Border Crossers

On any given night on the shadowy stretch of Post Street near Polk where the lavender Divas sign glows, a parade of Latina ladies beckons to men with cash to burn and an attraction to women who weren't born women. Ana works the corner with her cartoonish Jessica Rabbit curves squeezed into a red minidress, a mere ad for the services she could render in her bedroom blocks away with a crucifix keeping watch over the headboard. Midblock, Jacqueline Swan asks a potential client if she can touch his package, a test to see whether her prospective john is an undercover cop. Her hair pertly pinned up in a bun, Blanca clacks down the sidewalk in her see-through stripper heels to stay one step ahead of a ticket from the patrol cars rolling by.

Then there are the women who prefer to hustle online. Advertising in Craigslist's Erotic Services in the "t4m" section ("t" for "transgender" or "transsexual"; "m" for "men") is Jannet, a "sexy shemale latina" with all the porn-worthy ass a backroom peddler of industrial-grade collagen could inject. Saesha poses nude on a white satin sheet, bragging not only about her 38DD breasts, but also her eight-inch "100% fully functional secret."

When these women arrived in San Francisco, they were in many ways the nocturnal and more vanity-stricken versions of the day laborers on Cesar Chavez — undocumented immigrants looking for a gig from a passing car. Yet these women have or are seeking a legal status most other illegal residents could never get: asylum.

Since prostitution is a criminal misdemeanor — a majority of San Franciscans voted earlier this month to make sure police enforce it as such — transgender hookers aren't the type of ladies you would imagine Uncle Sam would want to be seen in public with, let alone endorse to stay in the country.

Many of these women figured they'd just live here under the radar forever. After all, transgender women from Latin America are no strangers to life on the margins, treated as freaks or outcasts in their predominantly macho countries where they might have been ostracized, beaten, or raped — often by the police themselves. Few imagined that their gender identity, which had caused all their misery back home, could be their best chance for legitimacy here.

"There I felt like an animal, a delinquent, because that's how they make you feel," says Swan, who fled police brutality in Mexico when her mom heard on the news that she could apply for asylum in the U.S. "I would rather die than live that life. It's like living in hell. Here I feel like I'm in my refuge, at home. ... Here I feel like a person."

Trans-Latina migrants are slowly discovering the asylum option in San Francisco and California. A steady stream of transgender applicants has been showing up in what immigration attorneys say are open-minded asylum offices and immigration courts that have become acquainted with gender-identity–based claims.

Exact numbers of how many transgender women have gotten asylum are hard to come by since the government doesn't track the reason for awarding asylum status. Yet such cases almost seem like a sure thing because of the severity of the alleged discrimination. "You almost gotta try to lose it," attorney Robert Jobe says. In fact, none of the 12 immigration attorneys interviewed for this story could remember any trans clients being denied some sort of protection. Even if applicants can't get asylum, they may still be eligible to stay via other international treaties that offer haven from persecution. And, as many trans-Latina prostitutes have learned, even a lengthy rap sheet in this country won't seriously threaten their chances of receiving protected immigration status.

Hedi Framm-Anton, an immigration attorney who specializes in LGBT asylum cases, boasts that all of her approximately 75 trans clients have won some sort of protection. "If you really have a committed client that wants to make that change [to stop hooking], the San Francisco asylum office will overlook it," she says. "I've had no problems, even with women with extensive criminal backgrounds."

Thirty-year-old Brenda Genao, a native of the Dominican Republic, came to San Francisco nine years ago and quickly fell into a raw and rough lifestyle. She worked as a go-go dancer at the now-defunct Club Universe in SOMA and got hooked on crack. To pay for her habit and the rent, she had sex for money. Over the next few years, she was arrested several times for prostitution, convicted of a felony crack possession, and nailed with a stayaway order from Macy's after she stole a $400 dress. After she was arrested in 2002 for check fraud, city authorities turned her over to the Immigration and Naturalization Service. Genao posted bail, and, afraid she'd be deported, skipped her last court date.

