Appeals Court Rejects Denying Asylum On The Basis Of Failing To ‘Look Gay’

A while back, an immigration judge denied asylum to a young Serbian gay man, Mladen Todorovic, who claimed to have suffered persecution by government officials and others in his native country because of his sexual orientation. The judge justified the ruling by reasoning that Todorovic “does not appear to be overtly gay”:

The Court studied the demeanor of this individual very carefully throughout his testimony in Court today, and this gentleman does not appear to be overtly gay. The Court does not know whether he is or not, his testimony is that he is overtly gay and has been since he was 17 years old. Be that as it may, it is not readily apparent to a person who would see this gentleman for the first time that, that is the case, since he bears no effeminate traits or any other trait that would mark him as a homosexual.

The Asylumist blog reports that the U.S. Court of Appeals for the Eleventh Circuit ruled last week that the judge in question “improperly relied on gay stereotypes to reach an adverse credibility determination.” In fact, “the decision was so colored by impermissible stereotyping of homosexuals, under the guise of a determination on ‘demeanor,’” that the appeals court could not conduct a “meaningful” review of the judge’s decision and instead ordered immigration authorities to hold a new factual hearing on Todorovic’s case.

The appeals judge additionally highlighted the longstanding principle that an applicant may establish eligibility for asylum by showing that his or her “life or freedom would be threatened in the proposed country of removal on account of …membership in a particular social group.” If Todorovic’s testimony is accurate, he certainly has a compelling case. Courthouse News reports:


Todorovic claimed that he had been repeatedly harassed by his high-school classmates, raped by soldiers and at least one commanding officer in the Serbian army, and beaten unconscious by an anti-gay mob.

He said Serbian police stopped him and his boyfriend, a gay-rights activist, and took them to the police station, where they forced Todorovic to perform oral sex on the “filthiest” inmate, saying they “brought a hooker up here so you can have some fun.”

An officer then interrogated and beat Todorovic, saying he “hates fucking faggots” and hopes they all get “exterminated,” according to Todorovic. Todorovic joined the crew of a cruise ship and sailed to Miami in November 2000, where he lived for two years before filing for U.S. asylum and withholding of removal.

Todorovic isn’t the the first person to be denied asylum simply on the basis of not seeming “gay enough.” In 2002, Jorge Soto Vega of Mexico was initially denied asylum on the grounds that he did not “look gay.” The decision was ultimately overturned.