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Gay immigrants need asylum from persecution at home

Gay immigrants need asylum from persecution at home

In El Salvador, Kassandra stood out.

"I always acted like a little girl," she says in Spanish. "I would wear my mom's makeup. I liked my mom's clothes. I loved the kitchen and cleaning the house."

That wouldn't have been unusual, except for the fact that Kassandra was born a little boy named Rafael Guillermo Menjivar Guevara. Though she dressed as a boy, kept her hair short and went by Rafael, Kassandra knew always — siempre — that she should have been born a girl. Others noticed she was different, too. From an early age, Kassandra remembers being teased and called "faggot." And perhaps because of that, she was vulnerable.

The first rape happened when she was seven years old. Her sister's husband, alone in the house with Rafael while the rest of the family was at the hospital awaiting the birth of the couple's baby, forced himself upon the boy, who was left feeling dirty and confused.

Kassandra tried to change who she was, spending eight years studying to become a Catholic priest, but it didn't work. And since she continued to dress as a boy, and then as a man, her life was marked by a string of men — neighbors, relatives, classmates, work associates, lovers and gangsters — who perceived her as a gay man and subjected her to decades of brutal violence.

It didn't end until she fled to the United States in 2004 and wound up in Boulder, alone and speaking no English, but free. A year later, she mustered enough courage to reveal her true self: a beautiful woman whose auburn hair falls past her shoulders and curls at the ends, a woman who favors skirts and heels and manicured fingernails and whose chosen name, Jeniffer Kassandra, sounds regal when she pronounces it through painted lips: Yeniffer Ka-sahn-drrra.

But in 2009, Kassandra was arrested on a warrant for an outstanding traffic ticket — something that threatened to end her new life. Facing deportation at the immigrant detention center in Aurora, she decided to apply for asylum. Her application was late; asylum-seekers like Kassandra who enter the country illegally must apply within a year of arriving.

Still, a week before her court hearing in early April, Kassandra, 43, was hopeful. The chances of winning increase if the applicant suffered past persecution in his or her country.

"God has a reason," she said. "This is what we're going to show them."

*****

Sam never did anything illegal. Not in America, anyway.

When he came here in 2006, it was on a tourist visa to visit an American man he'd first met in his native Egypt. While in the U.S., Sam applied for and won a student visa, which he used to enroll in Colorado Technical University in Denver to study IT management. A few months before that visa was set to expire, he applied for asylum to stay here.

Dressed in skinny black jeans, Birkenstocks, and a black hiking shirt that zips at the neck, Sam, 36, doesn't stand out. His appearance and mannerisms are not stereotypically gay by Hollywood standards; his body language is masculine and his style is casual. He speaks with an accent that is neither gruff nor soft, though his voice is quiet.

But just because Sam is inconspicuous doesn't mean his life in Egypt was easy or just. "I know if I go back, I won't be able to live my life there," he says in English.

"They're going to try to force me to get married," he says of his family, who doesn't know that he's gay. "And then if I don't want to get married, they're going to ask, 'Why? What's wrong with you?' Here, I can live as a gay person. I can just fall in love and have a home and a place like everyone else. But there, I can't."

In Egypt, Sam's love life is forbidden. Though there are no explicit laws against homosexuality, the government routinely arrests gay men for violations such as "offending religion" and "habitual debauchery." Human-rights organizations report that the men are often tortured and subjected to forcible anal exams. In some instances, jailers have been known to attach telephone wires to men's penises and switch on the electricity.

That's why in Egypt, Sam was discreet. In the nine years between when he graduated from Cairo University and when he left for America, he had only one Egyptian boyfriend. In public, they acted like friends, and because of Sam's demeanor and appearance, he wasn't targeted by police.

But because Sam never came out to his family or friends, isn't known to authorities and was never arrested or tortured, his path toward asylum is likely to be more difficult.

A week after meeting with an asylum officer in late March, Sam was nervous.

