San Diego During the past year, about 30 transgender Tijuanenses, many of them prostitutes, left Tijuana and crossed illegally into the United States. Bypassing San Diego, they settled in Los Angeles and San Francisco. Now some of them are seeking political asylum. They claim they were persecuted in Tijuana. "Given the circumstances," says Victor Clark Alfaro, director of the Binational Center for Human Rights in Tijuana, "I'm almost 100 percent sure that they will get this asylum."
The circumstances Clark speaks of involve municipal police officers. "What happened," he explains, "is about four years ago, around 100 [transgenders] in a matter of a week came to our office to complain about homophobia and persecution from the municipal police. We told these people that we would meet with the director of the municipal police and the mayor. We told them we'd hold a press conference to denounce the situation. But we also told them they needed to organize. And for two or three years, they made important efforts inside that community to organize themselves, efforts which we fostered."
Clark is quick to point out that the alleged persecution is not a reflection of official police department policy. "It's not organized. It's part of the homophobia among police. They commit extortion against transgenders simply because they are homosexual and they dress like women. They'll see them, stop them, and they extort money from them. It's 'Give me your money or I'll take you to jail.' "
Jarrett Green, a San Francisco-based lawyer who is handling the asylum application of a 27-year-old Tijuana transgender named Karina García, says the alleged persecution does not stop at monetary extortion. To keep from going to jail, he says, transgenders in Tijuana are forced to give "sexual favors" and endure "sexual assault, forced oral copulation, and flat-out rape -- extreme forms of sexual abuse by the authorities, because they have the gun and the badge. There is lawlessness when it comes to the rights of homosexuals and transgenders in Tijuana."
Ironically, the transgenders' migration and requests for asylum come at a time when, at least according to Clark, the situation in Tijuana is much improved. "After the transgenders organized themselves," he explains, "we had a lot of meetings in our office with the chief of the municipal police. And together with him, in a matter of months, we diminished the police persecution probably 99 percent. Everything was running better. But a number of the transgenders still thought their quality of life was not the best in Tijuana. A group of them, led by one who went by the name Lucero -- her name as a man was Javier Martínez -- came to me and said that even though they suffered from less police persecution than in the past, 30 of them had decided to cross into the United States by human smuggler."
Most of the 30 crossed between November 2005 and February 2006. "Before they went," Clark recalls, "we told them to go to San Francisco, because it's a more liberal society, and we advised them to seek political asylum."
The majority of the group did not follow Clark's first bit of advice. They settled in Long Beach and West Los Angeles, though some, including García, made their way to San Francisco. Most, however, followed his advice regarding asylum. "Just two weeks ago," Clark says, "Jenny -- I don't know the man's name he's using now -- called me from Long Beach and asked me to send press clippings documenting the persecution of transgenders here in Tijuana. A bunch of them in Long Beach and Hollywood have banded together and are applying for asylum as a group."
Clark thinks they'll get it. Green is optimistic, but he says asylum is not a you-asked-for-it, you-got-it proposition. "Not at all," he explains. "Asylum is reserved for political refugees, people who are on the run, literally escaping disaster. That's the idea behind asylum. The notion is that you must request asylum officially within one year of your entry date into America. You can't wait five years and then all of a sudden say, 'Oh, I might get caught, I might as well apply for asylum at this point.' The idea is if it is such a dire escape from your country, it would certainly be clear to you that you should request it upon entry or within a year of entry."
Illegal entry into the United States, Green says, does not preclude application for asylum. In fact, "The government encourages you to cross the border without waiting," Green says. "The idea of asylum is, sure, someone may have entered illegally, but they are respecting the legal process by voluntarily requesting asylum. It is not like they are illegally entering and then hiding in the country. They are escaping and entering the only way they can, and now that they are in America, they are going through all the proper procedures to insure that they can stay."
Besides suffering alleged police persecution, say gay activists in Tijuana, transgenders and gay men face job discrimination, making it difficult for them to find work in the city. Green says that "Mere financial benefit is not alone a reason for asylum. In order to qualify for asylum, you have to demonstrate that not only were you persecuted in your own country but that the persecution is on the basis of one of the five categories: race, religion, nationality, political opinion, or membership in a particular social group. The last category is the broadest one."
Though broad, the "membership in a particular social group" category has limits. "So if you are a Dodgers fan," Green explains, "and you're seeking asylum because you were regularly beaten up by Yankees fans, you will not get it. They would reject it because being a fan of a baseball team is not core to your identity. But they have established that being homosexual is core to your identity, and therefore that qualifies. And in 2000, the Ninth Circuit Court of Appeals established that the category of belonging to a particular social group includes transgenders. The government in that case argued that this isn't like being homosexual. Transgenders are being abused and beat up and harassed because of the way that they are dressing. And putting on a dress isn't core to who you are as a person. But the court rejected that and said if you genuinely believe that you are a woman in a man's body, and you are expressing that core identity through your dress, that constitutes membership in a particular social group."
Given that decision six years ago, and the testimony of Clark and others regarding persecution, the asylum case for the Tijuana transgenders looks like a shoo-in. But that hasn't proven to be so. In late February, Green and García had an official interview with a Citizenship and Immigration Services officer. "The asylum officer," Green explains, "has the authority to grant asylum unilaterally at that point, without a judge or a hearing."
That didn't happen, and they still await a decision. A possible holdup is the fact that many of the transgenders worked as prostitutes in Tijuana. And as part of the application review, Green says, immigration officials "try to determine whether or not the applicant has committed a 'crime of moral turpitude.' It is not entirely clear what that encompasses, but certainly any type of violent crime is a crime of moral turpitude. Being a prostitute could qualify, but it is not on any particular list. And I'm ready to argue, if they reject our application, that transgender people in Tijuana have no option but prostitution. Not only are they persecuted by the authorities but by private businesses. They get pushed out of legitimate employment fields, and then the only way they can basically get enough money to pay their bills is to work in an exotic dance club or a brothel. My client, who was born and raised in Tijuana, wanted desperately to work there. But she got fired from the salon where she was a hairdresser when she started to transform into a woman, at age 19, and no one else would hire her. So she was forced to work in these exotic dance clubs. And in the exotic dance clubs, a lot of prostitution occurs."
Whether or not the asylum is granted to the Tijuana transgenders, Clark says they represent a milestone "from the human rights perspective. I have been an expert witness in many cases involving political asylum in the courts of California and Texas. But I have never heard of such a number of Mexicans crossing in a short period of time to ask for asylum. This is very unusual."