-
sies). Nevertheless, Pozos received asylum for sexual identity.
Before Pozos, in the exceedingly strange case of Kwasi Amanfi,
the Third Circuit explicitly ruled that one can claim asylum for
imputed sexual identity. Amanfi, a Ghanaian man, claimed to
have been kidnapped by a cult that planned to sacrifice him, but
he had learned from his grandfather that the cult believed

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 Vogler 88 1

homosexuals to be impure and unsuitable for sacrifice. He shared

this knowledge with a fellow prisoner, and the two conspired to
be caught engaging in a homosexual sex act by guards, which
they did. After allegedly enduring 2 months of abuse in the cus-
tody of Ghanaian police, Amanfi escaped and claimed asylum in
the United States, where the Third Circuit ruled that a claim
based on imputed homosexuality was possible because persecu-
tion ultimately depends on what others label the victim, not how
the victim himself identifies (Amanfi v. Ashcroft 2003). This prece-
dential decision borders on granting asylum protections explicitly
to sex acts, but it continues to connect those acts to an identity, if
only an imputed one. Conceivably, however, imputed identity
claims could allow a host of queers who reject defined identity
categories to avail themselves of asylum, though there is no evi-
dence that this is happening yet.
As this section demonstrates, the status/conduct distinction is
becoming increasingly muddied. Courts seem to recognize that
persecution can arise from conduct alone, but they continue to
couch this recognition in terms of identity, either by supplying
the claimant with an identity or granting protection based on
imputed identity. This is likely because Toboso-Alfonso (1990)
explicitly protects only identities, but it also seems like an anach-
ronistic holdover from the Bowers v. Hardwick (1986) era when
the "act defined the class." Notably, other areas of asylum law,
such as protections for political opinion and religion, protect
something akin to conduct (e.g., political activism and worship),
yet officials have been wary of extending such protections to sex-
ual conduct without the veneer of identity. The fact that we do
not protect sexual conduct, per se, suggests that asylum remains
a regulatory passageway where identities are assigned and immi-
grant populations are managed by the state. Nevertheless, the
flexibility of those assigned identities and what conduct implies
has allowed valid asylum claims to proliferate beyond just the
"immutable homosexual" outlined by Toboso-Alfonso (1990) over
25 years ago.

Discussion

Lawyers and adjudicators ambivalently draw on two dis

courses of sexuality - one essentialist and another construction
ist - in order to make claims about and understand sexual
identity in queer asylum cases in the United States. As a re
conceptions of sexuality in these claims alternate between dis
ing and reinforcing currently dominant ideas of sexuali
inherent and biological. Lawyers often reify notions of inn

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
882 The Construction of Sexuality in LGBQ Asylum Claims

sexuality for strategic purposes - that is, in order to make sexuali-

ty claims readily digestible for American adjudicators (Berger
2009; Shuman and Böhmer 2014). After all, the ultimate responsi-
bility of the attorney is to secure a positive outcome for his/her cli-
ent, and "strategic essentialism" (Spivak 1996) is often the best way
to accomplish this. Many attorneys themselves believe in a biologi-
cal basis to sexuality, some more than others, so, at times, essential-
ist arguments simply reflect a view that an attorney is comfortable
asserting. Nevertheless, queer asylum advocates have tried to
expand legal understandings of sexuality and identity, both
through precedent-setting court cases and administrative means.
These expansions often take the form of incipient social construc-
tionist understandings of sexuality through the lens of cultural rel-
ativism or sexual fluidity - and, it is important to note that, like
essentialist arguments, constructionist ones may also be strategic. If
a client identifies as "genderqueer," for instance, it may make
more sense to present a constructionist argument from the start.
My findings are thus consistent with Ewick and Silbey's (1995)
assertion that narratives can both reinforce and disrupt hegemony
depending on the context. Asylum claims that connect individual
lives to social structures, such as those that reveal state failures to
protect citizens or that sexuality is contoured by cultural forces,
wield the potential to render hegemony visible and, therefore,
challengeable, while those that forward essentialist arguments are
less likely to do so. In light of these findings, we must reconsider
some of the critiques levied against LGBTQ asylum.
My data suggest that concerns about defining sexuality as
"immutable" rarely affect applicants in practice today. In fact, the
law allows for sexuality to be classified as "fundamental," similarly
to religion or political opinion, and thus potentially leaves room
for more constructionist accounts of sexuality. Indeed, USCIS
training material explicitly provides constructionist definitions of
gender and gender identity and implicitly suggests that sexuality,
too, is socially constructed by acknowledging the myriad ways
that sexual expressions, behaviors, and identifications vary from
culture to culture. Moreover, all of my interviewees had success-
fully represented bisexual claimants or claimants who had hetero-
sexual relationships in the past. Often their arguments in such
cases do verge on biologizing sexuality by arguing that the peti-
tioner simply had not realized s/he was gay yet or that social cir-
cumstances pressured him or her into a heterosexual relationship
(though, as discussed above, this is partially strategic). But even
this narrative implicitly recognizes the malleability of sexuality,
and evidence suggests that clients who simply have fluid sexual-
ities can also make valid claims as long as their narratives are
credible. Finally, we must acknowledge that perceptions of

