Evidencing the Implicit Identity: Dangerous Ambiguities in Queer Asylum Law

The LGBTQ+ community has endured a complicated history of discrimination in United States courts of immigration. Under U.S. law, a refugee is legally defined as one who can "demonstrate that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group." [1] "Particular social group" suggests  an intentionally ambiguous, theoretically "all-encompassing" category. While its ambiguity may be used for purposes of inclusion, one may discern that such language risks bias infiltration and foster far more exclusionary practices. The history of queer exclusion is a long one: In the 1950s, queer immigrants—denoted as "psychopathic personalities''—were specifically forbidden from becoming U.S. citizens; the 1965 Immigration Reform Act referred to homosexuality as "sexual deviation;" the ban on HIV-positive immigrants endured until 2010. [2]  But in the early 2000s, the legal paradigm began a subtle shift for the better: under the category of "particular social groups'' of those seeking asylum, U.S. immigration increasingly began to recognize those who listed their LGBTQ+ identity as potentially belonging to a persecuted group that was qualified for refugee status. However, proving one's past or future persecutory risks on account of belonging to such a broad social category—a task known as the "Nexus" dilemma—invites discretion in what can constitute proof of membership to the queer community. This dilemma is furthermore complicated by the Bureau for Immigration Appeals (BIA), which defines group membership as being based on an unambiguous, "immutable characteristic." [3] Amanfi v. Ashcroft, a 2003 case reviewed by the Third Circuit U.S. Court of Appeals, was a crucial case highlighting the uncertainty of proving sexual identity—as well as the linkage of outwardly acknowledged acts and personal identity—in asylum law. 

Amanfi began with a claim by a heterosexual Ghanaian citizen that he had been persecuted by the "Blood Temple" cult, as well as by the Ghanaian police, due to their belief that he was a homosexual man. Amanfi explained that he had initially been kidnapped by the cult for sacrificial purposes. Placed in captivity, he engaged in homosexual activity so as to render himself impure for sacrifice. Discovered by his captors, they beat him before bringing him to the police, where he endured public torture. [4] Despite the cult's perception and his conduct, Amanfi still identified as a heterosexual man. His asylum in the United States was sought on the basis of further persecution in Ghana, not because he was to be sacrificed, but rather on account of his perceived homosexuality. The BIA had previously ruled that “[p]ersecution for ‘imputed’ grounds (e.g., where one is erroneously thought to hold particular political opinions or mistakenly believed to be a member of a religious sect) can satisfy the ‘refugee’ definition.” [5] This notion entails that the prosecutor's perception of the individual's identity can threaten that individual’s security, even if their perception does not align with an individual's true identity. However, in this case, with homosexuality as the implicit identity in question, the BIA was unwilling to extend the notion of imputed persecution.

Despite the BIA's initial rejection of Amanfi's imputed membership—membership that is presumed by a persecutionary agent—in the LGBTQ+ social group, he had engaged in a relationship typically perceived as sufficiently evidentiary of "membership." The “Blood Temple” cult, as well as the Ghanaian police, thus perceived  Amanfi as a targeted minority, after he had risked his own safety to expose himself as an imputed member of the LGBTQ+ group. Ultimately, the U.S. Court of Appeals ruled in favor of his imputed membership, proving a step in the right direction in terms of extending the tentative hand of U.S. legal protection to those of the LGBTQ+ "preferred social group." However, the tumultuous progression of this case brings to light the uncertainty of proving an implicit, fluctuating identity under U.S. immigration law.

