11th Circuit Revives Gay Ukrainian’s U.S. Asylum Claim

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled on July 8 that Oleksiy Okhremenko, a gay man from Ukraine, is entitled to reconsideration of his petition for asylum in the United States.  After criticizing in detail the credibility findings of an Immigration Judge, who had discounted Okhremenko’s testimony about being severely beaten by anti-gay skinheads outside a gay bar, the court vacated the Board of Immigration Appeals’ decision and sent the case back to that agency so that it or the Immigration Judge “can reevaluate Okhremenko’s credibility in light of this opinion.”  Okhremenko v. U.S. Attorney General, 2013 U.S. App. LEXIS 13719 (11th Cir., July 8, 2013) (unpublished disposition).

Okhremenko first came to the U.S. on a student visa to attend a summer program in 2006.  He returned to Ukraine at the end of the program, but returned the following summer to participate in another summer program.  He then returned to Ukraine to finish up work on his university degree and returned to the U.S. in June 2008 on a J-1 visa, which would allow him to participate in a student-exchange or work program.  He then applied for asylum, contending that he had been persecuted in Ukraine for being gay and feared future persecution if he returned to Ukraine.

At his asylum hearing, he testified that he had begun a relationship with another man when he began attending the university in Kherson, and that he and his boyfriend frequently went to a bar called Beau Monde, which was known to be a place where gay people were welcome.  Okhremenko testified that he had heard stories that Beau Monde’s customers sometimes became targets of violence, but he did not believe these stories since he didn’t know anybody personally who had been so victimized, and he “did not want to spend his whole life in his apartment.”  He testified that he and his boyfriend were attacked by anti-gay skinheads when they were leaving Beau Monde one night in March 2008.  “The attackers hit them with baseball bats and yelled insults and threats related to their sexual orientation,” wrote the court, summarizing the testimony in the hearing record.  “After physically assaulting Okhremenko and Pereschlyuha [his boyfriend], the skinheads stole the men’s wallets, cell phones, and jewelry.  Both Okhremendko and Pereshlyuha were seriously injured.  Okhremenko had a fractured right hand, two broken ribs, and head trauma.  He was hospitalized for three weeks.  When Okhremenko reported the attack to the police, an officer told him that if he did not want to be beaten again, he should not present himself in public as a homosexual.”  

Okhremenko documented his testimony with hospital records stating the date of his release and summarizing the medical treatment he received, three years of Human Rights Reports from the U.S. State Department recounting the hostility towards gay people by officials in Ukraine, as well as intolerance by Ukrainians against gay people, and letters from friends and family members corroborating that he is gay.  He also provided newspaper articles describing the goverment’s anti-gay hostility.

The Immigration Judge rejected his petition, finding that his testimony was not credible because the hospital records did not describe his injuries in detail and there was no confirmatory statement or letter from his boyfriend, as well as various “inconsistencies” the IJ found between his written asylum petition and his testimony at the hearing.  The IJ’s opinion, as found by the court of appeals, contained blatant mischaracterizations of the evidence.  For example, although Okhremenko had testified about anti-gay threats shouted by the skinheads, the IJ questioned his credibility because he had not mentioned this detail in his written asylum petition, only in his hearing testimony. 

The IJ also found inconsistent Okhremenko’s testimony that he personally did not known anybody who had suffered violence at Beau Monde while at the same time testifying that his boyfriend had been beaten outside his apartment by somebody who had recognized him as a customer of Beau Monde.  “The finding of inconsistency is not supported by the record,” said the court, which criticized the judge for pulling Okhremenko’s statement out of context and then mischaracterizing it.  “Read in context,” the court commented, “Okhremenko’s testimony was not that he did not personally know anybody who had been attacked anywhere; it was that he did not personally know anybody who had been attacked at Beau Monde. That is entirely consistent with his later testimony that Pereshlyuha was attacked outside his apartment by someone who recognized him as a customer of Beau Monde.”

The court concluded that the IJ’s “inconsistency” findings were “not a specific, cogent reason that supports an adverse credibility determination on his ‘personal perceptions about the reasonableness of [a person’s] actions.'”  The court also disagreed with the IJ’s conclusion that the incident with the skinheads was basically a robbery, not an anti-gay assault.  The court went on to find several further instances where the IJ reached conclusions that were not supported by the hearing record.

Although the court may have been too polite to come right out and say it, one concludes from reading its discussion that the IJ engaged in nit-picking and speculation to reach the conclusion that Okhremenko’s testimony was not credible, and seemed to have some sort of bias against him, finding some of the IJ’s findings as “sheer speculation.”  For example, the IJ was critical about Okhremenko’s failure to provide any kind of statement from his Ukrainian boyfriend, totally discounting Okhremenko’s testimony that they had “broken up and were no longer in contact with each other” by speculating that surely a former boyfriend (who was still living in Ukraine) would be willing to provide a written statement.

Although the court said that its decision to vacate and remand was not expressing any opinion about whether Okhremenko’s testimony should be found credible or whether he met his burden to show he was entitled to asylum, if the IJ and the BIA were going to deny his petition, they would have to provide “‘specific, cogent reasons’ that are supported by the record and are not based on speculation and conjecture.  And regardless of what the BIA and the IJ conclude about Okhremenko’s credibility, they must determine whether he has met his burden of proof.”

In order to win asylum, Okhremenko must show that he was subject to persecution in Ukraine because he is gay and that he would face further persecution on that basis of returned to the country.  In light of the court of appeals’ summary of the record, he seems to have a good case on both points.