Lesbian US war deserter wins stay of deportation

AP News
Posted: Nov 20, 2009 5:08 PM

A lesbian who deserted the U.S. military and fled to Canada must be given another chance to plead her case for refugee status, Canada's Federal Court ruled Friday.

Judge Yves de Montigny said the board erred last February when it rejected Bethany Smith's bid for refugee status.

Smith says she fled the army because she was harassed and threatened by fellow soldiers over her sexual orientation. She told of hundreds of threatening notes pinned to her barracks door.

She testified she was stationed at Fort Campbell, Ky., the same base where a gay soldier was beaten to death with a baseball bat in 1999. She said she received a note that threatened her with the same fate.

The U.S. military has a policy of discharging openly gay members but Smith said the army shrugged off her confession, saying the paperwork to discharge her would not be ready until after her next rotation to Afghanistan.

After being denied a discharge, Smith, who was 19 years old at the time, drove to the border at Cornwall, Ontario, with another soldier two years ago. She adopted the name Skyler James upon settling in Ottawa, Ontario.

She took her case to Federal Court after being rejected as a refugee by the Immigration and Refugee Board.

The Federal Court ruled Friday that the board must reconsider her case because it unfairly dismissed evidence suggesting gays face harassment and brutality in the American military.

"It is true that the board member summarized at some length the evidence offered by the applicant, but he has by no means considered it, let alone analyzed it and provided reasons for dismissing it," the judgment said.

He said the board had an obligation to assess whether American military law was discriminatory against gays or would be applied in a discriminatory fashion.

The judge accepted Smith's assertion that she would fear for her life if she were deported and returned to the army.

"At the heart of the applicant's claim is that she is a lesbian member of the U.S. army, who was harassed and threatened at the same base where a gay member of the army was beaten to death and who feels she could not rely on her superiors to secure protection."

"She fears that she could be punished for leaving an environment where her life is in danger."

In June 2008, Canadian Parliament passed a resolution urging the government to allow American military deserters to stay in Canada. The government has ignored the motion, which was passed by the combined opposition against the Conservative minority.

Most war resisters in Canada are U.S. military personnel who have refused to participate in the Iraq War on the grounds that it's illegal and immoral.

There are thought to be about 200 American military deserters who have come to Canada to avoid service in Iraq.

Canadian immigration officials and the courts have rejected efforts to grant them refugee status, and several face deportation. At least two have already been deported to the U.S.

During the war in Vietnam, thousands of American fled to Canada to avoid the draft. Many were given permanent residence status that eventually resulted in citizenship.