In 2003, though, the law finally caught up with Genao as she walked through the checkpoint at the Tijuana-San Diego border after a failed trip to Mexico for a boob job. Border officers told her that she had been ordered to be deported in absentia at the court hearing she had avoided months earlier, and shuttled her off to the detention center at Otay Mesa, east of San Diego. Faced with returning to the Dominican Republic, where she remembered being sexually abused as a child by a older man in her neighborhood, and gawkers throwing fruit at cross-dressing men in the street, she decided she'd rather kill herself. But a Mexican transgender woman in her cell suggested a less drastic solution. There was an attorney who could help, the cellmate said. Later, when she met with an immigration officer, Genao had a demand: "I want asylum."

Asylum can be granted by asylum officers, immigration judges, or higher appellate courts to those who can show they have faced or have a "well-founded fear" of persecution in their home country because of their race, religion, nationality, politics, or for "membership in a particular social group." That last category was expanded to include gays and lesbians in 1990.

Those already in the country can apply for asylum "affirmatively" — by making their cases to an asylum officer in one of eight offices managed by the Department of Homeland Security's U.S. Citizenship and Immigration Services. Officers approve the cases or refer them to an administrative immigration judge in the Department of Justice's Executive Office for Immigration Review. There, an attorney represents the government in an adversarial hearing in which the claim is granted or denied. But if a person is first apprehended by immigration authorities and invokes asylum as a defense in deportation proceedings, as Genao did, the case is a "defensive" claim and goes straight to the immigration judge.

According to the law, you cannot get asylum if you are considered a "danger to the community of the United States," having committed an aggravated felony, such as a violent crime with a prison sentence of one year or more, or running a prostitution ring. Genao's drug charge wasn't an aggravated felony, yet her record didn't look good, and Fullerton-based attorney Judith Marty told her so. "She had me scared good," Genao says.

At Genao's hearing, an attorney laid out the case against granting her asylum, including her prostitution arrests. In her written declaration, Genao argued that she deserved to stay in the U.S. because of the sexual abuse she suffered as a child. She started using crack as an escape after a man dumped her because she wasn't "completely female." She was introduced to prostitution by a transgender madam named Alaska, who took her in when she was 17. If she were sent back to the Dominican Republic, Genao wrote, she would surely be raped, tortured, and killed.

Immigration judge Zsa Zsa DePaolo was apparently persuaded, and awarded Genao asylum, Marty says. (Asylum court proceedings are confidential; Marty provided Genao's declaration to SF Weekly with her client's permission.) Frankly, the attorney was surprised: "It was a generous use of discretion," she says.

"Discretion" is a key word in asylum cases, as immigration judges and asylum officers are given great flexibility in their reasons for approving or denying a case. Sharon Rummery, a spokeswoman for U.S. Citizenship and Immigration Services, says that, generally speaking, a history of prostitution arrests "wouldn't be an absolute bar, but asylum is a discretionary grant, so we decide on a case-by-case basis."

Government attorneys appealed Genao's asylum status to the Virginia-based Board of Immigration Appeals, the appellate body for the immigration courts, where it was overturned.

But Genao still lives in San Francisco — legally. How is that possible? Though her asylum status was snatched away — probably on grounds of her criminal record, Marty says — the government didn't contest the original judge's grant of two other immigration protections, which can be obtained by more serious criminals.

But those protections also have a higher burden of proof: Judge De Paolo awarded Genao "withholding of removal," which requires that an individual is "more likely than not" to face persecution as opposed to asylum's requirement of a "well-founded fear." She also granted Genao protection under the U.N.'s 1985 Convention Against Torture, for which proof is required that "more likely than not" the person will face torture either by or with the acquiescence of the government.

With her so-called removal withholding, Genao can stay in the country unless she is convicted of a crime carrying a prison sentence of five years or more (which rules out her prostitution arrests). Torture convention protection is even more permanent: You can be imprisoned for life, but not deported. Still, she'll never have the chance to adjust to permanent resident status after a year, as asylees can.

