US rejects gay Zimbabwean asylum appeal

US rejects gay Zimbabwean asylum appeal

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By Jamie Doward

A DIVIDED panel of the US Court of Appeals for the Eighth Circuit has declined asylum for a gay man from Zimbabwe, ruling that the man was not directly persecuted, despite the country's anti-gay policies.

William Kimumwe left his home country for Kenya as a teenager in 1998, arriving in the United States in 2002.

He fled after several incidents of persecution on account of his sexual orientation, combined with the rising anti-gay rhetoric of Zimbabwean President Robert Mugabe.

Mugabe declared homosexuality illegal in 1998, calling gays "worse than dogs and pigs" in one of several harsh statements.

Eventually, Kimumwe applied for asylum, telling an immigration judge that he was expelled from school after a sexual encounter with another boy at age 12, and that he was jailed for having sex with another student in college three years later.

According to court papers, he was never charged with a crime, but was told by authorities that he was behind bars because he was gay.

He was freed after a friend paid a bribe, and given a handwritten note explaining that he was being freed due to lack of evidence on charges of sodomy and sexual assault.

Kimumwe's petition was denied, both by the immigration judge and subsequently by the Board of Immigration Appeals.

On Tuesday, a two-judge majority on a federal appellate court in US state Missouri, ruled that the immigration judge's decision was "within the range of decisions available to a reasonable adjudicator" and would not be reversed.

The majority believed Kimumwe's experiences in Zimbabwe were the result of his actions, not his sexual orientation.

Further, Judge Kermit Bye and Steven Colloton did not think the Mugabe administration's anti-gay posture posed Kimumwe a direct threat.

"Although the government has stated its disapproval of homosexuality and espoused harsh anti-homosexual rhetoric," wrote Colloton, the concept of persecution typically requires "the infliction or threat of death, torture or injury to one's person or freedom".

Colloton and Bye said Kimumwe's situation failed this test.

In his dissent, Judge Gerald Heaney wrote that the court "ought not sanction the return of an openly gay man to a country whose leader has vowed to rid the country of homosexuals".

Kimumwe, he concluded, "has established that he has suffered past persecution and has a reasonable fear of future persecution on account of being openly gay".
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