Transgender Man’s Case Tests U.S. Immigration Law

Luis Reyes-Reyes says he fled El Salvador to escape persecution, and if immigration officials determine those fears are legitimate, he could be granted asylum in the United States under the Convention Against Torture.

But Reyes-Reyes, 42, is not looking for traditional political asylum. As he and his lawyers put it, he fears returning to his homeland because, for much of his life, he has lived as a woman.

The question before immigration officials is whether Reyes-Reyes will be among a small number of transgender immigrants who have been granted asylum because their sexual identity could put them in peril in their homelands.

Reyes-Reyes won a temporary reprieve from deportation after the U.S. 9th Circuit Court of Appeals ruled last month that an immigration board in San Pedro did not consider his case under the proper legal standard.

Immigration attorneys say this is the first time that a federal appeals court has told an immigration board to reconsider a case because of issues related to sexual identity.

The board must determine whether the Salvadoran government condoned or willfully ignored the persecution Reyes-Reyes claims to have endured and whether it is likely he would be abused if he were sent home.

Reyes-Reyes testified in a hearing that he was afraid to return to El Salvador because “people like me are killed.”

He declined to be interviewed, but court documents detail his personal history.

Before coming to Los Angeles in 1979, Reyes-Reyes testified, he suffered intolerable cruelty in El Salvador because of his sexual identity. He was only 13, he said, when he was kidnapped, raped and beaten by a gang of men.

Fearing for his life, he said, he headed north and crossed illegally into the U.S. from Tijuana when he was 17.

For 25 years, he managed to evade immigration officials in Southern California. He did domestic work -- cleaning houses, gardening, tending pools.

Court documents described Reyes-Reyes as someone who “dresses and looks like a woman, wearing makeup and a woman’s hairstyle.” He has gone by female names, including Josephine, Linda and Cukita, but has not undergone sex-change surgery.

It is not clear exactly when Reyes-Reyes adopted a female identity, but court documents noted, “He has had a characteristically female appearance, mannerisms and gestures for the past 16 years. He has a deep female identity.”

Reyes-Reyes, who has a fifth-grade education and limited English skills, also fell afoul of the law, with more than a dozen misdemeanor convictions for prostitution, according to court files. Such convictions could be grounds for a deportation, federal immigration officials said. But it is unclear why Reyes-Reyes was not ordered deported after his first misdemeanor, which court documents say appears to have occurred in 1985.

It’s also unclear how he was captured by immigration authorities. He was ordered deported in 2002.

Reyes-Reyes has been released from custody in San Pedro on bond.

Whether Reyes-Reyes is allowed to remain here or not, lawyers said, the federal court’s decision to return his case to the immigration board sets an important precedent that could help embolden other illegal immigrants to apply for asylum if they come from countries where gay-bashing or other abuse is tolerated or officially sanctioned.

Reyes-Reyes’ case falls into an unclear area of immigration law. In 1990, an immigration judge in Houston decided that a gay Cuban man could apply for asylum on the grounds that he was a member of a particular persecuted “social group.” That ruling led the 1994 decision by the U.S. attorney general’s office to permit immigration officials to consider similar cases.

Federal law prohibits the deportation of people to countries where they are likely to face persecution because of race, religion, nationality, political stance or social group.

But although the 1994 ruling resulted in more gays and lesbians seeking asylum, it did not specifically refer to transgender, or sexual identity, cases.

“This country is slowly getting used to the idea that people have different sexual orientation, but the idea of transgender is still very new,” said Rupa Mitra, an associate at Cleary, Gottlieb, Steen & Hamilton, a New York law firm that took on the Reyes-Reyes case for free. “It’s not even touching the mainstream.”

The International Gay and Lesbian Human Rights Commission, which has offices in New York and San Francisco, has since 1994 provided assistance in 250 cases of transgender people seeking asylum in the U.S.

Most of the applicants were from Latin America because of its proximity to the United States, said Dusty Araujo, the group’s asylum documentation program coordinator. Forty-five of those cases were successful.

“When it comes to transgender people, even though they are legally eligible [for asylum], as a practical matter, their chances of obtaining it are practically zero,” said Shannon Minter, legal director at the San Francisco-based National Center for Lesbian Rights, an advocacy group.

The immigration judge at Reyes-Reyes’ hearing deemed that he had not satisfied the requirements of the law because he “failed to state that anyone in the government or acting on behalf of the government tortured him.”

But 9th Circuit Judge M. Margaret McKeown, writing for a three-judge panel, argued that by requiring Reyes-Reyes to prove that he suffered torture at the hands of a government agent, the immigration judge had failed to apply the correct standard of the law.

The United Nations’ Convention Against Torture defines torture as acts committed “by or at the instigation of, or with the consent or acquiescence of a public official, or other person acting in an official capacity,” McKeown stated in her opinion.

In his appeal, Reyes-Reyes submitted excerpts from human rights organizations, and government and news sources that said El Salvador was a hostile political and cultural climate for gays and men with female identities.

A 2001 Amnesty International report condemned what it called pervasive persecution of gays and transvestites in more than 40 countries, including El Salvador. Proponents of tougher immigration laws are adamant that would-be asylum seekers not be allowed to abuse the system for obtaining refuge in this country.

“Our view of asylum is to provide temporary protection to people working for positive change at home, linked to some actual political activity,” said Dan Stein, executive director of the Washington-based Federation for American Immigration Reform.

He said of Reyes-Reyes: “Someone who has been here for that many years and whose only claim to asylum is allegations of prospective prevailing cultural norms that he was not comfortable with previously is not a basis for asylum.”

But attorney Mitra says: “We were confident that Mr. Reyes-Reyes has a strong case because of his sexual orientation and gender identification, because he has gone by female names and taken on characteristics typically associated with being feminine. If he were returned to his country, he would be persecuted.”