It might surprise Canadians who cruise and relax in Puerto Vallarta to discover that Mexican refugee claimants paint a grim picture of life for Mexico’s queers. According to case files queer men and women receive death threats. They are attacked by strangers in the street, by coworkers and even the police. It is not unusual for the police to laugh them out of the station when they try to file a report.
In a typical case one man described a series of violent incidents beginning with verbal and physical attacks at school, through to being attacked by police officers when he was seen leaving a gay bar with his partner. When he tried to report the incident he says he was told he could not do so without the names of the officers who had attacked him. He was fired from jobs when coworkers discovered his sexual orientation and, finally, he and his partner were beaten so severely that his partner was still in a coma at the time of the applicant’s hearing for refugee status in Canada. Though later granted leave to appeal his claim by a federal justice, he was initially denied refugee status by the Immigration and Refugee Board of Canada (IRB) because the board (or IRB) did not believe he is gay. In particular, the francophone board member noted that he does not not possess an “an allure efféminée.”
Last year, Mexico surpassed China as Canada’s largest source of refugee claimants. While 38 percent of claimants overall were granted refugee status in 2007, only 10 percent of Mexican claims were successful. Each year more seek refuge on the basis of their sexual orientation which, since 1994, has been recognized as “membership in a social group,” one of the five categories under which refugees are accepted. Immigration lawyer Donald Simmons says that the number admitted on the basis of sexual orientation is even lower than 10 percent, perhaps two to four percent.
Why is that figure so small? Some argue that the vast majority of Mexican refugee claimants are looking for an easy way in. Others suggest that the Canadian government doesn’t want to risk its friendly relations with Mexico by acknowledging the reality of life for queer Mexicans. The IRB’s conclusion in the majority of these cases is that claimants have not made sufficient use of Mexico’s own justice system, or that they should move to another part of the country.
“One of the biggest factors is credibility of the witness,” says IRB spokesman Charles Hawkins, explaining that the board’s initial decision is made by a panel of one and that cases often come down to whether that person believes the claimant’s story.
Simmons thinks Canadians are simply unaware of the realities of life in Mexico and that IRB members, faced with document after document detailing human rights abuses, killings and tales of gross police incompetence, are still unable to get past Mexico’s international image as a democratic country with democratic institutions.
“In Canada if you are persecuted by the state you could report it to the OPP or the RCMP or some other body,” he says. “In Mexico if you are attacked by a government official, the theory is that you can go to a higher level for protection. But it doesn’t work like that.”
Corruption is a major problem in Mexico according to speakers at a University of Toronto panel last month that looked at that country’s ability to protect its citizens against abuses.
“Everything belongs to the party of the president,” says Guillermo Zapeda, a lawyer and professor associated with the Universities of Guadalajara who specializes in Mexico’s justice system. “There are no checks on judicial power.”
Conviction rates are low; Zapeda says that only half of reported crimes go to trial. Still, the majority of Mexican citizens are in favour of widening police powers because they don’t know where else to turn for protection. These problems can undermine the state’s protection for all citizens, but especially for vulnerable groups like queer and trans people.
State protection is a key issue in refugee cases because claimants must show that they have no recourse to protection from their own country’s justice system. Having established that an applicant is in danger at home, the board then asks whether they would be safe elsewhere in their own country — whether they have “internal flight alternatives.”
Simmons argues that Mexico’s justice system is failing its queer citizens in particular. The country’s constitution prohibits discrimination on the grounds of sexual preference but he says those laws are not enforced and homophobia is systemic within police departments.
“The law and the reality,” says Simmons, “are widely divergent.”
He points to the murder of prominent gay rights activist Octavio Acuña in the Mexican province of Querétaro in June, 2005. Acuña was stabbed to death in the building where he had set up an office to distribute condoms and provide harm-reduction services to queers. The police branded the murder a “crime of passion” (as is often the case with homophobic attacks), claiming that his partner was responsible, and refused to investigate further.
“If somebody who’s a prominent gay rights activist is murdered and the authorities have no interest in that you can imagine what happens with somebody who is not known,” says Simmons.
Despite a growing body of evidence that Mexican queers cannot rely on the authorities, the burden is on individual refugee claimants to prove to the IRB that they have done everything possible to avail themselves of what protection there is. If protection is found lacking in one region, they are advised to move to another.
The IRB points to queer neighbourhoods in Puerto Vallarta and Mexico City as flight alternatives. With a population of 33 million, Mexico City is certainly a place where you could disappear. But it may not be the gay utopia imagined by the IRB.
“People think that just because it has La Zona Rosa that Mexico City is safe for gay people,” says Leonardo Zuniga, a refugee claimant who has been waiting for a final decision on his application for nearly four years. “But what, am I going to spend my whole life in the nightclub? No, I have to go to school, I have to go to work. And even [in the clubs] it isn’t safe because the businesses around the nightclubs complain about all these ‘fags.'”
Zuniga describes the society he left behind, explaining that the macho culture leaves little room for divergence from sexual and gender norms. “If you are a man, you are blue; if you are a woman, you are pink… and if you are gay, you are not human.”
There is always the danger of finding yourself in “the wrong place at the wrong time” — a phrase often used during the panel to describe random violent incidents — and if you are already a vulnerable member of society, you may have nowhere to turn for protection.
“For me, the police in Mexico is a joke. Justice in Mexico, it’s nothing.”
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