Hanna, ‘Punishing Masculinity in Gay Asylum Claims’, 2005

Fadi Hanna, ‘Punishing Masculinity in Gay Asylum Claims’, Yale Law Journal 114 (4), 2005

Abstract

Does a homosexual asylum seeker need to prove he is “gay enough” to win protection from a U.S. court? Increasingly, and troublingly, the answer is yes. In In re Soto Vega, the Board of Immigration Appeals (BIA) denied a gay man’s application for asylum because he appeared too stereotypically heterosexual. The decision is representative of a trend in immigration law to equate visibility with the potential for anti homosexual persecution.

This Comment argues that visibility should be irrelevant in sexual-orientation-based asylum cases. As I discuss in Part I, cases such as Soto Vega punish homosexuals who “cover” their sexual identity and reward those who “reverse cover,” or act more visibly “gay.” This system of incentives is inconsistent with the purpose and structure of asylum law for at least two reasons. First, as I argue in Part II, covering one’s sexual orientation is a natural response to homophobic persecution. Thus, the visibility requirement punishes asylum applicants for exhibiting a symptom of persecution and is therefore inconsistent with the fear-based standard of asylum. Second, the visibility requirement assumes that conspicuous homosexuals have fundamentally different identities than inconspicuous homosexuals, such that they constitute a different social group for asylum purposes. This belief is grounded in a performance-as-identity model- suggesting that identity is determined by behavior rather than by immutable characteristics. As I argue in Part III, however, asylum law protects homosexuals on the basis of their immutable sexual orientation and thus precludes the performance-as-identity model.