Lesbian's asylum case opens immigration door

Olivia Nabulwala says her family in Uganda was so angry and ashamed to learn she was a lesbian that her relatives hurled insults at her, pummeled her and, finally, stripped her and held her down while a stranger raped her. "I hated myself from that day," she said in a sworn statement. "I disliked my family for subjecting me to such torture, and yet they felt this was a good punishment for me." Now, in a case that illuminates a relatively unexplored area of U.S. immigration law, the African immigrant is asking for asylum in the U.S. on the grounds she was persecuted over her sexual orientation. A federal appeals court ruling last week has raised her hopes of success. Persecution based on sexual orientation has been grounds for asylum in the U.S. since the 1990s, but such cases are still rare. Most involve gay men persecuted by their government. There are few cases involving women, who are more likely to be persecuted by family members, said Rachel B. Tiven, executive director of Immigration Equality, a gay rights group that represents immigrants. The U.S. Department of Homeland Security said it does not systematically track the number of asylum claims based on sexual orientation. Most immigration cases are dispensed without a published opinion. "That's why we're so excited about this case," Tiven said. "A published opinion gives it greater weight, makes it citable." Immigration Equality, based in New York, said that last year it won 18 asylum cases for gay men and transgender women from the Congo, Algeria, Jamaica, Russia, Egypt, Peru, Bangladesh, Venezuela and Colombia. It said it lost two such asylum cases. Among some recent cases: A man who said he was beaten by Mexican police and threatened because he is gay won asylum in January. Another Mexican man was granted asylum in a 2000 appeals court ruling that extended protection to transvestites. To qualify for asylum, applicants must demonstrate past persecution or well-founded fear of future persecution on account of race, religion, nationality, political opinion or membership in a particular group, which now includes homosexuals. Asylum seekers must also show, among other things, that their government was unable or unwilling to protect them. In 1990, a gay Cuban who said he was abused by government officials in his homeland won asylum in the first significant ruling of its kind in the U.S. That ruling became the basis for then-Attorney General Janet Reno's 1994 order allowing gays from other countries to seek asylum for persecution based on sexual orientation. "It is a relatively new area of asylum law; there's not a lot of bricks in the wall as to how these cases get played out," Tiven said. "But here's a high-level court, citing a reasonable and relevant application of government passivity." "For women, it's developed quite slowly," she added. "Around the world, women face harm, often severe harm, from the nearest and not so dearest." In an affidavit in support of her application for asylum, Nabulwala, who is in her late 20s, says being gay is shameful in African culture and illegal in Uganda, and that her family expelled her from the clan. The Associated Press normally withholds the names of people who claim to be victims of sexual assault, but Nabulwala agreed through her lawyer to allow her name to be used. In her affidavit, Nabulwala says she realized she was a lesbian while attending an all-girls Christian boarding school in Kampala. In her senior year, 1994, after the local newspaper wrote a story about lesbian relationships at her high school, and her parents confronted her, Nabulwala admitted she was gay. She says her admission was a "big blow" to her father, who angrily told her she must end it or she "could no longer be his child." Later, she says, she was brought to a family meeting, where insults were hurled at her and an aunt "beat me so hard with clenched fists and said it would help bring me back to my senses." In 2001, Nabulwala, by then in college, says she was called to another family meeting after relatives learned she was still involved in a lesbian relationship. "During this meeting, my Dad said so many unpleasant and hurtful words to me," she says. "He was so angry that he reached out to grab my neck to strangle me. He stated he was going to kill me because I was an embarrassment to him, our family, as well as the entire clan." She says two aunts dragged her out of the meeting into her room, where a young man was waiting. "I was forced to have sex with a total stranger, which was very nasty, while my aunts watched in laughter," she says. "Afterwards, they all left me lying there in a lot of pain." Three months later, she entered the U.S. on a visitor visa, overstayed, then fought deportation by asserting a right to asylum. An immigration judge in Minnesota, where she now lives, said he did not doubt Nabulwala had suffered in Uganda because of her sexual orientation. But he ruled that the rape was a "private family mistreatment," and not sponsored or authorized by the government. However, the 8th U.S. Circuit Court of Appeals said the judge used the wrong legal standard, and ordered the case sent back for further proceedings on whether the Ugandan government was unwilling or unable to control the abuse, as Nabulwala contends. Homosexuality is illegal in Uganda and punishable by one to four years in prison. But a police spokeswoman, Alice Nakoba, said no one has ever been convicted. She defended her country's treatment of gays, saying that Ugandans seeking asylum in developed countries exaggerate. Nabulwala is "extremely happy" about the March 21 ruling, said her attorney, Eric Dorkin. Dorkin would not allow her to be interviewed or photographed, citing concerns about her safety and privacy. If Nabulwala is unsuccessful, she will be deported.