Persecuted Gay Man Wins Asylum Case

Gay men who face persecution in their home countries because they manifest female sexual identities are entitled to political asylum in the United States, a federal appeals court in San Francisco ruled Thursday.

The unanimous decision from the U.S. 9th Circuit Court of Appeals broke new ground in asylum law, expanding the class of people who can be granted asylum on the basis of sexual persecution. The appeals court has jurisdiction over cases in California and eight other western states.

The court ordered the federal government to grant asylum to Geovanni Hernandez-Montiel, who had been abducted and raped twice by Mexican policemen and subjected to numerous other acts of harassment because of his feminine appearance.

The U.S. government has, in the past, agreed to grant asylum on the basis of sexual orientation in some cases. But in Hernandez’s case, an immigration judge had denied his asylum petition.

The judge said that Hernandez’s testimony about the persecution he had faced was credible, but that the harassment and violence he faced were a result of something he could change--his outward feminine appearance. Although Hernandez often wore dresses and lipstick, he sometimes dressed “like a typical man,” the judge noted. The Board of Immigration Appeals agreed.

But the appeals court rebuffed that rationale in strong language.

Hernandez’s “female sexual identity is immutable because it is inherent in his identity,” wrote Judge A. Wallace Tashima. “In any event, he should not be required to change it,” Tashima added. “This case is about sexual identity, not fashion,” Tashima wrote. Hernandez, he added, was part of an identifiable social group united by an “innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.”

The decision “is the first time a federal court has affirmed that persecution on the basis of sexual orientation is a basis for receiving asylum under U.S. law,” said Shannon Minter, staff attorney with the National Center for Lesbian Rights in San Francisco.

The decision also marked the first time that a federal court has ruled that sexual orientation is an immutable characteristic in an asylum case, said Jon W. Davidson, supervising attorney for Lambda Legal Defense and Education Fund Inc. in Los Angeles. Both Lambda and the National Center filed friend-of-the court briefs on Hernandez’s behalf, as did the American Civil Liberties Union.

The Justice Department, which opposed Hernandez’s asylum bid, had no immediate comment.

According to the account presented in the court’s opinion, Hernandez had been repeatedly subjected to harassment and violence in Mexico. He was thrown out of school and, on two occasions, was raped by Mexican policemen, the court noted.

Now 22, Hernandez first fled Mexico in 1993. He was arrested in the United States a few days after he entered the country. Upon his return to Mexico, his sister enrolled him in a counseling program, which was ostensibly designed to “cure” his sexual orientation by altering his appearance.

Eventually, because his sister saw no changes in him, she forced him to leave her house.

Hernandez returned to the United States and filed an asylum application in February 1995.

At his hearing, Hernandez presented testimony from Cal State San Diego professor Thomas M. Davies Jr., an expert in Latin American history and culture, that gay men who display female characteristics in Latin America are subjected to greater abuse than other homosexuals.

The U.S. State Department has identified Mexico as one of the countries where gay men and lesbians are likely to be victims of violence, Davidson said.

“At last Hernandez will not have to live in fear that our government will send him back to Mexico, where his life was a nightmare,” said San Diego attorney Robert S. Gerber, who represented Hernandez for free.

Tashima was appointed to the appeals court by President Clinton. Judges William W. Schwarzer, an appointee of Gerald R. Ford, and Melvin Brunetti, an appointee of Ronald Reagan, joined the decision. Brunetti wrote a short concurring opinion saying that he did not agree “with the broad reasoning and rationale used by the majority.”