Torture Of A TranssexualJoel P Engardio
AS THE PLANE GENTLY DESCENDS over a shimmering lake surrounded by a lush, grassy landscape, Amanda DuValle stares out the window at a serene but hauntingly familiar view of Nicaragua. It’s 1996, and a decade since Amanda has been home; touchdown at the Managua airport is now only a few moments away. As the passengers disembark the plane, a flight attendant hands one of four waiting Nicaraguan immigration officers a packet from the U.S. Immigration and Naturalization Service and points out Amanda, who is wearing a low-cut yellow blouse, jeans, and Nike tennis shoes. The officers lead Amanda to a small office. She sits in a chair in front of a lieutenant’s desk, crosses her legs, and tosses her long, dark hair in a ladylike pose, trying to put herself and the officers at ease. As they open the packet and pull out her passport, it doesn’t take long for the officers to realize the person in the passport is not the Amanda sitting before them, but a man named Oscar. “This is you?” the lieutenant asks, surprised — and angered — that Amanda is convincingly pretty. “Look at you now, you look like a fag.” He asks Amanda why she was deported from the U.S.; she tells him it was because she committed some crimes while in San Francisco. The lieutenant believes otherwise. “It’s because you have AIDS,” he accuses. “How much did the gringos pay you to bring AIDS into Nicaragua?”
Amanda tells him she doesn’t have AIDS, and the Americans haven’t sent her to do anything, but the officer doesn’t listen. “All you gays have AIDS!” he yells. “We don’t want fags like you here. You have to go back.” The lieutenant looks at Amanda’s passport again, and shakes his head as he glances back and forth between the photo of a 19-year-old boy with cropped hair and the mature, voluptuous woman sitting before him. He asks her how a man can have breasts. The officers laugh at her, and two of them grab Amanda by the hair and pull her into an adjoining room. They restrain her while the lieutenant takes off her shirt. Another officer lights a cigarette and holds it against her breasts, telling her to be quiet. If she screams, he says, it will only get worse. The lieutenant then punches Amanda. Her mouth begins to bleed. The officers are ordered to remove Amanda’s shoes and jeans, and the sight of her black panties evokes even more snickers. The women’s underwear is removed, too, revealing Amanda’s penis. Now she is completely naked, and the lieutenant calls for a broom. He orders her beaten and raped. The repeated blows raise welts on Amanda’s back, hips, and buttocks. The end of the broomstick is rammed into her anus three times.
The lieutenant isn’t done. He grabs Amanda’s hand and spreads her fingers on a desk next to a stapler. Amanda cries out as a staple is punched into each of her fingers, just below the nail. She is left alone to pull out the staples and get dressed. She uses a dirty rag to wipe the blood. The lieutenant threatens Amanda and her family, and says she needs to leave Nicaragua soon. “We know who you are; we’ll be watching,” he says. “You’re gay, and we don’t want any gays here.” Growing up in Nicaragua, Oscar Serrano always knew he wanted to be a girl, but thought since he was born a man, he must be a gay man. It is a crime to be gay in Nicaragua. It’s a crime to even talk about being gay, because Nicaragua’s sodomy law — which provides for prison sentences of up to three years — was amended in 1992 to include anyone who “promotes, propagandizes, or practices” same-sex relations. Claiming persecution, Oscar has fled his home country three different times in the past decade. His first harrowing trip to the United States came at age 19; the most recent at 30. While here, the former Oscar Serrano realized he didn’t have to be a gay man. He became — with the help of hormone treatments — the woman he always felt he was. But for the new Amanda DuValle, living in the U.S. is also a crime. Not because she is transgendered, but because she is an illegal alien. Twice, the U.S. government has deported Amanda to Nicaragua. Both times, she made the arduous return trip to California. Now 31, she is in the custody of the INS again. Although Amanda’s accounts of her treatment by Nicaraguan authorities, if true, constitute vicious, inhuman abuse, U.S. immigration law has — until now — given her little or no legal avenue for avoiding deportation. Normally, illegal immigrants who come to America looking to escape government mistreatment can ask for asylum. The U.S. will grant asylum, and eventually citizenship, to people who can prove a well-founded fear of persecution based on any of five grounds: race, religion, national origin, political opinion, or membership in a particular social group. But for Amanda, asylum has never been an option. When she first came to the U.S. in 1986, gay or transgendered people were not allowed to apply for asylum. Sexual orientation was not considered a valid basis for persecution until 1994. And by the time that gays and transsexuals were allowed to seek asylum, Amanda was no longer eligible, because by then she had become a criminal. Not just a criminal, but a repeat felon. For the decade she eluded the INS while living in San Francisco, Amanda often turned to crime — including grand larceny and prostitution — as a means of survival. And convicted felons, even nonviolent ones, are not allowed to seek asylum here, no matter how persecuted they may be in their homelands. So the U.S. kept deporting Amanda, and she kept coming back, determined to stay out of Nicaragua and away from the harm that awaits her there. But this time around, she will get to remain here, at least for a while. Amanda and her lawyers tested a new law, and a U.S. immigration judge agreed with their case. Although her account of official mistreatment was accompanied by only very limited corroboration, last week Amanda DuValle apparently became the first person to escape deportation from the U.S. based on the provisions of Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
