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.
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:
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6 comments:
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."
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.
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 www.iglhrc.org 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?
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.
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.
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.
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