Asylum OKd on Basis of Homosexuality : Immigration: Gay man said he would be persecuted if returned to Mexico. Experts say INS ruling is a first.

SAN FRANCISCO —  In what appears to be a precedent-setting case, the U.S. Immigration and Naturalization Service has granted asylum to a gay Mexican who said his sexual orientation subjected him to persecution in his homeland.

Jose Garcia won his bid to remain in the United States earlier this week after telling immigration authorities that he was ostracized by fellow citizens and harassed, beaten and raped by Mexican police because he is gay.

Garcia, who is using a pseudonym to protect his privacy, also presented evidence linking members of the Mexican police and military to assassinations of homosexuals, and said he feared retaliation if he was sent home because he is a visible AIDS education activist in San Francisco.

Under U.S. immigration law, asylum is granted only if an applicant can prove “a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group.”

INS officials said Garcia’s case appears to mark the first time their agency has acknowledged that a homosexual may belong to a persecuted social group that deserves asylum.

Last year, an immigration judge in San Francisco granted asylum to a gay Brazilian man who was being deported by the INS. The judge acted after hearing evidence of pervasive anti-gay violence in Brazil, including the testimony of a prominent anthropologist who estimated that a Brazilian homosexual is killed every five days.

Experts say the Garcia decision is different because it marks the first time the INS has granted a petition based on sexual orientation.

“To have the agency itself make this finding is an important precedent,” said Charles Wheeler, directing attorney of the National Immigration Law Center in Los Angeles. “In the past, membership in a social group has been a very difficult category to prove.”

Ron Silberstein, Garcia’s San Francisco attorney, agreed: “Lawyers have been arguing for this for a long time. It’s nice to see the Immigration Service agree with us.”

Advocates for gay and lesbian rights hailed the decision as a breakthrough. In Los Angeles, leaders of the Lambda Legal Defense and Education Fund expressed hope that Garcia’s success would help three applicants--a Russian lesbian and two gay men from Iran and Nicaragua--they are aiding with asylum petitions.

“This nation has always been a beacon of hope for those who are persecuted in their homelands,” said J Craig Fong, Lambda western regional director. “It is gratifying to now see the U.S. offer safe harbor for those persecuted for their sexual orientation.”

INS officials, however, cautioned that Garcia’s victory is no guarantee for others.

“It does not mean by any stretch of the imagination that anyone who is gay in Mexico has a valid case for asylum in the U.S.,” said Duke Austin, an INS spokesman in Washington. “The facts in this case simply convinced the officer that asylum was warranted.”

Garcia, who is in his mid-30s, came to the United States 12 years ago after what he called a life of unspeakable degradations in Mexico. Taunted and humiliated by his countrymen, he said he was also arrested for patronizing gay bars, jailed for crimes he did not commit, beaten and, on one occasion, raped by a Mexico City policeman while in custody.

“I had no one to turn to,” Garcia said at a news conference Thursday. “When I heard that being gay in the United States was tolerated and even accepted in some areas, I had only one desire: to flee Mexico for the United States.”

Garcia’s asylum bid was aided by evidence supplied by the International Gay and Lesbian Human Rights Commission. The commission described rampant intolerance in Mexico and said police and government officials have obstructed the investigation of a series of assassinations of transvestites in Chiapas.

Mexican government officials defended their country’s treatment of gays and lesbians and called Garcia’s portrayal of life there inaccurate.

“We respect the human rights of anyone without consideration of sexual orientation,” said Daphne Roemer, spokeswoman for the Consul General of Mexico in San Francisco. If Garcia had brought his concerns to Mexico’s human rights commission, she added, he would have learned that “we’re very concerned about these issues.”

Times researcher Norma Kaufman contributed to this story.