It took a United Nations treaty, ratification by the U.S. Senate, and five years of INS review, but the United States now agrees to protect any illegal alien from being deported to a country where he or she would face torture. The Convention Against Torture adheres to the humanitarian ideal that no one, regardless of his or her deeds — even if those deeds are violent crimes — should be subjected to torture as a punishment. For Amanda, the INS’s implementation of the torture convention last March couldn’t have come at a better time. Now, despite her felony convictions, she is finally able to escape deportation. But Amanda’s courtroom victory raises at least as many questions as it answers. No one can be sure, right now, when she will ever be released from INS custody, and if she is released, how long she will be allowed to stay in San Francisco. By Oscar’s account, the long, difficult path that led to his current legal situation began with a childhood that included seemingly impossible dreams. He wished he could become one of the beautiful brides he would watch from the steps of Managua’s churches on Sunday afternoons. Or if he could just have the chance to wear one of the pretty white dresses that little girls don for First Communion. More than anything, he wanted to be a girl. As a young boy, Oscar says he preferred to play with dolls and related well to girls, trying to mimic their feminine behavior. In the machismo-dominated culture of Nicaragua, Oscar’s girlish demeanor subjected him to constant beatings and verbal assaults from his family, neighbors, and kids at school. His teacher often placed him in closets or tied him to benches as punishment for playing with girls. Boys would throw rocks at him in the schoolyard. Oscar was a slim, delicate boy. But not fragile. “For the beatings I got, I was strong,” Amanda recalls.
Though often disdained for his slight features and feminine traits, Oscar did attract the attention of some straight men who, under the machismo construct, find gay sex permissible as long as they play the top or dominant role. Before his teenage years were over, Oscar says, he had been raped several times, once, at age 9, by a family friend who left him bleeding and unable to walk. Oscar could not hide his injury and had to tell his parents what happened. His stepfather beat him, saying only fags looked to get raped. Oscar’s uncle told the boy he’d rather have a nephew who was a thief or drug addict than one who was gay. Oscar’s nickname was “Birth Defect.” “I resented my family,” Amanda says of her Oscar days. “They made me feel dead inside.” In addition to the abuse from family, friends, and schoolmates, Oscar was harassed by government officials. Twice, police arrested him for going to an underground gay bar. And they extorted money from his mother to bail the young man out. As a teenager, Oscar was drafted into the army, then controlled by Nicaragua’s Sandinista-led government. If Sandinistas were in some regard leftists, their army certainly had few progressive ideas about homosexuality. For his own safety, Oscar tried to keep his sexuality secret, vehemently denying the rumors that circulated about him in his battalion. His commanding officer threatened to shoot Oscar if he found any proof that Oscar was gay. The commander had the young soldier beaten and imprisoned numerous times with no food or water for days in attempts to elicit an admission of being gay. Oscar took the abuse, scared that if he admitted anything he’d be killed. He had seen his commander shoot deserters before. But Oscar eventually deserted the army, left his family, and made his way — walking and hitchhiking — the 1,000 miles from Nicaragua to the Texas border and, ultimately, to San Francisco. Feeling like a woman trapped in a man’s body, he fled scared and confused, but certain of two things: Life would be better in the United States, and from now on, his name would be Amanda. As in Amanda DuValle, the Brazilian beauty queen who won the Miss Universe crown and became Oscar’s role model. When Oscar made his first trek to the United States, he didn’t know about San Francisco’s reputation. He was unaware it was known as a haven for gay and transgendered people. “It just felt right to go there,” Amanda says. “What can I say? It was feminine intuition.” It was not an easy transition when Amanda, then 19 and named Oscar, arrived in San Francisco, unable to speak English, scared, and alone. At first, she contacted a family in San Bruno who knew her mother. Amanda never told the family she was gay, but they sensed she was different and treated her