Refugee agreement hurts queers

Refugee agreement hurts queers THE WORLD WITHIN / Government condemns potential refugees to danger Ariel Troster / Capital Xtra / Thursday, February 01, 2007

Hundreds of queer people disappeared from Canada last year, and you didn't even know it. In fact, they failed to arrive at our borders. And because we have no way of knowing their names, we can't seek justice for them. On Dec 29, 2004, Canada and the United States implemented the Safe Third Country Agreement, which designates both countries as "safe" for refugees. As a result, people are forced to make their claim in the first of the two countries that they reach. So even if a person fleeing persecution must cross through the US en route to Canada, they have no choice but to try and make their cases in the States. In 2005, the first year after the agreement was implemented, the number of refugee claims dropped by a third, and the decrease at the land border was even more dramatic, with numbers only at 51 percent of what they were in 2004. In other words, refugees are getting the message loud and clear: Canada's borders are closed to them now. And while we have no way of gauging how many people fleeing persecution for being gay or trans were refused entry into Canada, we do know what they can expect when Canada slams its door in their faces. If they only recently arrived in the US, they have the option of making a claim there, but they have to do it with in one year. They might be thrown in jail in the meantime, and if their claim is refused, they will be deported back to the country they sought to escape. So many have no choice but to live underground as non-status workers, with no access to social services, and the constant threat of deportation hanging over their heads. According to Janet Dench from the Canadian Council For Refugees, the Safe Third Country Agreement presents particular difficulties for queer refugees. "One of the big issues that we've highlighted is the issue of the one-year deadline," she said in a recent phone interview. "In the US, you must make a claim within one year of arriving. People claiming based on sexual orientation might not know that they are eligible for protection. And if they are coming from a homophobic society, it might take longer than a year to grow into an understanding of who they are." This is not to mention the fact that the designation of the US as "safe" for refugees is questionable, especially when it comes to queer people. Among the reactionary legislation that the Bush administration has ushered in recently is the Real ID Act, which makes it far more difficult for refugees to prove their claims of persecution. The Act penalizes people for not revealing every detail of their humiliation during their first encounter with an immigration official. So for example, if a woman is fleeing sexual violence, she could be deported for not describing every excruciating detail to the male immigration worker who interviews her the first time. The US also casts a wide net when accusing people of providing "material support" for terrorism. Even if refugees are forced at gunpoint to pay bribes to militia groups in order to guarantee safe passage out of their home country, they are likely to be labelled as terrorists by the US government, and deported back to places where they could be tortured. According to Dench, the Real ID Act disproportionately affects queers because, "the law makes it stricter in terms of providing corroborating evidence of persecution. When people are fleeing because of their sexual orientation, it's often not spelt out. Homophobia happens in the shadows in many parts of the world. Both the experience of being gay and the way people are persecuted is not always explicit." Dench also points out that the act gives US immigration officials the discretion to judge people based on their demeanor. Ironically, an applicant could be rejected for not appearing gay enough. Growing up in a Jewish family, I often heard about how the Canadian government turned its back on Jewish refugees during the Second World War. When asked how many Jews Canada would welcome, one high-ranking immigration official said, "none is too many." Today, the Safe Third Country Agreement is effectively closing the door to people who would have normally qualified for asylum under the Canadian immigration system, including people forced to leave home because their gay or trans identity puts them in grave danger. We might never know their stories. That's why our community should fight the Safe Third Country Agreement, before more queer people silently disappear.

Ariel Troster is a writer and activist in Ottawa. Check out her blog at dykesagainstharper.blogspot.com.

Can't prove he's gay, teen is denied asylum

Globe and Mail
7 February 2007
Can't prove he's gay, teen is denied asylum
Nicaraguan fears his return home as board member unconvinced over sexuality

MARINA JIMÉNEZ

Alvaro Antonio Orozco, a gay teen runaway from Nicaragua, was denied asylum in Canada because the Immigration and Refugee Board didn't believe he was a homosexual.

Mr. Orozco, now 21, is slated for removal next Tuesday to a country where sodomy is illegal and to a family that he says beat him and taunted him for his sexual orientation ever since he was a young boy.

