Trans woman seeks asylum, faces deportation

Bay Area Reporter, CA, USA

Issue: Vol. 36 / No. 35 / 31 August 2006

Trans woman seeks asylum, faces deportation

by Zak Szymanski
z.szymanski@ ebar.com

08/31/2006

Michelle Saraswati was getting ready to step into the shower on
Tuesday, August 8, when there was a knock at the door of her San
Francisco apartment. That knock turned out to be a signal that the
past few years of uncertainty had caught up with her.

Immigration officials promptly arrested the 40-year-old professional
architect, with a threat from the U.S. government that she soon
would be deported back to the Muslim island of Java on Indonesia.

"I am so scared. This is like an execution for me," Saraswati told
the Bay Area Reporter during an interview from the Santa Clara
County jail in San Jose on Sunday, August 27. "If I have to go back,
my life will be over."

Saraswati, originally known as Michael Setiabudi to the federal
Board of Immigration Appeals, is a transsexual woman.

Although the U.S. has its share of transgender discrimination and
violence, Saraswati has been living as openly trans here and working
as an architectural drafter, contributing to design development for
numerous houses, high schools, and colleges including Horace Mann,
Galileo High School, and City College of San Francisco.

There are no laws or legal recourse in Indonesia for transgender
discrimination or hate crimes, and returning to her home country
would virtually guarantee her a life of poverty, joblessness, and
abuse, she said. It's not just that employment opportunities for
transgender women (known as "warias") are limited to hairdressing
and prostitution, but that such options would not be feasible for
Saraswati at all, given her background and education in the class-
segregated society. Such jobs also make transgender women targets
for violence.

"I don't know the first thing about doing hair and I will not do sex
work, so I don't have any way to earn a living. But even if I
learned how to do hair, I would still have to get home at night on
public transportation by myself. I could be tortured," she said. " I
saw Muslim men hit the warias and throw rocks at them. I also saw
how common it was for the men to sexually assault the warias by
grabbing at their bodies without their consent. It is widely
believed that there is nothing wrong with men grabbing a waria's
body. If I am forced to go back, I know that I will be treated as
the other warias are – beaten and sexually assaulted with no one to
protect me."

Saraswati also happens to be Catholic in a Muslim country, which she
said increases her chances for discrimination and violence.
Additionally, her family members rejected her after her gender
transition, and she has nobody to turn to in Indonesia.

Three weeks after her arrest, Saraswati has been able to secure
emergency legal assistance, a temporary stay of deportation, and the
committed support of her circle of friends. But she remains housed
in the men's prison, anxiously aware that any change in her status
could put her on the next flight out of the country. And her case is
a difficult one, where every legal decision matters and every day
counts.

Long journey

While Saraswati's immigration struggles can be traced back several
years, her journey to her true female self really begins in
childhood, she said. Always effeminate – her father, a medical
practitioner, gave her male hormones for a while when she entered
puberty – she had assumed she was a gay man due to her sexual
attractions to men. As an adult homosexual man in Indonesia, Michael
Setiabudi was frequently beaten and faced discrimination. Although
aware of warias, Setiabudi also assumed that he had nothing in
common with them given the distinct separations in society. This
assumption followed him to America, which he entered in 1998 on a
tourist visa, soon securing a temporary work visa for architecture,
which expired in 2001.

On November 30, 2001, Setiabudi applied for asylum based on the
violence and persecution that he had suffered as a gay man, which
was how he identified at that time. The application was denied by an
immigration judge who did not appear sympathetic to the case, and it
was then denied on appeal by the Board of Immigration Appeals.
Setiabudi was not advised of the right to appeal the matter further.

Fearing for his safety, Setiabudi decided to stay in America for as
long as he could. Interestingly, U.S. officials noted at the time
that had Michael Setiabudi been a transsexual, there would have had
been more of a case for asylum.

But despite being in the trans-friendly city of San Francisco, "I
was a loner," said Saraswati of her early days in the city,
explaining how she was not tapped into any trans awareness at the
time of her original case. Though she had been secretly cross-
dressing since 2001, it took extensive Internet research for her to
understand that she did have options in America and could continue
to be self-sufficient in San Francisco even if she transitioned.

"In December 2004 or January 2005, I started thinking more about the
fact that I have always identified as a very feminine person. I also
started to realize that I was actually not very attracted to gay
men, or comfortable in gay male relationships, and found myself much
more attracted to heterosexual men," her personal statement reads as
part of a new motion to re-open her case for asylum. "Through this
Internet research, I found out about the Tom Waddell clinic in San
Francisco, where I live, which has a specific transgender program,
and began seeking medical treatment from the medical staff there. In
approximately March or April 2005, after undergoing three months of
psychological counseling, I decided to begin taking hormone
medications to take steps towards coming out of the closet as a
transsexual. This was a very huge and scary step for me."

Proving that Saraswati has an authentic transsexual identity and
experience – yet was unaware of her trans status until recently – is
crucial to her new case, as asylum claims can only be filed again if
there is a significant change in circumstance.

Zach Nightingale, an attorney with the law firm Van Der Hout,
Brigagliano & Nightingale, said that Saraswati's medical and legal
gender change "gives rise to a whole new reason for asylum," and he
is representing her in a claim to re-open the case. Although it is
possible that the government could claim Saraswati transitioned
genders in order to be granted asylum, Nightingale does not think
such an argument would hold much weight. "That's a pretty big step
for another long-shot asylum case."

But higher-up, confusion about the differences between sexual
orientation and gender identity may play a role in how the case
moves forward. Last week, the Board of Immigration Appeals denied a
request to stay Saraswati's deportation, based on the likelihood
that they would also deny her motion to re-open her asylum case. The
Department of Homeland Security then filed an opposition to re-open
the case, due to Saraswati already filing for asylum based on sexual
orientation.

Nightingale immediately filed with the 9th U.S. Circuit Court of
Appeals, asking it to grant a stay of deportation while the asylum
matter is adjudicated. Filing with the 9th Circuit automatically
granted a temporary stay of deportation, but if the 9th Circuit
rules against the motion for the longer-term stay, Saraswati could
immediately be deported, at which point she will no longer have an
asylum case at all.

In the meantime, Saraswati said she "would rather be in the women's
jail" but she is receiving her hormones and feels generally well-
treated in Santa Clara, a few "intimidating" prisoners aside.

A group of supportive friends have set up a legal defense fund
through the PayPal account asylumformichelle@ yahoo.com or the
Michelle Saraswati Legal Defense Fund, c/o Annalise Ophelian, 740 A
14th Street #199, San Francisco, CA 94114. Many community members
also have submitted statements on Saraswati's behalf to support a
new asylum claim. And although local officials do not have
jurisdiction over the matter, they are indeed watching the case with
interest.

"Michelle puts a face on a serious problem with this country's
immigration problems," said San Francisco Supervisor Tom
Ammiano. "Xenophobia, homophobia, and transphobia are not attributes
to be admired in a democratic society."

Supervisor Bevan Dufty told the B.A.R. that he has contacted the
office of U.S. Congressman Tom Lantos (D-San Mateo) for help with
the matter.

"He's the co-chair of the human rights caucus and he has helped me
before in matters of LGBT immigration, and his office has pledged to
make some inquiries and coordinate with us to see what can be done,"
said Dufty.

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