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9th Circuit En Banc Panel Revives Gay Mexican’s Asylum Claim

Posted on: March 12th, 2017 by Art Leonard No Comments

An eleven-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit revived an HIV-positive gay Mexican man’s claim for refugee status to remain in the United States on March 8, reversing rulings by a three-judge panel of the court, the Board of Immigration Appeals, and an Immigration Judge.  The opinion for the court in Bringas-Rodriguez v. Sessions, 2017 U.S. App. LEXIS 4077, 2017 WL 908546, was written by Judge Kim McLane Wardlaw, a Clinton appointee.  One member of the court, Judge Richard R. Clifton, filed a concurring opinion, and two members, Judges Carlos T. Bea and Diarmuid O’Scannlain, dissented in an opinion by Judge Bea.  Bea, appointed by George W. Bush, and O’Scannlain, appointed by Ronald Reagan, are among the most conservative judges on the 9th Circuit.  The reversed three-judge panel consisted of two George W. Bush appointees and a dissenting Clinton appointee, William Fletcher.

Carlos Alberto Bringas-Rodriguez, born in Tres Valles, Veracruz State, was, according to Judge Wardlaw’s summary of his testimony, which was deemed credible by the Immigration Judge, “horrifically abused by his father, an uncle, cousins, and a neighbor, all of whom perceived him to be gay or to exhibit effeminate characteristics.”  Bringas testified that his uncle raped him when he was four, and that three of his cousins and a male neighbor “physically and sexually abused him on a regular basis while he lived in Mexico.”  He also suffered regular beatings from his father, who told him, “Act like a boy.  You are not a woman.”  He claims his uncle told him when he was eight that he was being abused because he was gay.  “His uncle, cousins, and neighbor never called him by his name,” wrote Wardlaw, “referring to him only as ‘fag, fucking faggot, queer,’ and they ‘laughed about it.’”

Bringas lived briefly with his mother in the U.S. when he was twelve, but he returned to Mexico because he missed his grandmother, who had been raising him since he was nine.  The abuse intensified when he returned.  “On one occasion, when Bringas refused to comply with his neighbor’s demand for oral copulation, the neighbor beat and raped him, leaving Bringas with black eyes and bruises,” and his abusers “also threatened to hurt his grandmother, with whom he was close, if he ever reported what was happening,” wrote Wardlaw.  “Fearing that they would follow through on their threats, Bringas did not tell his mother, teachers, or anyone else about the sexual abuse.”  He fled back to the U.S. in 2004 when he was fourteen.

Entering the country illegally at El Paso, he made his way to Kansas where he lived with his mother for the next three years.  Then he moved out of his mother’s home, living elsewhere in Kansas and in Colorado, holding several jobs.  In August 2010 he pled guilty to “attempted contributing to the delinquency of a minor” in Colorado.  According to his account, as related by Wardlaw, “he had been at home drinking with some friends when another friend brought over a minor who became drunk.”  Bringas served 90 days in jail, “during which time he attempted suicide and was hospitalized, which precipitated his finally telling a doctor and then his mother about his childhood abused.”  His conviction triggered a notice to the Department of Homeland Security, which immediately issued him a “Notice to Appear.”

The next year, at age 20, he applied for asylum, withholding of removal, and protection under the Convention against Torture (CAT).  Asylum claims normally have to be filed within a year of arrival in the U.S., but he claimed he had been “unaware” at age 14 that he could apply for asylum, and only learned of this when he “spoke with an ICE officer in Colorado in September 2010” when he responded to the Notice to Appear.  In his application, he described the abuse he had suffered in Mexico and “explained that he feared persecution if he returned because he was gay and that the Mexican police would not protect him.  Bringas also credibly testified about his gay friends’ experiences with police in Veracruz.  Those friends went to the police to report that they had been raped, but the officers ignored their reports and ‘laughed [on] their faces.’”  He also submitted State Department country human rights reports on Mexico from 2009 and 2010, as well as newspaper articles documenting violence against gays in Mexico, which showed that violence was rising even as “Mexican laws were becoming increasingly tolerant of gay rights.”  In a footnote, Judge Wardlaw cited guidelines issued by the United Nations High Commissioner for Refugees, explaining that “legal improvements and widespread persecution are not mutually exclusive.”

