Just Another Day In Court
I can’t tell you my client’s name. I can’t tell you if my client was a male or female. I can’t tell you what country my client was from. The facts below have been changed around to protect my client’s identity. My client has given me partial permission to share the story because others need to know. I can tell you that the following fact pattern could have been any sex, male or female, a gay man, a lesbian woman, a bisexual individual or transgender/transsexual individual. It could’ve been in the US or any country in the world. Most people know I only practice in the Orlando, FL Immigration Court, but this could’ve been in any court in the US or anywhere in the world. That being said, this is my client’s story told from my perspective.
I will call him Jose. Jose is from a Central/South American country. A child in the midst of a large family. A predominantly Catholic country. The country is mixed with indigenous tribes as well as European and African descendants. With a history of governments that have failed and a disregard for the rule of law. Where sodomy is punishable by death. My client’s story takes place sometime during 1977 to 1983.
Jose realized at a fairly early age, maybe 7 or 8, that he liked boys. His father, his brothers and male cousins, teased him for his apparently female gestures. He was not allowed to play with his sisters, although he liked to role play with his sisters and their dolls and felt more comfortable in their clothes. He was hit in the head oftentimes for what his male elders called “paterias.”
At school he was beaten and bullied. His teachers whipped his hands with rulers. One teacher placed him in a broom closet for most of a day. His father was drunk most of the time and his mother yelled a lot because his father didn’t bring home money or food for all the mouths to feed.
Eventually his father stopped coming around. His mother tolerated Jose, because she was too tired and busy to keep him away from too many girls or to notice that Jose spent a lot of time alone with other boys.
By the time he was 13, Jose had one special friend named Carlos. They were the best of friends and had many things in common. They spent a lot of time alone and skipped school together.
The country at that time was under a revolution. There was a movement of the proletariat with communist/socialist tendencies. The government professed that there must be a ridding of society of those who are not good workers. The government set it as a high priority. There was a great purge from the streets of the homeless, orphan children, disabled people, homosexuals, intellectuals, oligarchists and others those in power felt were not good for their society. Sodomy laws had always been in place, but were getting focused enforcement during that time in the early 1980’s.
One day, Jose and Carlos were in some mountainous woods not too far from their homes. There was a creek nearby and they had been fishing most of the day. Some law enforcement officers approached them and asked if they had a fishing license, which being just young boys, they of course did not and answered no. The officers asked what two boys were doing out by themselves. The boys explained that they had been fishing for their families. The officers asked if they had been engaged in “puterias” “mamerias” or “cochinerias” (all derogatory terms for LBGT in Spanish). The boys, who by this point were in fear for their lives, knew to answer no. Unbeknownst to them they had been under surveillance for quite some time.
The officers placed them under arrest telling them that they would be punished for their homosexual actions. Instead of being taken to jail they were taken to a farm house where the officers tortured them and sodomized them. The boys were hung by their genitals and left to die. Luckily, the ties used on my client were weak and he fell. Carlos was not so lucky. Some neighbors heard Jose’s cries and came and rescued him. He woke up a few days later in the home of a Good Samaritan.
After leaving the boys to die, the officers had gone off to celebrate and get drunk. The officers returned to the farmhouse and found only one dead body. They were furious and set off looking for the second body. In not finding any signs of a person dragging themselves out of the farm house, the officers knew Jose had been rescued. The officers began interrogating the neighbors. The very people who helped my client had also placed themselves at risk. Several were tortured for information, but none gave away my client’s location. A warrant was issued for my client and anyone who had helped him escape or harbored him.
Meanwhile, my client was being treated by the Good Samaritans. They tried all they could with home remedies but the bleeding would not stop. They didn’t want to draw the attention of the authorities but eventually did make the decision to seek out professional medical assistance. They were able to convince a new doctor at the local hospital to come and treat my client under anonymity. The doctor treated my client’s severe lacerations to his scrotum sufficiently to stabilize him and allow him to be mobilized. Under cover of night, the Good Samaritans snuck my client out of the country through a network of human rights activists. He arrived in the US and began a new life.
My client tried to legalize his status in the US during the Amnesty of the late 1980’s. He became involved with someone who said they could help him “fix his papers” but the papers were filled out wrong and nothing came out of it even though my client lost thousands of dollars in the attempt.
Jose came out of his shell in the US and was free to live as he truly was. He no longer hid his sexuality and soon became quite involved in the LBGT community, eventually cross-dressing, performing in shows and living his life to the fullest. He began a relationship and was very happy. His partner has custody of his nephew whom they are raising as a foster child.
After 9/11/2001, it became more and more difficult for Jose to obtain work so he started his own company distributing and wholesaling fruits and vegetables. By 2005, he had been paying taxes for 15 years, owned several properties and was grossing over $200,000 per year. That was when INS & the IRS targeted him.
He soon found himself in deportation proceedings. By the time I met him in 2008, he had been through four attorneys, none of whom promised him any real relief. None of whom had asked him if he feared returning to his country. None of whom asked him his sexual orientation. I, of course, asked him, maybe 20 minutes into our initial consultation.