 

"I was surprised she didn't ask more questions," he said. "I hope she didn't need to."

*****

Immigrants seeking asylum in the United States don't come here solely in search of the American Dream. Instead, they are fleeing their countries and must convince the government that they should be allowed to stay because they fear persecution in their native country based on their race, religion, nationality, political opinion or membership in a particular social group. For decades, the seminal, United Nations-backed definition of "members of a particular social group" was people who have a "common immutable characteristic" that they cannot change.

It's that category that applies to Sam and Kassandra and other immigrants who are gay, lesbian, bisexual or transgender. In 1994, then-U.S. attorney general Janet Reno determined that homosexuals were "a particular social group" by designating as precedent a 1990 case in which a gay man from Cuba won asylum based on the fact that the Cuban government had sentenced him to a forced labor camp as punishment for being gay. That ruling paved the way for future cases.

But asylum claims based on sexual orientation are not always clear-cut, especially when the facts get tangled up in bias.

In 2009, the Denver-based U.S. Tenth Circuit Court of Appeals slapped the wrist of Denver immigration judge Donn Livingston for denying asylum to a gay man from Morocco because, according to court documents in the case, Razkane v. Holder, his "appearance does not have anything about it that would designate [him] as being gay. [He] does not dress in an effeminate manner or affect any effeminate mannerisms."

Livingston also noted that the man, Razkane, who entered the United States on a visa obtained through the Fulbright Program, hadn't had any boyfriends in Morocco (though he did "engage in homosexual conduct" in the United States, according to court documents). So, Livingston reasoned, it was unlikely that if Razkane were sent back to Morocco, where homosexuality is illegal and merely flirting with a man can get you thrown in prison, he would engage in "the type of overt homosexuality that would bring him to the attention of the authorities."

In other words, Razkane wasn't openly gay enough.

The appeals court called Livingston's assessment "homosexual stereotyping" and reversed the decision. "Such stereotyping would not be tolerated in other contexts, such as race or religion," the court wrote. "Nor will it be tolerated in the case of a homosexual applicant."

But the court stopped short of criticizing what some attorneys and legal scholars say is a dangerous precedent set by the United States Board of Immigration Appeals called "social visibility." In 2006, the BIA, which is based in Virginia and hears every immigration appeal case in the nation (including Razkane's, in which it agreed with Livingston's decision), found that immigrants seeking asylum because of their membership in a particular social group must possess characteristics that are both "highly visible and recognizable by others in the country."

The 2006 case in question involved a Colombian man who was afraid to return to his country because he'd told the government inside information about a powerful drug cartel, and the cartel had come after him and his family. The BIA ruled that non-criminal informants are not a particular social group, in part because their conduct is secret and "out of the public view."

While understandable in some instances, experts say that line of thinking has been adopted by asylum officers and immigration judges around the country — and has proven dangerous when it comes to GLBT asylum cases. Some adjudicators, they say, have begun to define sexual orientation by a person's acts and not as an immutable characteristic.

"In many ways, a gay man or a lesbian or a transgender person, their sexual identity is defined by their behavior, and it can arguably be completely avoided," says Fadi Hanna, a lawyer in New York City who has written about social visibility. "You don't 'need' to have a boyfriend or a girlfriend." But, he adds, "Asking someone to avoid those things is effectively asking them to not be who they are. It's not reasonable." And, he says, a judge shouldn't expect it of them.

Denver immigration attorney Bryon Large agrees that social visibility is a problem — especially with regard to gay immigrants from homophobic countries who were forced to hide their identities. "While I certainly can understand the reasoning behind it in a lot of ways, it's very dangerous, because there are certain groups that are not socially visible," he says.

It's less of an issue, Large and others say, with immigrants who are transgender, especially if they didn't transition from male to female, or vice versa, until they came to the United States. It would be very visible to friends, family members, neighbors and the police if, for example, a person left their home country as one gender and returned as another.

