More than Mere Semantics: The Case for an Expansive Definition of Persecution in Sexual Minority Asylum Claims

This Article asserts that the requirement in U.S. asylum law that requires an asylee to make a showing of persecutory intent is overly and especially restrictive in claims made by sexual minorities. This Article proposes that the U.S. adopt the asylum standards of New Zealand and Canada, where the focus is on the failure of government protection as opposed to a focus on persecutory intent. Such standards are consistent with both the realities of persecution that sexual minorities encounter and the original impetus behind the Refugee Convention. Part I examines the different forms of persecution against sexual minorities. Part II outlines the history of the Refugee Convention, including various political influences that suggest a liberal interpretation of Convention standards. Part III discusses the current split among the circuit courts regarding whether punitive intent is required to show persecution, and argues that requiring such a showing is especially detrimental to sexual minority asylum claims. Part IV proposes an alternative standard based on New Zealand and Canadian law and argues that this standard more closely coincides with the original meaning of international refugee law