"My father called me 'marica' [a derogatory word for gay], and told me he would beat it out of me," Mr. Orozco said. "But it's impossible to prove you are gay."

Soft-spoken with delicate features, wearing a pink-checked shirt, Mr. Orozco certainly looks the part, and says that from a young age he felt and behaved differently. He was drawn to artistic pursuits and often played indoors as a child, and today aspires to be a nurse.

But Deborah Lamont, the IRB member who heard his case via video-conference from Calgary, didn't believe Mr. Orozco was gay because he wasn't sexually active during his teen years, and wasn't clear about his sexual orientation when he fled Nicaragua at the age of 12.

El-Farouk Khaki, his lawyer, says the case shows the difficulty of gay refugee claimants who come from a macho or homophobic culture and are unaccustomed to living an openly gay lifestyle. It also reflects a stereotype in assuming gay teens are more sexually active than heterosexual teens.

"I think the decision shows a lack of understanding of issues facing queer kids from homophobic cultures and what they have to deal with in terms of gender stereotypes," he said.

Mr. Orozco's last hope is to appeal for a ministerial permit from Immigration Minister Diane Finley. "We are asking the minister to grant him a stay of removal on humanitarian grounds and allow him to stay," Mr. Khaki said.

Mr. Khaki, who didn't represent Mr. Orozco at the hearing, is also filing a motion to reopen his refugee claim, arguing there was a breach of natural justice because the member failed to consider guidelines on treatment of a vulnerable person.

Mr. Orozco is vulnerable, his lawyer added, because he is young, uneducated, alone, a victim of domestic abuse and homeless. He also stutters, which impedes communication.

In Nicaragua, a 1992 amendment to the penal code criminalized same-sex relationships, and the law is vague enough that individuals campaigning for gay rights or providing sexual health information could also be prosecuted, according to a 2006 Amnesty International report.

"The law criminalizing sodomy was introduced in 1992 and [there] was a concerted effort to put it on the books despite lobbying and criticism by human rights groups," said Mr. Khaki, who has represented other gay Nicaraguan refugee claimants with success.

Since coming to Toronto two years ago, Mr. Orozco says he has finally felt comfortable to live a gay lifestyle, and spends his weekends at gay bars. "The law protects me here. In Nicaragua, I could be put in jail," he says. "I still fear my father, who threatened that he would kill me for being gay."

His life story is a dramatic one: He ran away from home just before his 13th birthday, fleeing his alcoholic father. He hitchhiked through Central America and Mexico, and made it to the Mexican-Texas border, where he swam across the Rio Grande with a Honduran boy. However, he nearly drowned after his legs became entangled in algae and he couldn't swim against the strong currents. His Honduran friend saved him, and they swam to safety.

U.S. immigration officials arrested Mr. Orozco, and he spent a year in a detention centre in Houston. He was 14. He was released when he agreed to return to Nicaragua. Instead, he ran away and was taken in by the Seventh Day Adventist Church. Terrified they would reject him if they discovered he was gay, he says he kept his sexual orientation hidden. He was also scared because he was living in the United States illegally.

IRB member Ms. Lamont didn't accept this explanation. "I found the claimant's many explanations unsatisfactory for why he chose not to pursue same-sex relationships in the U.S. as he alleged it was his intention to do so and he wanted to do so," she ruled.

Instead, she concluded: ". . . he is not a homosexual . . . and fabricated the sexual orientation component to support a non-existent claim for protection in Canada."

Mr. Orozco said he didn't seek asylum in the United States on the advice of church officials there. In 2005, he took a bus to Buffalo after reading about Canada's support for gay rights and generous asylum program on the Internet. He made his way to a Buffalo shelter, Vive La Casa, which helped him make a refugee claim.

Today, Mr. Orozco is being assisted by a Toronto program for gay newcomers and refugee claimants run by Supporting Our Youth (SOY). Gay refugee claimants often have trouble persuading IRB members they are sincere, especially if they are poor witnesses, said Suhail Abualsameed, program director.

Mr. Orozco went before the IRB with no supporting documentation from gay advocates. "She asked me for proof of being gay and I didn't have it," he said. "But it is illogical that she didn't believe me."