ABSTRACT
Every year, more than one million foreign nationals become permanent residents in the USA. A report from the Department of Homeland Security stated in 2006 that ‘nearly two thirds (or 63 per cent) were granted permanent residence based on a family relationship with a US citizen or legal permanent resident of the United States’ (Jefferys 2007a: 1). Among them a considerable number were the spouses of US citizens (339,843 people in 2006) and still others were spouses of legal permanent residents (Jefferys 2007a). This means that being or becoming the spouse of a US citizen or legal resident constitutes the single largest path through which foreign nationals immigrate legally to the USA today. These figures are of enormous significance for US citizens and foreign nationals involved in same-sex binational relationships. Lesbian, gay, bisexual and transgender (LGBT) US citizens and legal immigrants are barred from sponsoring their same-sex partners for immigration purposes (Schulzetenberg 2002; Howe 2007).1 Cymene Howe (2007: 96) has noted that the 1996 Defense of Marriage Act (DOMA) ‘continues to prohibit same-sex binational marriage claims because, for immigration purposes, the DOMA legislation defines marriage as a relationship between a man and a woman’. This same act has perpetuated a form of state discrimination toward a considerable proportion of American citizens (Reed 1996). Ironically, in 1993 the US government began to grant visitor visas to the same-sex partners of nonimmigrant foreigners who are legally in the country. The poignant consequence is that long-term non-immigrant foreigners have been conferred a right that is not extended to US citizens or legal immigrants (Schulzetenberg 2002). Taken together, these policies symbolise the unequal position of sexual minority populations. Most importantly, as a result of these policies the most common path for immigration to the USA among adults has been rendered unavailable to gay and lesbian foreign nationals unless they break the law and engage in sham heterosexual marriages. Furthermore, because it is often much more difficult to obtain other types of immigrant visa that are based on employment or other forms of familysponsored immigration, the possibilities for LGBT individuals to immigrate to the USA legally are greatly reduced. LGBT immigrants have had to explore alternative avenues to pursue legal immigration to the USA. Because many of them have been badly mistreated due to their sexual orientation in their countries of origin, beginning in the late 1980s they and their lawyers began to test whether they could attain permanent residency through asylum. These efforts coincided with a federal policy change in 1990 that ended the exclusion of homosexual foreign nationals from the USA (a policy that had been
put in place by two separate US Immigration Acts in 1917 and 1952) (Bennett 1999). That same year, the Board of Immigration Appeals granted asylum to a gay Cuban immigrant by the name of Toboso-Alfonso who convincingly claimed that he had been persecuted in Cuba due to his sexual orientation and feared future persecution if he returned (Russ IV 1998; Cantú et al. 2005). Since this first successful case, a growing number of LGBT individuals have obtained immigrant visas through asylum in the USA. As one legal scholar has recently noted: ‘Owing to a number of recent developments, US asylum law is one of the most hospitable legal arenas for lesbian, gay, bisexual and transgender (“LGBT”) litigants’ (Landau 2005: 237). However, being granted asylum is not easy. In this chapter, I examine the use of asylum as an immigration strategy for LGBT immigrants in the USA. Based on the existing legal literature on the topic, I discuss the practical limitations of this strategy and, at a more conceptual level, the problematic nature of assumptions about homosexuality that typically accompany LGBT asylum cases. Successful arguing of these cases often has involved great oversimplification in ways that disregard the nuance and complexity found in anthropological and sociological studies of same-sex sexualities around the world. My discussion refers to cases in the USA, although this legal strategy has also been used in other rich countries that have large immigrant communities from the developing world. While aspects of the analysis may be generalisable, the specific implementation of LGBT asylum varies from country to country, reflecting the characteristics of local legal systems and policies. Therefore my conclusions should be taken to apply only to the US experience. The issues that I discuss here are relevant to both sexual minority men and women. It is striking, however, that most successful cases of LGBT asylum have involved gay men and male-to-female transgender individuals (Millbank 2003; Neilson 2005b). One possible explanation for this disparity is that lesbian lifestyles, like those of other women, often are less public than those of men (Chisholm 2001; Millbank 2003; Neilson 2005b).
