Barriers to Asylum for Gays Are Falling

Sergey Fedetov walked through the doors of a Terminal Island detention center earlier this month, freed by his own perseverance, the kindness of others and an evolving notion of international human rights.

He calls it a “big miracle.” And so it must seem to this young Russian who on May 10 became one of a few dozen foreign homosexuals granted asylum in the United States because of the persecution they face in their home countries.

When he strolled across the Mexican border into California last December, Fedetov, who is half Armenian, had no idea he could apply for asylum. He simply knew that life was better for gays and Armenians in the U.S. than it was in Russia, where police had frequently detained, beaten and blackmailed him.

“I knew I could not survive as an Armenian gay in Yoshkar-Ola,” Fedetov, 23, later wrote in an affidavit to an immigration judge. “I decided then that I would go to the United States. I had heard that homosexuals lived freely without beatings [there].”

Fedetov’s story illustrates a new frontier of asylum law. The traditional definitions of persecution that govern who can apply for refuge in this country are expanding to encompass the abusive treatment of women and gays.

What once was considered private has entered the realm of the political as immigration authorities respond to increasing sensitivity to such issues as oppression of gay men and lesbians, rape and female genital mutilation.

“American immigration law is grappling with the full reality of persecution,” observed Suzanne Goldberg, staff attorney for Lambda Legal Defense and Education Fund, a gay legal organization. “I think it’s part of . . . a growing awareness that the traditional means of assessing persecution leave out much of the persecution that occurs in the world.”

The change perturbs some, who complain that the guiding precepts of asylum are being corrupted by political agendas.

“This is actually an extension of the rights revolution, of the cultural war, into asylum law,” said Mark Krikorian, executive director of the Center for Immigration Studies, a Washington think tank that favors a reduction in immigration. “We have to ask ourselves whether that’s sensible.”

Garbed in donated jeans and a Cal Poly T-shirt during a recent interview, Fedetov is oblivious to the greater policy debate. His concerns now are those of the typical immigrant: getting a job, learning English and creating a life for himself thousands of miles away from everything he has ever known.

Robbed in Tijuana of what little money and possessions he brought with him from Russia, he is starting from scratch. But he has something else. “I probably never had so much great choice,” he said through an interpreter. With his black hair fashionably clipped and his sunglasses propped on his forehead, he already looked American.

It has only been since 1994 that the U.S. Immigration and Naturalization Service officially recognized that homosexuals may be eligible for asylum as persecuted members of a “social group.” Indeed, until Congress dropped a “sexual deviation” clause from immigration regulations in 1990, gay men and women could be barred from entering the country.

Although there had been a couple of previous cases in which gays citing persecution escaped deportation, the INS for the first time granted asylum in a case involving sexual orientation in March 1994, when a Mexican gay man won his bid to stay in the United States after telling immigration authorities he had been ostracized, harassed, beaten and raped by Mexican police because he was homosexual.

Several months later, U.S. Atty. Gen. Janet Reno took a further step when she issued a directive acknowledging that homosexuals persecuted abroad could qualify for asylum. Nine other countries, including Canada, Germany and Finland, have taken the same step since 1988, according to the International Gay and Lesbian Human Rights Commission, a San Francisco human rights group that follows the issue.

There are no comprehensive figures on how many gays have since applied for or been granted asylum, as INS headquarters does not track such cases. But an INS spokesman described the volume as minimal.

The international gay commission is aware of about 35 cases in which asylum has been granted. Asylum project coordinator Sydney Levy says about 300 gays have contacted the group about asylum, but he does not know how many of them actually applied for it.

By any measure, those numbers are a drop in the vast sea of U.S. asylum requests. As of March, 485,720 asylum claims were pending, more than half of them from Central American immigrants who fled civil turmoil.

In general, those applying for asylum have to prove that they as individuals have a well grounded fear of persecution--either sponsored or condoned by government--because of their race, religion, nationality, political opinions or membership in a social group. They cannot simply say they are afraid because conditions are bad in their country.

Meeting those criteria can be a particular challenge for gays because there is less official documentation of the conditions under which they live in various countries. Goldberg said mainstream human rights groups and the U.S. State Department have only in recent years begun collecting information on the treatment of gay men and lesbians. Similarly, in many foreign countries gay rights groups that would track abuse either do not exist or are just emerging.

