By Arthur S. Leonard
Anti-immigrant sentiment has led Congress over the past few decades to make it more and more difficult for an individual to be granted refugee status in the United States. Legislation has erected new procedural hurdles, and the requirements regarding evidence have been toughened considerably. As a result, people whose lives really are in danger because they are gay sometimes can’t find refuge in this country — ironically, at a time when it seems clear that such asylum is vitally needed.
Two recent cases denying refuge here cast this point in sharp relief — particularly when viewed in the context of news stories that emerged from abroad. The names of the asylum applicants are being withheld, given the likelihood that they will now be returned to their home countries.
The first example came in a December 14 ruling from a three-judge panel of the Houston-based US Court of Appeals for the 5th Circuit. The petitioner, a gay man from Pakistan, was tripped up by tight procedural rules, having failed to file a timely appeal — within 30 days! — of a ruling from the Board of Immigration Appeals (BIA) that upheld a decision denying him refugee status. After the BIA ruled, the man learned he was HIV-positive, and filed a motion to block his deportation. The man was hamstrung in his effort to challenge the original BIA ruling, and the Court of Appeals only considered his appeal of the BIA refusal to reopen his case to weigh the impact of his newly discovered HIV status.
The petitioner argued that the BIA abused its discretion in denying his motion to review the issue of his HIV status, arguing that the changes in his circumstances warranted another look at his asylum bid.
The appeals court, however, accepted the BIA’s reliance on a 2008 State Department Human Rights Report that “showed no observed persecution based on HIV/ AIDS status from government services or society in general, and that a slow, positive change was also occurring even though some discrimination remains.” The court also considered salient the fact that the gay man had not demonstrated that he has AIDS, but merely that he is HIV-positive.
Citing the Pakistani man’s failure to appeal the original BIA ruling within the required 30 days, the appeals court stated it had no jurisdiction over his motion to reconsider the rejection of his argument that he faces persecution on the basis of his homosexuality.
The Court of Appeals upheld the BIA’s order that the man be deported.
The court’s brief opinion points up much of what is wrong with our system. Only 30 days to appeal an adverse ruling is ridiculous. Requiring that every refugee applicant reinvent the wheel by having to prove that in their individual case it could be deadly to return to their home country after having established they are gay and HIV-positive is absurd. Failing to note that Pakistan is a predominantly Muslim country, where there is fierce cultural disapproval of homosexuality, strikes this observer as Kafka-esque!
It is also more than fair to question the quality of the State Department record upon which the BIA reached the conclusion that there is no discrimination against HIV-positive gay men in Pakistan. In other Muslim countries, gays are frequently targeted for honor killings, and people with HIV try to keep that a deep dark secret until they can get out of the country to avoid shunning or worse.
The 5th Circuit decision is particularly startling when contrasted with a January 3 story in the Korea Times, which reported that nation had granted a gay Pakistani man, who was an illegal immigrant, refugee status “because he may face persecution due to his sexual orientation if deported.” The newspaper noted that the decision “is a rare case of the Korean authorities acknowledging such an asylum bid,” but said it “is expected to affect other applicants waiting in line.”
In describing the man’s circumstances, the Korea Times reported, “The man has known he is gay since he was 14, but has had to remain ‘in the closet’ due to the fierce punishment levied by Pakistan on homosexuals, which can be as harsh as life imprisonment. He was married to a woman but had sexual relationships with other men. He worked as a lawyer in his own country between 1983 and 1996, but came to Korea in 1996 and has stayed here illegally. He was apprehended during a nationwide crackdown on illegal immigrants last January.” According to the newspaper, the Korean court concluded, “Though he had a relatively lucrative job back in his home country, he came to Korea for his own safety, leaving everything behind. There were court rulings condemning homosexuality there, which indicate that he could be severely punished.”
So, who is correct? The US Board of Immigration Appeals, which rejected a plea based on a 2008 State Department Report, compiled by a Republican administration indifferent or even hostile to gay rights, that said there was evidence things were improving for gays in Pakistan and there was no official persecution, or the court in Seoul that cited harsh judicial rulings against gays in Pakistan and found that a gay man from that country should be extended asylum because he would be persecuted if returned? Who is being more solicitous of the human rights of gay people — Korea or the US?
Another case that will likely shock the conscience even more concerns a gay Honduran man who sought to stay in the US. In the December 24 issue of Gay City News, Doug Ireland reported on the assassination last month of Walter Trochez, a well-known and highly respected gay and HIV rights advocate in Honduras, and linked it a broader crackdown by the government installed last year in a coup. On December 21, the European Union issued a statement condemning “recent murders of civil society and media representatives or their relatives in Honduras” pointing to, among other cases, Trochez’s murder.
The very next day, however, the US Court of Appeals for the 9th Circuit, based in San Francisco, upheld the BIA’s decision to deny a gay Honduran immigrant’s request to be given US protection under the international Convention Against Torture.
This case points up the fallout from Congress’ draconian crackdown on drugs; immigration law virtually requires that non-citizens convicted of drug offenses be thrown out of the country, no matter how trivial the offenses. As the Honduran man discovered, to lose eligibility to stay in the US, it’s enough to be convicted on state misdemeanor possession charges. The last straw the man had to grasp was the Convention Against Torture, the provisions of which could allow even a convicted felon to stay in the U.S. if they could show that returning to their home country would subject them to likely torture or serious harm. The Honduran man was unsuccessful in making that argument.
The burden the man faced, the court found, was to “show that actors would specifically intend to inflict severe pain and suffering on him; where those actors are private citizens, he must show that the Honduran government acquiesces in their torturous conduct.” However, the record, the court stated, “does not compel the conclusion that any private or governmental actor who might commit misconduct against [the man] would intend any torturous consequences that could result from the combination of his homosexuality, poor health, and the poor condition of the Honduran public health system.”
The reference to the Honduran man’s health is not explained in the court opinion.
Relief under the international torture treaty was denied for three reasons. First, the violence the man had suffered in Honduras came “at the hands of private actors” when he was a youth. The applicant did not show “government acquiescence” in the attacks on him.
According to the court, the record also failed to make the case “that a gay man is more likely than not to be tortured in Honduras.” There is discrimination, the ruling stated, but it is not clear “that the Honduran government acquiesces in the torture of gay men. Specifically, Honduras does not criminalize gay acts, Honduran prosecutors prosecute crimes against gay people, and police misconduct against gay people does not clearly rise to the level of torture.”
Finally, the applicant did not provide specific evidence that he would be tortured if he returned to Honduras.
Significantly, in light of Trochez’s murder, the court found that the Honduran man “is not a gay rights activist, transsexual, or member of another category of homosexual persons more frequently targeted for violence.” The court also rejected the man’s argument that because of his poor health he could face the risk of being denied medical care if he were imprisoned in Honduras.
It is haunting to read, just days after the murder of a prominent gay activist in Honduras, that a gay man desperately seeking not to be deported to that nation has nothing to fear because he is not a “gay rights activist.”
Since the early years of the Clinton administration, the Justice Department has recognized gay people as a “particular social group” whose members might achieve refugee status here by showing they were subject to persecution or severe danger in their home countries. That policy has meant success for some asylum seekers. The US government, however, in far too many cases, continues to apply unreasonable standards in a manner oblivious to the reality of gay life in many oppressive societies, denying deserving refugee applications the right to the protection of this country.