CON LA SOCIEDAD BOGOTANA

In the 1990 ruling, Chairman Milhollan upheld the lower court’s ruling from February 3, 1986, which claimed that Toboso-Alfonso “both established his membership in a particular social group in Cuba and demonstrated that his freedom was threatened within the meaning of section 243(h)(1) [of the 1952 INA] on account of his membership in that group.”145 Thus, Milhollan’s ruling upheld the withholding of deportation but sustained the denial of asylum to Toboso-Alfonso. Milhollan’s opinion offered arguments from the personal and public spheres to make the case that Toboso-Alfonso should be allowed to stay in the United States because he could prove a “clear probability” of persecution.

A large part of Toboso-Alfonso’s ability to prove “clear probability” of persecution relied on the history of discrimination in Cuba. The Mariel Boatlift was widely known to have carried a large number of people identified by Cuban authorities as homosexuals, and there were multiple stories of Fidel Castro’s efforts to rid the nation of those he considered undesirable citizens.146 In his majority opinion, Milhollan lists the materials (aside from his own personal narrative) that Toboso-Alfonso brought as evidence of homosexual persecution in Cuba. These include:

145 _{Randazzo, “Social and Legal Barriers,” 33}

146 _{See: Capó Jr. “Queering Mariel”; Martinez, Ramiro. "Homicide among the 1980 Mariel refugees in}

Miami: Victims and offenders." Hispanic Journal of Behavioral Sciences 19, no. 2 (1997): 107-122; Peña, Susana. Oye Loca: From the Mariel Boatlift to Gay Cuban Miami. 2013; Peña, “‘Obvious Gays’

…several articles describing ‘Improper Conduct,’ a film which centers on the testimony of 28 Cuban refugees and recounts the human rights violations, including incarceration in forced labor camps…suffered by Cubans whom the Government considers to be

dissidents or ‘antisocial,’ particularly male homosexuals; a newspaper article entitled ‘Gay Cubans Survive Torture and Imprisonment,’ in which Cuban homosexuals in the United States, most of whom were part of the Mariel boat lift, describe their treatment by the Cuban Government, including repeated detentions, incarcerations, and physical beatings…147

The ability to document human rights abuses made it possible for Toboso-Alfonso to paint a clear, discernable picture of what happens to homosexual people in Cuba. The BIA’s decision to grant Toboso-Alfonso a withholding of deportation depended largely on the clear documentation of persecution in Cuba. Because Cuba kept a register of homosexuals, forced them to appear regularly for hearings and examinations, and ultimately forced or “encouraged” most of them to leave the country, there was little to no question about the hospitability of Cuba for people identified as homosexual in the eyes of those writing the majority opinion in the case.

In addition to the evidence of Cuba’s treatment of homosexuals, Toboso-Alfonso brought multiple stories, some listed in the previous section that detail his personal struggle with

authorities because of his sexual orientation. Milhollan spends most of his decision telling Toboso-Alfonso’s story, lending weight to his personal experiences, and granting credibility to his need for state protection. Despite the specificity of legal jargon and its presence in all court cases, the majority opinion in Toboso-Alfonso spends little time making appeals to the technical sphere. Much of Milhollan’s opinion is directed at the formation and regulation of a public sphere, one where arguments attempt to appeal to an imagined public in which all involved have equal say and equal capacity for action. Milhollan lends weight to Toboso-Alfonso’s story, and acknowledges the tension inherent in the imagined future of the United States if it takes Toboso- Alfonso as a member of its citizenry. The first half of Milhollan’s opinion is dedicated to

explaining Toboso-Alfonso’s claim for asylum. He tells the story of Toboso-Alfonso’s persecution while living in Cuba, explaining both the individual struggles he faced, and the greater context in which his persecution occurred. This does not limit Milhollan’s arguments to the personal sphere, despite his use of personal narrative as evidence. For example, Milhollan explains that Toboso-Alfonso “testified that it was a criminal offense in Cuba simply to be a homosexual” and then lists the different types of abuse that helped to construct his case, explaining the Union of Communist Youth’s demonstrations against homosexuals in factory where Toboso-Alfonso worked and acknowledging that Toboso-Alfonso would not have been sent to a forced labor camp if he were not a homosexual.148 Following the lower-court decision, Milhollan claims that not only did he find “the applicant’s testimony to be credible and worthy of belief,” but that Toboso-Alfonso was actually also “restrained in his testimony as to the difficulty of his life during the years that he lived in Cuba.”149 For Milhollan and the others signing onto the majority opinion, Toboso-Alfonso’s testimony is not only credible, but it proves his claim for asylum even though it seems to be only part of the narrative of his persecution.