so. Every time Amanda used the bathroom, she was asked to disinfect the toilet. The family eventually said she had to leave. Homeless, Amanda slept in bus shelters or rode the all-night owl bus routes from one end of a line to the other. She ended up meeting other “girls” who showed her San Francisco’s tranny scene, and where she could make money: performing in drag queen shows at the Mission District’s gay bar Esta Noche, and turning tricks on Capp Street. At Esta Noche, Amanda discovered a whole community of gay and transgendered Latinos. What was a despised anomaly in her culture manifested itself in hundreds of patrons who gathered at the lively dive bar. Here they finally were, gay and transgendered — and, most important, Latino. Amanda couldn’t believe it. She met many friends at Esta Noche and began building a life. For the first time, she was happy.
Soon, Amanda found a doctor who would prescribe hormone treatments. She developed breasts, her voice became softer, and her skin smoother. She began to live completely as a woman. But she still had male genitalia. Wanting a sex-change operation, but never having the money for one, Amanda settled for the hormones and figured the final procedure would come in time. Amanda DuValle was a popular act at Esta Noche, where she lip-synced Latino songs during her Sunday night show. Amanda even won the crown as Miss 16th Street, a Latina drag queen beauty contest. Her childhood dreams were fast coming true. Especially when the boyfriend she met proposed. Amanda was married in a commitment ceremony in a little pink church in the Castro. A three-tier cake sat on the bar at Esta Noche, waiting for the bride — in her white wedding dress — to arrive for the reception. “What a beautiful experience to fulfill your dreams,” Amanda says. “I really felt like a princess.” But the relationship didn’t work. Her new husband did not want Amanda to get the operation that would truly make her a woman. He liked the fact she still had a penis; Amanda had no desire to keep it. After the breakup, life got harder for Amanda. She drifted in and out of homelessness. She still had her drag show, but the money wasn’t great. She did sex work to survive and was eventually convicted on a prostitution charge, spending three months in the county jail. Amanda also stole to support herself, selling items for cash. She has a long string of shoplifting charges, mostly small items from grocery stores, from vitamins to face cream. But she also stole higher-priced goods, including a $400 beaded evening gown from Nordstrom and $1,000 bronze Vanderveen figures from the upscale Gump’s Department Store. Amanda was convicted on two separate grand larceny felonies, spending a year in the county jail and another 16 months in state prison.
“I don’t really like to steal,” says Amanda, who would often wear the dresses she stole in her drag show. “But I wanted something to make me look good.” After more than 10 years of living illegally in San Francisco, Amanda finally had to face the INS. With her number of arrests and jail terms, it was only a matter of time before the immigration service found her in the prison system. She was summarily deported to Nicaragua to face her family for the first time as Amanda. Amanda’s first visit home in a decade didn’t last long. After the beating and rape at the Managua airport, Amanda went to see her family. Her youngest siblings, just 5 and 9 when she left, didn’t recognize their lost brother, who had now become a woman. Her other full and half-siblings, her stepfather, and an array of cousins — the ones who used to taunt and beat young Oscar for being different — simply ignored Amanda. Oscar was nothing to them, and as far as they were concerned, Amanda didn’t exist. Amanda’s mother hugged her son when he showed up bloody and bruised from the airport. But she still called her son Oscar, never mentioning that he was a woman, telling her son he should cut his long hair. “No,” Amanda told her mother. “Look at what I am now.” But her mother was unable to do so. The next day, the immigration lieutenant and his men visited Amanda’s house to “remind” her she was not welcome in Nicaragua. They beat her up again, shoving her mother to the floor. The next night Amanda set out for the long trip back to the Texas border. For the second time, Amanda took a bus from Managua to the Honduran border, and traveled overland through Honduras, into Guatemala, and north through Mexico. A wide expanse of citrus groves welcomed Amanda to the United States again at the Mexican border, near Brownsville, Texas. She crossed the Rio Grande River and was illegally back in the U.S., this time carrying a little backpack that contained a change of women’s clothes, some beauty products, and her hormone pills. After fixing herself up at a roadside restaurant near Brownsville, Amanda stood in front of the mirror and liked what she saw. She was convincing — a pretty woman — and on her trip to San Francisco this time, she could use her looks to help get her there. On the interstate from Texas to California, Amanda befriended truck drivers, who then bought her meals and gave her rides. In return, she offered her services — mainly in the form of fellatio. She didn’t want some homophobic trucker to find out she was really a man, so she told them she was on her period.