 

*****

Growing up in the capital city of San Salvador, Kassandra was poor. Her father was an alcoholic. Her mother worked in a pharmaceutical factory to support Kassandra, her older sister and two older brothers until she became ill and had to quit. Making money became the children's responsibility. At eight years old, Kassandra began selling tickets to fairs traveling through town. When there were no fairs, she and her siblings sold bread and salsa in the street.

"We didn't have anything," she says.

Sometimes, to eat, the children would steal the avocados that grew in the city.

Difficult already, Kassandra's life got worse after she was raped. "I always hoped my body would desire physical attraction or sex with a man, but it came very early," she says. "Somebody made that happen much sooner than I was ready for it."

And it didn't stop. The brother-in-law who raped her lived in her parents' house for a year and forced her to have sex with him more times than she can remember. Sometimes a neighbor raped her. Sometimes it was her mother's brother. Why they picked her, a little boy struggling with the knowledge that she was really a girl, Kassandra says she doesn't know.

As a teenager, Kassandra was guarded. Still living life outwardly as a boy, she didn't date. "I lived life in fear," she says. "I thought people would be interested in me for who I was or because they liked me, but I started to feel that men would only look to me for something physical. It wasn't difficult for me to fall in love, so I tried to stay guarded."

Looking for solace, she turned to religion. At sixteen she entered an all-male seminary to become a Catholic priest. "I thought it would change my life," she says. "I thought I could be somebody different, that I could forget everything that happened to me." But the seminary was far from a safe haven. "The rapes happened there, too," she says, choking back tears. "It happened constantly. It's just a bunch of men, closed up. People there were confused about their thoughts and their feelings." Her fellow students would threaten to tell the bishop that she was gay if she didn't have sex with them. Sometimes, they just took her by force.

Still, Kassandra loved studying philosophy, theology, Greek and Latin. She didn't mind the rigid schedule — up at 5 a.m. for a day of prayer, study and a few leisurely hours before bed at 11 p.m. — and stayed at the seminary for eight years. But she didn't finish. In her ninth year, when she was 25 years old, the bishop kicked her out because, among other things, he said she was gay. "I felt deceived," she says. "The whole time I was there, I tried to be something different, I tried to change myself." But it didn't work. After leaving the seminary, Kassandra says she knew more than ever that she was a woman in a man's body. "I always dressed like a man," she says, "but very sexy. I wore tight clothes. I'd go to the gym to have a nice body."

With an impressive eight years of higher education on her resumé, she got a job working in a police warehouse in San Salvador and soon moved up to a purchasing position, in which she bought everything the police needed, from supplies for police dogs to guns for officers. There she met a detective, a rough man with a temper who was a former guerrilla. They became friends and began going out to eat together. One night, he told her it was too late for him to travel home. "So he stayed with me at my house," she says. "That's how our relationship started."

They were inconspicuous in public and lovers in private. But increasingly over the ten years they were together, Kassandra caught the brunt of his temper. He shouted and hit her when she disagreed with him. He, too, forced her to have sex. And he wasn't faithful: She left him after finding out that he'd gotten a woman pregnant.

The situation at work was worse. Part of Kassandra's job was to travel to different police stations to ensure they were satisfied with the supplies they'd ordered. Many officers assumed she was gay and, just as in the seminary, threatened to out her if she didn't have sex with them. They also asked for favors — new computers and money — and threatened to hurt her parents.

And it wasn't just the police. In El Salvador, the gangs, especially the violent Mara Salvatrucha, are even more powerful. They, too, went after her; she says they knew she bought guns for the police and wanted her to run arms for them.

 

Despite the fact that jobs were nearly impossible to come by and quitting meant a return to poverty for herself and her parents, Kassandra left the police job after six years. She tried to set up a retail business in her home, but again the gangs came calling, demanding she give them a cut of her profits. "They don't let you live," she says.

Kassandra figured she had only one option left: to hire a coyote to smuggle her into America, where she could earn money and send it home. Even more important, she saw the United States as a place where she could escape the ritual rape, physical abuse and discrimination that had tormented her since she was a boy.

