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Pawns in a dangerous political game

Fewer and fewer LGBT refugees from Mexico are being accepted in Canada — but that doesn’t mean that violence and persecution are decreasing south of the border


Maximilian wasn’t especially hopeful when he went to the final appeal hearing on his refugee claim. He had arrived in Canada three years and eight months earlier, seeking protection from criminal gangs and homophobia in his home state of San Luis Potosí in Mexico. As he navigated through a series of hearings and appeals leading up to this Sep 15 decision, only one ruling had gone in his favour.

What Maximilian (not his real name) didn’t suspect was that he would be escorted directly from the hearing room to jail — not a detention centre, but a real jail with real criminals — where he stayed for 15 days before he was flown back to the country from which he had fled.

“They treated me like a criminal, even though I have no criminal record,” says Maximilian, 28. “In jail I had to hide my sexual orientation. Some people asked me, ‘Are you gay?’ I was, ‘No, no, no, no, not at all, no.’ I couldn’t believe they sent me to jail. I couldn’t believe something like that would happen in Canada.” Maximilian speaks to me via Skype from Finland. He’s currently seeking refuge there after spending one fearful month in Mexico where he says criminals were threatening him for money because he’s gay.

Canada isn’t what it used to be for Mexican people claiming refugee status based on persecution because of their sexual orientation and gender identity. For one thing, new visa requirements for Mexican citizens have made it more difficult for vulnerable Mexicans to come to Canada at all: There were 1,043 refugee claimants from Mexico in 2011, down from 9,296 in 2009, the year the visa rule was implemented. On top of that, the Immigration and Refugee Board of Canada (IRB) seems much less likely to accept that Mexicans, including LGBT Mexicans, are in danger in their own country. The acceptance rate for Mexican claimants was 17 percent in 2011, down from a high of 28 percent in 2006. (Chinese refugee claimants had an acceptance rate of about 53 percent in 2011, Nigerians 63 percent.) The IRB doesn’t release statistics based on the type of claim, so it’s difficult to determine how many of those accepted are LGBT.

“Overall from Mexico, the acceptance rates are dismally low. They’re unfairly low,” says immigration lawyer Robert Blanshay. “I think the government made a decision. It took a stance on claimants from certain countries.”

That stance, Blanshay feels, is taking an increasingly explicit, harder-edged form. Among other mechanisms that make it harder to claim refugee status here, the Protecting Canada’s Immigration System Act, passed by Parliament last June, includes a new Designated Countries of Origin (DCO) policy — essentially a list of countries “generally considered safe.” Claimants from these countries will be processed faster than others and will have no access to appeal. Although Mexico was not on the list of safe countries announced in December — neither was Australia — the government is expected to add more countries to the list in the coming months. Critics suggest the Stephen Harper government will eventually add Mexico because it doesn’t want to alienate its NAFTA partner. It’s also possible that once the DCO policy comes into effect, the government might lift the visa requirement, which has been a source of irritation between the two countries.

Announcing the preliminary list, Immigration Minister Jason Kenney said he’d like to do a review of the broader social conditions in Mexico, but suggested it would likely qualify as a safe country: “I would just say stay tuned.”

Lawyers and other refugee advocates worry that genuine refugees will suffer for the sake of efficiency and bilateral flattery. This raises the question of how dangerous Mexico actually is for LGBT people. Is it as good as Europe, as bad as Nigeria? What is Maximilian so scared of?


The sandy beaches of Puerto Vallarta and Cancun attract LGBT visitors from all over North America. Gay partiers from Texas, Vancouver or Monterrey camp it up by the Blue Chairs hotel and make out on Playa Delfines. But you don’t have to go to these foreigner-filled resort cities to find flamboyant gayness south of the border. Mexico City’s Zona Rosa neighbourhood overflows with gay clubs. In the Zona Rosa streets, you might see gay men holding hands and kissing while perusing the pirated Almodóvar DVDs offered by street vendors. Mexico City, a District-of-Columbia-like capital jurisdiction, legalized same-sex marriage in 2009; the country’s 31 states are required to recognize these marriages.

“You live in different worlds in Mexico. It’s difficult to reconcile all these different worlds.”

“I can tell you, in my case, and in my friends’ case, we travel all around the country, with boyfriends, with girlfriends, and we’ve never had any trouble with the police or people in the streets or anything,” says Alex Reyes, editorial director of Mexico’s exuberant LGBT magazine Ohm.

It’s true, social attitudes are rapidly changing; some corners of Mexico feel like San Francisco in the 1980s. When I press Reyes on the homophobic problems I’ve heard from others, his boosterism fades a bit. He admits that people of different socio-economic backgrounds or people who are more visibly different, like transgendered people, are at greater risk. Then Mexico’s macho side comes out. Living in our relatively egalitarian society, Canadians can find it hard to understand a country where the rich can live in bubbles of modernity and tolerance, while the poor can live in what feels like an oppressive hyper-Roman Catholic past.

“You live in different worlds in Mexico,” says Eugenia Cappellaro, an El Salvadoran-born immigration lawyer in Toronto who has spent time in Mexico. “It’s difficult to reconcile all these different worlds.”

When deciding whether to accept a refugee claim, IRB members determine the credibility of claimants (are they making it up or exaggerating?), whether the claimant had the opportunity to make a claim in another country (then they should have made the claim there), whether the government of their home country provides adequate protection and whether the claimant could relocate to a safe place within the country. The “safe relocation” criterion sounds straightforward, unless you’re poor. A gay man who is persecuted in his village could move to Puerto Vallarta, but only if he has the money to live in the more modern, more tolerant areas; otherwise, the neighbourhood he can afford could be just as unsafe as his village.

