< back
GAY ASYLUM CASE TO BE HEARD BY FEDERAL COURT
Geovanni Hernandez, a 21 year old Mexican national, first came to the US in 1993.  He claims to have been rejected by his family, kicked out of school, beaten by a mob in his hometown and raped at gunpoint by police officers.  According to Hernandez, he faced all of this because he is homosexual and often wears women’s clothes.  In 1995, he was apprehended by the INS and placed in deportation proceedings.  In response he filed a claim for asylum, a claim that has won support from gay rights and immigration advocates.  Many people are opposed to his request for asylum, including an Immigration Judge (IJ) who initially denied his request, and the Board of Immigration Appeals, which affirmed the denial.  The case has been appealed to the Ninth Circuit, where papers were recently filed.  
Supporters of immigration rights for homosexuals have criticized the IJ’s decision as the result not of a fair application of asylum law, but of homophobia.  Since 1994 persecution a person suffered because of homosexuality has been a basis for asylum.  The IJ found the treatment Hernandez suffered to be motivated not by his homosexuality, but by his decision to wear women’s clothing.  This decision has been met with criticism from gay rights groups, who argue that his choice in clothing is part of his identity – what is legally known as an “immutable characteristic.”  Moreover, they argue that Hernandez was clearly targeted because he was gay, regardless of how he dressed, and that fixing the decision on whether he can change his clothes misses the point. 
Hernandez’s attorney, Robert Gerber, compared the decision denying asylum to denying asylum to a Jewish person on the basis that he was persecuted because he wore a yarmulke, not because he was Jewish.  Latin American experts fault the decision for failing to realize how badly effeminate gay men are treated there.  
There is a chance that the Ninth Circuit will decide the case without addressing its more sensitive issues.  This is because during his asylum hearing, Hernandez asserted his Fifth Amendment rights against self-incrimination when asked if he had even been arrested for prostitution or drug offenses.  Because of this alone, the IJ said he could be denied asylum.  If the Ninth Circuit wants, it can rule on this basis alone.