Gays Seeking Asylum Can Be Turned Away If They’re Not ’Gay Enough’
A lack of flamboyance can work against gays seeking freedom from persecution in their homelands, the New York Times reported on Jan. 28.
Gay asylum seekers already face a tough burden of proof. They must convince immigration judges not only that they genuinely are gay, but also that they face peril if they return to their homelands. Unfortunately, immigration judges are as apt as anyone else to harbor stereotyped ideas of what constitutes "gay," and men who fail to dress and act in ways that match those preconceived notions may be dismissed as lying about their sexual orientation in order to gain entry to the United States.
But gays--like straights--express themselves across a range of personal affect and demeanor. A "macho" man might be just as sexually and romantically attracted to persons of the same gender as a "nellie," or overtly effeminate, man.
Because only an individual knows for sure what his or her own sexual orientation is, officials placed the position of determining a person's sexuality through objective means have sometimes resorted to methods that are seen as degrading and invasive. Czech officials made headlines for subjecting gay asylum seekers to a kind of gay "lie detector test" in which the applicant's genitals were monitored while he viewed erotic material designed to appeal to homosexuals. If the applicant did not respond physically, the result counted against him.
The test drew criticism from the European Union's Fundamental Rights Agency, which reported that the phallometric test might not lead to "sufficiently clear conclusions" upon which to deny an applicant's claim. Moreover, "since this procedure touches upon a most intimate part of an individual's private life," the report cautioned, the test could be in contravention to European Convention on Human Rights guidelines.
Czech officials claimed that only a few asylum claimants had been subjected to the test, and those who had consented to it in writing.
No such invasive techniques are used in the United States, the New York Times noted, but reliance on crude stereotypes is hardly any better as a means of objectively assessing a person's sexuality. However, gay asylum seekers are being counseled to camp it up for the benefit of immigration judges, who may be looking for even more extreme examples of stereotypically "gay" behavior than they would have a few years ago, thanks to the rise of the "metrosexual," or carefully groomed heterosexual male, the New York Times noted.
The problem is that the applicants most likely to have faced persecution based on their sexuality (and to be most at risk if returned to their homelands) are also likely to have learned that acting in overt or stereotypically "gay" ways can place them at risk. A gay asylum seeker from a highly homophobic country where gays face steep punishments--even the death penalty, in some places--is less likely to have much experience in the finer points of haute couture or eyeliner.
In one recent case, a Saudi diplomat issued a plea to be allowed to remain in the United States, because he feared he would be murdered if he returned to his homeland. "My life is in a great danger here and if I go back to Saudi Arabia, they will kill me openly in broad daylight," Ali Ahmad Asseri told NBC last September. Asseri claimed the his passport had been taken and he had been ordered to return to Saudi Arabia because he was gay.
Even applicants from nations not generally seen as especially homophobic might feel pressure to put on a good show for immigration judges. The New York Times cited the case of Romulo Castro, a Brazilian who claimed to have been raped by a relative as well as by police, and subjected to beatings for being gay. "I was persecuted for being fruity, a boy-girl, a fatso, a faggot--I felt like a monster," Castro told the New York Times. "Here, being gay was my salvation. So I knew I had to put on the performance of my life."
For Venezuelan-born Jhuan Marrero--who faces a second dilemma, that of having been brought to the U.S. illegally at age 4 and having grown up culturally American--acting like a straight man was a straightforwardly detrimental to his case. "I was brought up by my parents to walk and talk like a man," Marrero, 18, told the New York Times. "The officer said: 'You're not a transsexual. You don't look gay. How are you at risk?' I insisted that if I was sent back to Venezuela, I would speak out about being gay and suffer the consequences."
"Judges and immigration officials are adding a new hurdle in gay asylum cases that an applicant's homosexuality must be socially visible," Human Rights First lawyer Lori Adams noted "The rationale is that if you don't look obviously gay, you can go home and hide your sexuality and don't need to be worried about being persecuted."
But a United States Citizenship and Immigration Services spokesperson denied that any such gay litmus test was the routine. "We don't say that someone is insufficiently gay or homosexual, whatever that would mean, or that he or she could be saved by hiding his or her homosexuality," said Chris Rhatigan. "Sexual preference is an immutable characteristic. It is something an individual can't or shouldn't change."
Anecdotal evidence does not always agree. Immigration Equality's Victoria Neilson related the story of a young lesbian who didn't match a stereotype and was seemingly denied asylum on that basis, despite receiving threats of "corrective" rape in her homeland.
On the other side of the problem is the fact that some heterosexual applicants do make fraudulent claims; the article recounted how an American couple made a business out of teaching would-be immigrants how to make claims in which they falsely asserted to be homosexual. For $4,000, the couple would provide extensive coaching--including fabricated backstories filled with anti-gay violence and carefully memorized accounts of time spent at American gay bars. The couple was prosecuted and received jail time.