San Francisco Chronicle - August 13, 2005
Bob Egelko, begelko@sfchronicle.com.

Reversing rulings by immigration courts that ordered Jose Boer-Sedano deported to Mexico, the Ninth U.S. Circuit Court of Appeals said he had been a victim of persecution in his homeland and was likely to face further abuse, as well as a serious threat to his health, if he were sent back.

Reports by the U.S. State Department have found that violence against gays remains widespread in Mexico, and Boer-Sedano would also have difficulty getting life-sustaining medication, the court said.

The ruling is one of several by the San Francisco-based court in recent years granting refuge to gay or transgender applicants from Latin America based on evidence of abuse inflicted or condoned by police.

"It really does mean that he'll be safe now,'' said Boer-Sedano's lawyer, Angela Bean.

Boer-Sedano, now 45, works as a waiter and busboy at a San Francisco hotel. When she told him about the ruling, Bean said, Boer-Sedano was so overcome with emotion that he couldn't speak for a full minute.

Boer-Sedano knew he was gay at age 7 and was ostracized by his family and friends in the town of Tampico in the eastern Mexico state of Tamaulipas, and he later was taunted and harassed by co-workers, the court said.

He testified in immigration court that he and a friend were arrested in 1988 by a high-ranking police officer, who told them that they were held for being gay, even though that is not a crime in Mexico. The same officer stopped Boer-Sedano nine times over the next three months, drove him to a dark location and forced him to perform oral sex, the court said, quoting his testimony.

Boer-Sedano said the officer threatened to reveal his homosexuality to others, talked about killing him and once put a bullet in his gun, spun the chamber and held the weapon to Boer-Sedano's head.

Boer-Sedano moved to Monterrey, Mexico, stayed for a year, but left after lying about his homosexuality during a police raid. He came to San Francisco on a six-month visa in 1990 and was diagnosed with HIV in 1992 and later with AIDS. Deportation proceedings began in 1997.

His asylum claim was denied by an immigration judge, who said Boer-Sedano had merely encountered a "personal problem'' with a police officer that did not amount to persecution, and that there was no evidence of systematic official persecution of gays in Mexico.

But the appeals court said that the officer's assaults were clearly motivated by Boer-Sedano's homosexuality, and that his death threats constituted persecution by a government agent.

The State Department reports show that abuse of gay men remains common, the three-judge panel said. Boer-Sedano would be in even greater peril, the court said, because AIDS patients face additional discrimination and hostility, and he presented evidence that the drugs he needs are unavailable in Mexico.

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