The “adequate protection” criterion is also messier than it appears. Mexico does have laws protecting LGBT people, but the people who enforce them, the police, are often considered corrupt and untrustworthy. A vulnerable person would usually avoid the police, rather than seek them out. Even presuming good intentions, the police are now more concerned with the rampant drug violence than with fighting homophobia. Depending on who you talk to, 60,000 or perhaps 120,000 people have been killed since the drug war started in 2006.

“When you report a crime of discrimination, it’s going to get lost,” says David García Ponce, the president of the Toronto Latino group Hola, who immigrated to Canada from Mexico in 2000. “The violence is making things stranger. We will never know who gets caught in the crossfire. We’ll never know who raped a gay guy or who hit a lesbian. Things aren’t reported.” Still, a 2010 National Human Rights Commission report concluded that human rights violations and crimes based on sexual orientation or gender identity “are not isolated” events as there is a “serious structural problem of intolerance” within Mexican society.

“Just because it’s a democracy doesn’t mean they guarantee the rights of the LGBT community,” says Olimpia Boido, coordinator of the Newcomer Youth Program at the Sherbourne Health Centre. Like Ponce, her group has seen a decline in Mexican participants since the new visa requirements.

Delia (not her real name) came to Canada in 2009 from Ciudad Juárez, a drug-war-torn city just on the other side of the US border, after her ex-husband found out she was in a relationship with a woman. “He put a gun to my head and told me if he found me with somebody else, he was going to kill me,” says Delia, 28. Now living in downtown Toronto with her partner, who is a US citizen, and two children, aged eight and nine, Delia frequently works two jobs while waiting to hear about the appeal of her unsuccessful refugee hearing. If she is forced to return to Mexico, she worries that her ex-husband, who is part of a criminal gang, will track her down. “If I go back, my life is going to be a mess because I have to hide. I can’t be stable with my kids and my partner because we’re going to be moving from place to place.”

Delia says her background was middle class. She studied at university for a while; her last job in Mexico was operating a machine in a factory. But, like many LGBT people in Mexico, she only came out to a small circle of trusted friends.

“Maybe if you hide with your friends, it’s okay. But in the streets, you’re always going to hear insults,” she says. Could the police help? “My ex has friends in the police so I don’t think they’re going to protect me. On the other side, I don’t think they will protect me because I’m gay. They will call [hate crimes] passion crimes [a fight between lovers]. They don’t take it seriously.”

Blanshay suggests that, along with recent policy changes, IRB decision-makers might have become jaded listening to so many sad stories. He says the Mexican refugee cases most likely to succeed nowadays are those from HIV-positive gay men, who face a tremendous stigma seeking healthcare in Mexico. It’s almost as if proven oppression and discrimination for being LGBT isn’t enough anymore.

“I couldn’t believe they sent me to jail.
I couldn’t believe something like that would happen in Canada.”

Reading case summaries can be disheartening. One unsuccessful claimant said he “was threatened and assaulted by an ex-lover, a senior police officer, who believed that the claimant had broken up the ex-lover’s marriage by revealing to his wife that he was bisexual.” Although the IRB acknowledged the possibility of homophobia and corruption in the police system, it stated “there are avenues of redress for victims of police misconduct or corruption in Mexico, such as the Secretariat of the Public Administration, the Program against Impunity, and national or state human rights commissions.” As if everyone under threat had the time, the courage and the smarts to go over the heads of the police.  Another gay man given the option of resigning with severance pay or being fired without any benefits when his boss discovered he was HIV-positive “could have approached the State Commission for Human Rights or the National Human Rights Commission.”

The summary of yet another rejection demonstrates the IRB’s tendency to accept that the Mexican government is able to deliver what it promises: “The documentary evidence established that Mexico is making serious efforts to address police and public corruption, and that there is no lack of police protection for victims of crime. Discrimination based on sexual orientation is prohibited under federal legislation. State protection was available to the claimant.” By the same logic, there are no victims of Mexican drug violence, either, as the government claims it’s making serious efforts on that front, too.

During Maximilian’s refugee process, IRB members pointed out that same-sex marriage was legal in Mexico City. “I have lesbian friends living in Mexico City and they have been attacked,” he says. Certainly Maximilian’s fearful about his sexual orientation. His home state of San Luis Potosí is conservative (gay venues are few and far between) and infiltrated by drug gangs, contributing to a feeling of lawlessness (many people in the neighbouring state of Queretaro avoid going there now). Though he was middle class and ran his own computer business, he wasn’t out in San Luis Potosí. He never had a boyfriend during his time in Canada. In Toronto, he volunteered for a number of organizations and was involved in the Sherbourne Health Centre’s Supporting Our Youth program. In the end, his smooth integration into Toronto life seemed to have worked against him. His 15-day stint in jail was, he says, because he was a flight risk, easily able to disappear from the sight of authorities. Although he’s thankful to Canada for taking him in, he’s not sure what to make of his experience now. And he’s not sure what to think about Mexico possibly being added to the list of safe countries.

“The Canadian people themselves, not the government, understand the situation and they’re really supportive,” says Maximilian. “But it’s politics. I know a lot about politics.”

When he talks about his future, Maximilian sounds sheepish. He just doesn’t know. “I’m scared but I’m trying to be optimistic,” he says. “I’d come back to Canada if I could, for sure.”