In 1994, the case of Toboso-Alfonso (BIA 1990) was designated as the precedent-setting queer asylum claim, in which distinction was made between the protection of homosexual identity and homosexual conduct. [6] However, courts often rely on conduct to determine queer identity. The  U.S. Citizenship and Immigration Service Agency’s Officer Training Module on Guidance for Adjudicating LGBTI Refugee and Asylum Claims, for example, cites the principle that intimate sexual activity between consenting adults is a constitutionally protected activity, which is consistent with the recognition "that punishing conduct or sexual activity between consenting adults of the same sex is tantamount to punishing a person simply for being gay." [7] Significantly, this Module presents the guidelines for the immigration officers who conduct initial interviews of asylum-seeking individuals. By indicating that an entity’s persecution of homosexual conduct amounts to the equivalent of its persecution of homosexual identity, U.S. forces thus acknowledge that engaging in homosexual activity alone can present the same risk as can identifying as gay. The adjudicators of Amanfi v. Ashcroft, in contrast to this acknowledgment, dismissed homosexual conduct as qualifying Amanfi to LGBTQ+ status, or—even more concerningly—imputed LGBTQ+ status. 

According to the USCIS Officer Training Module, a "particular social group should not be formulated too broadly or too narrowly."[8] However, the language of "identifying a particular social group" is still in itself highly discretionary. It leaves apparent the risk for biases in what constitutes evidence to surface in the perspectives of a judicial entity.  Evidence of a homosexual relationship, evidence of activity in queer social groups, or testimony from family and friends are all typical means of proving LGBTQ+ identity. [9] The proving of actual or perceived membership to implicit "particular" social groups thus poses challenges for persecuted minorities on the global stage: such evidence may be particularly difficult for "closeted" individuals to provide. Being cognisant of the risk for bias-influenced response from an adjudicator, and having encountered persecution—or the risk of it—based upon the condemnation of their sexuality, an asylum seeker may struggle to relate the private details of their case to an official. One may be reluctant to fully disclose their identity for fear of being stigmatized. [10] However, as the USCIS Module states, an adjudicator must determine whether the actual or imputed characteristic is "easily recognizable and understood by others to constitute a social group," which prompts some adjudicators to "mistakenly believe that social visibility or distinction requires that the applicant 'look gay or act gay.'" [11] Whether intentional or not, adjudicators may risk imposing stereotyped views of how a queer individual should behave, socialize, or present themselves— a gay man, for example, may be denied asylum for not presenting as effeminate, whether he does so naturally, or due to fear of persecution in his country of origin if he were to come across as gay. As homosexuality incorporates individuals beyond those whose "sexual 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 fundamental identity likewise becomes more difficult." [12]

The risk for bias or discriminatory judgment is candidly acknowledged by the Plausibility points of the USCIS Officer Training Module: "It would be inappropriate for you to hold against the applicant the fact that he or she does not fit your notion for how LGBTI people should look or behave." [13] Furthermore, the Module emphasizes that an adjudicator should refrain from assuming implausibility of homosexual identity based upon previous marriages to the opposite sex—citing possible efforts to "conform"—or unfamiliarity with "LGBTI terminology." [14];[15] The candid and inclusive nature of this manual reveals that the precedent set through Amanfi has influenced an increasingly dynamic approach to interpreting LGBTQ+ asylum claims based on either identity or evident conduct, or both. Theoretically, this encourages a more inclusive approach towards the diverse, wide spectrum of those who consider themselves as—or are considered as—members of the LGBTQ+ community. In this regard, the ambiguity of what constitutes evidence can yield positive effects, as can the ambiguity of the term "particular social group." As a result of this ambiguity, emergent social groups based on sexual and gender identity may be considered despite not having previously had presence in the LGBTQ+ community. Individuals who identify their sexualities as fluid, or uncertain, "can also make valid claims as long as their narratives are credible…we must acknowledge that perceptions of sexuality as innate and immutable pervade our culture, and for asylum law to even implicitly recognize fluidity and constructedness is a remarkable development." [16] However, in regarding an immigration adjudicator's construction of a comfortable, "credible narrative," immigration practitioners are potentially "inadvertently limiting the immigration system’s understanding of what it means to be a queer survivor." [17]

A cynical opinion may conceive that individuals looking to gain asylum in the U.S. may engage in homosexual acts solely to claim asylum on the basis of belonging to, or being imputed with, the LGBTQ+ community. While this is possible, it should be considered that if one is willing to subject themselves to potentially fatal persecution based on their perceived LGBTQ+ status—especially without the assurance of attaining U.S. asylum—then their current security and well-being may have been previously threatened. Exposing oneself before a persecutionary entity—as Amanfi did—is not done without weighing homosexual conduct as bearing less consequence than their original state. For Amanfi, this entailed the risk of being sacrificed. Thus, an adjudicator should have evaluated the granting of asylum on the basis of another persecuted social group—such as those who were targeted for sacrifice by the cult—in addition to imputed membership to the LGBTQ+ community.

