An interesting section on this article documenting the treatment of transgender aliens seeking asylum in the United States asks whether, on the basis of the U.S. criteria, an American transgender would be entitled to asylum in a foreign country. According to those criteria, an applicant must prove that he or she was: (1) outside his or her home country; (2) a member of a particular social group, or had such a membership imputed onto them by his or her persecutor; and (3) persecuted in the past or has a well-founded fear of persecution in the future. A fourth criterion is that past or future persecution must be the basis of the applicant's real or perceived membership in the particular social group. The point is to test "United States asylum ideals against the reality of its domestic society," a test on which the U.S. is not likely score well, with a likely result that "another country applying United States asylum law would grant asylum to a transgender applicant based on his or her persecution in the United States."

The author intends this new piece to supplement an earlier work (32 Nova L. Rev. 357 (2008)) that discussed the problems of U.S. asylum law as it touches on gay men and lesbians. Here he employs those insights to propose corrective legislation, including five amendments to the Immigration and Nationality Act that will "better provide justice to victims of persecution based on sexual orientation." Those amendments would (1) define "persecution" as "The objective infliction of suffering or harm which is subsequently experience upon those who differ, including, but not limited to threats to life, confinement, torture and economic restrictions so sever that they constitute a real threat to life or freedom" (a combination of Ninth and Tenth Circuit holdings); (2) adopt the Seventh Circuit's evidentiary standard that "'Persecution' may be demonstrated by either showing the persecutor's motivation to punish or, more generally, the infliction of harm on account of the five statutory grounds"; (3) define "particular social group" in line with Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000); (4) allow consideration of "gender-based violence that is non-state sponsored"; and (5) require the publication of "opinions of each asylum case wherein claim is of asylum are granted on grounds of sexual orientation, gender-based violence and coercive population control measure."

In the case of Boer-Sedano v. Gonzales [418 F.3d 1082 (9th Cir. 2005)] the ninth circuit ruled that a gay asylum seeker’s HIV or AIDS status could make return to his country of origin unreasonable. This brief article examines the Boer-Sedano case and explores its significance for asylum seekers with HIV or AIDS.

This article examines whether there is any international obligation on the United States, arising from international standards or treaties, which mandates the protection of lesbians and gay men from discrimination or the decriminalization of gay sexual conduct. The International Covenant on Civil and Political Rights (ICCPR) is discussed. The United States’ reluctance to adhere to international human rights norms is also explored.

While not writing directly on issues relevant to a GLBT audience, Holland's analysis of the ways in which enforcement of immigration laws serves as de facto governmental regulation of family form offers some insight into difficulties experience within our own community. While family law has expanded to recognize many modern realities--step- and adopted children, and "functional" family units among others -- immigration policy remains mired in archaic notions of the traditional constellation. She contrasts two cases -- Nguyen v. INS, 533 U.S. 53 (2001) and Yin v. Esperdy, 187 F. Supp. 51 (S.D.N.Y. 1960) -- to show that INS rules are strictly construed to the extent the family at issue fails to conform to traditional nuclear models. Consequently many individuals who would be recognized by family law are denied that status by immigration authorities, and thus not allowed to enter this country to rejoin their relatives.

An “exercise in normative theory,” this article reviews John Rawls’ concept of “justice as fairness” and extends it to same-sex couples in the context of immigration policy. Such immigration benefits, it is argued, “follow from a reasonable working-out” of basic liberties in a society committed to Rawls’ domestic theory of justice.

Asylum claims can be based on "membership in a particular social group," one of five such grounds. The standard view interprets this criterion as requiring an "immutable" characteristic, one that cannot, or should not be required to be changed in order to be secure in one's person, and which offers an objective standard. The U.S. Bureau of Immigration Affairs has, however, begun to include an additional subjective element of "social visibility," which applies to members rather than to social perception of the group. Marouf asserts that this reading is contrary to the norms of interpretation in international law, and risks "incoherent, inconsistent decisions." The harm will fall especially hard on those seeking refugee status on claims relating to sexual orientation and gender. "With respect to sexual orientation, the United States and international authorities have rejected the notion that gays and lesbians who remain "discreet" - and therefore "invisible" - are not protected by the refugee definition. Under the "social visibility" test, however, their claims may well be denied. Indeed, even claims brought by "out" gays and lesbians may be rejected if they come from societies that do not recognize homosexuals as a group or homosexuality as a social identity.... [The] Refugee Convention protects certain rights because of their intrinsic importance. Such protection is not made contingent on whether those rights can be hidden."

Drawing on a Critical Race Theory analysis, this article examines the role that racial and sexual stereotypes play in sexual orientation asylum cases. The asylum process is outlined, and the racism and homophobia inherent in the requirement of proving one’s homosexuality are exposed. Suggestions on improving the asylum system are provided.

O'Dwyer, a practicing immigration attorney, combines data and practical experience to conclude that "one of the decisive factors in asylum claims based on sexual identity will continue to be the identity of the judge, rather than that of the applicant." All told, "with the exception of the Ninth Circuit, the odds of being successful on a petition for review in a sexual-identity-based protection claim are extremely slim." Immigration courts, in fact, despite reputations to the contrary, "have proven themselves far more receptive to sexual-orientation based protection claims than the federal courts." Given these obstacles and inconsistencies across jurisdictions, the author shares the lessons of his experiences by offering advice on how asylum cases might be successfully argued.

This article addresses the potential impact of Lawrence v. Texas [539 U.S. 558 (2003)] on asylum law. It refutes the assertion made by Professor Michael Scaperlanda, of the University of Oklahoma Law School, that the recent expansion of protections granted to gay asylum seekers will allow gay rights advocates to build a body of precedent useful in constitutional law contexts. The article asserts that lower courts’ interpretations of Lawrence have not been helpful and could slow advances in asylum law.

Zaske describes the history and current content of U.S. immigration laws which impact homosexuals. Zaske goes on to discuss the Permanent Partners Immigration Act [H.R. 3006, 109th Cong. (2005)]. A comparative analysis of immigration laws from other countries is included in Zaske’s analysis of how PPIA may be implemented.