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 sexualit
asylum
ness is a
Critique
identitie
above, m
changin
edge sex
Hernand
terms t
as evide
use "sex
ing each
sent a m
courts a
precisel
supposed
cial conc
suggest
since th
guidelin
today. N
effects
lum seek
asylum
the hig
Vega35
quotidia
Despite
(Rimme
lum see
highly
deemed
engages
renderi
state's r
tends, t
but an "
national
frozen,

34 Author

35 Soto Veg
rejected by
(see Hanna 2005).

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
884 The Construction of Sexuality in LGBQ Asylum Claims

the one hand, the flexibility of the law allows asylum seekers to
make citizenship claims based on formerly excluded queer identi-
ties and may form the basis for recognition of new sexual identi-
ties in other institutional realms. On the other, this flexibility
lends durability to the law as a regulatory structure (Sewell 1992;
Silbey and Ewick 2003) and upholds its supposed objectivity.

Conclusion

In this paper, I have argued that the asylum process is both

regulatory and generative of sexual identities and that the law
plays a powerful role in shaping sexual identity. I have further
shown how strategic legal actors take advantage of the ambiguit
of the law to craft more inclusive sexual identity categorie
Queer asylum claims, in particular, often seem to push th
boundaries of established conceptions of sexuality in order t
engender changes in legal definitions of sexuality and to expan
the categories worthy of protection as a "particular social group
under asylum law. This occurs partly because courts are forced t
confront gender and sexual identities unfamiliar to U.S. audien
ces and adapt existing legal protections for asylum seekers to fi
these new social groups. But legal advocates dedicated to th
issues of queer immigration have also proved an instrument
force in this area of law through educating immigration officia
about sexuality and sexual expressions around the world (bot
through trainings and in court) and pushing forward impa
cases just as other "cause" lawyers do (Sarat and Scheingold
2005). As a Foucauldian notion of power and normalization
would suggest, change happens incrementally, with particula
identities gaining institutional recognition. Recognized identitie
then constrain subsequent asylum seekers who may not fit estab
lished categories. For instance, after the Hernandez-Montiel (2000
decision, many lawyers began classifying clients as "gay men wit
female sexual identities" because it was an institutionally accepte
label. It took clarification from the Ninth Circuit, as described
above, before attorneys were comfortable using only "gay man"
as a label, though, of course, this simply established another
norm. Presumably, this process could continue ad infinitum to
encompass a greater diversity of identities, demonstrating what
Hacking (2007) calls "looping effects," wherein institutional and
lay knowledge of identity constantly interact and "loop" back
onto each other to create ever-changing understandings of identi-
ty. Nonetheless, encounters with the state do require classification.
A radically queer anti-identity approach does not seem possible