"It was a place where you could go to become something new," she says of America. "In my country, they say that the United States is like a house of gold."

She left in 2004. The journey took 45 days, and she was caught twice by immigration officials and sent back to El Salvador to start over again. Her original destination was Virginia, where the husband of a friend had offered her a place to stay. But when she got to Colorado, frightened by the prospect of being caught a third time, she decided to stay. The coyotes dropped her off at an apartment in Boulder. She didn't know anyone.

Despite that, she soon found a job cooking in a fast-food restaurant and rented an apartment. Within her first year here, she met a man who dressed as a woman at night. Kassandra, meanwhile, was still dressing as a man and going by her given name of Rafael. "I told him about how I was and how I felt, and he told me he could dress me up," she recalls. At first she refused. But something inside her kept nagging her. "So I dressed and I put makeup on, and I saw myself in the mirror, and I said, 'Oh, my God! Qué preciosa!'" she says, giggling.

"I realized what I really was," she says, "and I loved it."

She chose a new name, grew her hair out and began dressing like a woman full-time and injecting female hormones. Her appearance, she says, was never a problem in Boulder.

But her health was. In 2007, Kassandra wound up in the hospital with pneumonia. There, she says, the doctors told her that she'd also tested positive for HIV. Kassandra was devastated. "I thought all my dreams were over," she says. "I didn't know if I was going to live."

With help, she secured medicine and came to grips with her illness. But two years later, in 2009, she felt a similar dread when she was sent to the GEO Aurora Detention Facility. She was a passenger in a friend's car when he was pulled over by the police. The cop asked for everyone's identification, and when Kassandra handed him her El Salvadoran driver's license, he ran her name and found that she was wanted on a warrant for an unpaid traffic ticket.

Since she was here illegally, the police sent her to the immigrant detention center, where she was slated for deportation. There she met with a group that secures pro bono attorneys for immigrants who stand a chance at being granted asylum. After hearing her story, the group decided Kassandra had a shot, and they approached Large, who agreed to take the case for free.

*****

For Large, 33, GLBT asylum cases are personal. "I can identify in certain ways," he says. Raised Catholic in Cañon City, Large always knew he was gay but struggled to accept it. "I believed I could make a choice to be straight or gay, and I chose to be straight," he says.

After graduating from college in New Mexico with a degree in teaching, Large moved to Rocky Point, Mexico, an hour south of the border, to work for a property management business owned by his father. There he met a woman, married her and had a son. Partly motivated by a desire to raise his son in a safer place and inspired by introductory law classes he'd taken in college, Large moved his family back across the border and enrolled in law school at the University of Denver. While he was in school, he and his wife had a daughter.

But in 2005, a year before he graduated, he came out to his wife and everybody else.

"It was time," Large says. But it wasn't easy — for him or his family. "The first time I said it out loud, I cried. I was ashamed of it." That's something he has in common with many of his GLBT asylum-seeking clients. "It's a secret they carried around their whole lives," he says.

 

But that secrecy can cause problems when they apply for asylum. "Adjudicators might say, 'If you're not out to your family or to your community as gay, why do you feel persecution in your country?'" says Christopher Nugent, an immigration attorney out of Washington, D.C., who has been representing GLBT asylum-seekers since the early 1990s, even before the 1994 Reno decision that designated homosexuals as a particular social group.

Indeed, past persecution is key. Asylum cases are easier to win when clients can show that they suffered persecution in their country, because the law then assumes that they have a well-founded fear of suffering the same in the future. It's even better if the persecution was inflicted by that country's government, as opposed to civilians.

"The gorier, the better," says Nugent.

But some asylum-seekers, perhaps still haunted by their country's attitudes toward homosexuality, downplay the violence they've suffered, experts say. "Many people who are gay, lesbian, bisexual or transgender have a great deal of internalized homophobia and shame surrounding their own identity, which can make it difficult for them to speak openly the way they need to in their cases," says Victoria Neilson, the legal director of Immigration Equality, a New York-based nonprofit that advocates for GLBT immigrants.