Critics think the U.S. is allowing the wrong folks to stay. "Honestly, people who come here and commit crimes, particularly of a felonious nature ... have a lot of nerve asking for extraordinary relief on humanitarian grounds," says Dan Stein, president of the Federation for American Immigration Reform (FAIR), a national organization aimed at curbing illegal immigration. "They think they can abuse American hospitality by routinely breaking the law."

Gay and lesbian immigrants have been eligible for asylum protection since 1990, when the Board of Immigration Appeals upheld a judge's decision deeming gay men in Cuba a "particular social group." That was later extended as a precedent to sexual orientation claims from any country by then–Attorney General Janet Reno. However, transgender people aren't yet explicitly acknowledged as a distinct social group — at least not in name. But in a landmark ruling in 2000, the Ninth Circuit Court of Appeals paved the way for transgender claims by recognizing "gay men with female sexual identities" as a group eligible for protection.

At the center of the case was Geovanni Hernandez-Montiel from Mexico, who started dressing like a girl at age 12. Hernandez-Montiel said he was sexually assaulted twice by the police when he was 14, and soon after was attacked with a knife by a posse of men who mocked his sexual orientation. His sister kicked him out of the house as a teen and he fled to the United States, filing for asylum and withholding of deportation in 1995.

The immigration judge denied both protections, saying that since Hernandez-Montiel dressed like a man at some times and a woman at others, he couldn't claim "his assumed female persona as ... immutable or fundamental to his identity." The Board of Immigration Appeals shot down his appeal, noting that he didn't prove his persecution was based on being in the group of "homosexual males who dress as females."

But the Ninth Circuit Court of Appeals — which hears appeals of lower-court decisions in nine Western states, including California — decided the case wasn't about fashion, but identity. In its ruling, the court said "gay men with female sexual identities in Mexico" were a particular social group, stating that Hernandez-Montiel's "female sexual identity is immutable because it is inherent in his identity; in any event, he should not be required to change it." He got both his asylum and withholding of removal, which set the stage for many other transgender people to be eligible for asylum on the Ninth Circuit. (Attorneys on other circuits can present it in cases, but it isn't seen as a binding precedent.)

"It had really helpful language that strongly suggested that a transgender person would be a basis for asylum," says Zachary Nightingale, a San Francisco immigration attorney who represents LGBT asylum seekers. "That's been super helpful, but it wasn't without a fight." The fight continues: The Republican National Committee's election platform this year included ending asylum "on the basis of lifestyle choices and other nonpolitical factors."

Over the years, immigration-policy critics have said that opening up asylum for transgender applicants would invite a flood of people who could claim a "well-founded fear" of persecution. FAIR president Stein says the system has created a "back-door immigration program" for people to illegally enter the country, or to enter on a tourist visa and claim asylum once they get here, instead of applying for refugee status in their own country. "Who in their right minds who's lived in Mexico would want to stay there if they could make an asylum claim and come live in the U.S.?" Stein says.

With no definite numbers, it's impossible to say whether there has been an increase in the number of transgender people applying for asylum. Immigration Equality, a national nonprofit for LGBT immigrants, estimates cases number in the hundreds. Anecdotally, the attorneys and organizations interviewed for this story reported winning some protection for as many as 380 clients.

Immigration attorneys argue there will never be a tsunami of transgender applicants. Most women don't learn until they get here that they can apply for asylum, and even then, many are wary of putting themselves at the risk of deportation when they could merely continue living here illegally. Attorney Robert Jobe characterizes the 30 cases he's done as a "steady drip" — with each client referring him to a couple of others in the same situation.

While there may not be a flood of asylum seekers, specialists in the field acknowledge that very few transgender migrants are denied asylum and other immigration protections. Dusty Araujo, former asylum documentation program coordinator of the International Gay and Lesbian Rights Commission, said he knew of five transgender cases that had been denied asylum across the United States — though he didn't know whether they had won another protection — and none had legal representation.

