Gay enough for asylum?

January 31, 2011 12:54 PM

Are you gay enough for asylum? “Judges and immigration officials are adding a new hurdle in gay asylum cases that an applicant’s homosexuality must be socially visible,” said Lori Adams, a lawyer at Human Rights First, a nonprofit group, who advises people seeking asylum based on sexuality. “The rationale is that if you don’t look obviously gay, you can go home and hide your sexuality and don’t need to be worried about being persecuted.”

"Victoria Neilson, legal director of the New York-based Immigration Equality, which provides assistance to asylum seekers, recalled the case of a 21-year-old lesbian who had been threatened with gang rape in her native Albania to cure her of her sexual orientation, but was initially denied asylum, Ms. Neilson said, because she was young, attractive and single, apparently not conforming to the officer’s stereotype of a lesbian. (A judge later granted her asylum, Ms. Neilson said.)"

Scary news given the violence that many LGBT people (outside of the U.S., within is another conversation) are experiencing today.

How "gay" do you have to be? Here is some of the precedent.

posted by anya32 (33 comments total)

Bureaucrats are just too cheap to install a gayometer and use SCIENCE to determine the gay threshold for asylum.
posted by axiom at 12:55 PM on January 31, 2011 [4 favorites]

OFFS.
posted by muddgirl at 12:59 PM on January 31, 2011 [2 favorites]

Sadly, people's constructs of "what gay is" are built largely by the media, which hasn't been very willing to have many non-stereotyped gay characters in numbers large enough to work against the cultural bias in the US.
posted by hippybear at 12:59 PM on January 31, 2011 [3 favorites]

In the UK, you need lesbian magazines or you're not really a lesbian!
posted by yeloson at 1:03 PM on January 31, 2011 [4 favorites]

Can we maybe not get the scum of the earth to be immigration officials? Is there anyone who isn't subhuman vermin that wants the job?
posted by Pope Guilty at 1:03 PM on January 31, 2011 [5 favorites]

Serious question: What if you're being viciously persecuted in you home country for being gay, even though you're actually straight? This policy seems... not quite thought through.
posted by auto-correct at 1:03 PM on January 31, 2011 [6 favorites]

See also. (More information on the Czech test mentioned in the article. Which is apparently also sometimes used in Canada?!)
posted by kmz at 1:04 PM on January 31, 2011

Serious question: What if you're being viciously persecuted in you home country for being gay, even though you're actually straight? This policy seems... not quite thought through.

Some precedent exists:

Amanfi v. Ashcroft, 328 F.3d 719 (3rd Cir. 2003) -- finding that it is possible to proceed with an asylum claim based on persecution on account of imputed membership in a particular social group, in this case sexual orientation, even if the applicant is not actually gay. In this case the applicant, a man from Ghana who feared he would be ritually sacrificed, engaged in a homosexual act with another man, knowing that this would lead to his being spared the sacrifice. After he was spared, however, he was mistreated because the authorities believed he was gay. The Court recognized his imputed membership in a particular social group and remanded the case for further investigation on his claim of persecution.
posted by Kabanos at 1:12 PM on January 31, 2011 [1 favorite]

Huh.

While the downside of this is obvious, the counter-argument is that, if not policed, it could become a gaping loophole for asylum requests. Just show up and declare that you're homo/bi/trans-sexual, and gain entry. Once in, are you going to be required to display a consistent sexuality?

I have no idea how to deal with this. There's no obvious test that would be accepted (I hope.)
posted by ChurchHatesTucker at 1:13 PM on January 31, 2011 [3 favorites]

it could become a gaping loophole for asylum requests

I'm not a lawyer, but don't people generally have to show some persecution first? Not just "Hi, I'm gay," but "Hi, I'm gay, and my family wants to murder me for it?"

If it's the second, and not the first, how can there be a loophole? Either they're being threatened with murder/injust incarceration or what have you, or they're not.
posted by muddgirl at 1:19 PM on January 31, 2011

it could become a gaping loophole for asylum requests

I don't see how it's any different from being persecuted for your politics, which are also not "socially visible." Have we ever, ever told anyone seeking asylum from a Communist nation that they should just go home and pretend to love the Party?
posted by rtha at 1:23 PM on January 31, 2011 [26 favorites]

here is immigration equality's asylum manual - it definitely requires more evidence than a "hi, i'm gay" standard would demand (and the process itself is a huge uphill battle before you factor in language-, cultural- and other barriers to knowing about and navigating the asylum process).
posted by anya32 at 1:25 PM on January 31, 2011

If you live in a country where people are executed for fucking idiotic reasons, you should be given asylum, regardless of whether those idiotic reasons apply to you personally.