Nugent sees that all the time. Once he had a client whose penis was burned because he was gay. "He said, 'It wasn't that bad,'" Nugent says. "They tend to blame themselves. 'If only I weren't gay, this wouldn't have happened.'"

Even if a client hasn't been tortured, it's possible — though harder — to win asylum based on what are known as "country conditions": the attitudes and laws toward homosexuals in a client's country, coupled with news reports, U.S. State Department reports and reports from humanitarian organizations such as Amnesty International describing instances of cruelty and discrimination. Again, the worse the conditions, the better. "Country conditions play a big role for us in deciding whether or not to take a case," says Neilson, whose organization took on — and won — more than 100 GLBT asylum cases last year, mostly in New York and New Jersey.

"Iran has the death penalty for engaging in consensual same-sex acts. That's a case we would take," she continues, "whereas if someone comes from a country where the country conditions are mixed, like Brazil, where they have some same-sex relationship recognition but still a higher incidence of murders and violence against gays, lesbians and people who are bisexual or transgender," that's a tougher call.

El Salvador and Egypt both have bad track records, though neither is the worst of the worst. Ultimately, country conditions could matter more for Sam, whose life in Egypt as a gay man wasn't violent — mostly because he stayed hidden.

*****

In Sam's Egypt, no one talks about sex. But they do talk about religion — even if, he says, they're not terribly religious. His parents were a perfect example. Though they are Muslim, his father, an electrician who never finished high school, didn't pray, and his mother didn't wear a hijab. (She later started doing both.) But his parents' eschewing of daily prayer didn't make them any more tolerant, he says. "Like if you talk to them about anything forbidden, they're going to say, 'Oh, that's forbidden! That's bad!'" says Sam, who asked that his real name not be used.

In all, Sam's parents had nine children: four boys and five girls. Sam is the fourth. He grew up in Old Cairo, a part of the capital city sprinkled with historic churches and Roman ruins. As a boy, he preferred the company of his sisters. "The way I am acting or, you know, doing stuff, it was kind of a bit different than other boys," he says. "Growing up, you always have to watch what you are doing, and if you do something different, you think that it's wrong. With time, you keep trying harder and harder to fit in."

But Sam didn't always succeed. His parents criticized his tight clothes and the way he emulated the feminine body language of his sisters. "They think they can correct that," Sam says. "They're punishing you — sometimes shouting, sometimes making fun."

Sam felt the first twinges of attraction to other boys when he was in junior high school. But he didn't tell anyone. Instead, he wrestled with his feelings privately, worrying that he was the only person in all of Egypt who felt that way. He'd never even heard the word "gay" until he was thirteen and read a magazine article about the first-ever AIDS patient. "They were writing it in a way that makes you feel disgusted about what's going on," Sam says, "but it actually kind of excited me." Maybe there are other people in the world with these same feelings, he thought.

 

Still, Sam tried to distract himself by praying more and reading religious books. "I was just trying to avoid thinking about this stuff because I know it's wrong, everybody is saying that it's really bad." If I just get closer to God, Sam thought, this will all go away.

It didn't, of course, but his feelings were easy enough to hide. Occasionally, classmates teased him, but, Sam says, "it wasn't that much." He adds, "My looks are not that feminine, so that made it easier for me." Meanwhile, dating in the American sense of trips to the movies and first kisses didn't exist. Boys went to one high school and girls went to another. In college, men and women attended classes and socialized together, but always in groups. "If you like each other, you can get engaged," he says. "We don't have the boyfriend-girlfriend concept."

Sam's friends just figured he was shy, which he was. Too shy to act on the attractions he felt to other men while studying law at Cairo University. Too shy, or perhaps too ashamed, to act on the feelings he could tell other men felt for him.

