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Growing up gay in Mexico, Jorge Soto Vega was ridiculed by his family and beaten by police. So he snuck into the United States, fell in love and ran a flower and interior design shop in Los Angeles. Now he wants asylum so he can legally remain. But the U.S. government is trying to send him back. Soto Vega’s problem, according to Immigration Judge John Taylor, is that he doesn’t look or act gay. “I don’t see anything in his appearance, his dress, his manner, his demeanor, his gestures, his voice, or anything of that nature that remotely approached some of the stereotypical things that society assesses to gays, whether those are legitimate or not,” Taylor wrote last year in denying asylum. Soto Vega has appealed, and soon it will be up to the Ninth Circuit U.S. Court of Appeals to decide how gay is gay enough — or whether that should even be an issue. The Lambda Legal Defense and Education Fund believes it shouldn’t be a basis to deny asylum and has taken on Soto Vega’s case. It filed its first major brief in the case with the Ninth Circuit on Tuesday. Government lawyers have 30 days to respond. Lambda’s Jon Davidson, who represents Soto Vega, said Taylor’s ruling is “ridiculous from several points of view.” Most obviously ridiculous, Davidson said, is Taylor’s judgment of Soto Vega’s appearance and manner. The standard should not be a Los Angeles judge’s perception, Davidson said. “The issue is, ‘Could people in Mexico tell he was gay?’” According to Soto Vega’s own testimony, which Taylor found credible, before he snuck across the border, Soto Vega was beaten and chastised by his father and brothers for being a “joto” — Spanish for “fag” — and later was attacked by police simply for attending a party in an area known to be frequented by gay people. Davidson said that by the judge’s reasoning, as long as Soto Vega remains in the closet, then he can live safely in Mexico. “They’ve never held that you can go back if you just don’t let anyone know,” he said. The United States grants asylum when another country suppresses someone based on religion, race, nationality, political opinion or membership in a social group. Homosexuals have been eligible since 1994, Davidson said. Judge Taylor also pointed out that things have changed since Soto Vega, now 35, left Mexico 15 years ago. Gays are becoming more socially acceptable. The government allows pride activism, and gay bars operate in larger cities. Gays even openly participate in politics. “So I don’t believe that the respondent has produced sufficient evidence to show that he would be persecuted if he returned to Mexico, and even if his homosexuality is discovered, I believe that there are locations where he could go that would allow him to be recognized as a homosexual without persecution,” Taylor wrote. Davidson said sending Soto Vega back would make the U.S. government complicit in persecution. “That theory is very dangerous,” Davidson said, “to say that if you pass [as straight], you’re not entitled to asylum.” The Ninth Circuit has tackled the issue before, Davidson said, but there’s a dearth of published cases. In a 1999 case, a gay Mexican man was granted asylum, but he dressed as a woman and had a “female personality,” Davidson said. The Department of Justice press office in Washington, D.C., declined to comment, citing its policy of not discussing pending cases. The case is Soto Vega v. Ashcroft, 04-70868.

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