Although it took Amanda two weeks to walk and hitch rides from Nicaragua to the Texas border, from there she reached San Francisco in just three days. But she lasted only six months in San Francisco before the INS picked her up again and put her on another plane to Nicaragua. She cried over how she had been beaten and raped by the officials at the airport just a few months earlier, pleading with the immigration officer to grant her asylum. Again, because of her criminal past, her claim was denied. At the Managua airport, Amanda says, the same border patrol lieutenant recognized her, and this time, gave her 24 hours to get out of the country — threatening to kill her if he ever saw her again. Amanda visited her mother for only a few hours, and early the next morning, she again headed for the Honduras border for yet another trip — her third — up the length of Mexico, to Texas and, finally, San Francisco. And again, within months, she was caught and detained in San Francisco by the INS. On the 34th floor of a downtown high-rise, Doug Hodder sits in an office with a clear view of the East Bay. The young, gay attorney works for one of San Francisco’s largest law firms, Morrison & Foerster. As high-powered, corporate, and expensive as the next big firm, Morrison & Foerster still likes to advertise a long-standing image of advocating for the disadvantaged. MoFo, as it’s affectionately called, considers itself a liberal law firm, and is taking on Amanda’s case pro bono. Hodder, who ordinarily focuses on intellectual property work, has never dealt with immigration law. While scrolling through the firm’s list of pro bono offerings, however, he found Amanda’s case compelling. “Gay asylum — especially transgendered — is such a new area of the law, and her case looked very novel,” Hodder says. “And there was a sense of urgency to it.” With his boyish face, buzzed haircut, and jeans-with-no-tie office attire, Hodder looks 27, but is really a decade older. Law is his second career, and he has only been practicing for four years. A thick, three-ring binder with the label “Winning Asylum Cases” sits on his desk. It is his cheat sheet. “He got thrown right in and has been doing a great job,” says Sharon Dulberg, a seasoned asylum lawyer and partner in her own law firm, who is working as Hodder’s mentor. Dulberg specializes in gay asylum, and has won all 30 gay cases she has taken on. Of the more than 200 general asylum cases Dulberg has handled, she has lost just 15. But that winning record involves asylum law. And even though being gay or transgendered now can be a basis for granting asylum, Amanda is not eligible to make a political asylum claim. For most of U.S. history, immigration law forbade the granting of legal status to immigrants who exhibited “sexual deviation.” In 1990, though, that phrase was eliminated from immigration laws as a basis for keeping homosexuals from entering the country. Then, in 1994, Attorney General Janet Reno directed the INS to consider sexual orientation as a legitimate basis for political asylum. The five grounds for asylum — race, religion, nationality, political opinion, and membership in a particular social group — were not amended. But gays, lesbians, and transgenders could now be classified as a social group and gain asylum, if they proved they had suffered persecution in their home countries, or could document a well-founded fear of future persecution. But asylum does not apply to Amanda because of her criminal background. That felony past is probably why none of the immigration officers Amanda encountered bothered to bring up the new policy. (INS spokesperson Sharon Rummery declined to comment on any specific case handled by her agency, but did note that “gender orientation would be irrelevant, if someone has already established a criminal pattern.”) So Hodder, Dulberg, and MoFo have decided to try to stop Amanda’s third deportation by exploring a new, entirely untested area of immigration law: the U.N. Convention Against Torture. They will make their convention argument to a judge in a matter of weeks, and nothing about this area seems settled or easy. First off, avoiding deportation under the convention requires a higher standard of proof than gaining asylum does. Instead of just establishing “well-founded fear” of persecution, as is needed for asylum, Amanda must now show that it is “more likely than not” she will be tortured if she returns to Nicaragua. Amanda’s two lawyers will submit evidence that gays are generally persecuted in Nicaragua, and that being gay is illegal. The lawyers will also present a medical and psychological exam, hoping to show that Amanda’s physical and mental condition are consistent with her testimony. But when it comes to abuse and torture, documentation in the form of official papers that admit a government agency’s persecution is seldom available. Because sodomy and same-sex couplings are illegal in Nicaragua, Hodder says he can make a reasonable argument that even if Amanda’s torturers were renegade government officials, the law provides a motive for such acts. “I do not have to show where in the constitution or laws of Nicaragua it says, ’We endorse the torture of homosexuals,’ ” Hodder says. “I just have to show it is more likely than not that Amanda will be tortured by representatives of the Nicaraguan government — and show that the torture was done under the color of the law, or with an abuse of authority.”
