Mexican Gay Man Wins Right to Flee Homeland

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Anti-gay persecution is grounds for asylum
August 24, 2000

(LOS ANGELES, August 24, 2000) — After being repeatedly beaten and assaulted in his Mexican homeland, a 21-year-old gay man on Thursday at last won his battle to seek asylum in the United States, Lambda Legal Defense and Education Fund said.

The unanimous decision from the Ninth Circuit Court of Appeals orders the U.S. government to grant asylum to Geovanni Hernandez-Montiel. Previously, an immigration board rejected Hernandez-Montiel’s asylum claim, reasoning that the persecution he faced was due to his effeminate appearance, not his sexual orientation.

Said Lambda Supervising Attorney Jon W. Davidson, co-author of an amicus brief filed in support of Hernandez-Montiel, “In Mexico, if a man has an effeminate appearance, voice, or mannerisms, everyone considers him gay beyond a shadow of a doubt. 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.”

“At last Hernandez-Montiel will not have to live in fear that our government will send him back to Mexico where his life was a nightmare. Finally his nightmare is over.” said Robert S. Gerber, a partner with the San Diego firm Sheppard, Mullin, Richter & Hampton L.L.P., who represented Hernandez-Montiel. “When returning to your homeland practically guarantees continued persecution, it is only right that asylum be granted.”

“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 the first time that a federal court has affirmed that sexual orientation is an immutable characteristic in an asylum case. Also important, it is a powerful recognition of the links between sexual orientation and gender identity,” he said.

In addition to being thrown out of school and forced to attend a program to change his sexual orientation, Hernandez-Montiel was repeatedly detained, beaten, harassed, and twice sexually assaulted by law enforcement officials. Now nearly 22, he finally fled Mexico in October 1993.

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 Board of Immigration Appeals denied asylum for Hernandez-Montiel. It claimed he could avoid persecution by changing his appearance.

Lambda, NCLR, the American Civil Liberties Union of Southern California, and the International Gay and Lesbian Human Rights Commission jointly submitted an amicus brief on behalf of Hernandez-Montiel. In December 1999, the U.S. States Court of Appeals for the 9th Circuit reviewed Hernandez-Montiel v. INS.

Writing for the three-member panel, Justice 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. Because the evidence compels the conclusion that Geovanni suffered past persecution and has a well-founded fear of future persecution if he were forced to return to Mexico, we conclude that the record compels a finding that he is entitled to asylum and withholding of deportation.”

Headquartered in New York and with regional offices in Los Angeles, Chicago, and Atlanta, Lambda is the nation’s oldest and largest legal organization serving lesbians, gay men, and people with HIV/AIDS.


(Hernandez-Montiel v. INS, No. 98-70582)

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CONTACT: Peg Byron, Lambda 212-809-8585 x 230, 888-987-1984 (pager)

Jon W. Davidson, Lambda 323-937-2728, ext. 228

Shannon Minter, NCLR 415-392-6257

Related Issues: Immigration