August 14, 2005

Asylum for gay persons?

The Ninth Circuit found that a gay man who had been abused by the police in Mexico was eligible for asylum in the United States:
The three-judge appellate panel said in its ruling that Boer-Sedano would likely face further abuse and have difficulty getting life-sustaining AIDS medication if he was sent back to Mexico, where the U.S. State Department has found violence against gays to be widespread.

The ruling is the latest in which the San Francisco-based court has granted refuge to gay or transgendered asylum applicants from Latin America based on evidence of abuse inflicted or condoned by police.

''It really does mean that he'll be safe now,'' said Boer-Sedano's lawyer, Angela Bean.


Menlo Bob said...

The story came from the San Francisco Chronicle which includes this additional detail:
"Boer-Sedano moved to Monterrey, Mexico, stayed for a year, but left after lying about his homosexuality during a police raid. He came to San Francisco on a six-month visa in 1990 and was diagnosed with HIV in 1992 and later with AIDS. Deportation proceedings began in 1997.

His asylum claim was denied by an immigration judge, who said Boer-Sedano had merely encountered a "personal problem'' with a police officer that did not amount to persecution, and that there was no evidence of systematic official persecution of gays in Mexico.

But the appeals court said that the officer's assaults were clearly motivated by Boer-Sedano's homosexuality, and that his death threats constituted persecution by a government agent."

Bruce Hayden said...

I am troubled by a number of things here. With the Roberts discussion, I was first struck by what appears to be an appeals court second guessing the finding of fact by the trial court.

I am also worried about the precedent here. Part of the argument seems to have been about access to AIDS drugs. So, what you have here is a more than likely self inflicted disease being used as an excuse to stay. It is hard to believe that even in the Hispanic community in the early 1990s, the connection between high risk behavior and HIV was well known.

Worse, I suspect that there is a potential that if not already, then ultimately, the state (and/or federal) government will end up paying for his treatment.

Finally, it more than likely isn't really being gay itself that is the potential problem, but the engaging in, or solicitation of, homosexual acts that is the problem in those countries. And, thus, again, it is a question of voluntary actions and not an innate condition that is at issue here.

AJS said...

This is not really anything new, other than the specific facts of the case. In 1994, as I recall, the Department of Justice included persecuation on the basis of sexual orientation as one of the bases on which asylum could be granted. The International Gay and Lesbian Human Rights Commission is a good (but obviously partisan) resource on this issue. This policy is pretty much an anomaly in United States immigration law.

Bruce's first argument is certainly a concern, but his fourth issue is flawed. Attempting to create a distinction between orientation and action renders orientation a moot point. Many African and Arab countries in particular, but also nations throughout the world, impose harsh and severe penalties for any consensual homosexual acts. And they also impose harsh penalties for speaking ill about the government. We don't distinguish between "the condition of being a government opponent" and "engaging in opposition speech" for purposes of asylum. Why should we do the same for sexual orientation?

ziemer said...

i haven't read the decision, but, even if he has suffered persecution, in order to qualify for asylum, he has to show a likelihood of future persecution if returned to mexico.

i find it hard to believe that the ninth circuit would overturn the IJ's finding that no such showing was made.

ziemer said...

to ajs:

that would be the difference regarding political dissidents.

if someone is a known political dissident, future persecution will likely result if returned to some countries.

mexico is a big country; monterey is a huge city. i'm sure the monterey police don't have this guy's name on a list as a homosexual that they can persecute as they please with impunity.

John Jenkins said...

I don't have my statute book with me, but this is perfectly consistent with U.S. Asylum law. Where someone is being persecuted for being a member of a certain group with traits they cannot change (skin color, ethnicity) or should not be required to change (religion), then they are eligible for asylum. As a society, I think we'd consider homosexuality to be in at one of those two categories, so persecution based on homosexuality is properly the basis of an asylum claim.

The division between homosexual behavior and homosexuality as a status is pernicious, in that if we start to draw that line, then it's not opposing the government of X that got you in trouble, it's acting on that opposition (i.e. speaking out) so there is no justifiable claim for asylum. It's not being Jewish, but practicing Judaisim, etc. I'm sorry, but that doesn't wash.

When reviewing the IJ and BIA, "the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Without having read the opinion, that means that the 9th Cir. found that no rational trier of fact could have concluded that this was an isolated, personal incident. I don't have the evidence, so I don't know how they arrived at that decision (they are limited to the administrative record below and cannot consider anything outside of that. See INA sec. 242).

ploopusgirl said...

