In 1992, when Martinez initially applied for asylum, the U.S. had not yet recognized sexual orientation as a ground for asylum. Afraid of being forced back to Guatemala, where he feared for his life, and unaware that persecution based on sexual orientation might be a basis for asylum in this country, Martinez did not disclose his sexual orientation in his initial asylum application, stating that he feared returning to Guatemala because of his political opinion.
When Martinez was placed in deportation proceedings, he retained an attorney and immediately told the Immigration Judge the real reason he feared returning to Guatemala—he had already been mistreated there and feared further persecution because of his sexual orientation. The judge denied him asylum, finding that since he had failed to make that claim in his initial application, nothing else he said was credible, even though Martinez’s life partner testified in court about their relationship. In March of this year, the Ninth Circuit upheld the immigration court’s decision. Without any analysis of Martinez’s actual claim or the conditions in Guatemala for lesbian, gay, bisexual, or transgender (LGBT) people, the Court simply declared him not credible and denied his claim.
"This case creates a precedent that is truly dangerous for LGBT asylum seekers," said Victoria Neilson, legal director of Immigration Equality. "It is common for LGBT people to fail to disclose their sexual orientation or gender identity in an initial application either because they don’t know this can be a ground for asylum or because they’re not completely ‘out’ about being gay. If this ruling stands, it will be much more difficult for LGBT people to win protection from persecution."
Shannon Minter, legal director of the National Center for Lesbian Rights, added, "It is understandable that a person who has been brutalized by his own government for being gay may be afraid to disclose his sexual orientation when he first applies for asylum. To find Martinez not credible simply because he was fearful of telling a U.S. government official he was gay—after he had been sexually assaulted and beaten by government officials in his country—is a travesty."
NCLR and Immigration Equality are urging the Court to rehear the case and grant Martinez asylum.
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The facts in the Martinez are somewhat different than as reported above. The court found him not believable not because he didn't raise his sexual orientation claim in the initial asylum application, but because he first fabricated a claim of political persecution and only withdrew it and asserted the second, sexual orientation claim, when the first story didn't succeed.
ReplyDeleteThere have been many successful applications which did not initially raise sexual orientation as the basis for a claim but which added it subsequently.
While the outcome in this Martinez case is indeed harsh,
it should be clear that the basis for the adverse credibility finding was not his failure to include the sexual orientation claim, but his admitted fabrication of another, entirely false claim. In most cases in most courts, that will be sufficient to justify a negative outcome.