On Wednesday, the U.S. Court of Appeals for the 7th Circuit issued an outrageous decision, holding that a bisexual Jamaican asylum-seeker isn’t actually bisexual and can thus be deported back to Jamaica. The three-judge panel’s reasoning is profoundly flawed and rather offensive, and betrays a profound skepticism toward the legitimacy of bisexuality itself. This ignorance drew a typically unsparing dissent from Judge Richard Posner, who slammed the immigration judge for her ignorance and borderline bi-phobia.
At issue in the case is the decision of an immigration judge allowing the United States to deport Ray Fuller, a 51‐year‐old Jamaican citizen who sought asylum in America due to his orientation. Jamaica is widely recognized as one of the most homophobic countries on Earth; same-sex intimacy remains criminalized, and anti-gay hate crimes are stunningly common. Yet the immigration judge inexplicably held that bisexual people are not persecuted in Jamaica. Then the judge concluded that Fuller was lying about his bisexuality, despite the fact that he:
- has had both boyfriends and girlfriends throughout his life
- was attacked and stoned by college students for having sex with men
- was taunted for being gay by a homophobic mob that sliced his face with a knife
- was robbed at gunpoint by a man who called him a “batty man,” an anti-gay Jamaican slur
- was shot in the back and buttock by an anti-gay mob at a gay-friendly party
- was disowned by his family (and kicked out of his family home) when his sisters discovered his bisexuality in the aftermath of the anti-gay shooting
Despite these facts, the judge held that Fuller is not truly bisexual. The judge reached that conclusion in large part because Fuller married a woman—even though he carried on affairs with men after matrimony—and because he could not persuade his ex-lovers to testify in person.
The 7th Circuit panel acknowledged that the immigration judge’s decision reflected a mistaken understanding of bisexuality. However, it concluded that several discrepancies in Fuller’s story—specifically, misremembering certain dates—rendered his testimony unreliable. The court thus accepted the judge’s central finding that Fuller is not really bisexual, thereby authorizing his deportation.
“The immigration judge emphasized such things as Fuller’s lack of detailed recollection of events that go back as far as 1983 and a supposed lack of ‘proof’ of bisexuality,” Posner wrote. “Well, even members of this panel have forgotten a lot of 33‐year‐old details. And how exactly does one prove that he (or she) is bisexual? Persuade all one’s male sex partners to testify, to write letters, etc.? No, because most Jamaican homosexuals are not going to go public with their homosexuality given the vicious Jamaican discrimination against lesbian, gay, bisexual, and transgender (“LGBT”) persons, which is undeniable.” Posner proceeded to chart Jamaica’s terrible persecution of LGBT people, including 10-year prison sentences for same-sex intimacy, overwhelming cultural oppression, and the constant threat of physical brutality.
“The immigration judge’s opinion is oblivious to these facts,” Posner wrote:
Instead he fastened on what are unquestionable, but trivial and indeed irrelevant, mistakes or falsehoods in Fuller’s testimony, for example that he “confused his sisters’ names, mixed up a sister with his mother, and gave different figures for the number of sisters that he had.” What this has to do with his sexual proclivities eludes me.
“Nor has any reason been given,” Posner continued,
either by the immigration judge or by the majority opinion in this court, why if Fuller is not bisexual he would claim to be in an effort to remain in the United States, knowing that if he failed in his effort to remain he would be in grave danger of persecution when having lost his case he was shipped off to Jamaica. No doubt once back in Jamaica he could deny being bisexual—but no one who was either familiar with this litigation, or had been one of his persecutors before he left Jamaica for the United States, would believe (or at least admit to believing) his denial.
Posner then galloped to his acid conclusion:
The weakest part of the immigration judge’s opinion is its conclusion that Fuller is not bisexual, a conclusion premised on the fact that he’s had sexual relations with women (including a marriage). Apparently the immigration judge does not know the meaning of bisexual. The fact that he refused even to believe there is hostility to bisexuals in Jamaica suggests a closed mind and gravely undermines his critical finding that Fuller is not bisexual.
As satisfying as Posner’s rebuke may be, it won’t help Fuller much: The asylum-seeker will likely be deported to Jamaica soon, where anyone with an internet connection can discover every detail of his sexual history. America’s court system has now put his life in danger. And in the process, it has revealed that for all their ostensible enlightenment, too many of our judges still don’t grasp basic facts about sexual minorities and their persecution across the globe.