In an important case for lesbian, gay, bisexual and transgendered immigrants, Lambda Legal is urging the Board of Immigration Appeals in Washington, D.C., to grant asylum to a man who faced severe anti-gay persecution in Mexico —but was rejected for asylum by a California immigration judge who said he didn't seem gay and could hide his sexual orientation to avoid persecution.
Jorge Soto Vega, a 34-year-old man from Tuxpan, Mexico, faced severe harassment and violence from the community and his own family from an early age.
He was detained and beaten severely by police who threatened to kill him if they saw him again because they wanted to get rid of gay people. Earlier this year, a Southern California immigration judge ruled that there was credible evidence that Soto Vega was persecuted in Mexico because of his sexual orientation, but rejected his application for asylum in the U.S., saying Soto Vega didn't appear gay to him and could keep his sexual orientation hidden if he chose to.
'People are granted asylum in the U.S. because they face persecution in their home countries based on religion, political beliefs, sexual orientation, gender and other factors that are part of their basic identity. We grant people asylum in America because their countries have told them they have to change who they are in order to be safe,' said Jon Davidson, Senior Counsel for Lambda Legal in its Western Regional Office. 'The basic promise of asylum is in question when an immigration judge recognizes that a man is being persecuted and sends him back to the country telling him to disguise the very characteristic that leads to persecution and makes him eligible for asylum. This is a deeply disturbing case, and we intend to help secure asylum for Jorge Soto Vega.'
In January 2003, an immigration judge in Los Angeles who heard testimony from Soto Vega and others ruled that he must return to Mexico. While saying Soto Vega's testimony was credible, the judge said that he did not meet the criteria for asylum because he could hide his sexual orientation and could live in parts of Mexico that were not as hostile to gay people.
'[I]t seems to me that if he returned to Mexico in some other community, that it would not be obvious that he would be homosexual unless he made that ... obvious himself,' the judge ruled.
In a friend-of the-court brief submitted at the Board of Immigration Appeals, Lambda Legal, along with the Lesbian and Gay Immigration Rights Task Force, argue that the public and law enforcement officials in much of Mexico continue to harass and assault gay people.
The groups also argue that Soto Vega's basic rights would be violated if he was forced to behave differently in order to avoid appearing gay.
Lambda Legal, which argued the landmark U.S. Supreme Court case striking down sodomy laws this summer, said that ruling makes it clear that Soto Vega has a right to maintain same-sex relationships without government interference—a right that would be infringed on if he were forced not to be in a relationship with a man in order to avoid disclosing that he is gay.
The groups also cited a number of previous cases of people who were granted asylum for a variety of reasons and weren't told to go back to their countries and hide their identities or beliefs in order to avoid persecution.
'Asylum doesn't hinge on whether people can hide their religion or political beliefs or race or sexual orientation—it's decided on whether they face persecution based on those factors, and Jorge Soto Vega clearly does,' Davidson said.
Soto Vega left his small hometown for the more cosmopolitan city of Guadalajara in his late teens to attend junior college.
But after an altercation with the police where he was beaten, robbed and threatened with his life, Soto Vega left Mexico for the U.S.
He lived in Los Angeles for 15 years and ran a flower and interior design shop with his partner, who is an American citizen.
But in 2001, Soto Vega returned to Mexico for his mother's funeral.
Although his mother left him the family grocery store business, he feared for his safety and left Mexico.
Soto Vega paid to be smuggled back into the U.S., spending hours in the trunk of a car, and filed for asylum within a year.
'LGIRTF is signing onto Lambda Legal's brief in this case because we are deeply troubled by the decision of the immigration court in this case. While we feel that the immigration court made several legal errors in its decision, we are particularly troubled by its reasoning that since Mr. Soto Vega did not 'appear gay' to the immigration judge, his life and danger would not be in danger if he returned to his native Mexico,' said Lesbian and Gay Immigration Rights Task Force Legal Director Victoria Neilson.
'We hope that the appeals board will not allow Mr. Soto Vega's rights to be denied based on his failure to conform to the stereotypes of one immigration judge.'
To provide help and guidance to thousands of lesbian and gay immigrants in similar circumstances, Lambda Legal and the Lesbian and Gay Immigration Rights Task Force released a joint publication on the rights of LGBT people who are immigrating to the U.S. or seeking asylum.
The resource, which is available at www.lambdalegal.org, includes:
— An overview of the immigration process and the rights of lesbian and gay immigrants;
— Information on applying for a visa;
— Details on employment-based immigration;
— Specific immigration information for same-sex couples;
— Guidance on how to apply for asylum; and
— Information on how to become a U.S. citizen.
This case is the latest in Lambda Legal's decades of work on behalf of LGBT immigrants.
In the 1970s, Lambda Legal fought successfully on behalf of people who were blocked from becoming American citizens because of their sexual orientation.
In the 1980s, a Lambda Legal lawsuit resulted in a federal judge striking down an INS policy of barring visitors who said they are gay, and most recently Lambda Legal persuaded the INS not to bar lesbians and gay men from obtaining visas to adopt children overseas.
Davidson is Lambda Legal's attorney in Matter of Soto Vega.