Too butch to get asylum: the Canadian government says Fernando Enrique Rivera is not nelly enough to be in danger of persecution, so it's sending him home.

Fernando Enrique Rivera, an openly gay Mexican, aright have won asylum in Canada if only he looked more effeminate. But he's a masculine former police statistician, and the Canadian government says that's reason enough to discount his claims of persecution in his native country.

"It's appalling in this day and age that the government is judging him because lie's not flamboyant enough," Don Kearney of the national gay rights group Egale Canada tells The Advocate. "I couldn't believe that was coming out of a government department. It's very upsetting and draconian."

Rivera, 30, is fighting deportation back to Mexico after a federal court judge in April upheld a December 2002 Immigration and Refugee Board decision rejecting his request for asylum. "Effeminate gestures come naturally and unconsciously," IRB member Milagros Eustaquio wrote in her report. "If [Rivera] were indeed visibly effeminate, I do not think it is likely he would have been able to easily land a job with the 'macho' police force of Puerto Vallarta."

Rivera, who is now appealing through a humanitarian and compassionate review, says he refused to play up his gayness in order to bolster his claim. "I know some gay refugees who put on lipstick and dressed effeminately for their hearings because they thought it would help their case," he told The [Toronto] Globe and Mail newspaper. "But that is not who I am."

Rivera applied for refugee status three months after entering Canada in 1999. He claimed his coworkers in Puerto Vallarta had begun to suspect that he is gay and he grew increasingly concerned after a lesbian police officer was fired. At one point, Rivera said, two officers confronted him and threatened to inform his boss of his sexual orientation if he didn't pay them money.

Although the IRB believed Rivera, Eastaquio argued that he could relocate to Mexico City, where, she suggested, conditions for gays are more favorable. According to documents relied on by the IRB, only effeminate men, HIV-positive men, political activists, and whistle blowers in Mexico are in need of refugee protection.

The IRB also reviewed evidence about gay issues in Mexico City and found it included the presence of gay politicians, a 17-year history of gay pride marches, legislative changes favoring gay people, and the highly publicized marriage of 400 gay couples in 2002.

Kearney says he isn't aware of any Canadian legislation or guidelines on what amount of flamboyance is acceptable. "In a way it's frustrating," he says. "I think the [refugee] board is trying to hose us."

He argues that the IRB is basically telling Rivera to "be in the closet. If so, then you can come here." He says Egale will put more pressure on the immigration department to change IRB criteria pertaining to gay applicants.