After graduating in 1997, Sam continued to live at home with his parents and his other unmarried siblings, as is the tradition. He took a job in a gift shop, and soon after met his first boyfriend at a downtown marketplace. "He came and asked me what the time was," Sam recalls. As Sam turned to answer him, he noticed that his future boyfriend was wearing a watch of his own. "I said, 'You already have a watch. What are you asking for?' And he says, 'Oh, it's not working,'" Sam says, laughing. They started chatting and, perhaps nervous himself, the man blurted out, "I like you." Sam was shocked. "I told him, 'You know, I try to avoid that.'"

But he took the man's phone number anyway and called him — to tell him it wasn't going to work out. Then he called again. And again. "I guess I really wanted to meet him, which is why I kept calling him," Sam says. Plus, he was growing tired of the denial. "You keep trying and trying and trying, and it doesn't go away," he says.

Sam still wasn't at peace with his sexuality, however. Intense guilt gripped him after each date with his boyfriend, a man five years his senior whom he describes as "kind of cute," with hazel eyes and light skin. They often met in secret at his boyfriend's parents' second home. "I would really want to meet him, and then I would go meet him, and then I would come back and I would just feel bad," he says.

He felt worse after May 11, 2001, when the Egyptian police raided a floating disco frequented by gay men called the Queen Boat, which was docked on the Nile. More than fifty men were arrested, beaten and subjected to forcible rectal exams to determine if they'd had anal sex. Their crimes? "Habitual debauchery" and "obscene behavior," which were laws originally passed to combat prostitution. Many of the so-called Queen Boat 52 were sentenced to jail. The newspapers called them "perverts." Sam had never been brave enough to go to a gay disco, but whatever courage he did have was crushed by the outcry that followed the arrests. He told his boyfriend he couldn't see him anymore. "You're already fighting with yourself about what you're doing, so when you see something like that on the news and the TV, and you see the pictures and the crying and hiding, it's so difficult," Sam says now.

The Internet helped him to creep out of the closet again — or at least peek out of the keyhole. He'd gotten access to it while he was still dating his boyfriend, and through sites like Gay.com, he began to meet other gay friends. "With them, I could be myself," he says. In 2003, at the urging of one of those friends, he traveled to Belgium for a human-rights conference. There his friends took him to his first gay bar and introduced him to his first drag queen.

Gay.com was also where he met his now-former partner, Richard, an American who posted online that he'd be in Egypt on a business trip. They met up and then stayed in touch. Six months later, Richard flew back to Egypt to visit Sam again. And in June 2006, Sam flew to Colorado to visit Richard. He hasn't left since.

With his visa set to expire, Sam began looking for alternatives to returning to Egypt. He hired a lawyer, Large, and applied for asylum in January.

 

*****

There are no good statistics on how many GLBT asylum cases are filed each year, let alone how many are successful. The U.S. Department of Justice tallies the number of asylum cases, but it doesn't track why immigrants file for asylum, says Elaine Komis, spokeswoman for the Department of Justice's Executive Office for Immigration Review. So while experts agree that GLBT asylum is a growing area of immigration law, the exact rate of growth is still unknown.

DOJ statistics for Denver show that while the total number of immigration cases has increased, from 5,591 in 2000 to 12,211 in 2010, the number of asylum applications has decreased. In 2000, 476 immigrants applied for asylum in Denver; in 2010, only 238 applied.

The DOJ also tracks how many asylum applications are granted. In Denver, the numbers have stayed consistent over the past ten years: about 38 percent. Cases filed affirmatively by immigrants with short-term visas, such as Sam, have a better chance of success than those filed defensively, as is the case when an immigrant is caught for being here illegally, like Kassandra.

But it's impossible to tell whether it's easier to win asylum based on religion or race or political views. Furthermore, immigration judges' opinions, and even many BIA opinions, are not published, which means that it's hard for outside observers to detect systematic bias. It also means that most immigration judges operate in a vacuum.