Despite the inclusive decision made by the U.S. Court of Appeals through Amanfi, the language of "identifying a particular social group" is nevertheless still highly discretionary, leaving apparent the risk for bias in what constitutes proof or evidence to surface in the perspective of a judicial entity. In addition, the ambiguity of what and who constitutes a "particular social group" is arrested by the BIA's group membership definition, which is based on an "immutable characteristic." "Outcomes of LGBTQ asylum claims can vary greatly by jurisdiction; while there is strong legal authority for LGBTQ claims, some judges have astonishingly low grant rates with LGBTQ cases or with Particular Social Group cases more generally." [18] While fluidity can be implicitly recognized in documents such as the USCIS  Module, it is not explicitly recognized in asylum law, leaving the potential for a stricter interpretation of a more ambiguous case of sexual identity, or imputed sexual identity.

Beyond the dangerous implications for an LGBTQ+ or adjacent individual, on the international level, the U.S.'s legal rejection of an asylum-seeker's homosexual identity can have compromising effects. Such a decision has potential to indicate a lack of U.S. allegiance with legitimate victims of persecution on account of LGBTQ+ identity. It may signal to persecuting entities on the international stage the ambiguity of proving LGBTQ+ identity in claiming asylum status in the U.S., risking the perpetuation of hateful, discriminatory, and persecutory behavior—decisions wrought at the expense of LGBTQ+ lives.

 Edited by Devon Hunter

[1] "Refugees," U.S. Citizenship and Immigration Services, September 26th, 2022, https://www.uscis.gov/humanitarian/refugees-and-asylum/refugees.

[2]  Felicia Kornbluh, "Queer Legal History: A Field Grows Up and Comes Out," Law & Social Inquiry Vol. 36, no. 2 (2011): 553. 

[3] Stefan Vogler, "Legally Queer: The Construction of Sexuality in LGBQ Asylum Claims," Law & Society Review Vol. 50, No. 4 (2016): 864.

[4] Kwasi AMANFI v. John ASHCROFT, Attorney General of United States, 328 F.3d 719, (3rd Cir United States Court of Appeals, 2003).

[5] Interim Decision #3287, File A72 971 091, 489, (U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals, 1996). 

[6] "Case Law," Immigration Equality, November 25th, 2021, https://immigrationequality.org/legal/legal-help/asylum/case-law/#:~:text=Amanfi%20v.,applicant%20is%20not%20actually%20gay.

[7] "RAIO Combined Training Course: Guidance for Adjudicating Lesbian, Gay, Bisexual, and Intersex (LGBTI) Refugee and Asylum Claims Training Module," RAIO Directorate - Officer Training, U.S. Citizenship and Immigration Services, December 28th, 2011: 19.

[8] "RAIO Combined," 17.

[9] Vogler, "Legally Queer," 862. 

[10] "'Is the Applicant Really Gay?' Legal Responses to Asylum Claims Based on Persecution Because of Sexual Orientation," Agenda: Empowering Women for Gender Equity, no. 55 (2003): 82. 

[11] "RAIO Combined," 16.

[12] Sarah Hinger, "Finding the Fundamental: Shaping Identity in Gender and Sexual Orientation Based Asylum Claims," Columbia Journal of Gender and Law, no.19, (2010). 

[13] "RAIO Combined," 40.

[14] "RAIO Combined," 39.

[15] "RAIO Combined," 40.

[16] Vogler, "Legally Queer," 883.

[17] Connor Cory, "The LGBTQ Asylum Seeker: Particular Social Groups and Authentic Queer Identities," The Georgetown Journal of Gender and the Law Vol. 20, (2019): 597. 

[18] Cory, "The LGBTQ,"  587.