At first he hesitated. He seemed insulted. He wanted to know why I would ask him that and wondered what his sexuality had to do with my being able to help in his immigration status. I didn’t want to plant any ideas in his head and I wanted to get to the real story. I took some time in gaining his trust. I assured him that if he told me the truth I would see what I could do. I promised him that if there was nothing I could do I would still do all I could either way.
The story above was revealed to me in bits and pieces over a time period of almost two years. Some he told me directly. Some, he told the therapist I referred to him. I explained to him the asylum laws of the US and that perhaps I could get him recognized as a refugee being that he was afraid to return to his country on account of his sexual orientation which I believed was an immutable characteristic. I had only a scholarly knowledge of these types of cases at the time but with Jose I learned so much not only as an attorney but as a human being. Jose and I spent hours together over the internet, skyping and visiting the law library going over cases, treatises, sociological papers, mental health research, census reports, magazines, etc. We prepared his initial application for submission. His I589 Application for Asylum was almost 500 pages. At one time, his case alone took up two drawers of file space in my file cabinets.
We had a copy of his arrest warrant his mother was able to obtain for us showing he was wanted for prosecution in his country for sodomy on account of being homosexual (to which the US government argued there is a difference between persecution and prosecution).
We had copies of his medical records for torturous lacerations and injuries to his scrotum obtained from his doctor who treated him back then and is now working for Doctors Without Borders.
We had mental health records showing a diagnosis for Post Traumatic Stress Disorder after a torture experience.
We had pictures of my client hanging by his scrotum which the police sent to his mother and the neighbors who helped him as notice that if my client was not turned in the same would be done to those who helped or harbored him.
We had a copy of Carlos’ death certificate and pictures of Carlos’ hanging as well.
We had copies of newspaper articles reporting Carlos’ “mysterious” death. There were also newspaper clippings asking the public for information regarding Jose’s whereabouts stating that he was wanted for sodomy.
We had sworn affidavits from the Good Samaritans who had helped my clients almost 25 years ago, and these affidavits were provided under continued threat of risk to themselves.
We provided all of Jose’s tax returns, records to show he had never been arrested for anything, his bank statements, titles for his real property and tangible property, records showing he employs over 30 people, records showing he is in a relationship with his partner of more than 10 years, as well as school records for their foster child, pictures of Jose “transformed,” brochures to his drag show, etc., in an attempt to show he is an asset to the US.
Because of the court moving from one place to another, a couple of hurricanes, lost files, procedural issues as to whether he was eligible for asylum due to his applying more than one year after arrival, etc., blah, blah, blah,…..We finally had his hearing for his asylum today…nearly 5 years after our initial consultation. Jose was nervous.
He was so tired of talking about the case. He just wanted to forget it. He had been ready to give up several times over the years. I had grown accustomed to having to give him a pep talk. I begged him to tell the story one more time, just looking at me the whole time, and I promised him that after today he would never have to talk about it again. He said OK, we fist bumped and went into court.
My client speaks perfect English. No interpreter was needed for his hearing. My client testified for 3 hours. My closing argument lasted 45 minutes.
During his direct testimony, cross examination and my closing argument (which unlike other courts can be constantly interrupted by the judge) the judge and the prosecutor peppered my client with what I deem the most homophobic questions and comments I have ever heard since watching Archie Bunker during the 1970’s:
- Can’t you just not act gay and go home?
- You don’t have any overtly gay gestures, how will anyone know if you’re gay when you go home?
- Well, maybe if you ceased the cross dressing you would not have to worry about anyone finding out you’re gay?
- Gay bullying happens in the US, what makes you think you’d be anymore safer here than back home?
- There are de-gay programs where you can go and get cured of your gayness, why don’t you try one of those and then go home?
- When did you decide you were gay?
- Did you decide you were gay before or after you came to the US?
- Did you make up this gay story 20 years after you arrived in the US in order to win asylum?
- These supposed events happened so long ago, how do you know it won’t be better now when you go back? Maybe they’re not so hard on gays anymore?
- There are human rights organizations active in your country, perhaps they can provide you with assistance when you go home?
Finally, after all this haranguing over almost 4 hours, the judge asked the prosecutor if the government had any objections to a grant of asylum. The prosecutor stated that the government would defer to the judge’s decision and would not appeal a grant. The judge granted the asylum. I happily write that it wasn’t the first time I cried after winning a case. But it was the first time I openly cried in court, in front of the judge and the prosecutor and not in the bathroom all by myself. My client hyperventilated. Luckily I had a paper bag from my McDonalds breakfast earlier that morning. His partner and foster son ran into the courtroom after hearing us hooting and hollering and thinking something was wrong. They too began to cry tears of joy. Their foster son told the judge he is happy his two Dads can be together forever now.
I’m writing this so that I never forget. I’m writing this to honor my client who did such a great job today that words cannot express how proud I am of him, and so that his partner and his foster son know as well. I am writing this for any LBGT who is afraid, so that they too can gain some strength in knowing that although the road is never easy, it is passable. I am writing this hoping that twenty years from now I will re-read this and think “wow, so glad that doesn’t happen anymore.”