Seeking a home away from homophobia

Gays' asylum cases fuel law field's growth

Boston Globe
Maria Sacchetti

In her sister's spacious home in Chelsea, Delmy Berganza sat at the kitchen table one recent day and talked openly about life as a lesbian. In her native El Salvador, she was too terrified to utter the word.

In a small flat in Brazil, Genesio Oliveira covered his face with his hands in despair. He lives blocks from a man he said raped him years ago, and he lives in fear in a country where dozens of gay men were killed last year.

"Really I am afraid to even go out," he said, speaking into a Web camera. "It's just terrifying. I'd rather stay in my room."

Both had asked the US government for asylum, saying they feared persecution in their homelands because of their sexual orientation. Berganza's approval letter arrived in August. That same month, Oliveira's American husband held a candlelight vigil in Haverhill to mark the year anniversary since Oliveira returned to Brazil. His asylum bid was rejected.

Offering a haven for gays and lesbians is an emerging field of law in the United States and around the world, lawyers and advocates say, awakening foreigners to the option to live in the United States that was previously unknown. But the practice is raising concerns, as critics cite the potential for fraud and advocates worry that possible homophobia or lack of international experience might lead some judges and government officials to send foreigners back to dangerous lands.

In a 2003 case, an immigration judge in California denied asylum to a Mexican national, saying it wasn't obvious the man was gay. The man appealed and won asylum last year.

"Asylum is a discretionary measure," said Dusty Araujo, asylum-documentation coordinator for the Chicago-based National Immigrant Justice Center. "I usually tell clients it will depend on what side of the bed the judge got up that morning."

US Citizenship and Immigration Services spokesman Bill Wright said government officials and others are trained to follow immigration law. The US government doesn't track how many gays and lesbians receive asylum, he said. Homophobia "shouldn't factor in at all," he said. "An asylum case is adjudicated based on its own merits individually."

The Executive Office for Immigration Review, which oversees immigration courts, had no comment, said spokeswoman Susan Eastwood.

Federal human-rights reports outline threats worldwide, including to gays and lesbians. Brazilian law bans discrimination against gays, but 116 gays, lesbians, and transvestites were killed last year, up from 88 in 2006, the US State Department said in a report. Homosexuality is illegal in India, Uganda, and Jamaica - where it is punishable by 10 years in prison.

Critics of increased efforts to extend asylum to gays and lesbians are expressing concerns that applicants could pretend to be gay when they are really fleeing poverty back home. Unlike heterosexuals, gays and lesbians cannot sponsor their spouses for legal US residency.

"The problem with broadening asylum [is] how do you control for fraud?" said Dan Stein, president of the Federation for American Immigration Reform. "How do you handle that?"

In all asylum cases, applicants must show they have a well-founded fear of persecution in their homelands. Applicants can seek asylum in different ways: They can apply to Citizenship and Immigration Services, and they can appeal the decisions in court; or, if they are facing deportation, they can appeal to a judge directly in court.

Asylum does not guarantee citizenship, and asylum status can be revoked if conditions improve in their homelands or if they commit certain crimes.

For Berganza, a 40-year-old floor installer, the fear came early in El Salvador.

In her hometown, crowds frequently taunted and threw garbage at a boy they thought was gay. One girl had no friends because people believed she was a lesbian. One of Berganza's aunts received death threats because people thought she was a lesbian.

Berganza had always known she was different. Around age 8 she developed a crush on a girl. She never had a boyfriend.

"I never told anyone," she said. "I was afraid of what could happen."

After her father was killed during the country's civil war, her mother decided to leave Berganza and her two sisters in order to work in the United States. Berganza, then a teenager, volunteered to go instead. She couldn't wait to leave.

She was smuggled illegally into the United States and found work in California. But she struggled emotionally.

With the support of a friend, she came out as a lesbian - and then realized that she couldn't go home.

"It would never be the same," Berganza said.

She eventually moved to Massachusetts, where she fell in love and even attended a same-sex wedding.

She had tried different routes to gain legal status before she realized that asylum was an option. One day, she mentioned to her Boston-based lawyer, Jeff Ross, that she was a lesbian. Her story came pouring out and the asylum bid took shape.

She has no plans to return to her homeland. Instead, her elderly mother comes to visit, to avoid any harm to Berganza or her family.

"You can escape from that here," Berganza said.

The fear came early for Oliveira, too.

He heard slurs when he was only 6 years old, according to court documents. Around age 16, he said, he was raped by a doctor in the town he lives in now.

He left Brazil as soon as he could, going to medical school in Bolivia. When Oliveira's father died and he could no longer afford school, he moved to England and entered a sham marriage to gain residency.

And then, during a 2002 vacation in Boston, he met Tim Coco, an advertising agency owner, at a bar one Friday night after New Year's. By April 2002, they were in love. That October, Oliveira applied for asylum, was rejected, and appealed in court.

As the case continued, they built a life, buying a house, adopting a dog named Q-tip, and finally, marrying in 2005.

In 2006, the judge rejected Oliveira's asylum plea, though he found the testimony credible. He pointed out that Brazil has antidiscrimination laws and that Oliveira has gone to Brazil at least twice without incident, including for his father's funeral.

Now, Coco, who is 47, and Oliveira, 29, are planning another appeal because a recent federal report found that some government appointees, including immigration judges, had been screened for their views on gay marriage before they were appointed.

Coco tries to comfort Oliveira through nightly Internet chats, but it doesn't work.

"I just don't want to go out," said Oliveira, with a shrug.