Aug 20, 2004  |  By: ADRIAN BRUNE  | COMMENTS     

It is no simple feat to obtain a student visa and an airline flight in one month’s time. But at the point Yorro Kuyateh fled his native Gambia for the United States, the impossible seemed easier to face than what he said is the inevitable: a lifetime of periodic imprisonment and vicious beatings for his political beliefs and his homosexuality.

He said he arrived in the United States in August 1997, an itinerant with no money and few resources, usually wearing a cap to cover scars from the head injuries he incurred during his last arrest in Gambia.

Unable to finish nursing school, Kuyateh said he overstayed his visa without seeking asylum — a common problem among refugees — and the Immigration & Naturalization Service apprehended him five years later.

While detained in five different Midwestern jails for eight months, Kuyateh’s real torment began, he claimed. And he said it occurred under the watch of the INS.

Local police placed Kuyateh in the general population, where he said he endured constant physical, verbal and sexual abuse from other inmates, many of whom had been convicted of violent crimes. Pleas to the INS from Kuyateh for a transfer to a safe location went unanswered, he said.

Finally, he said an inmate charged with murder, viciously beat him — the assault captured by a prison security tape — effectively ending his incarceration, but leaving him with permanent brain damage.

“My people treated me badly; I came here and they treated me just like my own people,” Kuyateh said, speaking occasionally with angry intonations. “But I will never have liberty in my country. They will certainly kill me.”

Pattern of mistreatment?
Though gay refugees have a right to seek asylum in the United States under a decree issued by Janet Reno in 1994, the INS — now under the broad umbrella of the Department of Homeland Security — does not single them out as a protected class in detention.

As a result, immigration rights activists say Kuyateh’s story echoes the accounts of many other gay exiles seeking refuge in the U.S., who are eventually afforded it only after sometimes enduring worse abuse than in their native countries.

The federal government guarantees gay expatriates a fair hearing for political asylum. But activists say biases in locales across the nation often affect the ultimate — and often life or death — decision to allow a refugee to stay or force him to return to the country responsible for his original detriment.

“We hear from dozens of gay immigrants every year, some who have been beaten to the point of death by other inmates when the only thing they’ve done is violate their visa status,” said Victoria Nielson, a spokesperson for Immigration Equality, formerly the Lesbian & Gay Immigration Rights Task Force.

“Gay detainees face the worst of both worlds, held in terrible conditions, not knowing they could have sought asylum and, at that point, without the full recourse of the law.”

Gay immigrants to the United States often bear a greater burden of proof in front of a judge, forced to prove they are gay when they kept that fact secret in their country of origin, according to Asylum Research, a national organization that monitors and documents gay refugees and their dilemmas.

They must also overcome language barriers and many times, the impact of physical and mental trauma, while immersed in a court system completely foreign to their own.

The agency responsible for Kuyateh’s situation, the Immigration & Customs Enforcement Division of Homeland Security, granted Yorro Kuyateh a hearing in Kansas City, Mo., in April 2003, shortly after his release, said Christopher V. Nugent, Kuyateh’s current pro bono attorney from the D.C. office of the law firm Holland & Knight.

The former Gambian civics teacher knew almost nothing of his rights in the United States, but attempted to represent himself. Immigration Judge Jennie L. Gambastiani commissioned DHS trial attorney, Paula Davis, to directly examine and cross-examine him. That dual role ultimately posed was an ethical conflict of interest, according to Kuyateh’s advocates, forcing Davis to act simultaneously as his advocate and his prosecutor.

Davis neglected to admit evidence of Kuyateh’s beatings in Gambia and refused to elicit key testimony that would have allowed him to meet the burden of proof for asylum, according to gay Congressman Barney Frank (D-Mass.), who has stepped in as Kuyateh’s government advocate.

Davis also asked hostile and, Frank says, arguably homophobic questions, comparing sodomy laws in Missouri and Kansas to those of Gambia, in an attempt ...