Academic journal article Fordham Urban Law Journal

Uncharted Territory: Choosing an Effective Approach in Transgender-Based Asylum Claims

Academic journal article Fordham Urban Law Journal

Uncharted Territory: Choosing an Effective Approach in Transgender-Based Asylum Claims

Article excerpt

PRELUDE

A client steps into your office to discuss an immigration matter. The client, Geovanni, appears to be an effeminate gay man, but Geovanni tells you that she is transgender and considers herself to be female. (1) As a result of her transgender identity, she has endured tremendous mistreatment in her country, beginning with physical and verbal abuse in school that escalated in frequency and violence as she got older. Geovanni was harassed and forced to pay bribes to the local police on many occasions. Eventually, a police officer took Geovanni into custody, brought her to a remote location, and raped her. Based on the years of abuse she has suffered on account of her transgender identity, Geovanni wants to apply for asylum. (2)

INTRODUCTION

This Article uses the term "transgender" identity to refer to individuals who feel a discord between their gender identity and their anatomical sex--that is, those who were born anatomically male but believe that their gender is female or those who were born anatomically female but believe that their gender is male. Some transgender individuals take affirmative steps to physically change their anatomical sex, undergoing such procedures as hormone therapy, electrolysis, and sex reassignment surgery. (3) This Article uses the term "transsexual" to define such individuals. Many commentators have argued for a broader definition of "transgender," which would include virtually any individual who does not conform in appearance or behavior to societal expectations for their gender. (4) This Article will focus more narrowly, however, on individuals like Geovanni who believe that they were born with the wrong anatomical sex and who suffer persecution as a result of their transgender identity. (5)

This Article will discuss existing precedent in the context of transgender asylum seekers and suggest possible theories for framing successful transgender asylum claims. (6)

Generally, there are very few published decisions for successful asylum cases. (7) Of those few cases, the number addressing lesbian, gay, bisexual, and transgender ("LGBT") issues is minuscule. In fact, there have been only eight published cases involving LGBT asylum claims: seven circuit court cases and one Board of Immigration Appeals (B.I.A.) decision. (8) Moreover, only two of these five cases address a claim for asylum by a transgender applicant, and then only indirectly. (9) This Article will discuss existing precedent in the context of transgender asylum seekers, suggesting ways that the case law could be used to frame a successful transgender asylum claim.

Part I of this Article will explain the legal standard for asylum claims. (10) This section will specifically focus on the definition of the "particular social group" category of protection within asylum law because this is the category under which Geovanni and other transgender applicants would put forward their asylum claims. (11) Part I also emphasizes the requirement under asylum law that a nexus exist between the applicant's protected characteristic and the persecutor's motivation to harm. (12) Establishing such a nexus may be a particularly difficult aspect of transgender asylum cases. (13)

Part II will focus directly on Geovanni's claim. (14) It will first argue that transgender identity meets the legal definition of "particular social group." (15) It will then explore the requirement of proving a nexus between the harm Geovanni suffered and her transgender identity. (16) Finally, Part II will argue that regardless of whether or not a transgender applicant actually identifies as homosexual, she should also put forward a claim based on her perceived identity as a homosexual if she believes that her persecutors thought her to be gay. (17)

I. BACKGROUND ON ASYLUM LAW

A foreign national who fears returning to her country because she has suffered past persecution or has a well-founded fear of future persecution (18) on account of her race, religion, nationality, membership in a particular social group, or political opinion may apply for asylum in the United States. …

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