Historic Gay Pinoy Asylum Case

Because 43-year old gay Pinoy Philip Belarmino was subjected to rapes and repeated sexual harassments as a boy and because the Philippine police are “known to be corrupt” and the Philippine government is “unable to curtail their corruption,” a San Francisco Immigration Judge ruled on May 21, 2009 that Belarmino was entitled to political asylum in the United States.

Belarmino, an English professor in the Philippines who entered the US on a visitor’s visa in 2005, had been placed in deportation proceedings for overstaying his visa. Through his immigration attorney, Ted Laguatan, he subsequently applied for political asylum by claiming that he would be subjected to persecution in the Philippines because of his sexual orientation.

At his individual merits hearing, Belarmino recounted that when he was as young as 9 years old, he had been forced to engage in oral and anal sex by older bullies. He recalled that age 16, a houseboy repeatedly raped him while threatening him with a knife. He said that he did not report the rapes to the police for fear that they would only extort money from him or even use him for “thei r sexual pleasures”.

Immigration Judge Loreto Geisse found Belarmino’s testimony to be credible and determined that he would suffer persecution on the basis of his “membership in a particular social group” which was being a homosexual in the Philippines and granted him asylum.

Just eight years before Belarmino’s case, a gay Mexican (Boer-Sedano), who similarly applied for political asylum, claimed at his San Francisco Immigration Court hearing on November 15, 2001 that he would suffer persecution in Mexico because of his gender. He testified that he was repeatedly raped by a “high ranking police officer” who pointed a gun to his head=2 0and told him that if he killed him, he was certain that would not be charged with murder but congratulated for “cleaning up society.”

On November 20, 2001, the Immigration Judge (IJ) denied Boer-Sedano’s application for asylum ruling that he had failed to establish past persecution “on account of a protected basis” and that he had failed to seek protection from the authorities. The IJ concluded that the sex acts that Boer-Sedano was forced to perform by the police officer were simply “a personal problem” he had with this officer.

The IJ further concluded that Boer-Sedano had not established a well-founded fear of persecution because “he was not subject to systematic persecution which prevented him from living his chosen life style” and because there was no evidence of systematic official persecution of homosexuals in Mexico.

Boer-Sedano appealed the IJ’s decision to the Board of Immigration Appeals (BIA), which subsequently affirmed the IJ’s ruling without opinion. He then appealed the BIA decision to the Ninth Circuit Court of Appeals.

To qualify for asylum, an alien applicant must show that he was a refugee or one “who is unable or unwilling to return to his native country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

The IJ had rejected Boer-Sedano s argument that he was persecuted on account of his membership in the particular social group of male homosexuals in Mexico because she found that this did not constitute a particular social group for asylum purposes.

On August 12, 2005, the Ninth Circuit ruled that the IJ and the BIA erred because “alien homosexuals” constitute a particular social group. “Whether particular acts constitute persecution for asylum purposes is a legal question…We have held that sexual assault, including forced oral sex, may constitute persecution… Therefore, there can be no doubt that the nine sex acts that Boer-Sedano was forced to perform rise to the level of persecution.”

The Ninth Circuit further determined that Boer-Sedano’s failure to seek20help from officials was understandable given the status of the officer who was victimizing him and the fear he had as a gay man living in a country where homosexuality, while not a crime, is socially unacceptable.

The difference in the Immigration Judges’ contrasting decision in the cases of Belarmino and Boer-Sedano also show that applying for political asylum is like playing Russian roulette - land the right judge and you win, land the wrong judge and you lose.

In the summer of 2001, two Egyptian male lovers came to the US for a vacation. After they overstayed their visas, they were placed in removal (deportation) proceedings. Because they did not apply within one year of their arrival, they could not apply for political asylum but they could apply for “withholding of removal”, which is a form of relief similar to asylum.

Married couples can usually appear before the same judge but because the Egyptians were not married to each other, they were assigned to different judges. The one assigned to an IJ who denied more than 90% of the asylum claims before him denied his withholding of removal application and ordered him deported back to Egypt. The other one who was assigned to a more liberal judge was granted his relief and subsequently received a green card.

Both had filed similar claims alleging past harassment, beatings, hospitalization and lack of police response but received opposite results. Even though Boer-Sedano had a stronger argument for asylum in 2001 than Belarmino did in 2009, the IJs who heard their cases differed in their rulings.

Commenting on the historic significance of the Belarmino ruling, Atty. Ted Laguatan stated: “This decision by Judge Geisse gives a strong message to the world that gay people should not be persecuted for being gay. Persecuting gay people is no different from persecuting people simply because they are of a different color or nationality. This decision provides encouragement and hope to gay communities in their struggle to end discrimination and harassment against them.”