Medical records are often used to back up torture claims if the victim was treated for his or her injuries, but tracking down such records in Third World countries is sometimes impossible. So lawyers often rely on anecdotal and circumstantial evidence: news reports about country conditions, expert testimony, and above all, a client’s story in his or her own words. “So much depends on presentation,” Dulberg says. “Are they believable, is their story credible? Amanda’s case is pretty clear. She has a consistent story. What happened to her is horrific, but not fantastical. Knowing the conditions for gays in Nicaragua, her story seems to fit what happens there.” The U.S. government will try to argue that the conditions are not so bad, and it is the lawyers’ job to show otherwise. Hodder is confident Amanda will be able to handle the government’s cross-examination. “She’s a very intelligent, articulate, and likable person,” he says. In asylum hearings, there is no jury, and the judge has the final say. And in the new area of gay asylum, Dulberg says, some veteran judges — even in San Francisco — can be homophobic, or at least not understand what it means to be gay. “One kept asking my gay client if he had ever been with a woman, or if he ever thought of trying it,” Dulberg says. “The judges can be hyperfocused on sex, and have a ridiculous concept of what gay is.” Another top asylum lawyer recalls one San Francisco judge who was fixated on the movie Longtime Companion, and questioned whether claimants were really gay — even those from Third World countries — if they had never heard of the film. And another judge has reportedly said from the bench that he can’t figure out why there are so many gay people today, because he can’t remember seeing any where he grew up. Actually, though, Amanda is lucky; the judges in San Francisco are for the most part extremely open-minded and fair. The asylum approval rate is higher here than in any other city in the country. Even so, Hodder worries that because Amanda is transgendered, she will be viewed as less desirable or worthy to stay in the U.S. “I’d hate to think someone would say she shouldn’t be here,” Hodder says. “Her criminal record, on the other hand, doesn’t make her case any easier. But if she is returned to Nicaragua, she’ll be tortured. And I don’t think anything she’s done justifies that.” Among other things, the Convention Against Torture is designed to give refuge to criminals — even violent ones — who would not otherwise be eligible for asylum. Hodder says he knows there are people who will say the U.S. has no business incarcerating another country’s criminals, but even if Amanda was a violent criminal, he says he would still represent her. “We can take a humanitarian approach,” he says. “No matter what a person has done, they shouldn’t be tortured for it. Punished, yes. But not tortured.” If the judge in Amanda’s case gives a favorable ruling, it doesn’t necessarily mean there will be much to celebrate. Even though the U.S. has agreed to abide by the Convention Against Torture, and the INS is implementing the convention as policy, Congress has provided no opportunity for successful applicants to gain residency. People who are granted asylum have the chance to obtain green cards, work permits, and eventually become U.S. citizens. It is unclear what will happen to people like Amanda, who may forever remain in immigration limbo. “The only thing you get is protection of removal; you don’t get any other benefits,” says Rick Kenney, spokesperson for the Executive Office for Immigration Review, which oversees the U.S. immigration judges responsible for Convention Against Torture rulings. “It’s new, and it’s complicated. I suppose there will be some sort of status for people under the torture convention. Maybe some kind of parole.” No one really knows. Kenney says about 250 torture convention applications are already pending, and it appears that Amanda’s will be the first one heard by a judge. “No cases have been decided yet, and because this is so new, we want to proceed carefully on our first decision,” Kenney says. “We want it to be right.” Waiting for her court hearing in her detention cell, Amanda remembers the first time she wore a dress. She was still Oscar, a young boy in Nicaragua, when a friend let him try on her clothes. “I was very excited and curious to see what I looked