Period.
posted by Sys Rq at 1:26 PM on January 31, 2011 [3 favorites]

Also, yeah, it shouldn't matter if you actually are gay, if the people persecuting you believe you are, and want to kill or jail you based on what they believe rather than reality.
posted by rtha at 1:26 PM on January 31, 2011 [1 favorite]

I'm not a lawyer, but don't people generally have to show some persecution first? Not just "Hi, I'm gay," but "Hi, I'm gay, and my family wants to murder me for it?"

I'm not a lawyer, either, but I did actually RTFA:

One lawyer recalled a recent client who applied for asylum on the basis of sexual orientation, then showed up a few weeks later with his wife, seeking help with a green card. In 2009, Steven and Helena Mahoney of Kent, Wash., pleaded guilty to charges stemming from a consulting business in which, among other things, they coached straight people on how to file gay asylum claims.

For fees of up to $4,000, the Mahoneys provided asylum seekers with dramatic (if fictional) stories of anti-gay persecution, along with lists of gay bars and maps of the gay pride parade route in Seattle to help them pass as gay, according to federal prosecutors. Mr. Mahoney was sentenced to 18 months in prison, Mrs. Mahoney, to 6 months.

Ms. Rhatigan, the immigration spokeswoman, said that judges and immigration officers were highly trained to assess the evidence in asylum cases, and that each case was carefully scrutinized for signs of fraud.

So, yes, you can buy yourself a good back story. Maybe you get in, maybe you don't, but either way you make things much harder for people who are actually at risk.
posted by stefanie at 1:26 PM on January 31, 2011 [4 favorites]

The persecution need to be proven not the sexuality?
posted by snsranch at 1:34 PM on January 31, 2011

For fees of up to $4,000, the Mahoneys provided asylum seekers with dramatic (if fictional) stories of anti-gay persecution, along with lists of gay bars and maps of the gay pride parade route in Seattle to help them pass as gay, according to federal prosecutors.

But again, this seems like a problem stemming from the fact that we want people to "prove" that they fit a standard definition of gay before we admit that they have been persecuted. People lying about persecution will always be a "loophole" in the asylum process - whether that's persecution for their sexuality, their gender, or their political beliefs.
posted by muddgirl at 1:46 PM on January 31, 2011 [5 favorites]

people with privilege (the ability to pay up to $4000) have abused the system - just like people with privilege are able to do within other systems that we have (legal, tax, etc.) -

it's a different story for someone who is, for example, a gay, non-english speaker, who has disabilities due to the abuse they experienced in their country of origin, and who is low income. knowing about the possibility of asylum, figuring out how to file or to locate a local immigration advocacy organization that does pro bono work, having the courage to "come out" to government officials after being tortured or attacked for your identity elsewhere, these are enormous obstacles. now this "proof" is creating additional obstacles.

i am afraid that these new standards are going to harm the very people that the asylum system is intended to protect.
posted by anya32 at 2:03 PM on January 31, 2011 [2 favorites]

...for fees of up to $4,000, the Mahoneys provided asylum seekers with dramatic (if fictional) stories of anti-gay persecution, along with lists of gay bars and maps of the gay pride parade route in Seattle...

So now you could be suspect even if you easily pass as gay. What now? Do you have to be "just gay enough"? Would we only grant asylum to Tim Gunn?
posted by PlusDistance at 2:24 PM on January 31, 2011

Can we maybe not get the scum of the earth to be immigration officials? Is there anyone who isn't subhuman vermin that wants the job?

If I took a job where people called me subhuman vermin all the time, chances are I'd become a judgmental prick with a chip on my shoulder pretty quickly. It's kind of self-reinforcing, see also: prison guards.
posted by BrotherCaine at 2:35 PM on January 31, 2011 [2 favorites]

Can we maybe not get the scum of the earth to be immigration officials? Is there anyone who isn't subhuman vermin that wants the job?

There are, and I know them personally. We typically only hear about the shitty ones.

To me, this seems to be a systemic issue, your front line law enforcement are only as effective or fair as the rules. Certainly there are some genuine "bad people" making these decisions, the real issue lies further up the chain.
posted by pickinganameismuchharderthanihadanticipated at 2:42 PM on January 31, 2011 [1 favorite]

If I took a job where people called me subhuman vermin all the time, chances are I'd become a judgmental prick with a chip on my shoulder pretty quickly. It's kind of self-reinforcing, see also: prison guards.

