The Center for HIV Law & Policy and Lambda Legal Urge Board of Immigration Appeals to Reject Stereotypes About Coming Out (2013)

New York City, August 20, 2013 -- The Center for HIV Law & Policy (CHLP) and Lambda Legal, joined by eight other civil rights organizations, have submitted a friend-of-the-court brief asking the Board of Immigration Appeals (BIA) to overturn an Immigration Judge's ruling denying an immigrant's application for deferral of removal to Jamaica under the U.N Convention Against Torture (CAT).

"The Immigration Judge relied on stereotypes that greatly oversimplify the complicated journey may lesbians and gay men travel in coming to terms with their sexual orientation, and in determining to whom they come out," Lambda Legal Senior Staff Attorney Thomas W. Ude, Jr. said. "How do you prove to a judge that you are gay? Denying protection against torture in Jamaica based on stereotyped assumptions about the process of coming out is unjust. Relationship histories can be complicated for anyone, but this can be particularly true for LGB people from homophobic environments. Given the level of violence LGB people face in Jamaica, a decision that fails to acknowledge this complexity virtually guarantees that LGB immigrants will be sent to very dangerous conditions."

The brief authored by Lambda Legal and CHLP concerns the case of Anthony, who immigrated to the United States when he was a teenager. He explained to the Immigration Judge that he realized he was gay when he was 25 but - like many other LGB people - continued to struggle for years to come to terms with his sexual orientation, both because of homophobia in his family and community, and reinforced by the antigay religious views of his family. He explained that while navigating his coming out process, he fathered two children. He also presented testimony from both a former and current romantic partner to support his own testimony about his sexual orientation.

"Anthony" is a pseudonym, because the immigrant seeking relief has requested anonymity based on his fear that if he is identified as a gay man, he will be tortured and killed if he is removed to Jamaica.

In the ruling, the immigration judge concluded that Anthony had not proved he was gay, pointing to the children, Anthony's earlier relationships with women, and to testimony that Anthony had not told his children or their mothers that he is gay. However, in the friend-of-the-court brief, Lambda Legal and CHLP cite several studies documenting that for many LGB individuals, acknowledging that one is lesbian, gay or bisexual is often a prolonged process.

"Gay men can face a uniquely intense form of persecution in Jamaica," said CHLP Legal Director Iván Espinoza-Madrigal. "Homophobia and ignorance about HIV are reflected in, and compounded by, the widely-held perception in Jamaica of gay men as vectors of disease. Gay men are presumed to be HIV positive and treated as dangerous to be around regardless of their actual HIV status."

Lambda Legal and CHLP are joined by the following organizations as co-amici on this brief: the International Gay and Lesbian Human Rights Commission, the National Association of Social Workers, the National Association of Social Workers Connecticut Chapter, the Fellowship of Affirming Ministries, the National Black Justice Coalition, the National Black Leadership Commission on AIDS, the American Civil Liberties Union, and the American Civil Liberties Union of Connecticut.

The brief is available in CHLP's Resource Bank.

The applicant is represented by the Worker and Immigrant Rights Advocacy Clinic within the Jerome Frank Legal Services Organization at Yale Law School. The amicus brief was authored by Lambda Legal Senior Staff Attorney Thomas W. Ude, Jr. and CHLP Legal Director Iván Espinoza-Madrigal with pro bono support from Carmine D. Boccuzzi, Jr., Jaclyn A. Link, Clair B. Kwon, and Yana Chernobilsky of Cleary Gottlieb Steen & Hamilton LLP.

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The Center for HIV Law and Policy is a national legal and policy resource and strategy center working to reduce the impact of HIV on vulnerable and marginalized communities and to secure the human rights of people affected by HIV.

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

Founded in 1946 by lawyers committed to legal excellence, internationalism, and diversity, Cleary Gottlieb Steen & Hamilton LLP is a leading international law firm with more than 1,200 lawyers in 16 offices around the world. The firm dedicates more than 90,000 hours to pro bono and public service efforts annually.

The Seattle Lesbian, a news magazine, featured this brief.