Court grants asylum for gay Mexican

Saturday, August 26th 2000, 12:00 am

By: News On 6

WASHINGTON â€“ Expanding the circumstances that must be considered in asylum cases, a federal appeals court has ruled that a gay Mexican man who frequently dresses as a woman is entitled to remain in the United States.

The 9th U.S. Circuit Court of Appeals, which covers the western part of the country, decreed Thursday that Geovanni Hernandez-Montiel should be granted asylum. A three-judge panel sitting in Pasadena, Calif., unanimously overruled an immigration judge and an immigration appeals board, who had said he should be deported.

Mr. Hernandez-Montiel, who is in his early 20s, told of repeated assaults and taunts by Mexican police because of his homosexuality. An expert on Latin American history testified on his behalf that gay men who dress and act like women are often singled out for especially cruel treatment in Mexico.

The Immigration and Naturalization Service has sometimes granted asylum in recent years to foreigners who said they were persecuted because of their sexual orientation.

But Mr. Hernandez-Montiel's lawyer, Robert S. Gerber of San Diego, said he thinks this case is the first in which a federal appeals court has held that sexual orientation can be sufficient basis for asylum on the ground that the applicant merits protection as a member of a "particular social group."

The immigration agency has not decided whether to appeal the decision, spokesman Bill Strassberger said Friday, adding that the agency generally does not contest Circuit Court rulings unless government lawyers think judges have committed a serious error.

The term "particular social group" comes from U.N. deliberations on the treatment of refugees, and it refers to people who share common traits that have caused them to be persecuted. These can range from characteristics such as sex, race and ethnic background to biographical details such as military service or land ownership.

Whether an asylum-seeker is a member of such a group is decided by immigration officials on a case-by-case basis. The immigration agency says the traits that constitute membership in a particular social group generally must be ones that a person cannot change or should not have to change because they are fundamental to a sense of identity or conscience.

"We conclude as a matter of law that gay men with female sexual identities in Mexico constitute a 'particular social group,'" Judge A. Wallace Tashima wrote for the court.