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September|October 2003
The Practitioner By Benjamin Smith
The Real Harm By Gabrielle S. Friedman
Standard bearer By Fred Strebeigh
A Bigger Tent By Katharine Mieszkowski
Profiling's Gender Gap By Daniel Brook
Coming Out to America By Tyler Maroney
The Love Charm A Story By Eugene Volokh
Ex Offender By Robert J.
In Defense Of Prostitution By Heidi Fleiss as told to Nadya Labi
My Gay Divorce By Laurie Essig

Coming Out to America

By Tyler Maroney

AT 22, JAMES T. CAME TO NEW YORK CITY IN 1988 on a three-month tourist visa. He overstayed his legal welcome by more than a decade. During most of that time, he lived in Queens, tending bar and working other cash-only jobs at Chinese restaurants to escape detection by immigration authorities. James was determined not to go back to Kuching in the Malaysian-controlled part of Borneo where he grew up. As a teenager, he was often taunted by the police for behavior that they considered effeminate. Now an imposing 6'2", James recalled: "Cops harassed me in the street because of the way I dressed and the tone of my voice."

In 1989, an American immigration judge granted asylum to a gay Cuban immigrant who was afraid to return to his homeland. Individuals are entitled to asylum in the United States if they can prove a "well-founded fear of persecution" on the basis of their membership in a political group, ethnicity, religion, nationality, or "particular social group." The Board of Immigration Appeals upheld the judge's finding, and five years later Attorney General Janet Reno took the unorthodox step of declaring the decision to be precedent. From then on, gays qualified as a "social group" in asylum law.

Gay rights advocates hailed Reno's decision as a bold move, but their celebration may have been premature. In 1996, the Immigration Reform Act required immigrants to request asylum within a year of their arrival in the United States. The deadline, intended to reduce fraud, applies to all immigrants, but critics charge that it disproportionately harms gays seeking asylum. Immigrants are often unaware that they may qualify for asylum if they suffer persecution because of their sexual orientation. Even those who are informed about the law are slow to "come out" and apply. "Constructing sexual identity, as we understand it, doesn't exist in many countries," said Whitney Brown, a director at Human Rights Watch. "This is a process that, for many, takes time."

James grew up in a country where being gay could land him in jail. In Malaysia, the Islamic Affairs Department operates a morality police that targets gays. In 1998, the country's deputy prime minister was beaten and sentenced to nine years in prison for "carnal intercourse against the order of nature" on the basis of testimony that he had had a homosexual encounter with his chauffeur. James was understandably reluctant to make U.S. officials aware of his orientation. (After years of ridicule, he did not even acknowledge it to himself.) In 2001, when he finally applied for asylum, he was told that the deadline had lapsed. His claim was denied.

James requested a new hearing—and his case was forwarded to the New York Immigration Court. In the meantime, he underwent psychotherapy at the advice of his new lawyer, Lavi Soloway, who founded the Lesbian and Gay Immigration Rights Task Force. Soloway argued that his client qualified for an exemption from the one-year deadline, which can be waived under "extraordinary circumstances" like ill health, and introduced the therapist's analysis as evidence that James's mental state delayed him from coming forward. James won the judge's sympathy—and asylum in June. He now teaches autistic children and lives with his new boyfriend in Queens.

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