(CN) – An immigration judge relied on “impermissible stereotypes about gay people” in discounting the testimony of a Serbian asylum seeker who, according to the judge, “bears no effeminate traits,” the 11th Circuit ruled.
In denying Mladen Zeljko Todorovic’s petition for U.S. asylum, the immigration judge said Todorovic “does not appear to be overtly gay … since he bears no effeminate traits or any other trait that would mark him as a homosexual.”
The judge later reiterated that “it is clear that this gentleman is not overtly homosexual and there is no reason he would be immediately recognized as such.”
The Atlanta-based federal appeals court said the judge’s credibility determination and findings “were impermissibly influenced by stereotypes about homosexuals.”
Although judges can consider a person’s demeanor in deciding if his testimony is credible, the credibility determination must ultimately “rest on substantial evidence, rather than on conjecture or speculation,” Judge Stanley Marcus wrote.
“One clearly impermissible form of conjecture and speculation, sometimes disguised as a ‘demeanor’ determination, is the use of stereotypes as a substitute for evidence,” Marcus added.
In Todorovic’s case, the immigration judge “relied on impermissible stereotypes about gay people as a substitute for substantial evidence,” the appeals court ruled.
Todorovic claimed that he had been repeatedly harassed by his high-school classmates, raped by soldiers and at least one commanding officer in the Serbian army, and beaten unconscious by an anti-gay mob.
He said Serbian police stopped him and his boyfriend, a gay-rights activist, and took them to the police station, where they forced Todorovic to perform oral sex on the “filthiest” inmate, saying they “brought a hooker up here so you can have some fun.”
An officer then interrogated and beat Todorovic, saying he “hates fucking faggots” and hopes they all get “exterminated,” according to Todorovic.
Todorovic joined the crew of a cruise ship and sailed to Miami in November 2000, where he lived for two years before filing for U.S. asylum and withholding of removal.
The 11th Circuit ordered immigration authorities to hold a new factual hearing on Todorovic’s case — one that’s “free of any impermissible stereotyping or ungrounded assumptions about how gay men are supposed to look or act.”