April 23, 2009
Because Fong & Chun sees many gay men and lesbians at our immigration law offices in Los Angeles, we get inquiries about asylum based on sexual orientation. To get asylum, the applicant must demonstrate to a hearing officer or Immigration Judge (IJ) that s/he would suffer persecution if s/he returned to the home country. The US Tenth Circuit Court of Appeals just issued a decision in the case of Razkane vs. Holder, No. 08-9519 (10th Cir., filed Apr. 21, 2009).
In this case, a man from Morocco had overstayed in the USA because he was afraid to return to his home country because, as a gay man, he would be subjected to torture and other persecution. At the initial hearing, the IJ accepted the idea that a gay man might be persecuted in Morocco. However, the IJ denied the request for asylum, because in the IJ's opinion Razkane's appearance did not have anything that would mark him as being gay, "[he] does not dress in an effeminate manner or affect any effeminate mannerisms." In other words, the IJ didn't think Razkane looked gay enough!
The appellate court criticized the IJ, noting that this "style" of judging was "unhinged" from the need for substantial evidence and would result in terrible results. The judges noted that stereotyping of this kind would not be entertained in a case regarding religion or race, and it will not now be tolerated in a case of a gay man seeking asylum! --jcf