Monday, August 15, 2005
Ninth Circuit Says Mexican Gay Man Is Eligible for Asylum
By KENNETH OFGANG, Staff Writer/Appellate Courts
A gay man who testified that he was repeatedly forced to perform oral sex on a high-ranking police officer in his native Mexico and fears that he would be mistreated again by authorities if forced to return there established eligibility for asylum, the Ninth U.S. Circuit Court of Appeals ruled Friday.
Overruling immigration authorities seeking to deport Jose Boer-Sedano, who has AIDS, for having overstayed his visitor’s visa, the court said his testimony showed that Boer-Sedano was likely to be persecuted, if not by the police, then by persons whom the police were unable or unwilling to control.
The government has been trying to deport Boer-Sedano—who entered with a six-month visa in 1990—since 1997.
He testified that he was born in Tampico and realized he was gay at the age of seven. While the nature of Mexican society led him to attempt to conceal his sexual orientation, he said, it was difficult to do and he was ostracized by family, friends, and co-workers, who referred to him as a “maricon,” an anti-gay epithet, and tried to have him transferred to another job.
His problems with the police officer began in 1988, he testified. He said he and a friend were held for 24 hours after being told they were under arrest because the officer believed they were gay and were going to a hotel together.
Over the next several months, he said, he was stopped by the same officer nine times and forced into sex. The officer, he said, constantly hit him and threatened to tell others he was gay, on one occasion saying that he could kill Boer-Sedano and dispose of the body and no one would care because he was gay.
Boer-Sedano said he eventually fled to Monterrey but was afraid the officer would pursue him and began planning to come to the United States. When the place where he worked—an underground discotheque—was raided by police, he testified, he denied being gay because he was fearful of being assaulted.
His fear, he said, led him to begin buying goods in this country and reselling them in Mexico in order to make enough money to resettle in this country. If he were deported, he told the immigration judge, he would lose his job at a San Francisco hotel along with the medical coverage that pays for his anti-AIDS drugs and would—as a gay man with AIDS—be unemployable in Mexico.
The IJ ruled that he was not eligible for asylum because he did not seek protection from authorities, that he was not persecuted on account of sexual orientation, and that he lacked a well-founded fear of future persecution because ìthere is no evidence of systematic official persecution of homosexuals” in Mexico.
But Senior Judge Dorothy W. Nelson said Boer-Sedano’s testimony established past persecution, and that his failure to seek help from officials was understandable given the status of the officer who was victimizing him and the fear he had as a gay man living in a country where homosexuality, while not a crime, is socially unacceptable.
Under immigration law, Nelson explained, if the applicant establishes past persecution, there is a rebuttable presumption that his fear of future persecution is reasonable. Contrary to the IJ’s opinion, she said, the government’s evidence of current conditions in Mexico did not rebut the presumption.
A 1997 State Department report, Nelson noted, described violence against homosexuals in that country as “not uncommon,” while a 2001 report, the most recent presented at the hearing, said that such violence was continuing. The applicant, she added, presented a number of newspaper articles detailing anti-gay violence by police officers.
“The record,” she added, “reflects that Boer-Sedano would face significant social and cultural constraints as a gay man with AIDS in Mexico, as hostility towards and discrimination against HIV/AIDS patients is common in Mexico” Nor could he be expected to relocate within Mexico to a place where there was greater tolerance, assuming there is such a place, given the precarious state of his health, Nelson wrote.
The opinion was concurred in by Judge William Fletcher and Judge Raymond C. Fisher.
The case is Boer-Sedano v. Gonzales, 0f3-73154.
Copyright 2005, Metropolitan News Company