Posted on September 15, 2004

Court Says Transgender Man Can Apply Again For Asylum

Bob Egelko, San Francisco Chronicle,, Sep. 14

A transgender man who fled El Salvador at age 17 after being kidnapped and raped, and then lived in California for more than two decades as an illegal immigrant, was given a chance to avoid deportation Monday by a federal appeals court.

Luis Reyes-Reyes, now 42, can remain in this country if he can prove to immigration judges that, if deported, he would be likely to face abuse amounting to torture at the hands of anti-gay bullies, with the acquiescence of the Salvadoran government, said the Ninth U.S. Circuit Court of Appeals in San Francisco.

In a 3-0 ruling, the court said the immigration judges who approved Reyes’ deportation had wrongly required him to prove that he would be tortured by someone working for the Salvadoran government. U.S. law also bars deportation if the foreign government turns a blind eye to privately inflicted torture, the court said.

The court cited its ruling in a 2000 case that said El Salvador’s national police had been involved in hitting, threatening and insulting gay men with female sexual identities. Reyes has not had sex-change surgery but dresses, appears and identifies as a woman, the court said.

Reyes, of San Salvador, was 13 when he was kidnapped by a group of men, taken to a remote location in the mountains, raped and beaten, and threatened with more brutality if he said anything, the court said. He never told his family or authorities, but he fled when he turned 17, reached the Los Angeles area and managed to avoid detection for nearly 25 years.

He was ordered deported in 2002 and was held in jail until his release on bond this June while his appeal was pending.

Monday’s ruling returns the case to an immigration board to determine whether the Salvadoran government condoned or willfully ignored the abuse Reyes suffered, or was likely to suffer if deported. Under U.S. and international law, illegal immigrants may not be deported to countries in which they would face torture, defined as the intentional infliction of severe pain or suffering, physical or mental, for a discriminatory reason.

The panel included one of President Bush’s recent appointees, Judge Jay Bybee, who as a Justice Department lawyer signed an August 2002 memo that defined torture very narrowly and concluded that international laws against torture might not apply to U.S. treatment of foreign prisoners.

Bybee, who was confirmed as a judge last year before the memo surfaced, expressed no such views Monday. He wrote a separate opinion disagreeing with some of his two colleagues’ criticisms of an immigration judge’s handling of Reyes’ case but agreeing that the deportation should be reconsidered.

One of Reyes’ attorneys, Carter White, supervising attorney at the civil rights clinic at UC Davis, said the ruling was an important precedent for victims of officially tolerated gay-bashing.

“I think this is a big problem, not limited to El Salvador,” he said.