August 28, 2007
Lesbian Asylum Claim and Queer Theory
Mockeviciene v. U.S., 2007 U.S. App. Lexis 15167 (CA11 June 26, 2007) (UNPUBLISHED), upholds the decisions of an Immigration Judge (IJ) and the Board of Immigration Appeals denying a petition for asylum and withholding of removal. Petitioner based her claim on a fear of persecution in her home country of Lithuania because of sexual orientation.
According to the circuit court, "The IJ expressly found that Mockeviciene was not credible because, primarily, he did not believe she was actually a lesbian." Id. at *6.
The issue of asylum claims based on fear of persecution because of one's sexual orientation is fascinating and important. However, the primary point of the current post is more to connect the reasoning of the IJ in this case with the logic of queer theory. Anyone who is interested in the history of allowing asylum claims based on sexual orientation should read Barney Frank's chapter on immigration law in Creating Change: Sexuality, Public Policy, and Civil Rights (John D'Emilio, William B. Turner, and Urvashi Vaid, eds. 2000). I don't address asylum claims specifically, but I do provide a history of the statutory exclusion of lesbian/gay aliens from the U.S., 1917 to 1990, in "Lesbian/Gay Rights and Immigration Policy: Lobbying to End the Medical Model," 7 J. of Policy Hist. 208 (1995). See also, Victoria Neilson, "Homosexual or Female? Applying Gender-Based Asylum Jurisprudence to Lesbian Asylum Claims," 16 Stan. L. & Pol'y Rev. 417 (2005); Fadi Hanna, Case Comment: Punishing Masculinity in Gay Asylum Claims, 114 Yale L.J. 913 (2005).
One of the key moves in queer theory is to examine who has the authority to claim what types of knowledge, and how that knowledge gets used. Building on feminist theory, queer theorists note that the prevailing definition of "homosexual," at least before the early 1970s, had the effect of disauthorizing queers to speak for themselves. That definition involved assertions of psychopathology, implying that "homosexuals" are incapable of full political participation. The question of psychopathlogy continues to arise even though the American Psychiatric Association and the American Psychological Association have both disavowed the claim that "homosexual" identity necessarily indicates pathology.
In other words, the issue is predominantly political (as it always was -- there was never any medical evidence to support the assertion that "homosexuals" were mentally ill to begin with). The Immigration Judge has the authority to decide if a given asylum seeker is really a lesbian or not. Even if we wish to insist that IJ/BIA decisions are a matter of law, not politics, still queer theorists would insist that political considerations broadly defined have an impact on any interaction between a litigant, especially an asylum-seeker, and a judge. Power differentials necessarily inform such situations.
The IJ did articulate specific criteria for his (?) conclusion that Mockeviciene was not credible in claiming to be a lesbian. The circuit court responded that "[w]e are skeptical of the reasoning the IJ used to determine his adverse credibility finding. The fact that Mockeviciene had not been in a recent relationship with a woman is not probative of her sexual orientation. And contrary to the IJ's findings, Mockeviciene did not define being a lesbian as 'not necessarily involv[ing] sexual relationship,' but, rather, when the IJ asked her what she thought being a lesbian meant, she responded that '[i]t doesn't have to be a sexual affair,' and added that '[s]ex is necessary between two lesbians. I want to say that I want to have sex with the woman. I cannot have it with a man.'" Id. at *13-*14.
Perhaps the IJ could assert that she (?) took judicial notice of the fact that "lesbian" necessarily denotes a woman who desires a sexual relationship with another woman. Presumably many persons would find such a definition unobjectionable.
But if the court would decide whether the petitioner fits the definition of "lesbian," then the court should also consider evidence in support of the petitioner's testimony. Anyone who is familiar with the literature would immediately turn to Adrienne Rich's famous essay, "The Woman-Identified Woman," which includes a definition of "lesbian" that does not require "sex" as a criterion.
The key queer theoretical point here is that the important dynamic is not the presence or absence of sex. The important dynamic involves who gets to decide whether a given individual is a lesbian or not, and what procedure (or lack of procedure) the decision maker must use in arriving at a conclusion. The IJ, presumably operating with a hermeneutic of suspicion regarding asylum seekers generally, found readily available the definition of "lesbian" as a hook for hanging hir determination that Mockeviciene lacked credibility.
Note in passing that Mockeviciene "testified that from 1994 until she left the country in 2000, the Lithuanian police searched her apartment without a warrant, had her terminated from her employment, improperly evicted her from her apartment, and twice detained her and beat her, all on account of her sexual orientation." Id. at *2. Her litany of harassment -- persecution? -- began when she told her husband that she was a lesbian. He allegedly beat and raped her while friends held her down. Id. at *3. After that, she suffered mostly at the hands of the constabulary. A feminist/queer analysis would note the overlap between patriarchal power in the home and police power in the street (or, police power in the home as well, since Mockeviciene claims to have returned from vacation only to find someone else living in her apartment, replete with the requisite documentation, id.).
Of course, one must also note that Mockeviciene undermined her own credibility by getting married to a man during this process. Having explained why it doubted the conclusions of the IJ based on the record, the circuit court asserted, "[n]evertheless, it is not our role to evaluate the record anew. We are limited to reviewing the BIA and IJ decisions and reversing only if the evidence compels us to do so. Given Mockeviciene's recent marriage, the evidence does not compel reversal of the BIA's credibility determination." Id at *14 (internal citation omitted).
Again, it seems obvious that, among all the things a lesbian might do, marrying a man is not one of them. In fact, however, it is not at all uncommon for lesbians to be married at some point in their lives. One who takes a sympathetic view of Mockeviciene's plight could easily interpret her decision to marry a man as an indication of the level of desperation she felt at the possibility of returning to Lithuania.
Thus, an Immigration Judge has considerable leeway to rely on ad hoc definitions of "lesbian" in evaluating the credibility of a self-proclaimed lesbian petitioner. The judges of the 11th circuit would seem to have restrained the IJ using elementary principles of interpretation, but from a queer theoretical perspective, the circuit court judges stand in the same relationship toward the petitioner as did the Immigration Judge insofar as they also relied on an ad hoc definition of "lesbian," supported only by the seemingly more obvious evidence of her recent marriage to a man, in order to justify their doubts about her credibility. Apparently none of these judges feels any responsibility to gather actual information about the lives of lesbians before making highly consequential decisions that turn on the credibility of a self-described lesbian petitioner. Indeed, one suspects that some judges consider ignorance a virtue in such cases.