Department of justice and LGBT immigrants: more appeals hit the federal courts.

JORGE SOTA VEGA FINALLY WON his asylum case in January, but only after appealing an immigration judge's decision that the 38-year-old Mexican could avoid persecution in his homeland by not being so "obviously" gay. But the outcome for Sota Vega is not common.

In 2001, former Attorney General John Ashcroft implemented a streamlining process that gave individual immigration judges more discretion in decision-making, which has meant more power for judges who are likely to deny an asylum claim than to approve it. Coupled with changes from the REAL ID act of 2005, the result is that asylum seekers are less likely to win their cases, said Chris Nugent, a lawyer who works on Lesbian, Gay, Bisexual and Transgender (LGBT) asylum cases at Washington, D.C.-based Holland & Knight.

Asylum seekers are now appealing the decisions of immigration judges in federal court, and more cases are being sent back to the lower courts. But the sheer volume means that many cases are just languishing in the federal court system.

Researchers at the Transactional Records Action Clearinghouse (TRAC), a non-partisan research group, issued a report last year that found wide discrepancies in the decisions being made among immigration judges, even on very similar cases. "This raises questions about the training [immigration judges] get, the basic rules they operate under," said David Burnham, co-director of TRAC. "This is not equal justice under law."

While immigration cases of all sorts are increasingly ending up in the federal circuit courts, the situation for asylum seekers is particularly dire: if their cases do not succeed, they face the specter of persecution and possibly death upon deportation to their countries of origin. And the case for LGBT immigrants seeking asylum can be even more tenuous as they face homophobia both in the U.S. courts and the countries they left.

"Since I didn't fit the stereotypical image of a lesbian, it was more difficult to convince the officials that I am gay," said Dilcia Molina of Honduras. In her petition, Molina said paramilitaries affiliated with the Honduran government broke into her house in 2001 and tortured her 6- and 8-year-old sons and their caretaker. The paramilitaries demanded to know her whereabouts and threatened to rape and kill her when she returned. "It's painful to have to retraumatize ourselves in order to convince a government functionary that we have lived through such crimes in our countries," said Molina, who organizes against gender-based violence in the D.C. area.

With circuit court judges returning cases to immigration courts and studies such as the one by TRAC, Attorney General Alberto Gonzalez was "forced to do a study, which is very unusual," said Burnham. Last August, Gonzalez released a 22-point plan to address the problems with the immigration courts. Advocates like Nugent, however, say the proposal is practically meaningless, because it addresses only surface-level issues, not the structural biases against both immigrants of color and LGBT immigrants.