"They are probably the highest approval rate because the situations are so extreme," says Judith Marty, who has had every one of her roughly 60 completed transgender cases awarded some sort of protection. "There are people that have never had advantages in their life."

The stories are often horrific. One woman's transgender roommates were murdered while she was out; another woman was cut by men who broke into her house the day after she'd lodged a complaint about being forced to give a police officer oral sex. One woman presented a newspaper article at her asylum hearing about Raul Osiel Marroquin Reyes, aka "The Sadist," a serial killer in Mexico City convicted this year of kidnapping four gay men and holding them for ransom, hanging them, dismembering them, and putting their remains in suitcases he left in the street, saying he was "doing a good deed for society."

Given that most refugees fleeing for their lives have little time to gather evidence, the brunt of an asylum application often comes down to the applicant's testimony. In a report to Congress in September, the U.S. Government Accountability Office stated that more than 80 percent of immigration judges found it moderately or very challenging to verify fraud or assess the credibility of asylum applicants; a majority of asylum officers agreed.

But attorneys say fraud is rare for gay and lesbian cases, and even harder to fake in transgender cases. Even if applicants are at an early stage in their physical transition and still look male, it's hard to fake a credible testimony of what it's like to feel like a woman living in a male body.

A new law passed in 1996 intending to cut down on superfluous claims required people to file applications for asylum within a year of their last arrival in the United States. But some asylum seekers have found ways to get around it.

At 34, Ana (not her real name) considers herself one of the old guard of the transgender prostitutes in the Tenderloin. A native of coastal Mexico, she moved to San Francisco in 1992 after being deported several times from Los Angeles following arrests for prostitution. While her sex work has been relatively profitable, enabling her to convert herself into an altar to silicone and to send enough money back to Mexico for her mother to build a house, she's gotten bored. After 9/11, the thousands of dollars she could make in a night dried up. Now, she complains she can barely make living expenses, and says she doesn't want to end up like a couple of older transgender ex-prostitutes she knows in the city who live in drug rehab programs, not because they're addicts, but because they have no money to pay rent elsewhere.

So when Ana heard about asylum from the newer generation of transgender arrivals, she decided it was time to become legal. She figured she was qualified, having been beaten and having had stones thrown at her in her adolescence. Yet there was one problem: The last time she entered the country was after a trip home in 1997. Her one-year expiration was long past due.

So Ana packed her bags and flew to the country where she fears persecution for three months, bringing back some "evidence" to prove she was beaten so many years ago. While she was there, she says she bought a car so she wouldn't have to face taunts in the street; she mostly just stayed home with her mom. Still, the virtual bubble wasn't enough to avoid problems. One afternoon, she got out of the car to go clothes shopping and two or three "thugs" attacked her with punches and kicks.

Ana re-entered the U.S. with a coyote she hired for $4,000, returned to San Francisco, and found an attorney within a month to apply for asylum. "That's just an effort to fraudulently manipulate the system for no good cause," says Dan Stein, when told of Ana's story.

"How am I tricking the system?" Ana asks. "I'm not cheating."

Ana apparently isn't the only one in this kind of situation to go back to her homeland and return seeking asylum. Attorneys contacted for this story say it does happen, although they advise against it, since transgender women are putting themselves at risk for further persecution. Crossing the border is especially dangerous, as many report being threatened or raped by the border smugglers themselves. It also raises suspicions at the asylum office of why they'd return to a country if they were scared of persecution there, says Noemi Calonje, immigration project director of the National Center for Lesbian Rights, which has successfully represented 20 cases.

The courts disagree on whether the practice should be allowed. The Second Circuit Court of Appeals ruled in 2004 that a Costa Rican man who'd lived in the United States for nearly a decade couldn't restart the clock after a month-long trip to the country, saying it would "undermine the one-year deadline's clear purpose of focusing the asylum process on those who have recently fled persecution in their home countries." Yet in a decision earlier this month, the Board of Immigration Appeals decided a Mexican man's trip home for his stepfather's funeral after living illegally in the United States for more than a decade constituted a legitimate reason to restart the asylum clock. The board said it found no basis for construing that the law somehow would exclude short trips out of the United States, yet didn't formally issue a decision on whether such trips were allowed if their sole intent was to re-enter and ask for asylum.