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 Vogler 885

in the current architecture of recognition, though imputed identi-

ty claims may be one route to such a challenge.
Though the United States has historically sought to produce
a heterosexual nation and to shore up the homosexual/hetero-
sexual binary (Canaday 2009), queer asylum suggests that this
divide is not so clear, and part of the reason is, paradoxically,
because of the state. Recognition of queer sexual identities
through asylum law increasingly blurs any (imagined) crisp divid-
ing line between heterosexuals and homosexuals, as bisexuals
and even those with imputed and ambiguous sexual identities
are officially recognized by the state. Just as the state contributed
to the consolidation of a modern gay identity through the legal
regulation of sexuality and thus paved the way for gay rights
claims that we see today (Canaday 2003), the law may now be
contributing to the consolidation of other sexual identities and
creating potential for greater activism around these queer subjec-
tivities. Asylum thus throws into sharp relief the role that law
plays in co-constructing identities through a dialectical process.
As new social identity categories arise they are measured against
accepted legal categories and, at times, incorporated into the
pantheon of accepted identities, only to have the new categories
challenged later. The law, to an extent, reflects larger social
changes, but not always straightforwardly or unproblematically.
There is often a lag in the law, and frequently categories only
imperfectly fit actors' lived experiences of their identities. In oth-
er words, the legal system both reflects the dynamics of sexual
stratification within our culture and influences them through its
own internal developments.
Though we must be cautious of generalizing too much from
the asylum context, that essentialist and constructionist discourses
of sexual identity coexist in partial tension in asylum law suggests
that some institutionalized American conceptions of sexuality are
being forced to deal with sexualities from other cultures in new
ways - often at the behest of queer immigration advocates - and
also that larger currents of social change around identity are pen-
etrating the legal sphere. Wider social change around gender
and sexual identities is evident in many facets of everyday life,
from Facebook's recent decision to add more than 50 new possi-
ble gender identifications for users to millennial' rejection of tra-
ditional sexual categories (Schulman 2013). The most carefully
adjudicated asylum claims are beginning to confront this ever-
changing reality and suggest that we could, and indeed are, mov-
ing toward societal and legal understandings of sexuality as dif-
ferently constituted for people located in various social
constellations and that what it means to have a queer identity
varies along many social dimensions.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
886 The Construction of Sexuality in LGBQ Asylum Claims

Acknowledgments
The author would like to thank Héctor Carrillo , Laura Beth Nielsen, and
Steve Epstein for valuable feedback on earlier drafts of this paper. This
research was funded in part by the Sexualities Project at Northwestern.

References

Anker, Deborah, 8c Sabi Ardalan (2012) "Escalating Persecution of Gays and Refugee
Protection," 44 NYU J. of International Law and Politics 528-58.
Ashford, Chris (201 1) "Sexualities and the Law," 14 Sexualities 265-72.
Barclay, Scott, et al., eds. (2009) Queer Mobilizations: LGBT Activists Confront the Law. New
York: New York Univ. Press.

Berg, Laurie, & Jenni Millbank (2009) "Constructing the Personal Narrative of Lesbian,
Gay and Bisexual Asylum Claimants," 22 J. of Refugee Studies 195-223.
Berger, Susan A. (2009) "Production and Reproduction of Gender and Sexuality in
Legal Discourses of Asylum in the United States," 34 Signs 659-85.
Bernstein, Elizabeth, & Laurie Schaffner, eds. (2005) Regulating Sex: The Politics of Intima-
cy and Identity. New York: Roudedge.
Bernstein, Mary (1997) "Celebration and Suppression: The Strategic Uses of Identity by
the Lesbian and Gay Movement," 103 American J. of Sociology 531-65.
Bernstein, Mary, et al. (2009) "The Challenge of Law: Sexual Orientation, Gender Iden-
tity, and Social Movements," in Barclay, S. et al., eds., Queer Mobilizations: LGBT Acti-
vists Confront the Law. New York: New York Univ. Press.
Bernstein, Mary, 8c Verta Taylor, eds. (2013) The Marrying Kind : Debating Same-Sex Mar-
riage within the Lesbian and Gay Movement. Minneapolis: Univ. of Minnesota Press.
Böhmer, Carol, 8c Amy Shuman (2007) "Producing Epistemologies of Ignorance in the
Political Asylum Process," 14 Identities 603-29.
Canaday, Margot (2003) ""Who Is a Homosexual?": The Consolidation of Sexual Identi-
ties in Mid-Twentieth-Century American Immigration Law," 28 Law & Social Inqui-
ry 351-86.

