Subject: INS Urged to View Persecution Of Gays as Grounds for Asylum Date: Published: 5/28/93 (156 lines) Source: Wall Street Journal. Copyright Dow Jones & Co. Inc. Law -- Legal Beat: INS Urged to View Persecution Of Gays as Grounds for Asylum ---- By Wade Lambert Staff Reporter of The Wall Street Journal Gay and human-rights groups are urging U. S. officials to recognize persecution of homosexuals as grounds for political asylum. The groups are helping three individuals pursue such claims before the Immigration and Naturalization Service, in hopes that their efforts will clear the way for future gay asylum seekers. The three cases, which could take years to resolve, involve a lesbian who was a political activist in Moscow, an Iranian who fears he will be executed under Islamic law for homosexuality, and a gay Nicaraguan with AIDS, who says he will be persecuted if he's deported from the U. S. U. S. law was changed in 1990 to remove homosexuality as a bar to immigration. But few gay refugees have made asylum claims based on their sexuality, partly for fear of publicity or repercussions against relatives back home. Activists say they are taking up such cases now because the harsh treatment of gays abroad, including torture and execution by foreign governments, has received increased attention from human-rights groups and the U. S. State Department in recent years. "The asylum area is traditionally one of the most contentious and polarized policy areas in the U. S.," said Arthur Helton, director of the refugee project of the Lawyers Committee for Human Rights, which supports asylum for persecuted homosexuals. To win political asylum, applicants must show they are refugees and can't return to their home countries because of "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion." The gay applicants' "eligibility is based on membership in a particular social group," said Suzanne Goldberg, an attorney at Lambda Legal Defense and Education Fund, who is working on the INS cases. "There can be little question that lesbians and gay men, when treated as a class or persecuted as a group, fall under that category." Richard Kenney, a spokesman for the INS, said that being a homosexual from a certain country may fit the category for refugee status. But he said the agency has no general guidelines for deciding that question. "We don't make generalizations for any particular cause," he said. "The individual has to make the case for being persecuted as a person. He has to make a very strong case that he's going to subject himself to unreasonable risk of persecution if he returns." One of the hurdles for gay activists is that INS decisions aren't automatically precedent-setting for other applicants. In 1990, the Board of Immigration Appeals ruled that a gay Cuban should be granted refugee status, which doesn't provide as much protection as political asylum. The Justice Department last year turned down a request to make that decision precedent-setting. In the gay Iranian's case, the United Nations High Commissioner for Refugees wrote a letter supporting the asylum claim. The U. N. agency said the 32-year-old man's "fears of persecution are objectively supported by reports concerning the treatment of homosexuals by the Iranian government." The letter cited reports of gay men who were beheaded and lesbians who were stoned to death. The U. N. office said that at least four other countries, including Canada, have granted asylum because of the persecution of gays. The INS recently turned down the application of the Russian woman. In her application, she had cited in detail her involvement in underground gay groups in Moscow in the 1980s and numerous arrests for her activities. But the INS asylum official found that because of recent changes in the former Soviet Union, the woman hadn't proved that the risk of persecution still existed, said Ms. Goldberg of Lambda. Ms. Goldberg said the woman will appeal. --- Limit on Mass Trials Holding mass trials in product-liability cases -- a favorite tool of judges dealing with crowded dockets -- may become much more difficult as a result of a recent federal appeals court ruling. The ruling by the U. S. appeals court in New York stems from the consolidated trial of 48 of 600 cases, known as the New York Powerhouse litigation. The lawsuits were brought by former employees at electric power plants in New York who said they suffered respiratory and other ailments from exposure to asbestos. The Second U. S. Circuit Court of Appeals ruled that federal Judge Charles Sifton in Brooklyn unfairly lumped together the 48 cases for trial. The court said there were too many distinctions between the various plaintiffs to allow for a consolidated trial. The decision won't have a major impact on the Powerhouse litigation overall, because a settlement of about $100 million was reached for all but two of the 600 cases. As a result of the ruling, the remaining two will be sent back for a second trial. While the appeals court didn't prohibit consolidations, it raised questions about the ability of defendants to get a fair trial when they are lumped together. "The maelstrom of facts, figures, and witnesses ...was likely to lead to jury confusion," the appellate panel said in a 2-1 decision. The court spelled out eight factors, such as the similarity of the places where victims worked and the diseases they developed, that judges should consider before consolidating liability trials. In a dissent, Judge John Walker said the ruling could undermine efforts around the country to consolidate liability cases. Judge Walker's concerns were echoed by Kenneth Feinberg, a Washington-based arbitrator, who was appointed by the trial judge to help negotiate the Powerhouse settlement. "The ruling is unfortunate. It throws another judicial roadblock in the way of trial judges trying to deal flexibly with mass liability litigation," Mr. Feinberg said. (Malcolm vs. National Gypsum Co., Second U. S. Circuit Court of Appeals, New York, 92-7963) --- Gaston Plan Hits Snag Creditors of the defunct Gaston & Snow have asked a bankruptcy judge to end efforts to put together a payment plan for creditors and instead allow them to sue the law firm's former partners. Saddled with an estimated $63 million in debt, the Boston law firm dissolved 20 months ago and filed for protection from creditors under Chapter 11 of the U. S. Bankruptcy Code. Under Chapter 11, the partners can't be sued directly while a plan is worked out to pay creditors. Alfred J. Bianco, a partner with Kaye, Scholer, Fierman, Hays & Handler in New York, which represents the creditors, said that after more than a year of talks, only 24 of the 151 former Gaston & Snow partners have approved the payment plan now before the court. Mr. Bianco said he filed a motion yesterday asking U. S. Bankruptcy Court Judge Cornelius Blackshear in New York to convert the case from a Chapter 11 to a Chapter 7 filing, because it's unlikely the other 127 partners will approve the plan. Mr. Bianco said that under Chapter 7, the former partners would be individually and jointly liable, meaning that individual partners could be sued for the entire amount that's owed. Mr. Bianco said the creditors are owed more than $45 million. Under the proposed payment plan, the creditors would have received a total of $23 million over 10 years, with individual partners contributing a portion based on their earnings at the law firm. The partners could take care of the creditors' claims by paying a total of $19.6 million this year rather than over 10 years. Previously, former partners have complained that $23 million was far too much, and they have offered to pay only $5 million. Leslie D. Corwin, a partner at Morrison Cohen Singer & Weinstein in New York, which represents nine former partners, said the partners themselves would have to file for personal bankruptcy-court protection to shield themselves if the judge approves the conversion to Chapter 7. Arthur S. Olick, a partner with Anderson Kill Olick & Oshinsky in New York, which represents 87 former partners, couldn't be reached for comment. Judge Blackshear is scheduled to hear arguments on the motion July 9. --- Jonathan M. Moses and Arthur S. Hayes contributed to this article. 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