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Friday, 20 August 2004

Gambian gay exile claims abuse during U.S. incarceration

Source: Washington Blade

By Adrian Brune

It is no simple feat to obtain a student visa and an airline flight in one month’s time. But at the point Yorro Kuyateh fled his native Gambia for the United States, the impossible seemed easier to face than what he said is the inevitable: a lifetime of periodic imprisonment and vicious beatings for his political beliefs and his homosexuality. He said he arrived in the United States in August 1997, an itinerant with no money and few resources, usually wearing a cap to cover scars from the head injuries he incurred during his last arrest in Gambia. Unable to finish nursing school, Kuyateh said he overstayed his visa without seeking asylum — a common problem among refugees — and the Immigration & Naturalization Service apprehended him five years later. While detained in five different Midwestern jails for eight months, Kuyateh’s real torment began, he claimed. And he said it occurred under the watch of the INS.

Local police placed Kuyateh in the general population, where he said he endured constant physical, verbal and sexual abuse from other inmates, many of whom had been convicted of violent crimes. Pleas to the INS from Kuyateh for a transfer to a safe location went unanswered, he said. Finally, he said an inmate charged with murder, viciously beat him — the assault captured by a prison security tape — effectively ending his incarceration, but leaving him with permanent brain damage. “ My people treated me badly; I came here and they treated me just like my own people,” Kuyateh said, speaking occasionally with angry intonations. “But I will never have liberty in my country. They will certainly kill me.”Pattern of mistreatment? Though gay refugees have a right to seek asylum in the United States under a decree issued by Janet Reno in 1994, the INS — now under the broad umbrella of the Department of Homeland Security — does not single them out as a protected class in detention.

As a result, immigration rights activists say Kuyateh’s story echoes the accounts of many other gay exiles seeking refuge in the U.S., who are eventually afforded it only after sometimes enduring worse abuse than in their native countries. The federal government guarantees gay expatriates a fair hearing for political asylum. But activists say biases in locales across the nation often affect the ultimate — and often life or death — decision to allow a refugee to stay or force him to return to the country responsible for his original detriment. “ We hear from dozens of gay immigrants every year, some who have been beaten to the point of death by other inmates when the only thing they’ve done is violate their visa status,” said Victoria Nielson, a spokesperson for Immigration Equality, formerly the Lesbian & Gay Immigration Rights Task Force. “ Gay detainees face the worst of both worlds, held in terrible conditions, not knowing they could have sought asylum and, at that point, without the full recourse of the law.”

Gay immigrants to the United States often bear a greater burden of proof in front of a judge, forced to prove they are gay when they kept that fact secret in their country of origin, according to Asylum Research, a national organization that monitors and documents gay refugees and their dilemmas. They must also overcome language barriers and many times, the impact of physical and mental trauma, while immersed in a court system completely foreign to their own.

The agency responsible for Kuyateh’s situation, the Immigration & Customs Enforcement Division of Homeland Security, granted Yorro Kuyateh a hearing in Kansas City, Mo., in April 2003, shortly after his release, said Christopher V. Nugent, Kuyateh’s current pro bono attorney from the D.C. office of the law firm Holland & Knight. The former Gambian civics teacher knew almost nothing of his rights in the United States, but attempted to represent himself. Immigration Judge Jennie L. Gambastiani commissioned DHS trial attorney, Paula Davis, to directly examine and cross-examine him. That dual role ultimately posed was an ethical conflict of interest, according to Kuyateh’s advocates, forcing Davis to act simultaneously as his advocate and his prosecutor.

Davis neglected to admit evidence of Kuyateh’s beatings in Gambia and refused to elicit key testimony that would have allowed him to meet the burden of proof for asylum, according to gay Congressman Barney Frank (D-Mass.), who has stepped in as Kuyateh’s government advocate. Davis also asked hostile and, Frank says, arguably homophobic questions, comparing sodomy laws in Missouri and Kansas to those of Gambia, in an attempt to vitiate Kuyateh’s reasons for flight from Gambia. “ As a result of the trial attorney’s ethically problematic role, Mr. Kuyateh’s testimony and due process right to a full and fair hearing were significantly compromised,” Frank said in a July letter to the Executive Office for Immigration Review.

Gambastiani denied Kuyateh’s claim for asylum under the United Nations Convention Against Torture. He was ordered to return to Gambia but managed to find Nugent, who delayed his homecoming with an appeal to the Board of Immigration Appeals.

Deputy Chief Counsel of Immigration Enforcement, Karl Cozad, has argued that Gambastiani correctly ruled in Kuyateh’s case. Kuyateh’s reasons for his failure to file an asylum application as soon as his student visa expired did not rise to extraordinary circumstances, he said. Cozad also disputed the danger Kuyateh faced in Gambia, asserting that harassment in Gambia under its sodomy laws resembled that of the United States.

‘Challenging’ system

“The immigration system is extremely challenging for gays and lesbians,” said Nugent, an immigration specialist. “There are absolutely no guidelines for their claims, but the INS is not about creativity, it’s about mass detention and deportation. I have recommended immigrants to seek asylum in Canada before because their system is far more welcoming.” Cozad refused to comment on the outcome of Kuyateh’s case, citing the possible endangerment of the petitioner. The board will render its decision on whether to hear Kuyateh’s appeal later this month. Neither the Department of Homeland Security nor the INS keeps statistics on the number of gay exiles to the U.S. every year, though watchdog groups estimate the numbers hover around 2,000. For its part, Immigration Enforcement claims it does not single out gay exiles because it maintains high detention standards to protect all immigrants in custody. “ Our detainees are kept separately from hard-core criminals unless they are one of them. If something did happen to a gay detainee, it would be reported to us and some kind of action would be taken,” said Immigrations Enforcement spokesperson Ernestine Fobbs.

“ It’s not to say that they don’t exist, but I have never heard of someone coming forth and saying, ‘I’m gay, I need special detaining facilities and procedures.’” While human rights organizations have not placed Gambia high on the list of offending governments, in the winter of 2003, Gambian President Yahya Jammeh called for a crackdown on gays, who he has compared to animals. Homosexual acts are illegal in the largely Muslim country, and those convicted of “having carnal knowledge against the order of nature” face imprisonment up to 14 years. Kuyateh said Gambians had expressed hostility toward him for being gay since he returned from college in Sierra Leone to work in a rural school in 1993. A government coup d’etat in 1995 furthered his endangerment, he said. Military police first arrested Kuyateh in 1995 on a violation of Gambia’s sodomy laws interrogate him about the whereabouts of his exiled brother-in-law, a former member of parliament, he claims. They repeated the arrest a year later, this time burning his genitals with cigarettes and whipping him with the metal end of the belt, he said.

Kuyateh said he doubted that he would survive his second incarceration, and fled as quickly as possible. Kuyateh now lives with a distant family friend in Maryland, unable to work due to a seizure disorder, and staving off depression and anxiety over his situation. Asylum would open the door to a new life for him by assisting him with medical care, housing and job opportunities. But the soft-spoken, affable man tries to take pleasure in small things while he awaits his future.

“ I went to Gay Pride for the first time in June,” Kuyateh said. “That was incredible.”

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