In Fedetov’s case, documentation was available. Cheryl Gertler, a Los Angeles attorney who represented him without pay, said she found two recent State Department advisories on gays in Russia. One reported that even though homosexual conduct was decriminalized in 1993, homosexuals were still subject to discrimination and police surveillance. The other said lesbians were frequently placed in psychiatric hospitals and drugged in an effort to change their sexual orientation.

In his six-page affidavit, Fedetov recounted how he was picked up more than 10 times by police in his hometown of Yoshkar-Ola, a city of 200,000 about 400 miles northeast of Moscow.

“Sometimes I was alone, other times I was with a friend or two. . . . But the pattern was clear,” wrote Fedetov, who lived with his mother, a Russian who works at the local military base and who was divorced by Fedetov’s father, an ethnic Armenian, when Fedetov was a toddler.

“The police would see me,” he continued, “and either call me a homosexual or an Armenian or both, always in disparaging terms, and then would detain me and often hit me, push me around and generally rough me up.”

Police struck him with a rubber baton or their fists. They went to his home every month and demanded information about other gays. They informed his officials at his school that he was gay and the school administration threatened to register him as a juvenile delinquent if he didn’t change his ways.

When he moved to Moscow in 1994, Fedetov was again detained on various occasions, but managed to escape beatings by giving police bribes.

Last year, after U.S. Embassy officials rejected his request come to the United States, he obtained a visa to visit Mexico. With the $900 he had earned selling clothes in an outdoor market, he bought an airplane ticket and in December flew to Mexico City.

From there, his journey to asylum in Los Angeles was marked by serendipity.

Robbed by a border smuggler--he confesses to “a stupid habit of believing everyone”--he called directory assistance after he crossed the border and got the number of a Russian Orthodox church. A priest brought him $20 and wished him good luck.

It was enough to buy him a bus ticket to Los Angeles, where he knew he could find both gays and Armenians. He made it as far as San Clemente, where INS agents took him into custody because he had no papers to enter the country.

For weeks he sat in the detention center, knowing no one in California and having no idea his homosexuality would help him in his efforts to avoid deportation. But he found a number for the Los Angeles Gay and Lesbian Community Services Center in the phone book and, through a series of referrals, stumbled on two guardian angels: Eugene Alper, West Hollywood’s liaison to that city’s large Russian community, and the gay center’s immigration project, which helps clients with general immigration matters.

The center contacted Gertler, who took the case in February.

“He was very reticent and very reluctant to talk about much of his background,” recalled Gertler. “Part of it was a sense that what was happening to him was happening to [all gays], so it was no big deal.”

That reticence continued even at Fedetov’s hearing this month before Immigration Judge Rose Peters. In America, “the squeaking wheel gets the oil,” said Alper, who had become Fedetov’s friend and lifeline to the outside world. “He wasn’t going to squeak and I knew the judge expected him to squeak.”

So Alper squeaked for him. He told the judge it would be a tragedy if she sent Fedetov back to Russia. She didn’t. And a few days later, he was stepping on the stars on Hollywood Boulevard and calling his mother in Yoshkar-Ola.

The move beyond traditional ideas of what constitutes political persecution is part and parcel of a broader trend in the international human rights movement. Common practices, such as female genital mutilation, are coming under scrutiny, no longer universally accepted as mere cultural peculiarities.

Observed attorney Paul Hoffman, former chairman of the United States section of Amnesty International: “I think the international community in general has become much more aware of and responsive to claims by women relating to discrimination or practices like female genital mutilation. . . . Also, claims by gays and lesbians that they have been discriminated against and subjected to cruel and unusual treatment.”

The U.S. Board of Immigration Appeals is now considering the case of a West African woman seeking asylum because she faces genital mutilation. Last year, the INS joined Canada and the United Nations in recognizing that abuse of women can form the basis of gender-based asylum claims.

As of March, INS spokesman Daniel Kane said, the agency had received 37 such applications and approved 17. The remaining cases are either pending or have been referred to immigration court.

These developments are a source of consternation to Krikorian’s group and the like-minded Federation for Immigration Reform. “This idea that a person can cite a prevailing cultural norm established for thousands of years as a basis for asylum is a corruption of the asylum process,” said the federation’s executive director, Dan Stein.

Rather than come here, he said, those unhappy with their treatment should change it. “In the modern world, people have to try to bloom where they’re planted and try to change the cultural norms there.”