Queer Refuge: The Impacts of Homoantagonism and Racism in U.S. Asylum Law

41 Pages Posted: 11 Mar 2018

See all articles by Zsea Bowmani

Zsea Bowmani

University of Toledo - College of Law

Date Written: May 14, 2017

Abstract

U.S. asylum law is intended to provide protection to individuals who fear persecution on account of five protected classes, including membership in a particular social group. Since 1990, asylum law has recognized sexual orientation as a “particular social group” and has since expanded to cover other people under the lesbian, gay, bisexual, transgender, and queer (LGBTQ) umbrella. Despite this development, LGBTQ asylum seekers continue to face discrimination from immigration officials and judges who make decisions based on racialized sexual stereotypes and culturally specific notions of homosexuality.

This article demonstrates how the use of these stereotypes is not an unfortunate accident but the inevitable consequence of the inherent homoantagonism and racism in U.S. immigration law and policy. From the Chinese Exclusion Act of 1882 to the HIV travel ban of 1987, racial quotas and homophobic exclusions have formed the basis of much of U.S. immigration law. Although the asylum process has been cleaned up into facially neutral language, these discriminatory provisions have been institutionalized in the law. There are also structural elements within the asylum framework that encourage adjudicators to use stereotypes in their decision-making, and doctrinal barriers that foreclose relief from this discretionary abuse. The combination of institutionalized discrimination of the past and contemporary structural and doctrinal barriers work together to elevate the use of stereotypes from an unfortunate influence to a decisive factor in an applicant's success. This results in biased, inconsistent decisions and ultimately a failure to uphold the human rights of LGBTQ asylum-seekers.

This Article is divided into three parts: it analyzes the particular difficulties that LGBTQ applicants face in asylum law, and underscores the need for institutional reform. Part I begins with a brief history of discrimination in immigration and asylum law, noting how the intersection of racial and sexual exclusions is doubly burdensome for LGBTQ immigrants of color. This Part concludes with a review of the general procedure for seeking asylum, and identifies how the traditional understanding of a refugee is inadequate in addressing the nature of sexual orientation and gender identity (SOGI) in asylum claims. Part II analyzes systemic problems that LGBTQ immigrants face, namely how the lack of clear statutory definitions and other structural barriers encourage the use of stereotypes, and how the Chevron and plenary power doctrines facilitate the use of these stereotypes by insulating decisions from judicial review. Finally, Part III offers some solutions that target the institutional level, such as improved training for immigration judges and new Department of Homeland Security regulations that effectively bar the use of racial sexualized stereotypes, as well as strategies which asylum-seekers can adopt in the interim to improve their chances of success.

Keywords: asylum law, immigration law, human rights, gender, sexual orientation, LGBT, LGBTQ, homophobia, race, racism

Suggested Citation

Bowmani, Zsea, Queer Refuge: The Impacts of Homoantagonism and Racism in U.S. Asylum Law (May 14, 2017). Georgetown Journal of Gender and the Law, Vol. 18, No. 1, 2017, Available at SSRN: https://ssrn.com/abstract=3134788

Zsea Bowmani (Contact Author)

University of Toledo - College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States

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