Cantú, Lionel (2005) "Weil-Founded Fear: Political Asylum

al Identity in the U.S. -Mexico Borderlands," in E. L
Queer Migrations: Sexuality , U.S. Citizenship , and Border
of Minnesota Press.

Carrillo, Hector (2002) The Night Is Young: Sexuality in Mexi

go: Univ. of Chicago Press.

US Asylum Cases," in P. Aggleton, 8c R. Parker, eds., Ro

Health and Rights. London and New York: Routledge.
Cohen, Jean (1985) "Strategy or Identity: New Theor
rary Social Movements," 52 Social Research 663-716.
Cooper, Davina, 8c Didi Herman (2013) "Up Against t
Law: Conservative Christian Accommodation Claims
Legal Studies 61-80.
Edelman, Lauren (1992) "Legal Ambiguity and Symb
Mediation of Civil Rights Law," 97 American J. of Soci
Epps, Brad, et al., eds. (2005) Passing Lines: Sexuality an
vard Univ. Press.
Epstein, Steven, 8c Hector Carrillo (2014) "Immigrant Sexual Citizenship: Intersectional
Templates Among Mexican Gay Immigrants to the USA," 18 Citizenship Studies 259-76.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 Erlanger, H
Law Rev. 335-63.

Ewick, Patricia, 8c Susan Silbey (1995) "Subversive Stories and Hegemonic Tales:
Toward a Sociology of Narrative," 29 Law Society Rev. 197-226.

cago Press.
Foucault, Michel (1990) The History of Sexuality , Vol. 1. New York: Vintage.
Gesaman, Krista (2009) "Desperately Seeking Freedom," Newsweek November 29, 2009,
Goldberg, Suzanne (2002) "On Making Anti-Essentialist and Social Constructionist
Arguments in Court," 81 Oregan Law Review 629-62.
Hacking, Ian (2007) "Kinds of People: Moving Targets," 151 Proceedings of the British
Academy 285-318.
Hagan, John, et al. (2008) "How Law Rules: Torture, Terror, and the Normative Judg-
ment of Iraqi Judges," 42 Law fcř Society Rev. 605-43.
Halley, Janet (1996) "The Status/Conduct Distinction in the 1993 Revisions to Military
Anti-Gay Policy: A Legal Archaeology," 3 GLQ 159-252.

Press.

Haney Lopez, Ian (2006) White by Law: The Legal Construction of Race. New York: New
York Univ. Press.

Hanna, Fadi (2005) "Punishing Masculinity in Gay Asylum Claims," 1 14 Yale Law J. 913-20.
Harbeck, Dorothy (20 1 0) "Asking and Telling: Identity and Persecution in Sexual and/
or Gender Orientation Asylum Claims," 25 Georgetown Immigration Law J. 1 17-50.
Hathaway, James (1991) The Law of Refugee Status. Cambridge: Cambridge Univ. Press.
Hinger, Sarah (2010) "Finding the Fundamental: Shaping Identity in Gender and Sexu-
al Orientation Based Asylum Claims," 19 Columbia J. of Gender and Law 367-408.
Jagose, Annamarie (1996) Queer Theory : An Introduction. New York: New York Univ.
Press.

Kimmel, Michael, 8c Cheryl Llewellyn (2012) "Homosexuality, Gender Nonconformity,

and the Neoliberal State," 59 J. of Homosexuality 1087-94.
Kornbluh, Felicia (201 1) "Queer Legal History: A Field Grows Up and Comes Out," 36
Law and Social Inquiry 537-59.
Lewis, Rachel (2014) ""Gay? Prove it": The Politics of Queer Anti-deportation Activism,"
17 Sexualities 958-75.

Luibheid, Eithne (2002) Entry Denied: Controlling Sexuality at the Border. Minneapolis:
Univ. of Minnesota Press.

