A Well-Founded Fear of Judicial Disparities: An Analysis of United States Circuit Court Rulings on LGBT Asylum Petitions, 1985-2018

Abstract

This thesis explores the topic of LGBT asylum in the United States from 1985-2018. In the past two decades, there has been a growing body of literature on asylum adjudications in the United States. Despite the fact that asylum law should be applied uniformly, as is required by U.S. law, scholars have found disparities in positive outcome rates for general asylum petitioners in association with a host of factors, such as the gender of the judge and the legal representation status of the petitioner. This thesis extends asylum adjudication research by focusing specifically on LGBT petitioners. By examining the adjudication of asylum seekers facing persecution on the basis of their queer sexual orientation or transgender identity, this thesis asks whether the court systems—specifically the U.S. circuit courts—apply asylum laws uniformly to all LGBT petitioners. The literature on LGBT asylum has focused on the development of LGBT asylum law through the examination of a select few prominent LGBT asylum cases starting in the 1980s. However, there have been no attempts to systematically and quantitatively analyze LGBT asylum cases in order to uncover possible disparities, a gap this thesis fills. In this thesis, I also qualitatively explore why certain factors are associated with disparate circuit court outcomes for LGBT asylum seekers. I found 318 petitions based on LGBT-related persecution that were appealed to the circuit courts. Based on general and LGBT asylum literature, this thesis tested the relationship between four factors and remand rates in those 318 cases. These four factors were the petitioner’s gender, the petitioner’s legal representation status, the court that presided over the petitioner’s case, and the petitioner’s LGBT home country conditions. Through logistic regression estimates, this thesis found disparities in association with the first three factors. Transgender petitioners and queer cisgender male petitioners were more likely to receive remands than were queer cisgender female petitioners. Petitioners with lawyers were more likely to receive remands than those without lawyers. Liberal circuit courts were more likely to give remands than were conservative circuit courts. However, there was no difference in remand rates for petitioners from countries that were particularly hostile to LGBT people compared to countries that were less hostile. In the qualitative analysis of the cases, I found that courts denied queer cisgender female cases for adverse credibility reasons at disproportionately high rates. Petitioners without legal representation often presented inherently weak cases due to their criminal backgrounds. Of those without criminal backgrounds, many presented procedurally or argumentatively weak cases that lawyers could have enhanced. I also found that circuit courts had considerable discretion in weighing evidence and establishing persecution, which led to disparate outcomes across courts. Finally, procedural issues and individual persecution superseded general country conditions, and as a result LGBT country conditions were not a strong predictor of remand rates. This thesis closes with policy implications and future directions.