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After allegedly being beaten, sexually assaulted, threatened by a Guatemalan congressman, and chronically harassed by Guatemalan police, gay Bay Area resident Saul Martinez fled to the United States in 1992. Now, after years of living in the U.S., the Feds are trying to send him back to his country of origin. According to the National Center for Lesbian Rights:
In 1992, when Martinez initially applied for asylum, the U.S. had not yet recognized sexual orientation as a ground for asylum. Afraid of being forced back to Guatemala, where he feared for his life, and unaware that persecution based on sexual orientation might be a basis for asylum in this country, Martinez did not disclose his sexual orientation in his initial asylum application, stating that he feared returning to Guatemala because of his political opinion.
Unfortunately, since Martinez failed to claim sexual orientation as his reason for escape, and with a jarring disregard to Guatemala's treatment of LGBT ilk, the Ninth Circuit says he's not credible and denied his claim to stay in the U.S. Even though "Martinez’s life partner testified in court about their relationship," there's a very good chance he will be sent back to a place where he must live in fear. Again. (At the very least, aome of this mess, perhaps, might not be problem if same-sex marriage was still legal in California.)
Shannon Minter, legal director of the National Center for Lesbian Rights, hits the nail on the head, saying, "It is understandable that a person who has been brutalized by his own government for being gay may be afraid to disclose his sexual orientation when he first applies for asylum. To find Martinez not credible simply because he was fearful of telling a U.S. government official he was gay -- after he had been sexually assaulted and beaten by government officials in his country -- is a travesty."
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Unfortunately, all of this mess would still be a problem even if same-sex marriage were still legal in CA. In fact, Saul may be in one of the 18,000 same-sex marriages that were performed prior to the passage of Prop 8, and which will likely remain valid (I think) after the CA Supreme Coourt rules on this issue in the next few weeks. But since immigration is governed by federal law, and the feds don't like the gays, it really doesn't matter what their California marital status is. What is needed is recognition of same-sex relationships, either domestic partnerships or marriage, by the federal government.
I don't think the INS cares whether you are married or not, straight or gay. I seem to recall some case where dad was legal but had flown the coop, mom was de facto single mom and not legal or had committed some misdemeanor or something, the kids were born in US and thus citizens, but mom was shipped back to the Philippines and basically forced to take the kids along.
This case doesn't have to do with DOMA or marriage laws. Since the late 90's, the US has recognized homosexuality as a social group to be granted asylum if the asylum applicant can establish they were persecuted based on their social group. In this case, the 9th circuit essentially approved an Immigration Judge's finding of credibility (whether the asylum applicant lied or was being completely truthful in court). Since asylum applicants have very little evidence to bring with them into court, their word has to be taken as true unless the judge has some reason to think they are not trustworthy. Evidence of lying can be a basis for finding the applicant not credible and thus not eligible for asylum. It appears he has been here since 1992, but my guess is that his case has been up and down the appeals ladder and has only now been decided--well technically there could be more appeals. Our immigration system is backlogged and normally takes years until a final decision is reached.
Wsanders: CIS (the new INS) doesn't give parents legal status if their children are US Citizens. This has been the law since 1980. People often falsely assume that pregnant women come over here, have their children, and get to stay (anchor babies). The mother's choice is to either leave with her children or leave the children in the US to be put into foster homes. The latter rarely ever happens.