Gays Seeking Asylum in U.S. Encounter a New Hurdle

Victoria Neilson, legal director of the New York-based Immigration Equality, which provides assistance to asylum seekers, recalled the case of a 21-year-old lesbian who had been threatened with gang rape in her native Albania to cure her of her sexual orientation, but was initially denied asylum, Ms. Neilson said, because she was young, attractive and single, apparently not conforming to the officer’s stereotype of a lesbian

By Dan Bilefsky/ “The New York Times”

Romulo Castro considered attending his asylum interview in Rosedale, Queens, dressed as Fidela Castro, a towering drag queen in six-inch stilettos, a bright green poodle skirt and a mane of strawberry blond hair. In the end, Mr. Castro, 34, opted for what he described as understatement: pink eye shadow, a bright pink V-neck shirt and intermittent outbursts of tears.

After years of trying to conceal his sexual orientation back home in Brazil (where Fidela never made an appearance), Mr. Castro had been advised by his immigration lawyer that flaunting it was now his best weapon against deportation.

“I was persecuted for being fruity, a boy-girl, a fatso, a faggot — I felt like a monster,” said Mr. Castro, who reported being raped by an uncle at age 12, sexually abused by two police officers, and hounded and beaten by his peers before fleeing to the United States in 2000. “Here, being gay was my salvation. So I knew I had to put on the performance of my life.”

Amid international outcry over news of the Czech Republic’s testing the veracity of claims of purportedly gay asylum seekers by attaching genital cuffs to monitor their arousal while they watched pornography, some gay refugees and their advocates in New York are complaining that they can be penalized for not outwardly expressing their sexuality. While asylum-seekers and rights groups here expressed relief that use of the so-called erotic lie detector is impossible to imagine in the United States, some lamented in recent interviews that here too, homosexuals seeking asylum may risk being dismissed as not being gay enough.

The very notion of “gay enough,” of course, or proving one’s sexuality through appearance, dress and demeanor, can be offensive — and increasingly androgynous fashions and the social trend known as metrosexuality have blurred identities in many people’s minds.

“Judges and immigration officials are adding a new hurdle in gay asylum cases that an applicant’s homosexuality must be socially visible,” said Lori Adams, a lawyer at Human Rights First, a nonprofit group, who advises people seeking asylum based on sexuality. “The rationale is that if you don’t look obviously gay, you can go home and hide your sexuality and don’t need to be worried about being persecuted.”

Jhuan Marrero, 18, who was born in Venezuela but has lived — illegally — in New York since he was 4, said the immigration officer at his asylum interview last week challenged him about his macho demeanor.

“I was brought up by my parents to walk and talk like a man,” said Mr. Marrero, who volunteers at the Queens Pride House, a gay and lesbian center in Jackson Heights.

“The officer said: ‘You’re not a transsexual. You don’t look gay. How are you at risk?’ I insisted that if I was sent back to Venezuela, I would speak out about being gay and suffer the consequences.”

Victoria Neilson, legal director of the New York-based Immigration Equality, which provides assistance to asylum seekers, recalled the case of a 21-year-old lesbian who had been threatened with gang rape in her native Albania to cure her of her sexual orientation, but was initially denied asylum, Ms. Neilson said, because she was young, attractive and single, apparently not conforming to the officer’s stereotype of a lesbian. (A judge later granted her asylum, Ms. Neilson said.)

Chris Rhatigan, a spokeswoman for the United States Citizenship and Immigration Services, said each case is examined individually, both for evidence of sexual orientation and the conditions of the country of origin. While she declined to comment specifically on the examples cited by Mr. Marrero and Ms. Neilson, Ms. Rhatigan said such behavior by immigration officers would not be condoned.

“We don’t say that someone is insufficiently gay or homosexual, whatever that would mean, or that he or she could be saved by hiding his or her homosexuality,” Ms. Rhatigan said. “Sexual preference is an immutable characteristic. It is something an individual can’t or shouldn’t change.”

Citizenship and Immigration Services received 38,000 asylum applications between October 2009 and September 2010, but the agency does not track how many cite being gay or lesbian as a reason. People may qualify for asylum if they can demonstrate past persecution or a well-founded fear of future persecution based on membership in a particular social group; in 1994, the scope of the law was expanded to specifically include homosexuals.

Illegal immigrants seeking asylum are interviewed by immigration officers, who can either approve their applications or refer them to an immigration judge. Gay applicants must marshal evidence of their sexual orientation and their risk of persecution, like affidavits from same-sex partners or police and medical reports of abuse. But legal experts said that the burden of proof can be difficult for people from places like Saudi Arabia or Iran where homosexuality is punishable by death and it can be dangerous to be openly gay or report an anti-gay hate crime — or from Western countries that are believed to be sexually tolerant.

Advocates said the situation had gotten worse amid the troubled economy and high unemployment rates, citing anti-immigrant sentiments and a desperation that had led some straight immigrants to feign being gay in hopes of winning asylum.

One lawyer recalled a recent client who applied for asylum on the basis of sexual orientation, then showed up a few weeks later with his wife, seeking help with a green card. In 2009, Steven and Helena Mahoney of Kent, Wash., pleaded guilty to charges stemming from a consulting business in which, among other things, they coached straight people on how to file gay asylum claims.

For fees of up to $4,000, the Mahoneys provided asylum seekers with dramatic (if fictional) stories of anti-gay persecution, along with lists of gay bars and maps of the gay pride parade route in Seattle to help them pass as gay, according to federal prosecutors. Mr. Mahoney was sentenced to 18 months in prison, Mrs. Mahoney, to 6 months.

Ms. Rhatigan, the immigration spokeswoman, said that judges and immigration officers were highly trained to assess the evidence in asylum cases, and that each case was carefully scrutinized for signs of fraud.

Even in cases where the persecution is real, experts said, coming from a country perceived as sexually liberal can be a disadvantage.

Mr. Castro, the son of an army officer in a staunchly conservative Roman Catholic family, said he was initially advised by immigration lawyers in Washington and New York not to bother applying for asylum since he came from Brazil, a country that has developed a reputation for gay pride parades, Carnival pageantry and drag queens.

In 1999, Mr. Castro was accosted by two police officers after leaving a gay club in the northeastern city of São Luís, Maranhão, according to his asylum application. He said they forced him to perform oral sex. When he started to sob, he said, one of the officers dangled a bag of cocaine and threatened to frame him.

Depressed and despondent, Mr. Castro said he considered the priesthood, and prayed every day; he also tried to date women. After a year, he decided to flee to the United States. He obtained a tourist visa, which he overstayed by eight years.

Last year, Mr. Castro, now a massage therapist living in Jackson Heights, decided to apply for asylum so that he would not have to live in fear of being deported.

The day of his interview in 2009, he was shaking. “I thought, ‘They will never let me stay,’ ” he said. “I cried.”

He said the officer was initially unsmiling and intimidating. “I figured I was doomed,” he said.

He showed her the affidavit his older brother had written begging the United States to keep Romulo “forever away from us” to prevent him from shaming the family. He shared a letter from his psychiatrist confirming that he took antidepressants for the post-traumatic stress disorder caused by his abuse. He came armed with a thick stack of articles detailing episodes of persecution of gays in Brazil.

Coached by his lawyer to be anything but bashful, he also produced several photographs at the end of the interview of his alter ego, Fidela, decked out in a tiny, strapless, black-satin cocktail dress dangling a stiletto heel from atop a giant pink float.

In June 2009, he was awarded asylum. He got a green card last summer.