I wouldn't call them subhuman vermin if racism, classism, and homophobia didn't appear to fucking endemic among them. I'm not going to pretend that somebody who tells an asylum seeker to go back and pretend not to be gay so they won't be murdered is a human being deserving of the rights and privileges accruing to members of homo sapiens sapiens. This shit is inexcusable and noxious when it's displayed by people without any power; when it's displayed by the powerful, it becomes abominable.

And don't give me the "well they're just enforcing the rules" bullshit. If you sign up to enforce racist, homophobic rules, you are a racist and a homophobe. No more hiding behind the Nuremberg Defense.
posted by Pope Guilty at 2:56 PM on January 31, 2011 [3 favorites]

I'd rather accidentally grant asylum to a few hetero loophole enthusiasts than have a single legit homo lynched, just given my druthers.

I think it's kinda similar to how I don't really give a fuck if there are some people out there getting welfare when they don't deserve it, so long as there are so many people who really need it.
posted by klangklangston at 3:23 PM on January 31, 2011 [18 favorites]

If I took a job where people called me subhuman vermin all the time, chances are I'd become a judgmental prick

I'm pretty sure desperate asylum seekers don't call 'em that to their faces.
posted by ryanrs at 3:35 PM on January 31, 2011 [2 favorites]

I think it's kinda similar to how I don't really give a fuck if there are some people out there getting welfare when they don't deserve it, so long as there are so many people who really need it.

Funny enough, the most people who complain the most that a few may get away with injustice in a system to serve the many, never seem to have a problem about civilian casualties in war.

One might almost start to think the problem isn't one of justice or injustice and more about perceptions of "what those people deserve" and making sure they know their place.
posted by yeloson at 4:52 PM on January 31, 2011 [2 favorites]

Oddly funny in a very sad way. I have a friend who was granted asylum in Canada (he was a US citizen) due to his sexual orientation. Canada is all the better for his presence and the US will continue to lose out by enacting policies as idiotic as this.
posted by purephase at 5:13 PM on January 31, 2011

Obviously the INS has adopted the Homer Simpson doctrine: "I like my beer cold, my TV loud, and my homosexuals FLAMING!"
posted by Saxon Kane at 5:14 PM on January 31, 2011 [1 favorite]

Also, yeah, it shouldn't matter if you actually are gay, if the people persecuting you believe you are, and want to kill or jail you based on what they believe rather than reality.

But the jist of the story seems to be, what if you are, but aren't recognized as such? Should you 'gay it up' just enough to earn threats, but no actual violence? If you're not gay, but do just that in a bid to gain entry (and people have done things at least as risky) how do we tell?

And if we're strict about it, where does that leave members of either group whose bids were unsuccessful?

I can't see a satisfactory outcome here.
posted by ChurchHatesTucker at 5:17 PM on January 31, 2011 [2 favorites]

I was watching a show over the summer which showed a couple reuniting and she (a sassy supermodel in the body of a fat lawyer who does not retain the lawyer's personal memories) was surprised to figure out they had gotten married so he could have insurance. She was worried, as was her current boyfriend, that they could get in trouble for this with something. I mentioned this to a law school student, saying I didn't know how she could get in trouble for this since there are no laws that say you must love or live with or sleep with the person you marry (at least, not if you are both citizens of the place you live, to my understanding). She kept arguing that the lawyer had committed fraud and it wasn't allowed, and I just did not understand who exactly got to decide what made a marriage legitimate or not.

This seems more complicated and difficult than that. How does one decide whose sexuality is true?
posted by jenlovesponies at 7:04 PM on January 31, 2011

As always it seems the satisfactory outcome is found in Blackstone's formula.

"Better that ten guilty persons escape than that one innocent suffer"

In this case the guilty are non-gays gaming the system for asylum. It's better for the system to be abusable and do it's job of protecting humans who need help, than for it to be so protected against abuse that you turn away legitimate asylum seekers and send them back to a country where they may be killed or worse.
posted by MrBobaFett at 8:20 PM on January 31, 2011

IANAL. However, I have worked in an immigration role in a western country and feel qualified to comment.

I and those I worked with have personally dealt with many successful asylum claimants. I'm proud to count several in my friends. However, as with any group, there are also fraudulent claims.

The one that always sticks in my mind is gentleman from the middle east who claimed he was being persecuted for being a homosexual. Fair enough. Now he has citizenship in our country, he frequently travels with his girlfriend (who, for the record, looks in no way masculine.)
Now, this particular case is deception at least and more likely fraud, however, he could claim in court that he was gay, and is now straight (or bisexual, to be more believable). In any case it is extremely unlikely, but plausible, and, without the aforementioned "gaydar" there is no way to know conclusively that he was in fact using deception.

