Sometime in the coming weeks, gay refugee Leonardo Zuniga, who fled to Toronto from Mexico three years ago, may be put on a plane and returned to the country he fears.
In June of last year, the Immigration and Refugee Board (IRB) denied Zuniga refugee status because it deemed he wasn't a person in need of protection and "would not face a danger of torture, nor would he face a serious possibility of risk to life, cruel and unusual treatments or punishments."
"I'm going to be living in fear or hiding in the closet all my life," says Zuniga. "[Mexico] has a beautiful image as a progressive country for LGBT people, but it's just an image."
At the IRB, homosexuals applying for refugee status need to prove that they're gay (including evidence of celebrating Pride or being active in queer orgs) and that they're at risk if they go back to their home country.
But to some, this seems unreasonable. "Generations of sexologists have been unable to devise tests that would determine a person's sexual orientation in controlled circumstances," explains U of T law doctoral candidate Sean Rehaag. "In my view, the IRB should simply accept asserted sexual identities as genuine."
Refugee lawyer Leigh Salsberg points out that the IRB is too quick to accept the argument that Mexico has an increasingly vocal and visible gay subculture and that the country is passing new human rights legislation. "They're relying on laws heavily and not so much looking at what's happening on the ground."
A report by Mexico's Citizens' Commission Against Hate Crimes says that 15 homophobic or transphobic murders occur monthly in Mexico.
Perhaps not surprisingly, it's the leading country of origin for sexual minority refugee claimants in Canada. According to docs the IRB provided in response to an Access to Information request, 190 decisions were issued in 2006 involving sexual minority refugee claimants from Mexico. Thirty per cent of these claims were granted.
However, the IRB says each case is looked at on its individual merits. "It's not necessary for people to show that they experienced persecution in the past merely that they have a well-founded fear of persecution in the future should they return," explains spokesperson Charles Hawkins.
But Supporting Our Youth queer refugee counsellor Suhail AbualSameed is concerned that IRB decisions are over-reliant on the subjective reactions of the individuals who make the final decision.
"What makes it so upsetting is that Leo earned his right to be here, and he's still being rejected," he says.
Zuniga is still waiting, pending an appeal to stay based on humanitarian and compassionate grounds, which will take a year and a half. Problem is, the results of his pre-removal risk assessment application will be issued in only a few weeks.
In the meantime, his allies including Councillors Adam Giambrone and Kyle Rae and MP Olivia Chow have gathered over 1,500 names for a petition to bring to Immigration Minister Diane Finley, in the hope she'll let him stay at the least until the decision on his humanitarian claim comes out.
The Canada Border Services Agency is ready to act, though. CBSA rep Patrizia Giolti says Zuniga has exhausted all options and will be deported.
Says Zuniga, "After three years, I feel like I belong in this community. It's not fair."