"It's arbitrary," says Paul O'Dwyer, a New York City immigration attorney who has represented many GLBT asylum-seekers and is chair of the American Immigration Lawyers Association Asylum and Refugee Committee. Some courts abide by social visibility and some don't. Definitions of "a particular social group" can differ, too, as can judges' interpretations of country conditions reports, which must show that there is "a pattern or practice of persecution."

Asylum officers are even more arbitrary than judges, O'Dwyer says. When an immigrant files affirmatively, he does so by appealing to U.S. Citizenship and Immigration Services, or CIS. An asylum officer will then interview the immigrant and either approve or deny asylum.

"For the most part, the asylum corps is really good," O'Dwyer says. "They're well-trained. They're great people. They do their jobs well. But there are a small but significant number of asylum officers who simply don't approve asylum cases." O'Dwyer likens them to teachers who secretly dislike children. And they get away with it, he says, because there's little transparency in the process. If an officer denies asylum, the immigrant is often referred to his local immigration court, where his case essentially starts all over again in front of a judge.

Though there's no surefire way to win asylum, for GLBT clients, most agree that it's important to have a competent attorney who understands how to build a solid case and navigate around the obstacles unique to GLBT cases, such as overcoming stereotypes. Neilson has seen judges lecture male HIV-positive clients on the supposed dangers of sleeping with other men. Nugent once had an adjudicator say to his transgender client, "Now you look like a beautiful woman, so why are you afraid? No one will suspect you're a man." Even Large himself admits some unintended bias. At a court hearing for his first transgender client, who had transitioned from male to female, he consistently referred to the client as "he."

"I learned a few things," he says.

*****

At 9 a.m. on a Monday morning in early April, Kassandra sat on a wooden bench in a white-walled hallway outside the courtroom of Judge Donn Livingston, the same immigration judge who received a wrist-slapping for ruling that an asylum-seeker didn't appear gay. She'd paired a black skirt with a cream-colored blouse for the day, along with gold hoop earrings.

Although there was a glitch at first — Livingston hadn't received the hundreds of pages of evidence Large had submitted, including a State Department report that tells of the 23 GLBT people killed in El Salvador in 2009, and a 2004 report by the Immigration and Refugee Board of Canada that says that in El Salvador, "being gay is seen by many as the worst insult possible" — the judge quickly read the evidence and invited Large to begin his questioning.

What is your name? he asked. "Rafael Guillermo Menjivar Guevara."

Is that the name you use every day? "No. I use Jeniffer Kassandra."

Why are you asking for asylum? "Due to my sexual preference."

Through an interpreter, Large asked Kassandra about her life in El Salvador, about coming to America, about learning she had HIV, about being arrested and held in the immigration detention center.

Is there anything else you'd like to say? "Yes. I'd like to say that I would like the opportunity to continue living in this country."

 

After that, it was Department of Homeland Security attorney Lynn Doble's turn.

Would you describe yourself as feminine? "Yes."

Did you behave like that when you were applying for jobs? "I've always been a person who showed who I am. To find a job, it helped that I was in the seminary. That was impressive to them."

During interviews, did you act like a man? "No. I've always been like I am."

How is that? "More feminine. That's what caused me problems."

Have you ever been fired from a job because of your sexual orientation? "Many times, I lost my job because of that."

Because of your female identity or your sexual orientation? "Both. Because I have my sexual preference and I'm very feminine."

How many sexual partners have you had besides the rapes?

Here, Large objected. "Your honor, you don't have to have sex with someone to have a sexual preference," he said. "This question comes from bias. A straight person doesn't have to have sex with a person of the opposite sex to be straight. It's the same for homosexuals."

Livingston acquiesced. "He — or she — has described her orientation," he said. "I don't think we need to know all the experiences or how much sex she had."

The ruling came right after the last question. "The respondent testified that she's always been very feminine," the judge said and found that Kassandra had "suffered grievously in the past" because of "her sexual identity." Livingston didn't grant her asylum, because she had waited too long to apply for it, but he did grant her "withholding of removal," which means she can live and work legally in this country but can't apply to become a permanent resident.