Bruce: It's acting on the homosexual behavior, not the homosexuality? And how do you go about distinguishing this? Following alleged homosexuals around to see if they're acting on it? It's pretty common for a homosexual person who displays stereotypical homosexual attributes to be harassed and discriminated against for this reason alone, whether he or she has decided not to act on his or her homosexuality. You make it sound like it's an easy choice for these people: just don't act on your homosexuality and you won't be harassed! Not that easy, Bruce.

AJS said...

to ziemer:

I still don't see the difference between sexual orientation and political opinion, if the refugee can show that he's likely to be persecuted on that basis if returned.

Although my comment wasn't specific to this case, it would not surprise me at all if the Monterrey police had the guy's name on a list of homosexuals. Many other countries (the example I'm thinking of is Uganda, where homosexuality was until recently punishable by life imprisonment), have done exactly that.

Sloanasaurus said...

It seems that if a person is known by the local officials in Mexico to be gay and as a consequence will most likely be target by them when the individual returns, then I think granting asylum is fair. However, if the person is just gay or acts in a gay manner here in the United States, that should not be enough for asylum otherwise anyone can just claim they are gay and get asylum.

Richard Fagin said...

You guys figure out a way to get Elian Gonzales back from Cuba and I'll go along with asylum for the gay guy from Mexico.

John Jenkins said...

Slonasaurus, That's not exactly right. Homosexuality as such is never grounds for asylum. It's only where the person would be or has been persecuted for being homosexual that asylum is an option. A homosexual from Iran (where they hang men for it) might be entitled to asylum, while one from England would not.

Richard, that's irrelevant to the discussion, both of the law and the facts of the case (of which we know little). Whether Elian should have been granted asylum is a totally different question with complicated issues not in question here (no custodial parent, for example).

Diane said...


Isn’t Christianity a voluntary act?

So when people are condemned to death in non-Christian countries for engaging in acts of Christianity (meeting in church), or soliciting Christianity (also known as evangelization), aren’t they simply experiencing the consequences for their actions? What if they said "It is okay to be a Christian in your heart, but you cannot talk about it, celebrate it, or show it in your actions in any way."?

Would that be okay?

If you can give people asylum for experience religious persecution, then you can give people asylum for homosexuality. As far as I’m concerned, they are both voluntary acts. They are matters of lifestyle, and they are none of anyone's buisness.

James Luath said...

Those that have argued that this decision is perfectly compatible with US Asylum law are right . . . up to a point, but miss the dangerous new precedent set towards the end of the opinion.

Being persecuted for being gay has already been accepted by the BIA as grounds for asylum. However, as in any asylum case, the government can rebut the argument that the applicant will face future persecution if he is returned to the country of removal, by showing that there is somewhere--anywhere--in the designated country of removal where the applicant would not face persecution. And that means persecution--not merely being bullied, intimidated, cowed, poorly treated, etc. (Although the Ninth Circuit has found varying degrees of abuse can constitute persecution, I can think of several off the top of my head in which a single detention and beating did not qualify as persecution, so it should be a high standard).

In this case, the panel held that the fact that gay people are often discriminated against in Mexican society, coupled with the applicant's lack of access to cutting-edge AIDS drugs in Mexico, amounted to persecution, so that there would be nowhere in the country to which he could relocate and avoid persecution. There are other problems with the panel's analysis of this issue, but this is the biggest.

By holding that the applicant would be persecuted anywhere in Mexico, they implicitly hold that general societal disapproval, coupled with a lack of access to expensive, first-world drugs, qualifies as persecution. It would follow, then, that any gay man in Mexico with HIV/AIDS can now apply for asylum and, when challenged to show that he has been persecuted, can show that he is unable to receive cutting edge treatment. Of course, this is absurd--the unavailability of medicine, unless willfully witheld by the state, does not qualify as persecution (which, by the way, must be at the hands of the state or persons whom the state is unable or unwilling to control). But, if lack of medicine is not persecution, then why has the Ninth Circuit used it as a basis of its analysis of the applicant's likelihood of future persecution? The answer is that doing so was wholly improper.

And I won't even get into the panel's usurpation of the BIA's duty to decide novel matters in this area in the first instance, which are then due extreme deference by the courts of appeal.

THIS is why this opinion stinks to high heaven. And those who care about the proper application of the national asylum laws, and the proper role of the courts in immigration matters, should hope that one of the sensible heads on the Ninth Circuit (O'Scannlain, Kleinfeld, Tallman, Bea, Bybee, Callahan--I'm looking at you) decides that this case needs to be reheard on this issue. Because it certainly does.