ACLU Lauds Appeals Court Ruling Granting Asylum for Gay Man Persecuted for Sexual Orientation

August 25, 2000 12:00 am

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LOS ANGELES, CA — A unanimous federal appeals court has granted asylum for a gay Mexican man who was persecuted because of his sexual orientation, in a ruling lauded by the American Civil Liberties Union and other civil rights groups.

In its August 24 ruling, a three-judge panel of the Ninth Circuit Court of Appeals sharply criticized the Board of Immigration Appeals for rejecting the man’s request based on the reasoning that he was persecuted for his effeminate appearance and characteristics, not for his sexual orientation.

“The position of the Board of Immigration Appeals was analogous to saying to a Jewish person who experiences discrimination, ‘You weren’t persecuted for being Jewish – you were persecuted for wearing a yarmulke,'” said Martha Matthews, the David Bohnett Staff Attorney at the ACLU of Southern California, which joined other civil rights groups in filing a friend-of-the-court brief on the man’s behalf.

“It is an absurd distinction that opens the door for bigotry, and the Ninth Circuit Court of Appeals rightly rejected it,” she added.

Twenty-one-year-old Geovanni Hernandez-Montiel sought asylum in the United States after he was expelled from school, beaten by a mob and sexually assaulted by police in his Mexican homeland.

Writing for the panel of three judges, Judge A. Wallace Tashima said, “We conclude as a matter of law that gay men with female sexual identities in Mexico constitute a ‘particular social group’ and that Geovanni is a member of that group. His female sexual identity is immutable because it is inherent in his identity; in any event, he should not be required to change it. Geovanni suffered past persecution and has a well-founded fear of future persecution if he were forced to return to Mexico.”

The unanimous decision from the Ninth Circuit Court of Appeals orders the U.S. government to grant asylum to Hernandez-Montiel.

“This is a groundbreaking decision,” said Shannon Minter, staff attorney with the National Center for Lesbian Rights. “It 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. It is also a powerful recognition of the links between sexual orientation and gender identity.”

The U.S. Department of State has identified Mexico as one of the countries where gay men and lesbians are very likely to be victims of violence. Effeminate gay men in particular are singled out for ostracization and anti-gay abuse in Mexico.

While the U.S. government has granted asylum on the basis of sexual orientation since 1990, the BIA refused to extend this protection to Hernandez-Montiel on the grounds that he could avoid persecution by changing his effeminate appearance and mannerisms.

“This ruling signals that persecution based on the way a person expresses his or her sexual identity or gender cannot be meaningfully or fairly distinguished from persecution based on sexual identity itself,” said the ACLU’s Matthews. “A person’s identity and self-expression are deeply and irrevocably connected.”

The case is Hernandez-Montiel v. INS, No. 98-70582.

The ACLU of Southern California was joined by Lambda Legal Defense and Education Fund, the International Gay and Lesbian Human Rights Commission, and the National Center for Lesbian Rights in filing the amicus brief on Hernandez-Montiel’s behalf.

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