An Immigration Judge found Bringas’ factual testimony to be credible, but denied his application, as did the Board of Immigration Appeals (BIA) on his appeal.  The IJ found that his asylum claim was untimely under the one-year rule, a point that the BIA ignored, treating his asylum claim on the merits.  Next, the IJ found, and the BIA recognized, that although Bringas had suffered “serious abuse” as a child, he did not show that the “abuse was inflicted by government actors or that the government was unwilling or unable to control his abusers.”  This was a critical finding, because the basis for establishing refugee status is to show persecution at the hands of the government or private actors whom the government is unwilling or unable to control.  Purely private abuse, as such, is not considered to be “persecution” under relevant statutes and treaties.  Having found that Bringas had not established “past persecution,” the BIA approved the IJ’s finding that there was no presumption that he had a reasonable fear of future persecution in Mexico, because he had “failed to show a pattern or practice of persecution of gay men in Mexico.”  The BIA wrote that “the record did not demonstrate widespread brutality against homosexuals or that there was any criminalization of homosexual conduct in Mexico.”  Indeed, the BIA found that the Mexican government “has taken numerous positive steps to address the rights of homosexuals.”  The IJ and BIA found no evidence that Bringas was likely to be tortured by the government if he were removed back to Mexico.

The three-judge panel of the 9th Circuit considering his appeal focused on a prior circuit ruling, Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), concerning cases where the applicant’s abusers were all private citizens, which held that in order to establish that the government was unwilling or unable to control the abusers, the victim had to have reported the abuse to the government.  Wrote Wardlow, “the panel majority reasoned that where a victim fails to report abuse, even as a child, ‘there is a “gap in proof about how the government would have responded,”’ and that petitioner bears the burden to ‘fill in the gaps’ by showing how the government would have responded had he reported the abuse.”  The 3-judge panel emphasized the part of the State Department country reports that discussed how Mexican law had improved for gay people, including the government’s establish of a “specialized hate crimes prosecution unit” and the proclamation of a “national day against homophobia.”  The panel found “insufficient” Bringas’s testimony about the comments by his gay friends in the U.S. about how the police had failed to respond to their reports of abuse.  “Even if the friends’ reports were credited, the panel majority explained, those reports failed to establish that police practices in the city or state of Veracruz could be linked to police practices in Tres Valles, Bringas’s hometown.”

The panel majority, in common with the IJ in this case, also suggested that the issue here was not narrowly sexual abuse because of homosexuality, but rather the more general phenomenon of sexual abuse of children, and suggested that there was no evidence that the Mexican law enforcement authorities would be indifferent to reports of child sexual abuse.  In this connection, they noted that Bringas’s testimony did not specify how old his friends were when they unsuccessfully reported their abuse to the police.

Judge William Fletcher, the dissenting member of the 3-judge panel, expressed growing discomfort about the prior precedent upon which the majority of that panel was relying, pointing to the circuit’s “ample precedent that does not require victims of private persecution, especially child victims, to contemporaneously report their abuse to government authorities in order to become eligible for asylum in the United States.”

The en banc panel majority, reversing the 3-judge panel, embraced Judge Fletcher’s criticism, citing extensive evidence about the psychological and practical problems a child victim of sexual abuse would have in reporting the abuse to authorities, especially if they or their loved ones were threatened with retribution if they made any report, as had happened in Bringas’s case with threats to harm his grandmother.  Going further, the en banc panel overruled the prior precedent to the extent that it had been relied on as requiring reporting to the authorities in a case founded on abuse by non-governmental actors in order to establish “persecution” for purposes of asylum or withholding of removal.

While it was clear in this case that the asylum claim was filed too late, the court determined that Bringas’s claims for withholding of removal and protection under the CAT must be reconsidered by the Board.  The court found Bringas’ testimony, which had been deemed credible by the IJ and the BIA, sufficient to establish that he had been subjected to past persecution, and based on that testimony he was entitled to a presumption of further persecution.  Sending the case back to the BIA, the court said the remaining issue was whether that presumption had been rebutted by the government’s evidence of changed conditions in Mexico.

Furthermore, while this case was in progress, but after the BIA issued its opinion, Bringas learned for the first time that he was HIV-positive.  He had asked to reopen the case in order for the BIA to take this new information into account, but the BIA refused his request, observing that he had failed to show “how his status as an HIV positive homosexual changes the outcome of his case.”  The court ordered that BIA allow Bringas to supplement the record and to take account of new evidence about his HIV diagnosis.

