Gays and Lesbians can Obtain asylum in US on Grounds of Harassment and Abuse

Harassment and abuse of gay men and lesbians is becoming increasingly accepted as grounds for legal asylum in the United States.

“I am happy because I don't have to live like a prisoner anymore in a society where no one is allowed to be different," says Gramoz Prestreshi, a slight, nervous man of 22, originally hailing from Kosovo and now settled in US.

He won his asylum case on the ground that as a gay he was being persecuted in his native country. He was almost beaten to death in 2003 and police were of no help. Nor were his parents.

" I can never forget what happened. It hurt when the police called us 'faggots.' It hurt when my parents screamed and beat me after they found out. It still hurts, " notes bitterly Prestreshi.

Harassment and abuse of gay men and lesbians is becoming increasingly accepted as grounds for legal asylum in the United States, even at a time of conservative judicial activism, fear about HIV/AIDS transmission and increased scrutiny of asylum seekers. The government does not disclose a breakdown of reasons for granting asylum petitions, but legal advocacy groups in several major U.S. cities said they have won dozens of cases.

Homosexuality, once a de facto condition for barring foreigners from entering the country, is now officially recognized by the U.S. government as a category that might subject individuals to persecution in their homeland, just as if they were political dissidents in a dictatorship or religious minority members in a theocracy.

But although petitioning for asylum on the basis of sexual orientation has become far easier since 1994, when then-Attorney General Janet Reno ordered that a groundbreaking case involving a gay Cuban refugee be viewed as a legal precedent, such asylum cases are still extremely difficult to win, according to lawyers in Washington and elsewhere.

One reason is that applicants face multiple burdens of proof. They must demonstrate that they were abused or harassed by authorities, not merely by angry relatives or drunken hooligans, or that the authorities failed to protect them. They must also prove that they were abused because they are homosexual -- and thus prove that they are, in fact, gay.

"Immigration officials are very concerned about fraud and may be suspicious if you don't look the part. Some lawyers will ask their clients to 'dress as gay as possible,' " said Todd Pilcher, an attorney at Whitman-Walker, whose clients include a victim of gang violence from El Salvador, a medical doctor from Venezuela and a former soldier from Colombia.

In many societies, homosexuals spend years hiding their sexual identity in order to survive. Prestreshi said that in Kosovo, pressure to conform to traditional values is so strong that most gay people marry and have children. Most inhabitants are Muslim, as he is, and religious opprobrium against homosexuality is strong.

Raul Calderon, 40, the ex-soldier from Colombia, said he was raped as a recruit of 15 but commanded by officers who constantly exhorted the troops "not to act like women." In an atmosphere of civil war militarism, he said, he felt equally threatened by the guerrillas, the armed forces and members of the right-wing squads who called themselves social cleansing committees. "To them, people like me were filth," he said.

Often, Pilcher and other lawyers said, foreigners living in the United States who have possible grounds for asylum on the basis of sexual orientation are afraid to come forward or unaware that there is a one-year deadline to apply after they enter the country. In many cases, they might overstay a visitor's visa and become illegal, permanently losing their chance to seek refugee status.

Even in societies with freewheeling, tolerant urban cultures, homosexuals can be harassed to the point of seeking refuge abroad. Brazil, for example, has a huge population of gays and transvestites, and last month's annual gay pride festival in Sao Paolo drew 3 million people, according to Gay Life, a Baltimore newspaper.

Yet J.C., a District man from Rio de Janeiro who spoke on condition he not be further identified, won his asylum petition in 2001 after proving that he had been repeatedly beaten and abused by powerful, armed street gangs in his hillside slum, known as a favela, and that the local police force had failed to protect him. "Pride parades are fine, but life is very different if you grow up poor in a favela," Pilcher said.

Fear of AIDS is another frequent factor in public and private harassment of homosexuals abroad. A doctor from Venezuela, who treated people with HIV and AIDS there and championed their cause within his profession, was granted asylum this year after being kidnapped, beaten and sexually humiliated by a police squad.

"I was lucky because I could prove my case, because I speak good English and have a useful profession," said the man, a D.C. resident who spoke on condition he not be identified because he does not want to jeopardize his job as a U.S. government medical researcher. "A lot of people don't have winnable cases, but they are living desperate lives."

Ironically, experts said, it might be harder for homosexuals to win asylum claims on grounds of sexual orientation if they come from countries with dictatorial governments that repress a variety of people. Victoria Neilson, legal director of a private New York agency called Immigration Equality, said that seeking asylum from a country with a great deal of violence might work against a gay applicant.

"We have cases from all over the world, but sometimes people who come from the scariest countries have the hardest time proving their case," said Neilson, whose office currently represents asylum seekers from 26 countries including Albania, Indonesia, Jamaica, Turkmenistan and Zimbabwe. "If you come from Iraq where nobody feels safe, it is hard to show why you would be singled out," she said.

In one recent groundbreaking case, a lesbian from Uganda won U.S. asylum after her family had a stranger rape her as a "cure" for being gay. Neilson said the woman's petition was rejected initially by immigration officials because the abuse had been carried out in private, but an appeals court in Minnesota reversed that decision and approved her claim, noting that conditions in Uganda were so hostile that she could not seek protection from the state.

Often, even in countries where legal help is available theoretically, social hostility to homosexuals can overshadow their formal rights. Kosovo, for example, is governed under a postwar UN mandate. It has laws banning discrimination against people on the basis of sexual orientation and has an active, liberal press.

None of that, however, was enough to protect Prestreshi or his friend Korab Zuka, 23, who also fled to the United States this spring and is awaiting an asylum hearing. Zuka was a leader of the fledgling gay rights movement in Pristina, and he was featured last year in a British gay magazine article called "Europe's Hidden Homos."

Zuka, who speaks fluent English and exudes casual self-confidence, said his public profile led to unbearable pressure and a series of threats, including anonymous letters warning him to prepare for his funeral and burial. He said he repeatedly called the Kosovo police, who shrugged off his complaints.

"Kosovo is a society that has been repressed for hundreds of years. Its values are deeply traditional, and the war made people even more intolerant," Zuka said during a recent interview.

"It was very frightening to live there as a gay person. You always had the fear that someone would come up and kill you. At least here I can walk down the street without looking around to see who is behind me."

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