That's one example, there are many others. Frequently I see people who have claimed asylum, fleeing their country in a supposed state of fear for their life, only to return shortly thereafter for a holiday once they have their foreign citizenship, which is also fair enough, if the country has stablised somewhat or this is a family emergency such as the death of a relative.
I have frequently seen this with people who are travelling to countries and regions which have become significantly more dangerous since their original claim, without any family emergency or so forth to justify taking such a risk.

Now, it's important that you don't take this the wrong way. I am not anti-immigrant, or anti asylum seekers. My concern is that every person who fraudulently obtains asylum means one "slot" that won't be able to be taken up by a bona fide asylum seeker. Every time I see one of these few people that I know have gamed the system, I know that one person is stuck in a refugee camp with nowhere to go, partly thanks to them, and I know that there is nothing I can do.
It is very, very difficult to revoke someone's asylum claim once it has been granted. A year after the fact, once their passport has been well worn in? Forget about it. It's a political minefield.
Even if this middle eastern man I mentioned earlier confessed it's unlikely that anything would change.

Yes. These are only a small section of a group. But that group itself is small. Asylum quotas are tiny compared to the suffering and injustice that goes on in the world. If we are only going to let a tiny fraction of those who need it in, then we need to chose those who need it most. These cases I've mentioned - where we know they have deceived us, and they know that we know, but we can't do anything about? You can see how that sort of thing would jar with a bureaucrat, how a politician can run with it. I can see it right now - "Sir, In my hand I hold a list of 250 successful asylum seekers who have obtained their status via fraud and deception."
Yeah, I know - the McCarthyist tone was intentional - but I need to explain to some of you why there is such a big push to clamp down on such a minor proportion of false claims.

I'm under no illusions about the justice of immigration controls. Any one living in a third world nation (except a lucky few) will drastically improve their quality of life and life expectancy by moving to a developed country. Even living unemployed in a country like Sweden will for most people be drastically, objectively better than living in, say, Sierra Leone. (Yes I'm sure it's a nice place etc etc.) Things like public healthcare, education, sanitation.. You get the point. So it's only rational for them to do anything they can to get into the developed country.
And the only moral thing for us would be to let them all in... but we can't.
If the US, for example, opened up it's doors to anyone that wanted to come in, or even, every adult from 22-30 in good physical health with a clean criminal record, they would be swamped. Economies don't like instability, and that much change in demographics, expected working conditions.. well, it would be chaotic. I'm not saying it couldn't pull through, and maybe even come out better off.. but it wouldn't be pretty, and no politician would risk it.
You could argue that globalization will lead to more open borders. If you follow european politics you'll note that immigration from eastern europe to western europe for better living conditions is/was a strong consideration in regards to EU membership. Hopefully in my lifetime working and living conditions will be sufficiently good around the world that no one will have to turn away a desperate mother and her children - not because they wouldn't be better off, happier, and productive in our society - but because she was not desperate enough.
The fact remains that for political, economic, and social reasons (in that order) we can't take in everyone we should. So we have to chose - and there is no fair way to decide. A colleague once remarked to me that Nelson Mandela wouldn't be allowed into most western countries due to the standard exclusion of anyone who has been in prison. They try to skew the system in favour of doctors, teachers, nurses, people who they think will be "productive". You can try to be fair. You can try and pick those which will be most useful to you, like a kid picking players for a sports team, but ultimately all immigration rules are arbitrary, and thus inevitably enforced as such. Social needs of outsiders come second. I don't like it. It's not fair, it's not moral.. but it's the way it is, for now.

There's one last thing I would like to add at the end of this mini-essay. It's a clip from a current affairs show someone showed me.
I recommend you all view it, as it discusses a serious, worldwide and widely ignored problem of forced marriage in migrant families.
posted by Dillonlikescookies at 2:20 AM on February 1, 2011 [4 favorites]

The one that always sticks in my mind is gentleman from the middle east who claimed he was being persecuted for being a homosexual. Fair enough. Now he has citizenship in our country, he frequently travels with his girlfriend...

I just don't see why it was unlikely that he was persecuted for being homosexual without being a 6 on the Kinsey scale. Heck, I find it plausible that completely straight people could be unjustly persecuted for "being" gay without actually being gay.
posted by muddgirl at 5:44 AM on February 1, 2011 [1 favorite]

If you start giggling and smiling when the TSA agent is cupping your private parts do you get asylum now or do you have to wait until they "peg" you as an asylum seeker?
posted by longbaugh at 6:09 AM on February 1, 2011