Wednesday, August 17, 2005

In the news - Asylum

The San Francisco-based Ninth U.S. Circuit Court of Appeals has overturned a previous immigration court decision to deport José Boer-Sedano, a Mexican gay man with HIV, and granted him political asylum in the United States. English and Spanish language media are picking up on the story as if this was the first time that such a thing has happened, including which calls it a '1 in a 1,000' chance ruling, showing you how little is known about the asylum process.

I have personally acted as translator in several asylum court hearings (at least in New York State anyone seeking asylum can bring their own translators, sometimes risky because the translator might not be that great) and I know of several Mexican gay men with HIV or AIDS who have been granted asylum previously. But while I might know this from personal experience it would be hard to say if this is a common thing: The Office of Homeland Security (which aabsorbed the Immigration and Naturalization Service/INS) does not keep records on why it grants asylum - whether it's persecution based on sexual orientation, political beliefs or other reasons - just the numbers.

The asylum process is at once mundane and bureaucratic as well as nerve-wracking and life-changing and has never been better portrayed as in the documentary "Well-Founded Fear". It is also no secret that under this government it has gotten progressively tougher (notice that in the case above the court overturned a decision by United States immigration courts).

The fact that Mexico is a "friend" to the United States also makes it hard to argue that such bad things could possibly happen in a friendly country (as a matter of fact for a while it was rumored that asylum decisions regarding gay men from Mexico were denied due to a glowing article that a United States-based gay tourism journalist wrote about Mexican beach resorts and how open gay life seemed there).

The courts do not seem to differentiate weather gays are treated better in urban areas than in a rural area in a specific country (and believe me, there is a big difference). I also remember one asylum court interviewer telling an asylum seeker that he would be fine if he just 'butched it up' a little more and another outright challenging another asylum seeker's homosexuality because he was masculine.

I have always found it capricious that if someone is granted political asylum in the United States after proving that he or she is in danger of dying in his or her home country based on persecution due to sexual orientation, other immigrants also need to prove the same thing about the same country (if one proves it, why should others prove the same thing?).

But I have also seen political asylum seekers be granted asylum based on a weak case while others with strong cases are denied - even if they have photographic evidence of beatings and torture - just because one ultimately argued that he feared being killed if he was ordered to return to his country while the one that actually had proof of personal persecution said he wanted to stay in the United States to make a better life for his family.

[UPDATE: Leave it to Arthur S. Leonard to tell it like it is and show me that I am incorrect in at least one respect: The rulings are not final until United States Attorney General Alberto Gonzales agrees with the courts]

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