No Asylum for Gay Peruvian

Despite scholarly testimony, appeals court upholds immigration decision

José Salkeld, a gay man from Peru, lost his bid to have his petitions for asylum and for withholding of removal considered by the Justice Department, when the U.S. Court of Appeals for the Eighth Circuit in St. Louis ruled on August 25 that there was no basis to overturn an adverse ruling by the Board of Immigration Appeals.

Salkeld, who was not out as a young Peruvian, came to the U.S. in 1989 on a student visa, but dropped out of school due to financial hardship, and found employment at a series of restaurants. He came out while in school, found a domestic partner, but did not reveal his homosexuality to his family in Peru until 2001, at which time they reacted very negatively.

Convicted the same year for defaulting on a credit card obtained by unlawfully using someone else’s Social Security number, he came to the attention of the Immigration Service, which processed him for removal for having overstayed his original visa.

Salkeld sought asylum and as a backstop sought an order known as withholding of removal. He contended he qualified for political asylum because of Peru’s mistreatment of gay people. If asylum were denied, he said he also was eligible for withholding of removal, a special override status compared to asylum claims, because he would be personally subject to persecution if he returned. Finally, he contended he was eligible for protection under the international Convention Against Torture due to the risk of physical harm.

Asylum claims are time-limited and the clocks starts when someone enters the country, so Salkeld’s argument on this came too late. However, the Immigration Judge agreed to entertain the other theories in a September 2002 hearing. On that date, Salkeld sought an extension to find a new lawyer more willing to investigate hostility toward gays in Peru, but noting that the hearing date had been set a year in advance, the judge ordered him to go forward with his original counsel.

Salkeld testified to his fear of harm in Peru that kept him in the closet, and presented written testimony supporting his fears by another gay Peruvian and expert testimony from University of South Florida Professor Harry Vanden, a scholar on Peru. Vanden testified that “Peruvian society is intolerant of homosexuality,” that “any manifestation of homosexuality could invite a public reaction, sometimes a violent reaction. Police and other security forces often do nothing to protect homosexuals and periodically may even join in the harassment.” As late as 2001, paramilitary groups in the country were reported to have hunted down and killed gay people there, he testified.

However, on cross examination, Vanden conceded that homosexuality is not illegal in Peru, that there is a gay and lesbian community that has held a gay pride week, that some parts of the country are safer for gay people than others, and that “more liberal elements in the Catholic Church” had been working to improve treatment of gay people, “although their progress is slow.”

The Immigration Judge concluded that Salkeld had not met his burden to show it was more likely than not that he would encounter persecution if he returned to Peru, the standard for recommending withholding of removal.

Salkeld hired a new attorney and appealed to the Board of Immigration Appeals, but the board affirmed the Immigration Judge’s ruling in March 2003.

The standard in federal appeals court for overturning an immigration ruling is that the evidence presented by the petitioner is “so compelling the Immigration Judge could not reasonably arrive at the decision reached.” Circuit Judge Kermit E. Bye found that this standard had not been met by Salkeld.

“Persecution is an extreme concept,” wrote Bye, “and much of the harassment and intimidation of which Salkeld complains, while serious, does not rise to the level of persecution. The record contains evidence of some alarming instances of violence towards homosexuals, but these instances are relatively sporadic, and homosexuality is not penalized by the Peruvian government.”

“The record shows, like the United States, where some areas of our country are more hospitable to homosexuals than other areas, Peru has some locations in which homosexuals may live more safely,” Bye added.

Perhaps thinking of that comparison, Bye did not address the claims about the international Convention Against Torture.

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