"You have a very good lawyer," Livingston concluded. "He understands exactly what he has to do." Kassandra smiled at him and nodded. "Good luck," he added.

*****

Sam's hearing was different. Because he'd applied affirmatively, it was simply a meeting with Large and a CIS asylum officer who flew up from Houston. Objectively, his chances were better than Kassandra's. As someone who filed defensively, she had to prove a 50 percent chance of persecution if she were to return home; Sam only has to prove a 10 percent chance.

The officer came prepared. She'd already read the hundreds of pages of documents Large submitted ahead of time, including a narrative of Sam's life and a packet of reports and news clippings on the treatment of gays in Egypt. Sam says he was surprised by how nice she was. Her questions weren't too difficult, he recalls, or too prying. How did you meet your first boyfriend? Where did he live? How did you arrange your rendezvous?

At some points, Sam says, his mind went blank. He'd stayed up the night before, going over and over what he was going to say. Then, when the time came, he froze. "It's like a test. You answer and you do your best and then you have the question you couldn't answer and it just sticks in your mind and you keep thinking about it," he says.

Despite his shyness, however, Sam is articulate and smart. When he speaks about being gay, he does it with an almost embarrassed honesty. Plus, he had the country conditions to back him up, including a 2010 report from the U.S. State Department called "Human Rights Report: Egypt" that states that in 2009, "homosexual persons faced significant social stigma in society and in the workplace." As an example, it cites the arrests of ten men in Cairo on January 2 of that year. The men were charged with debauchery, it says, and forced to undergo HIV tests and anal exams. Though they were not found guilty, the police held them in detention for five months.

Also included in the evidence were:

A 2011 travel advisory from the British Foreign & Commonwealth Office warning British travelers that in Egypt, "homosexual acts in public are illegal."

A 2009 Amnesty International report about a "police crackdown" that resulted in the arrests of 24 suspected gay men, twelve of whom were suspected of having HIV. "Those testing positive were kept chained to their hospital beds," the report says. Eventually, international protests persuaded officials to unchain them.

A summary of a 2004 Human Rights Watch report called "In a Time of Torture: The Assault on Justice in Egypt's Crackdown of Homosexual Conduct," in which gay men testify that they were "bound, suspended in painful positions, burned with cigarettes or submerged in ice-cold water, and subjected to electroshock on their limbs and genitals."

Articles from the Associated Press, the New York Times and Bloomberg about how Egyptian police use websites like Gaydar.com to set up meetings with men and then arrest them. "Most men caught in these roundups are charged with fujur, or the 'habitual practice of debauchery,'" says the 2006 New York Times story "Prisoners of Sex," by Negar Azimi.

 

These are the things Sam fears, even if he hasn't experienced them himself. But will they be enough to win him asylum? "The government oftentimes wants to hang its case on that past persecution," Large says. In Sam's case, there is little of that.

In late April, the asylum officer issued her decision: Denied.

In a short letter, she says Sam "failed to establish a pattern or practice of persecution of homosexual Egyptian males." Based upon the evidence he submitted, the letter says, CIS doesn't believe there is a "reasonable possibility" that Sam would be persecuted if he returned home.

"They said, 'We believe he's afraid to go home,' but they don't think that's reasonable," Large says. "I think that they're wrong. I believe there was ample evidence that there is persecution of homosexuals in Egypt, and the asylum officer was mistaken in this case."

Sam won't have to leave the country right away. Instead, he'll have a second chance to argue his case before an immigration judge. Still, he is deeply disappointed — so disappointed that he doesn't want to discuss it. But a few weeks earlier, after his interview with the asylum officer, he'd hinted at how difficult he feared the process of winning asylum might be.

"There is a saying in Egypt: 'It's easier to get to heaven than it is to the U.S.'" Sam said then. "And believe me, for us as Muslims, it's really difficult to get to heaven."

Kassandra faced a hard life in El Salvador.
mark manger

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