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Administration Refuses to Help Gay Asylum Seeker

Timothy Kincaid

October 26th, 2009
Tim Coco (Left) and Junior Oliveira (Right)

Tim Coco (Left) and Junior Oliveira (Right)

Too often both our friends and our opponents fail to understand exactly why it is that gay couples seek to be treated with equality. It is not, as some anti-gay activists claim, to ‘legitimize homosexual conduct’, but rather it is to achieve the goals, rights and benefits that are essential to life.

Laws that protect married couples are designed with specific purposes in mind, and those purposes apply to same-sex couples as well. When gay couples are excluded from equal treatment, it is not just disrespectful of their relationships, it is a declaration that gay people are not deserving of the rights and benefits that heterosexuals take for granted.

And that is what the actions of the Obama Administration have declared yet again this week.

In 2005, Tim Coco and Junior Oliveira legally married in Massachusetts. At the time, Oliveira was seeking asylum in the United States, having been subjected to abuse and rape in his native Brazil. In 2007, when asylum was denied, Oliveira was forced to return to Brazil while the couple fought the legal system to be reunited.

They found a valuable advocate in Massachusetts Senator John Kerry. And, indeed, Coco and Oliveira had good reason to be hopeful that the Administration would intervene.

The judge who denied asylum, Francis Cramer, was a political appointment who had minimal experience with immigration law and was so blatantly unqualified that government watchdog groups were astonished at his selection. It was later discovered that federal judicial candidates had been screened for their views on gay marriage before they were appointed.

But Cramer did not only count Coco and Oliviera’s marriage as irrelevant. In his decision, Cramer made the bizarre declaration that while he didn’t doubt that Oliveira was raped, he “was never physically harmed” by it.

Recognizing the judge’s decision to be crass inhumanity, Kerry wrote to the Attorney General’s office requesting that Oliveira’s case be reviewed. Because asylum is regularly granted for far less cause, surely a friendly administration would intervene.

No. They would not.

Assistant Attorney General Ronald Weich

Assistant Attorney General Ronald Weich

On July 27, 2009, Assistant Attorney General Ronald Weich wrote a letter to Senator Kerry informing him that the US Attorney General would not be reviewing the Coco/Oliveira case because that “forced sex” is not rape (they were unclear as to whether the Attorney General limits his belief that forced sex isn’t rape to male-on-male forced sex or whether that definition extends to heterosexual people as well).

Kerry was, naturally, incredulous and outraged. He has sought since then to get Attorney General Eric Holder to reverse the decision of his office. He informed the Attorney General that he wasn’t asking Holder to act against DOMA, but to grant asylum on humanitarian grounds, just as the government does for thousands of other immigrants.

Attorney Genereal Eric Holder

Attorney Genereal Eric Holder

Holder chose to ignore Kerry’s efforts. (A/P)

The Massachusetts husband of a gay Brazilian man says his spouse has been denied asylum that would allow them to be reunited in the U.S.

Tim Coco said Monday that the Obama administration did not act on a Friday deadline in the case of Genesio “Junior” Oliveira, effectively denying his request. The Justice Department did not immediately return messages.

Let us be clear. Were Junior Oliveira to have married a woman, he would not have been denied residency in this country. And were his reasons for seeking asylum based on factors other than his orientation, I am convinced that judges and politicians would have found more than adequate compassion to intervene.

I am so very sick of this. I’m disgusted by a legal system that denies equality. And I am furious with an administration that does not seem to care.



October 26th, 2009 | LINK

All of these guys standing in the way of what’s obviously right are worthless piles of crap. How in God’s name can you remotely justify any of those conclusions?

This is why we need to dig in our heels on immigration reform to remedy this garbage.

October 26th, 2009 | LINK

At least John Kerry demonstrated a bit of humanity here….

Shame on the other deciders, especially the bigotted judge….

October 26th, 2009 | LINK

I thought we had a “fierce” LGBT advocate in the White House?

Ian Goldin
October 26th, 2009 | LINK

John Kerry is awesome.

October 27th, 2009 | LINK

I deplore the decision to deny Oliveira a visa on humanitarian grounds.

But as someone who has been a witness in multiple asylum cases (involving gay men and transgendered people from Brazil), I can say that these claims are becoming increasingly difficult to prove as grounds for asylum. Brazil’s record on LGBT rights is equal to or, in the case of some cities and states, substantially better than the US. They also have a national liaison for LGBT people, and many cities and states have ombudsmen for LGBT/police relations.

I’m not trying to minimize Mr. Oliveira’s suffering. I’m just pointing out that a rape case is not sufficient for a judge to grant asylum. You need to demonstrate that there is a widespread pattern of disregard for the rights of a class of person (i.e., gay people). In Brazil, this is hard to prove. Ironically, it’s easier to prove about the United States.

The sad fact is that we’re forced to resort to appeals for asylum when what we want is simply the same right to residency that straight people get. If we had equal rights, we wouldn’t be reading this article or having this sad exchange with our country’s highest legal authorities.

The situation is pathetic, and I agree that we need a full-court press on immigration rights for same-sex couples.

Baron Scarpia
October 27th, 2009 | LINK

I am British. I’m bisexual, but I have never been affected by the US immigration system and probably never will. I personally know absolutely nobody who has been affected.

So I’m surprised how angry I’ve been with the US system since I found out about it a couple of years ago. This case in particular is outrageous for virtually every conceivable reason you can think of.

Embarcado – you might think that a rape is not sufficient cause to grant asylum. But I really think you’d have the decency not to use the words ‘was never physically harmed’ about it.

The words of the Immigration Judge make it clear that he did not take it seriously.