like,” Amanda recalls. “But, yuck! I didn’t like what I saw. I looked like a boy with a dress on. I didn’t see the reflection of a woman, and that made me feel bad. It’s like how I feel today. I feel embarrassed and ashamed when I appear as a man. I miss being a woman.” For nearly a year, Amanda has been locked up at the North County Jail in Oakland. Not for any of her crimes — she’s already served her time for those — but as an INS detainee awaiting resolution to her case. The INS rents space at the jail, because there is not enough room in its own facilities. Amanda is kept in isolation at North County, away from the general inmate population, for her own safety. She has been denied her hormone treatments. She still feels like a woman, but looking at her, it is not as certain anymore that she is one. She longs for the time when she was pretty. At 5 a.m., a guard awakens Amanda and leads her out of her cell for breakfast. She walks with her hands cupped over her mouth and nose. Even though she is alone in her cell 23 hours of the day, Amanda is glad mealtimes only last 15 minutes. She doesn’t want anyone to see she is growing facial hair. It makes her feel ugly. When her whiskers become long enough, Amanda tries to remove them on her own. One by one, she grasps each hair with her fingers and yanks it from her face. For hours, she will sit in her cell and pluck her chin and upper lip until the skin is bare. But in a couple of weeks, the stubble returns. “It depresses me,” she says. “I try to be as feminine as I can. I just forget what I look like, and think I’m a woman. Inside, I know I am.” As her hearing date gets closer, the visits from her lawyer increase. Amanda is preparing for her day in court, and is anxious about the outcome. She knows her odds are not great. She expresses remorse for her crimes. “I recognize my mistakes, and to overcome them you have to admit you made them,” she says. “I did commit crimes, but I did them to survive. I never meant to hurt anyone; it never crossed my mind. As a human being, I would like the opportunity to correct those mistakes. Everyone only sees the bad side of me, and not the good. Whenever I’ve asked for help, it was denied. I’m just looking for another chance, and some help.” Amanda knows that even if she wins, she may not win much. Certainly no chance for U.S. citizenship. And her case may never be resolved, with the INS able to review and challenge it an unlimited number of times, making her prove, over and over again, that she will probably be tortured if she is returned to Nicaragua. She knows that even if she wins, she may never get to leave her isolation cell. Because of her past crimes, a favorable ruling would mean indefinite detention. “Winning will make me happy and sad at the same time,” Amanda says. “Jail life is very sad for me, because I’m not treated like a normal person. But I would prefer being in jail, because I don’t want to return to my country.” Amanda pauses. She looks around the jail’s sterile visiting room, at the guard, her lawyer, a reporter. Her eyes well and she begins to cry. “I’ve been thinking a lot. My dream is to be able to yell to the wind, and be free to say, ’I’m a woman now,’ ” she says. “But I’m afraid of what’s going to happen.” As U.S. Immigration Judge Polly Webber presides over a hearing that officially involves Oscar Serrano, she refers to the detainee as Amanda. In the closed session, Judge Webber listens to just under two hours of testimony and cross-examination, and makes her decision from the bench. She is unsure, but thinks it is the first ruling of its kind. Its implications are unclear; at least for the moment, Amanda will not be sent to Nicaragua, but it is entirely uncertain whether she will ever be released from INS detention, and if she is to gain release, when it might come, and under what legal authority. In fact, the form on which Judge Webber signs her orders does not yet accommodate the new law. So the judge hand writes her decision: The Court grants deferral of removal pursuant to the Convention Against Torture. Copyright © 1999, New Times Inc. All rights reserved. |
In a landmark case, Amanada DuValle, allegedly brutalized in Nicaragua because she is a transsexual, escaped deportation to Nicaragua from the U.S. by invoking the U.N. Convention Against Torture. But if she won, why is she still in jail?
Amy Douglas
Amy Douglas