Marouf, Fatma (2008) "The Emerging Importance of "Social Visibility" in Defining a

"Particular Social Group" and Its Potential Impact on Asylum Claims Related to
Sexual Orientation and Gender," 27 Yale Law Policy Rev. 47-106.
Martin, Daniel C., 8c James E. Yankay (2014) " Annual Flow Report: Refugees and Asylees
2013." Washington, DC: Office of Immigration Statistics.
Melucci, Alberto (1996) Challenging Codes: Collective Action in the Information Age. Cam-
bridge: Cambridge Univ. Press.
Millbank, Jenni (2005) "A Preoccupation with Perversion: The British Response to Refu-
gee Claims on the Basis of Sexual Orientation, 1989-2003," 14 Social Legal Stud-
ies 1 15-38.

on the Basis of Sexual Orientation in Australia and the

national J. of Human Rights 391-414.

lar Social Group Refugee Determinations," 21 Internation

Miller, Alice M. (2005) "Gay Enough: Some Tensions in S
and Protecting Global Sexual Diversity," in B. Epps, et a
ality and Immigration. Cambridge: Harvard Univ. Press.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
888 The Construction of Sexuality in LGBQ Asylum Claims

Millman, Joel. (2014) "The Battle for Gay Asylum: Why Sexual Minorities Have an
Inside Track to a U.S. Green Card," Wall Street J. Available at: [Link]
com/articles/why-sexual-minorities-have-an-inside-track-to-a-u-s-green-card-
1402676258 (accessed 13 June 2014).
Murray, David A.B. (2014) "The (Not So) Straight Story: Queering Migration Narratives
of Sexual Orientation and Gendered Identity Refugee Claimants," 17 Sexualities
451-71.

Pascoe, Peggy (2009) What Comes Naturally: Miscegenation Law and the Making of Race in
America. Oxford: Oxford Univ. Press.

Pfitsch, Hollis (2006) "Homosexuality in Asylum and Constitutional Law: Rhetoric of

Acts and Identity," 15 Law & Sexuality: Rev. Lesbian, Gay, Bisexual Ö* Transgender
Legal Issues 59-89.
Prieur, Annick (1998) Mema's House, Mexico City: On Transvestities, Queens, and Machos.
Chicago: Univ. of Chicago Press.
Ramji-Nogales, Jaya, et al. (2009) Refugee Roulette. New York: New York Univ. Press.
Randazzo, Timothy (2005) "Social and Legal Barriers: Sexual Orientation and Asylum
in the United States," in E. Luibheid, 8c L. Cantu, eds., Queer Migrations: Sexuality,
U.S. Citizenship, and Border Crossings. Minneapolis: Univ. of Minnesota Press.
Reddy, Chandan (2005) "Asian Diasporas, Neoliberalism, and Family: Reviewing the Case
for Homosexual Asylum in the Context of Family Rights," 23 Social Text 101-19.
Rehaag, Sean (2009) "Bisexuals Need Not Apply: A Comparative Appraisal of Refugee
Law and Policy in Canada, the United States, and Australia," 13 International J. of
Human Rights 415-36.
Richardson, Diane (2004) "Locating Sexualities: From Here to Normality," 7 Sexualities
391-411.

Sarat, Austin, 8c Stuart Scheingold, eds. (2005) The Worlds Cause Lawyers Make. Stanford:
Stanford Univ. Press.
Schulman, Michael (2013) "Generation LGBQIA," New York Times. Available at: http://
[Link]. com/20 1 3/0 1/1 0/fashion/[Link]?smid =pl-share
(accessed 9 January 2013).
Scott, James C. (1998) Seeing like a State. New Haven: Yale Univ. Press.
Sedgwick, Eve Kosofsky (1990) Epistemology of the Closet. Berkeley: Univ. of California
Press.

