LOS ANGELES ? On August 24, the Ninth Circuit Court of Appeals granted asylum to Geovani Hernandez-Montiel. After being expelled from school, beaten by a mob and sexually assaulted by police in his Mexican homeland, the 21-year-old gay man sought asylum in the United States. The Board of Immigration Appeals (BIA) rejected Hernandez-Montiel's asylum claim, stating that he was persecuted for his effeminate appearance and characteristics, not his sexual orientation. The ACLU of Southern California and other civil rights groups filed an amicus brief on the Hernandez-Montiel's behalf.
The unanimous decision from the Ninth Circuit Court of Appeals orders the U.S. government to grant asylum to Geovanni Hernandez-Montiel. The case is Hernandez- Montiel v. INS, No. 98-70582 (August 24, 2000).
The Ninth Circuit sharply criticized the BIA's view that Hernandez-Montiel was persecuted for his appearance and conduct, not for his sexual identity. The Court stated that a person should not be required to hide or change characteristics that are "inherent is his identity" to avoid political persecution.
"The position of the Board of Immigration Appeals was analagous 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. "It's an absurd distinction that opens the door for bigotry, and the Ninth Circuit Court of Appeals rightly rejected it."
"This ruling," said Matthews, "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. A person's identity and self-expression are deeply and irrevocably connected."
"In Mexico, if a man has an effeminate appearance, voice, or mannerisms, everyone considers him gay beyond a shadow of a doubt," said Lambda Legal Defense Fund Supervising Attorney Jon W. Davidson. "The government cannot ask someone like Hernandez-Montiel to change his appearance, habits, voice and mannerisms so that people do not associate his appearance with his sexual orientation."
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."
"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 State Department 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.
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.
