Crafting rhetorical precedent: the paradox of the LGBT asylum seeker in the Matter of Toboso-Alfonso

Abstract The 1990 Board of Immigration Appeals case, the Matter of Toboso-Alfonso, was the first to establish lesbian, gay, bisexual, and transgender (LGBT) people as eligible for asylum in the United States upon proof of their “homosexual” identity and of their “well-founded fear of persecution” in another nation. The Toboso-Alfonso case united issues of immigration and sexual orientation, complicating notions of private and public and questioning the necessity of exclusionary immigration policies. I argue that in making Toboso-Alfonso precedent for similar cases, the U.S. ultimately removed a barrier to entry for LGBT migrants but set in place norms that continue to regulate LGBT identity. My findings assert that administrative legal arguments hold the ability to set in place a rhetorical precedent that shapes future performances associated with that precedent—performances of citizenship in particular—by shaping the collective understanding of citizenship (and citizens) in the social imaginary.