Sewell, William (1992) "A Theory of Structure: Duality, Agency, and Transformation,"
98 American J. of Sociology 1-29.
Shah, Nay an (2012) Stranger Intimacy: Contesting Race, Sexuality, and the Law in the North
American West. Berkeley: Univ. of California Press.
Shuman, Amy, 8c Carol Böhmer (2014) "Gender and Cultural Silences in the Political
Asylum Process," 17 Sexualities 939-57.
Siegelman, Peter, & John Donohue (1990) "Studying the Iceberg from its Tip: A Com-
parison of Published and Unpublished Employment Discrimination Cases," 24 Law
& Society Rev. 1133-70.
Silbey, Susan, 8c Patricia Ewick (2003) "The Architecture of Authority: The Place of Law
in the Space of Science," in A. Sarat, et al., eds., The Place of Law. Ann Arbor: Univ.
of Michigan Press.
Sin, Ray (2015) "Does Sexual Fluidity Challenge Sexual Binaries? The Case of Bisexual
Immigrants from 1967-2012," 18 Sexualities 413-37.
Sohoni, Deenesh (2007) "Unsuitable Suitors: Anti-Miscegenation Laws, Naturalization
Laws, and the Construction of Asian Identities," 41 Law & Society Rev. 587-618.
Southam, Keith (201 1) "Who Am I and Who Do You Want Me to Be? Effectively Defin-
ing a Lesbian, Gay, Bisexual, and Transgender Social Group in Asylum
Applications," 86 Chicago-Kent Law Rev. 1363-87.
Spivak, Gayatri (1996) "Subaltern Studies: Deconstructing Historiography," in Landry,
D., 8c MacLean, G. eds., The Spivak Reader: Selected Works of Gayatri Chakravorty Spi-
vak. New York: Routledge.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]
 Stychin, C
Reform. O
Tamanaha,
Princeton: Princeton Univ. Press.

Touraine, Alain (1981) The Voice and the Eye: An Analysis of Social Movements. Cambridge:
Cambridge Univ. Press.
U.S. Citizenship and Immigration Services. (201 1) "Guidance for Adjudicating Lesbian,
Gay, Bisexual, Transgender, and Intersex Refugee and Asylum Claims."
Weber, Shannon (2012) "What's Wrong with Be(com)ing Queer? Biological Determin-
ism as Discursive Queer Hegemony," 15 Sexualities 679-701.
Zylan, Yvonne (201 1) States of Passion: Law, Identity, and the Construction of Desire. Oxford:
Oxford Univ. Press.

Cases Cited

Ali v. Muhasey, 529 F.3d 478 (2nd Cir. 2008).

Amanfi v. Ashcroft , 328 F.3d 719 (3rd Cir. 2003).
Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005).
Bowers v. Hardwick, 478 U.S. 186 (1986).
Comparan v. Gonzales , 144 Fed. Appx. 673 (9th Cir. 2005).
Hassani v. Mukasey, 301 Fed. Appx. 602 (9th Cir. 2008).
Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000).
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).
Karouni v. Gonzales , 399 F.3d 1 163 (9th Cir. 2005).
Maldonado v. Attorney General of the United States, 188 Fed. Appx. 101 (3rd Cir. 2006).
Matter of Acosta, U.S. Board of Immigration Appeals (1985), Interim decision 2986.
Matter of Toboso-Alfonso, U.S Board of Immigration Appeals (1990), Interim decision
3222.
Pena-Torres v. Gonzales, 128 Fed. Appx. 628 (9th Cir. 2005).
Pozos v. Gonzales , 141 Fed. Appx. 629 (9th Cir. 2005).
Razhane v. Holder, 562 F.3d 1283 (10th Cir. 2009).
Shahinaj v. Gonzales, 481 F.3d 1027 (8th Cir. 2007).
Soto Vega v. Gonzales, 183 Fed. Appx. 627 (9th Cir. 2006).
Todorovic v. U.S. Attorney General, 621 F.3d 1318 (1 1th Cir. 2010).

Stefan Vogler is a Ph.D. candidate in sociology at Northwestern Uni-

versity, where he is also affiliated with the Gender and Sexuality Studies
and Legal Studies programs. His research revolves around the topics of
law, science, and sexuality, and his dissertation examines how different
forms of expertise inform decision-making about sexuality in various
areas of law.

This content downloaded from

[Link] on Mon, 29 Jul 2024 [Link] UTC
All use subject to [Link]