With no clear rule so far, it's another factor that plays into a judge's discretion. Most transgender immigrants "don't know [that they can apply for asylum] until they've been here a few years," attorney Marty says. "They could have found another way to fight fraud than creating a rule that keeps people who need asylum from getting it." It doesn't seem that it does. Leaving the country just to be able to re-enter for asylum "would not have any bearing" on whether the case gets approved, asylum office spokeswoman Sharon Rummery says.

Ana is still awaiting the final ruling on her asylum request. Applicants are eligible for a work permit 180 days after applying for asylum; she got hers eight months ago, and says she dropped off applications at five restaurants and two hotels, but nobody has called her back. So, even though her attorney told her to stop hooking, for now, that's what she continues to do, taking several clients a night from Post Street back to her room a few blocks away.

When told about asylum seekers prostituting, Dan Stein was appalled. "It doesn't matter if you think prostitution is wrong or right, it's illegal," he says. "And people whose attachment to the civil society is very tenuous because they're here illegally, or with an asylum claim pending, have a particular obligation to scrupulously follow the law."

Ana says she has no other option: "They don't give transgenders work. ... Give us work. Don't leave us alone."

Of course, not all transgender asylum seekers are hookers. In fact, some trans Latinas say that the ones who claim they can't find other jobs are just making excuses. One woman interviewed for this story worked in a cheese factory until she applied for asylum, and has moved to Los Angeles, where she works with kids in an after-school program. Others have found jobs as line cooks or field hands. Claudia Lesly Quijano, who says she saw more than her share of hell in Mexico, cuts hair in the Mission for a mostly Spanish-speaking clientele: "I think you put the limitations on yourself," she says. "When you have the conviction and mentality to grow, it doesn't matter if you don't speak English."

Judith Marty, meanwhile, says 85 percent of her clients who did sex work will leave it behind when they become legal: "You get to see people just bloom." Still, some continue to moonlight as hookers even after finding work as elder caretakers, hairstylists, nonprofit caseworkers, or student mentors. Jannet, who advertises her sexual services on Craigs-list, says she had no choice but to return to sex work after the Mission salon where she worked closed; a hand injury prevents her from holding scissors to cut clients' hair at her home. She says she's applied to work at nonprofits to help transgender people, and sat at a local union hall waiting for a job, with no luck. "I don't do this [hooking] because I want to," she says. "I do it out of necessity.

"I can't complain," she adds. "This country has given me respect. I'm very lucky the government helped me, but jobs, there are some, but I can't get them."

While asylum may guarantee transgender Latinas protection from violence back home, it's no guarantee of the good life here, either. Five years after getting her withholding-of-removal status, Brenda Genao says she weaned herself off crack years ago, but she still uses drugs. She returned to San Francisco a few months ago after being arrested in Las Vegas for driving a stolen car, and now strips two nights a week at Divas.

Genao says she likes stripping (she enjoys it when the men tuck money in her panties, a gesture she interprets as recognition of her beauty), but she can't say the same for the sex work, which she does in the cramped SRO hotel room she shares with her miniature poodle, Brandon Joshua, named after herself and her first lover. "Sex is great when you enjoy it," she says. "It's more great when you're in love. But when you have to do something you don't like, it's degrading, nasty, gross. ... You know when you drink those drinks to clean your stomach? It's like that. It's very irritating." She insists she'd love another job — she thinks she'd be good as a teacher's assistant — but with her record, she doubts anyone would let her near children. " I'm in this routine. I'm like in a box, this life. It's the same thing every day."

Genao wants to make a change. "I can't sell my pussy forever," she says. So, earlier this month while posting her ad on Craigslist, she checked out another prospect: an online course to earn a GED. She'll have to do a whole lot more hustling to make the $1,000 payment for materials, but she figures it's a start.