October 27th, 2009 | LINK

Although this story has been carried by the AP, it has been largely ignored by the TV media. They would rather do follow-ups on ‘balloon boy’. I emailed CNN (incl AC360) and MSNBC (incl Maddow/Olbermann) to suggest this as a story idea, but I doubt one email will get their attention. I skipped over FOX since they would probably celebrate the inaction.

October 27th, 2009 | LINK

Perhaps Francis Cramer would like to be gang raped. I wonder if he would still think that rape does not physically (let alone mentally) harm someone.

October 27th, 2009 | LINK

To win asylum one needs to show a well-founded fear of persecution by one’s government. It was intended to assist victims of state persecution who therefore had no one else to appeal to within their country for their protection.

I agree with Embarcadero that this is especially difficult to prove in a case such as Brazil, which really does have an impressive record on gay rights. In fact, a couple years ago Brazil’s government was considering adopting a law that would have made it a crime for a pastor to preach that homosexuality is a sin!

Recall also that until Lawrence v. Texas, a few US states still had statutes on the books criminalizing sodomy, so that a same sex couple moving from Rio to Houston would actually be subjecting themselves to greater danger of state persecution. I do sincerely hope this couple finds a way to reunite, but an asylum request is not the way to go, and its denial does not reflect biases, but an honest application of the law.

October 27th, 2009 | LINK

“But I really think you’d have the decency not to use the words ‘was never physically harmed’ about it.” -Baron

And Baron, in the AP article on this subject, these were shown to be not the judge’s own words, but the judge quoting Oliviera’s testimony. The rape allegedly occurred when Oliviera was a teenager, i.e. years or decades ago. So Oliviera’s comments, if accurate, may reflect changing testimony, a different period of life under question, etc — we just don’t know what the context of the remark was.

Timothy Kincaid
October 27th, 2009 | LINK


You are mistaken.

In Reyes-Reyes v. Ashcroft, the United States Court of Appeals for the Ninth Circuit ruled that the term “government acquiescence” was broad enough to include the government’s failure to address severe physical abuse inflicted by non-government actors.

Others have won asylum with less demonstrated personal threat than Oliviera presented. I personally know a young man who was able to receive asylum based on little other than a culture of homophobia in his hometown but which he had never personally experienced (having left at a young age).

The decisions are very subjective and Holder could easily have gotten involved had he been so inclined. I suspect the Administration’s often-stated opposition to marriage equality compelled Holder to be seen as upholding DOMA and that the Coco/Oliviera marriage actually served to work against their claim. But that is only my suspicion.

You are also mistaken about the source of the quote. The New York Times article from which it was taken states:

In a letter sent Thursday to Attorney General Eric H. Holder Jr., Mr. Kerry said that Immigration Judge Francis L. Cramer had found Mr. Oliveira’s testimony to be credible and his fear of living in Brazil genuine. However, the judge denied the asylum claim, saying he “was never physically harmed” by the rape, the letter said.

October 28th, 2009 | LINK

Timothy Kincaid — I’m aware of that case, but that is just an expansion of the general rule. You still need to show indifference by the state, not just that you were the target of hatred or bigotry by private actors. If there is evidence that your country is strongly supportive of the rights of persons like yourself, the the burden on the person seeking asylum should be even greater.

The quote I found was: “In 2002, Oliveira had sought asylum in the U.S. because he said he was raped as a teenager in Brazil. But an immigration judge denied his request, and Assistant Attorney General Ronald Weich said in a letter that Oliveira repeatedly remarked at his hearing that he ‘was never physically harmed’ by anyone in Brazil. Coco, however, said Oliveira was referring to street beatings and wasn’t clear during his hearing about the harm he faced because of the rape.”

Personally, I wonder whether there was not some international political calculation at work here, too. Granting an asylum request to a Brazilian on these grounds could be seen as a slap in the face to Brazil’s government, especially where high-level US officials intervened. See for example the recent case of the white South African man who was granted asylum by a Canadian court on racial discrimination grounds — a decision which outraged the South African government. This is always going to be an issue when granting asylum requests from countries on good terms with the USA, as a grant of asylum will inevitably be a kind of judgment on the foreign government itself.

October 28th, 2009 | LINK

There’s a very easy solution here – immigration judges can grant relief (in various forms) on humanitarian grounds. Procedurally, this should be a simple task for those in Oliveira’s situation (able to document a marriage-like relationship, stability etc). It should be the AG’s policy.

The above discussion about the rape, about “physical harm” are perhaps evidence of a callous judge (and others in supervisory positions), but don’t necessarily speak to the plight of same sex couples who see themselves as forced to go the asylum route simply because the rights ordinarily granted heterosexuals are denied them. Many people come from countries with documented, widespread homophobia and a government that simply doesn’t pay attention (e.g., Wyoming, whose congressional delegation voted against the Matthew Shepard Act). That’s not quite the case here; Brazil’s human rights (and gay rights) record certainly complicates Oliveira’s petition.

I’m being a bit facetious here to make a point. I’d stand a better chance of asylum if I were from Wyoming (and if Wyoming were a political entity separate from the US) than if I were from Brazil.

It’s a lamentable situation, and an official policy to grant humanitarian relief in such situations would at least be the kind of band-aid we need now. Full immigration reform and parity between same-sex and hetero couples is obviously preferable, but I’m not sure how fast that will come.

Timothy Kincaid
October 28th, 2009 | LINK


There is a bill to address this issue, the Uniting American Families Act. It was introduced in February, and has been before Congress in some form for the past eight years.

It has 117 co-sponsors. President Obama has spoken favorably about the bill in correspondence targeted towards the gay community, pledging to bring about reform before the end of the year. Shortly thereafter, the Catholic Church came out in opposition to the bill (it “erodes” family, you know) and it appears now to have slipped from consciousness of the Administration.

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