One of the ways in which GLBT adults from other countries have gained U.S. citizenship has been by claiming political asylum. In order to get asylum, a person has to prove a well-founded fear of persecution, based on race, religion, nationality or membership in a particular social group. Homosexuality, for about the last decade, has been such a social group.

Persons from countries with governmental policies against homosexuality, such as Malaysia, Myanmar (Burma) and Indonesia, have an easier time obtaining asylum because their governments readily admit to persecuting GLBT citizens. Persons from places like the Netherlands or Canada can hardly claim persecution from their countries. After all, they are in better shape than GLBT Americans.

In a landmark case a few years ago, Hernandez-Montiel vs. I.N.S., a federal appellate court ruled in favor of a gay man from Mexico. Because the man displayed some female gender characteristics (cross-dressing), he was subject to police beatings and abuse and feared persecution if he returned.

Many legal experts predicted that because of this case it would be much easier for GLBT adults to obtain political asylum, especially from Latin American countries. Provided applicants could show discrimination and abuse in the past or upon return, immigration officials would have to approve petitions.

One recent success story concerned Marco Aurello, a Brazilian citizen, currently living with his partner in Los Angeles. Immigration officials approved his petition for asylum. He had come to the U.S. from Brazil, remaining here on a student visa. His attorney was able to show that, despite Rio’s reputation as a gay destination, gay citizens in Brazil are subject to discrimination.

While this case shows that it may be possible to unite same-sex bi-national partners, a current asylum case shows it’s not so easy.

Guillermo Lopez-Ortiz was born in Guatemala. The 23-year-old escaped an abusive home as a child and has been living in the United States since he was 10. However, he never obtained citizenship.

Last year, following an arrest for a minor offense, police discovered Lopez’s illegal status and immigration officials placed him in deportation proceedings.

Lopez’s attorney, Alan R. Diamante, argued that Lopez, as a gay man and an AIDS activist in Guatemala, would face severe persecution, even death, if he returned.

Testifying on Lopez’s behalf, Thomas M. Davies, director emeritus at SDSU’s Center for Latin American Studies, said “Guatemala is one of the most homophobic countries in the Western Hemisphere.”

According the Los Angeles Daily Journal, Davis testified that gays there “face a very difficult and dangerous situation and are under constant harassment by police and death squads.”

“As part of the Latin American machismo, it is quite common for police officers to grab a gay man and rape him while others look on,” Davis testified.

The U.S. State Department, in a 2002 human rights report, noted an increasing trend of gay men being kidnapped, tortured and murdered in Guatemala, which the report characterized as “social cleansing.”

The Daily Journal also cited a report from the San Francisco-based International Gay and Lesbian Human Rights Commission. The report concluded that social cleansing is a reality in Guatemala.

The real tragedy for Lopez is that, prior to his 18th birthday, he could have been naturalized through a 10-year-old federal law designed to legalize abused and abandoned immigrant children. This special immigrant juvenile status requires that juveniles apply for the program prior to their 18th birthday.

Lopez’s plight is similar to thousands of immigrant children, who, abandoned by their parents or abused, seek entry to the United States for a better life. A report on sexual exploitation of minors noted that there are hundreds of these immigrant children on the streets of San Diego. Many are transgender and turn to prostitution to earn money.

When he was a child, Lopez’s own father beat him and left him during the day with others who also subjected him to physical and sexual abuse.

Despite the new federal law providing a basis for citizenship, no one helping Lopez knew about it. Had they used it, Lopez might have received a green card and not had to worry about immigration officials sending him back to a country not hospitable to GLBT people.

It’s critical that the Legislature require social service groups catering to immigrant children to assist the children with applications for the special immigrant juvenile status that will allow them to be naturalized.