Far to the north in Denver, Colo., a federal appellate court yesterday delivered up a ruling which will likely provoke controversy in Mexico's gay community - and the U.S.'s.
The litigant in the case is a former Guadalajara man who is fighting to avoid deportation from American soil. Since first arriving in 1995, he's spent most of the last 17 years in the United States. On Feb. 12, 1997 he was "removed" (deported) as an undocumented person. The next day he walked right back in. The man has been in the U.S. almost continuously ever since (no doubt flying just beneath the radar).
The case decided by the federal court yesterday is the man's appeal from lower court rulings which ordered his deportation (immigration justice often proceeds at a snail's pace). The man argued that his homosexuality would make him a target of discrimination and perhaps even physical violence in Mexico's macho culture, and that he should be afforded, in effect, asylum in the United States. The appellate tribunal unanimously rejected his contentions.
The 14 page decision in Efren Neri-Garcia v. Eric Holder, Attorney General, was handed down by the U.S. Court of Appeals for the Tenth Circuit, which handles federal appeals from several states - Utah, Colorado, Kansas, New Mexico and Wyoming. The text of the three-judge opinion is below. The ruling warrants careful study, but here are the main highlights of competing evidence presented to the court:
"Neri-Garcia claimed he had been mistreated and persecuted in Mexico because he is homosexual. He testified to discrimination, threats, and physical attacks by family members, fellow students, and police officers. Nearly three decades ago police officers arrested him for a theft he did not commit and then tortured him to extract a confession. Following his conviction for that crime in 1984, he was incarcerated in a penitentiary in Guadalajara, where he was housed with psychiatric patients because he is gay. He testified to having been beaten and doused with cold water, not allowed to go outside, and kept in solitary confinement. He was released from the penitentiary in 1987, but was detained by the police on several more occasions. After being detained in 1994, he came to the United States. Although he has spent no significant time in Mexico since 1994, he says mistreatment of gays continues there. His statement was based on what he has seen on the news and on the internet. He also claimed it would be very difficult to change the macho culture in Mexico; he didn’t say why.
"Andres Villa Lopez also testified at the hearing. Lopez was employed as a custodian at the penitentiary in Guadalajara during part of the time Neri-Garcia was incarcerated. He corroborated Neri-Garcia’s testimony regarding his treatment at the prison. Lopez, who is also gay, testified about his own mistreatment by his supervisors and threats against him by co-workers at the prison. He also stated he had been attacked several times and that he and other gay men in Guadalajara were not open about their sexual orientation, except in gay bars. Lopez came to the United States in 1985 and eventually became a lawful permanent resident. He has returned to Guadalajara only once since 1985, yet claimed to be familiar with the gay community there. He did not say how. He conceded that homosexuals now live openly in Mexico City, but said many of his friends have been attacked and killed since he left Guadalajara. According to his testimony, attacks on homosexuals continue in Mexico City, but again, he did not explain the source of his claimed knowledge."
The Immigration Judge (the equivalent of a trial court judge, and the judicial officer who first considers the evidence) accepted the above allegations as essentially true. But the government countered with its own case, which consisted not of live witness testimony, but rather of a Department of Homeland Security (DHS) study. That document ultimately caused the IJ to rule in favor of the government and against Neri-Garcia, for the following reasons:
"DHS established, by a preponderance of the evidence, a fundamental change in circumstances in Mexico such that Neri-Garcia’s life or freedom would not now be threatened as a result of his sexual orientation. According to DHS, homosexual conduct has experienced growing social acceptance in Mexico; gay pride marches have occurred in cities across the country, including one in Mexico City in which 400,000 people participated; Mexico City has legalized both gay marriage and adoption by gay couples; and the Mexican Supreme Court has required all Mexican states to recognize gay marriages performed in those states where it was permitted."
Based upon the DHS report - and nothing else - the IJ ordered that Neri-Garcia's deportation could proceed. He appealed to BIA - the Board of Immigration Appeals, the equivalent of an intermediate level appellate court - but the latter found that the IJ had relied upon sufficient evidence in arriving at his decision. The Tenth Circuit upheld both courts yesterday, which is essentially the end of the legal road for Efren Neri-Garcia. In theory he could take one final appeal to the U.S. Supreme Court, but at that level review is entirely discretionary. The Supreme Court accepts for consideration only a handful of the most important cases which are presented to it each term. There's simply not enough time to hear arguments on the tens of thousands of complex petitions filed by aggrieved litigants every year.
Barring further legal developments, Neri-Garcia will be permanently deported to Mexico within weeks.
Efren Neri-Garcia vs. Eric Holder
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