Judge Clifton concurred on narrower grounds.  He felt, along with Judge Bea’s dissent, that the court’s opinion was insufficiently deferential to the BIA, which as a matter of administrative law is entitled to substantial deference by the courts and should not be reversed unless “any reasonable adjudicator would be compelled to conclude to the contrary based on evidence in the record.”  To Clifton, the evidence presented by Bringas about the unwillingness or inability of the government to address sexual abuse of gay children was not overwhelming, relying on “an unspecific hearsay report by Bringas of what he was told by one or two other persons about what had happened when a report was made to police in a different town.  That evidence would have been sufficient to support a conclusion that a report by a child to the police would have been futile, but it was not so powerful that no reasonable adjudicator could have found to the contrary,” he wrote.  He also noted that much of Bringas’ evidence was rather general and did not necessarily compel the conclusions reached by the majority of the court as to his persecution case.

On the other hand, Clifton found that the BIA “appeared to disregard the evidence that Bringas offered on the subject,” so it was appropriate to remand for reconsideration.  The IJ had written that there “was ‘no evidence whatsoever’ to support Bringas’s contention that a police report would have been futile, and it did not reflect any awareness of the evidence to that effect,” and the BIA’s opinion did not correct that misstatement.  While Clifton agreed the case should be sent back, he, unlike the majority, “would not dictate the answer to that past persecution question” but rather allow the BIA to reweigh the evidence.

Judge Bea’s dissent, as mentioned by Judge Clifton, focused on the court’s failure to accord sufficient deference to the BIA’s decision, emphasized the weak points in Bringas’s testimony, and accused the majority of mischaracterizing the precedent that it was overruling.  He also argued that the situation facing Bringas at age 14 was very different from the situation he would face today as an adult if returned to Mexico, pointing out further that the record showed that conditions for gay men in Mexico varied.  If returned to Mexico, Bringas would not have to live in Veracruz, but could instead locate in Mexico City, a jurisdiction that has legislated for same-sex marriage, supports gay pride marches, and is notably gay-friendly.

It will be interesting to see whether the government will seek Supreme Court review of this en banc ruling from the 9th Circuit.  The new Attorney General, Jeff Sessions, was substituted as Respondent for his predecessor, Loretta Lynch, upon taking office.  As this ruling may make it easier for Mexican asylum applicants to win the right to remain in the United States, the Trump Administration may seize upon it as a vehicle to tighten up on the asylum process by winning a reversal.  Certainly the Administration would have an interest in establishing deference for the BIA, given the ability of the President and Attorney General to influence the policies of that agency through appoints to the Board. In light of the timing, any review would take place after Trump’s nominee to fill the vacant seat on the Court takes the bench, re-establishing a majority of Republican appointees on the Court.

This en banc reconsideration of Bringas’s case was considered a big deal by the immigrants’ rights and civil liberties communities.  Dean Erwin Chemerinsky of the University of California (Irving) School of Law argued the appeal, with the Appellate Litigation Clinic at his school representing Bringas together with pro bono attorneys from major California law firms.  The government’s case was argued by relatively high level attorneys from the Justice Department in Washington.  Several amicus briefs were filed in support of Bringas’s appeal, including a wide variety of public interest groups, including Lambda Legal, National Center for Lesbian Rigths, the National Immigrant Justice Center, the HIV Law Project, the Transgender Law Center.  An amicus brief was submitted on behalf of Alice Farmer, the United Nations High Commissioner for Refugees, by Williams & Connolly LLP, a major national law firm that frequently appears before the Supreme Court.

Denial of Refuge to Jamaican Who Claims to Be Bisexual Sparks Disagreement on 7th Circuit Panel

Posted on: August 21st, 2016 by Art Leonard No Comments

By a 2-1 vote, a panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit affirmed a decision by the Board of Immigration Appeals (BIA) to deny relief under the Convention Against Torture to a Jamaican man who claims to be bisexual.  [Petitioner] v. Lynch, 2016 WL 4376516, 2016 U.S. App. LEXIS 15127 (August 17, 2016).  The majority of the panel, in an opinion by Judge Diane Pamela Wood, found that under the deferential standard for reviewing administrative decisions in the immigration system, the evidentiary record that led the Immigration Judge to conclude that the petitioner had failed to prove he was bisexual did not compel a contrary conclusion and so could not be overturned.

Dissenting, Judge Richard Posner contended that the Immigration Judge had “fastened on what are unquestionable, but trivial and indeed irrelevant, mistakes or falsehoods in [petitioner’s] testimony,” and, furthermore, “The weakest part of the immigration judge’s opinion is its conclusion that [petitioner] is not bisexual, a conclusion premised on the fact that he’s had sexual relations with women (including a marriage). Apparently the immigration judge does not know the meaning of bisexual.  The fact that he refused even to believe there is hostility to bisexuals in Jamaica suggests a closed mind and gravely undermines his critical finding that [petitioner] is not bisexual.”

