UPDATE - DEC 1: For the safety of the couple, Xtra has agreed to remove both of their names from the story below. Both men asked Xtra to delete the names because they fear for their safety when they return to Mexico on Dec 6.
"We don't want to go, but we have no other option," they say. "We are being deported."
NOV 10: Behind a thick wall of glass, the 26-year-old’s eyes well up with tears as he speaks in hushed tones describing the homophobic mistreatment he and his boyfriend endured at the Toronto Immigration Holding Centre.
He was only in the centre a few days when guards and other staff members started taunting him and questioning his sexuality, he says.
“I am really open with my boyfriend,” he says. “We’ve been questioned by people here. They ask, ‘So, who’s the man and who’s the woman?’
“The guards asked us how much we like to be penetrated,” he says, holding the tip of his finger up, imitating the guard. “It was so offensive.”
He has been detained in the holding centre for one week. His bloodshot eyes look sleep deprived. As he speaks, he shiftily glances from side to side, fearing who might be eavesdropping on the conversation.
“We have to watch everything we say,” he says. “We are frightened. The only people we have is each other. When we touch, the guards tell us to stop."
The couple came to Canada from Mexico in 2006, seeking a better life.
But after their refugee claim was denied, the couple were arrested on Oct 26 and forced to spend a week in the holding centre before friends fronted their $5,000 bail.
The couple filed for refugee status on the basis of his sexuality because he fears for his life in Mexico.
But with comments from Canadian guards like “Who penetrates who?” he says his trust in Canadian authorities is shaky.
“We are still safer here than in Mexico,” he says. “We really don’t want to go back to Mexico.”
Canada Border Services Agency (CBSA) communications spokesperson Anna Pape says the allegations of mistreatment raised by the couple were never brought to the attention of any CBSA official.
“All allegations of improper behaviour by CBSA employees are taken very seriously and are thoroughly investigated and acted upon accordingly,” she says. “CBSA employees are expected to uphold the law in carrying out their duties. The agency has no tolerance for any illegal or inappropriate actions.”
Confused, scared and without legal representation, the couple are now grudgingly buying plane tickets home and fearing for their future as they prepare to return to Mexican soil.
In the meantime, the couple is filing a complaint with the Human Rights Commission regarding how they were treated in the holding centre. But the complaint likely won’t be grounds enough for the couple to be granted a stay, says Michael Battista, a Toronto lawyer who has expertise in dealing with gay and lesbian refugee claims.
Chris Morrissey from Rainbow Refugee Committee in Vancouver, a non-profit group offering support to queer refugee claimants, says it’s a sad story she’s heard many times before. The reality is, she says, almost all claims by people from Mexico, especially gay Mexicans, are being denied.
“The situation in Mexico for queers is extremely unsafe,” she says. “From our perspective, Mexico is not safe for queer people. But that’s not the decision by the Immigration and Refugee Board of Canada (IRB). They have an across-the-board policy on Mexico.”
And the situation got worse this year, Morrissey says. Since August, when Mexico’s Supreme Court ordered all Mexican states to recognize same-sex marriages performed in Mexico City, the country became wrongly perceived as a safe haven for gay people. Perez says gay people are persecuted by macho bullies not happy with the change in laws.
“When the laws change to recognize protections for sexual minorities often there is a backlash from members of the public,” said Battista.
Then there’s the issue of internal flight. If there is a place in the country that is deemed “safe,” such as Mexico City, the claimant must seek protection there, according to international refugee case law, says IRB spokesperson Charles Hawkins.
“If there’s no protection anywhere in their country, then they would be deserving of refugee protection,” he says.
In certain IRB decisions, Mexico City is considered to be a safe place for refugees to go back to, an “internal flight alternative,” he says.
But that’s certainly not the attitude of the police officers or citizens on the ground, Morrissey says.
Mexico's justice system is failing its gay citizens, she says. The country's constitution prohibits discrimination on the grounds of sexual preference, but those laws are not enforced and homophobia is systemic within police departments.
“There is a reasonable fear of persecution if they’re sent back,” she says. “The state police don’t provide protection because they don’t take the situation seriously, which adds to the abuse and homophobia.
“Queer people are not given state protection in Mexico.”
Battista said there is a real breach between law and practice in Mexico. On paper, sexual minorities have protection, but that’s not the case in practice.
In 2007 Mexico surpassed China as Canada’s largest source of refugee claimants. While 38 percent of claimants overall were granted refugee status in 2007, only 10 percent of Mexican claims were successful.
That number has only continued to decline, says Hawkins. Currently only around eight percent are granted refugee status, according to numbers released to Xtra from the IRB.
In 2009 the IRB received 6,092 claims from Mexico. Of that, only 516 were accepted.
Battista said the shockingly low number of refugee claimants granted asylum illustrates the rapidly deteriorating human rights in Mexico.
“What is going on there?” he said. “When I started representing refugee claimants from Mexico around 1998, the acceptance rate was somewhere around 45 percent. It’s amazing to see how the country has deteriorated and the acceptance rate has gone down at the same time.”
Hawkins says the IRB doesn’t have a blanket policy on Mexico, assuring that each claim is looked at on a case-by-case basis.
“The risk [in a country] is evaluated on each claim. [The board] looks at the well-foundedness of the claimant’s fear,” he says. “That’s not only looking at the legislation in another country, it’s also how the laws are enforced and what the situation is like on the ground.”
Hawkins could not provide Xtra with statistics to show how many refugee claimants are seeking asylum because they are gay, lesbian or trans, nor could he say how many rejected Mexican refugee claimants are gay.
In 2007, Enrique Villegas, 35, was killed in his apartment in Mexico City just four years after CIRB rejected his claim. In 2008, Xtra told the story of Leonardo Zuniga, who was also afraid to return to Mexico.
According to the Youth Action Network, a youth-driven non-profit organization focused on social justice issues, more than 1,000 gay people have been murdered in Mexico in the past 10 years with little sign of justice.