A gay immigrant will likely be deported to Guatemala, after the Ninth Circuit Court of Appeals rejected his refugee claim earlier this month.

Two judges on the three-judge panel found that Saul Martinez, who entered the U.S. in 1992, filed for refugee status at that time and now lives in Los Angeles, lacked credibility when he claimed he would be subject to persecution if returned to his native Guatemala.

The court’s decision rests on the fact that Martinez did not note his sexual orientation in his 1992 claim for asylum. Instead he said he was a political dissident. Shortly thereafter, immigration officials denied his request, concluding that even if this were true, he could relocate elsewhere in Guatemala without fear of being harmed.

Martinez’s case occurred just as the former President Clinton administration was revamping U.S. immigration law to allow asylum to GLBT individuals persecuted due to their sexual orientation. Consequently, when Martinez subsequently appealed the court’s decision, in 1995, he amended the grounds of his claim, saying that he was not only a political dissident but also gay. He testified that the Guatemalan police had terrorized him and others for being gay, and that they would most certainly continue to do so if he returned. Further, he explained that he had not wanted to admit his sexual orientation in 1992, when he originally entered the U.S., because he feared that it would result in further persecution in Guatemala should the U.S. government refuse his claim and deport him.

But immigration judges dismissed Martinez’s claim, even though Martinez produced proof he was gay, living in West Hollywood, and had gay lovers and friends. They found Martinez not “credible” because he had changed his story. And, on March 3, the Ninth Circuit Court of Appeals confirmed the judges’ ruling because “an applicant’s propensity to change stories about past persecution may support an adverse credibility finding.”

One judge on the panel, however, dissented. Judge Harry Pregerson pointed out the obvious reasons why a gay man in 1992 would not have revealed he was gay. First, at that time, being gay would not have provided a basis for asylum, because the U.S. did not yet provide sanctuary on the basis of sexual orientation. Second, being openly gay could have subjected Martinez to bias even here in California. Third, admitting he was gay could have subjected him to even further torture upon return to Guatemala. Fourth, in 1992 immigration officials would likely have been biased against gay men because of the perception prevalent at that time that gay men were HIV positive or had AIDS.

Judge Pregerson argued that all these reasons more than adequately explained why Martinez hadn’t originally revealed his sexual orientation. But, unfortunately, he was unable to persuade the panel to allow Martinez to stay.

While there’s no question that asylum applicants’ cases should be reviewed with care, of equal concern is anti-gay bias among immigration judges. This has been especially true during the past eight years of the Bush administration, when the Justice Department screened prospective lawyers and immigration judges to be sure they were not “pro gay.” (In one case, the immigration judge told the asylum seeker that he had “little tolerance for effeminate homosexuals” and denied the seeker’s claim. Luckily, an appellate court reversed the judge’s decision and admonished him for showing bias – although it should have disbarred him.) We need to weed out all such anti-gay judges.

Further, it would be a good idea to also improve the overall system as it pertains to asylum.

As it stands now, the Department of Justice appoints 214 immigration judges who hear about 350,000 cases per year for the Executive Office for Immigration Review. Immigration judges hear testimony from asylum seekers, ask questions and then issue an opinion. Applicants can then appeal judges’ decisions to the Board of Immigration Appeals and then to a federal circuit court of appeal. But as Martinez’s case shows, this system, while an improvement over the pre-Clinton era, is not foolproof. A better way of dealing with asylum seekers would be to mandate that all of them, gay or straight, whether they are in the U.S. legally or not, should be allowed to stay if they are working, paying taxes and obeying the law. There are about 25 million people in the U.S. who are here illegally (or on extended status), and we remove less than 3 percent per year. So the reality is that most folks are not deported unless there is something unique about their status, such as a record of committed felony. Why then continue such an expensive and time-consuming review system? Hopefully, the Obama administration will implement a new immigration policy.