Public morality and sexual norms have no place in asylum law; yet, the influence of both in the fates of sexually controversial asylum applicants is undeniably present. For instance, a young victim of an attempted kidnapping for sex trafficking will be sent back to risk cycling through vicious prostitution rings. The stakes are just as high for transgender immigrants, as no published immigration decision recognizes transgender identity in the asylum context. At the same time, despite inconsistent applications of the law, asylum claims for gay men and lesbian women based on sexual orientation have only recently become commonplace. When it comes to the fates of refugee applicants, the influence of public morality cannot be contained in a manner that would allow fair and consistent outcomes for each person. Although the consideration of societal norms is important in the admission of immigrants, the adjudication of asylum applications requires a special degree of international perspective and cultural fluency. The consideration of these norms, particularly those surrounding sex, can inhibit, and even endanger, the lives of numerous applicants seeking asylum under the protected ground of “membership in a particular social group.” This includes sexual minorities and victims of forced prostitution. A decision maker’s perceptions of what is moral should not justify the abandonment of desperate individuals truly in need of refuge. To accept the influence of public morality and sexual norms in asylum law is to subject desperate individuals to a ruthless game of “refugee roulette,” where many applicants receive the metaphorical bullet when a court pulls the trigger and issues its decision. In order to understand the influence of public morality in asylum law, it is important to understand what public morality is. There is no set definition of public morality; however, it is undisputed that it concerns the regulation of the moral conduct or character of individual persons through the law. Public morality attempts to justify the enforcement of a particular society’s ethical and moral standards of right and wrong. As a result, the concept of what is moral may vary from state to state or region to region. In the United States, public morality often manifests itself in the government regulation of sex, including adultery, homosexuality, and prostitution. At first blush, having judicial decisions reflect popular societal norms appears to be a good idea. Society would maintain its distinct culture, and a majority of the population would be satisfied with the result. However, when a judge begins to adhere to popular norms, we are no longer a country of law, but instead a country of arbitrary rulings based on no standard at all. Without objective law, there can be no voice for the minority, no positive change, and no progression of society. This Note highlights how public morality hides under the guise of judicial discretion in asylum decisions involving interpretations of “membership in a particular social group.” Part I discusses the United States’ current asylum obligations under both international and domestic law. Part II highlights the current influence of morality in two types of controversial sex-based claims: those based on identification as a sexual minority and those involving victims of forced prostitution and sex trafficking. Part III analyzes how morality has found its way into the asylum courtroom. Specifically, common misconceptions surrounding sex and inconsistent interpretations of statutory language have allowed judges and agency decision makers to exercise great discretion in evaluating asylum claims, often leading to unjust and arbitrary results. Finally, Part IV proposes solutions to the issues raised by the influence of public morality and sexual norms in asylum law, including amendments to domestic refugee statutes and international instruments.
Refugee Roulette: Wagering on Morality, Sexuality, and Normalcy in U.S. Asylum Law,
92 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol92/iss3/6