Milhollan takes a holistic perspective of the case with regard to U.S. citizenship and migration more broadly, weighing the need for freedom over the need to uphold existing statues. An example of this occurs in Milhollan’s choice to background Toboso-Alfonso’s criminal charges as “not particularly serious crimes” and to foreground Toboso-Alfonso’s right to not live in fear of persecution:

This is not simply a case involving the enforcement of laws against particular

homosexual acts, nor is this simply a case of assertion of ‘gay rights.’ Particularly in view of the final governmental threat that precipitated the applicant’s departure from Cuba, we agree with the immigration judge’s finding that the applicant’s freedom was and is threatened within the contemplation of section 243(h)(l).150

148 _{In re: Toboso-Alfonso 821, para 1}

149 _{In re: Toboso-Alfonso 822, para 1.}

Here, Milhollan describes Toboso-Alfonso’s story as one that ultimately concerns his lack of freedom. Although Milhollan spends a substantial amount of time discussing the difference between status and conduct (elaborated below), here he explains that this is not really a case about gay rights, and is not really a case about Cuba’s laws. Instead, this is a case about what type of people should be granted asylum in the United States. The opinion never positions Toboso-Alfonso as an outsider, even when taking into consideration his violation of the policies that currently structure the boundaries of the U.S. citizenry. Instead, Toboso-Alfonso’s situation marks a moment in which those boundaries are permeated and permanently altered to account for changes in cultural attitudes.

The ability for an asylum applicant to prove that homosexuals are a particular social group who face either “well-founded fear of persecution” or “clear probability” of persecution does not automatically grant them asylum in nation of first application. In the words of BIA chair Milhollan, “once he establishes that he qualifies for withholding of deportation, it must be

granted and he cannot be returned to the country where he would face persecution. He can, however, be sent to another country under certain circumstances.”151 This means that Milhollan does not necessarily have to make the United States accept Toboso-Alfonso into the U.S. citizenry – he could recommend sending the applicant elsewhere. However, he does create a space for Toboso-Alfonso, and he does it by arguing for a citizenry that allows public

homosexuality. This argumentative move happens more implicitly through his repeated claims about homosexuality as a status rather than an action or set of actions. He uses Toboso-Alfonso’s stories of abuse at the hands of the state to argue that this state-sponsored subordination was unfair because it was targeted at a person who had no choice over his identity; his punishment

and persecution were not the result of any direct action; instead, he was targeted for merely identifying as (or being identified as) gay. For example, on page 821 of the opinion, Milhollan states Toboso-Alfonso’s persecution occurred “not in response to a specific conduct on his part (e.g, for engaging in homosexual acts); rather, they resulted simply from his status as a

homosexual.”152 _{And later, on page 822, Milhollan states, “The applicant’s testimony and} evidence…do not reflect that it was specific activity that resulted in the governmental actions against him in Cuba, it was his having the status of being a homosexual.” While one of the early versions of the INA forbid entry of LGBTI people by classifying homosexuality as both a status and an action, the opinion in the Toboso-Alfonso case determined that one could face persecution for their status alone. It is not clear whether Toboso-Alfonso’s actions mattered – the court saw a problem with the persecution of someone based on his status. In this – and many other civil rights related claims – the persecution was deemed especially problematic because it targeted a person for something that could not easily be changed.

The attention to status over action served as the foundation of Milhollan’s ruling about persecution and immutable characteristics. Following the immigration court’s decision,

Milhollan ruled that sexual orientation is an “immutable” characteristic and that one should not be denied access to citizenship because of an inherent element of their identity. In fact, Milhollan states that the INS appeal did not challenge “the immigration judge’s finding that homosexuality is an ‘immutable characteristic. Nor is there any evidence or argument that, once registered by the Cuban government as a homosexual, that characteristic is subject to change.”153 _{Even if the} INS did not consider homosexuals capable of constituting a “particular social group” under the Refugee Act of 1980, they did not argue against the lower court’s definition of homosexuality as

152 _{In re: Toboso-Alfonso 821}

immutable. Refugee laws had long protected people who faced persecution for something like race or religion which were treated under the law as immutable. In this case, sexual orientation was added to the list of immutable characteristics for which someone might face persecution and is thus deserving of protection. The declaration of its immutability made sexual orientation justifiable for inclusion as a “particular social group.”

In the majority opinion, the courts defer to the rights of asylum seekers as outlined in the Refugee Act of 1980, effectively placing international human rights over the rights of U.S. sovereignty. The most progressive, and surprising development in Toboso-Alfonso was the constitution of homosexuals as a “particular social group.”154 This is the moment at which private, subordinated LGBTI identities became protected within U.S. immigration law.155 _{In the} Refugee Act of 1980, the U.S. limited “particular social group” to religious, ethnic, and political minorities, but here the category expanded through the addition of sexual minorities to that list. However, in adding sexual minorities because of the “immutability” of their identity, the court restricts identity to that which is inherent. This denies the flexibility and fluidity of sexual identity and the process through which many people come to understand their identity. Thus, the majority opinion imagines LGBTI asylees as people with the capacity to prove their sexual orientation and their persecution.