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NYT: "Gays Seeking Asylum In U.S. Encounter A New Hurdle"

January 31, 2011 11:04 am ET by Equality Matters staff

Last week, the New York Times reported on criticism that Citizenship and Immigration Services refuses gay asylum seekers for not "outwardly expressing their sexuality":

Amid international outcry over news of the Czech Republic's testing the veracity of claims of purportedly gay asylum seekers by attaching genital cuffs to monitor their arousal while they watched pornography, some gay refugees and their advocates in New York are complaining that they can be penalized for not outwardly expressing their sexuality. While asylum-seekers and rights groups here expressed relief that use of the so-called erotic lie detector is impossible to imagine in the United States, some lamented in recent interviews that here too, homosexuals seeking asylum may risk being dismissed as not being gay enough.

[...]

"Judges and immigration officials are adding a new hurdle in gay asylum cases that an applicant's homosexuality must be socially visible," said Lori Adams, a lawyer at Human Rights First, a nonprofit group, who advises people seeking asylum based on sexuality. "The rationale is that if you don't look obviously gay, you can go home and hide your sexuality and don't need to be worried about being persecuted."

Jhuan Marrero, 18, who was born in Venezuela but has lived — illegally — in New York since he was 4, said the immigration officer at his asylum interview last week challenged him about his macho demeanor.

"I was brought up by my parents to walk and talk like a man," said Mr. Marrero, who volunteers at the Queens Pride House, a gay and lesbian center in Jackson Heights.

"The officer said: 'You're not a transsexual. You don't look gay. How are you at risk?' I insisted that if I was sent back to Venezuela, I would speak out about being gay and suffer the consequences."

Victoria Neilson, legal director of the New York-based Immigration Equality, which provides assistance to asylum seekers, recalled the case of a 21-year-old lesbian who had been threatened with gang rape in her native Albania to cure her of her sexual orientation, but was initially denied asylum, Ms. Neilson said, because she was young, attractive and single, apparently not conforming to the officer's stereotype of a lesbian. (A judge later granted her asylum, Ms. Neilson said.)

The Times also noted Citizenship and Immigration Services' (CIS) statement that they don't deny asylum seekers for being "insufficiently gay," adding that "Sexual preference is an immutable characteristic. It is something an individual can't or shouldn't change":

Chris Rhatigan, a spokeswoman for the United States Citizenship and Immigration Services, said each case is examined individually, both for evidence of sexual orientation and the conditions of the country of origin. While she declined to comment specifically on the examples cited by Mr. Marrero and Ms. Neilson, Ms. Rhatigan said such behavior by immigration officers would not be condoned.

"We don't say that someone is insufficiently gay or homosexual, whatever that would mean, or that he or she could be saved by hiding his or her homosexuality," Ms. Rhatigan said. "Sexual preference is an immutable characteristic. It is something an individual can't or shouldn't change."

Citizenship and Immigration Services received 38,000 asylum applications between October 2009 and September 2010, but the agency does not track how many cite being gay or lesbian as a reason. People may qualify for asylum if they can demonstrate past persecution or a well-founded fear of future persecution based on membership in a particular social group; in 1994, the scope of the law was expanded to specifically include homosexuals.

Illegal immigrants seeking asylum are interviewed by immigration officers, who can either approve their applications or refer them to an immigration judge. Gay applicants must marshal evidence of their sexual orientation and their risk of persecution, like affidavits from same-sex partners or police and medical reports of abuse. But legal experts said that the burden of proof can be difficult for people from places like Saudi Arabia or Iran where homosexuality is punishable by death and it can be dangerous to be openly gay or report an anti-gay hate crime — or from Western countries that are believed to be sexually tolerant.