According to Judge Wood’s decision summarizing the record in the case, the petitioner, who was born and grew up in Jamaica, claims to have begun having sex with both men and women while a teenager. He fell in love with an American woman visiting Jamaica and they married and moved to the U.S., where she sponsored him for resident status.  However, the marriage didn’t last and their failure to attend a required interview with immigration officials resulted in termination of his status, after which they divorced.  Around the same time, he pled guilty to an attempted criminal sexual assault charge, was sentenced to probation, violated his probation and was resentenced to prison time.  After his release from prison, he was swooped up by Homeland Security and processed for deportation.  In the course of those proceedings, he raised the horrendous conditions for gay and bi people in Jamaica, seeking protection under the Convention Against Torture (CAT).

The Immigration Judge concluded that his criminal record prevented granting him withholding of removal, and most of the attention in the case focused on the CAT claim. A person who is otherwise deportable may win relief under the CAT by showing that they would likely be subjected to torture or serious harm at the hands of the government or those the government is unable to control.  While numerous sources, including State Department Human Rights reports from 2012 and 2013, document the fierce homophobia in Jamaica and the failure of the government to address it effectively, the BIA continues to dither about whether LGBT refugees from Jamaica are entitled to CAT relief.  The U.S. Court of Appeals for the 2nd Circuit recently remanded another Jamaican case to the BIA for reconsideration in light of this information.

In this case, the IJ, following the BIA line, rejected the claim, but most of the attention was focused on the credibility of petitioner’s claim to be bisexual and that he would be known as such in Jamaica and thus likely to encounter serious harm there. The IJ focused on the numerous inconsistencies in his testimony about his experiences in Jamaica, in which he mixed up dates, places, and names to such an extent that the IJ found his claims to be not credible.  The IJ rejected the submission of letters from various people attesting to his bisexuality (including two letters signed by former boyfriends now living in other states), doubting their validity.

The BIA “found no clear error in the IJ’s findings that [petitioner] ‘did not credibly testify and did not establish that he has ever been bisexual.’,” wrote Judge Wood, “And because [petitioner] had not established that he was bisexual or that he would be perceived in Jamaica as bisexual – the basis of his purported fear of torture – he had not met his burden of proof under the CAT.”

In refusing to upset this ruling, the majority of the 7th Circuit panel focused on its limited authority to review factual findings by an IJ, stating that the question is “whether the facts compel a conclusion contrary to the one that the IJ reached.  While we might wish it were otherwise, there is no exception under which plenary review is available for factual questions of enormous consequence, as this one is for [petitioner].”

“We are not insensible to the fact that immigration judges sometimes make mistakes, and that the costs of such errors can be terrible,” wrote Wood. “A mistaken denial of asylum can be fatal to the person sent back to a country where persecution on account of a protected characteristic occurs; a mistaken denial of deferral of removal under the Torture Convention can have ghastly consequences.  If we could balance the magnitude of the risk times the probability of its occurrence against the cost of offering a few additional procedures, or a few more years in the United States, we would.”

While admitting that this result is harsh, Judge Wood dangled hope that if the petitioner could come up with more credible evidence, he might be able to persuade the IJ to grant a motion to reopen his case.

This did not satisfy Judge Posner, who really ripped into the majority in his dissenting opinion. Posner pointed out that the merits of the petitioner’s claim “depend on how two issues are resolved: whether [petitioner] is bisexual and whether bisexuals are persecuted in Jamaica.  The rejection of the second point by the Immigration Judge, upheld by the Board of Immigration Appeals, is cursory and unconvincing; but if he isn’t bisexual the error is harmless.  But the rejection of his claim to be bisexual is also unconvincing.  The immigration judge emphasized such things as [his] lack of detailed recollection of events that go back as far as 1983 and a supposed lack of ‘proof’ of bisexuality.  Well, even members of this panel have forgotten a lot of 33-year-old details.  And how exactly does one prove that he (or she) is bisexual?  Persuade all one’s male sex partners to testify, to write letters, etc.?  No, because most Jamaican homosexuals are not going to go public with their homosexuality given the vicious Jamaican discrimination against lesbian, gay, bisexual, and transgender (“LGBT”) persons, which is undeniable….”

Posner recited at some length information easily available on-line and from the State Department, and asserted that the immigration judge’s opinion “is oblivious to these facts.” He pointed out that the court’s opinion “does not explain” how many of the consistencies of testimony “could have any bearing on the question of [his] sexual orientation.”  Posner ripped to shreds the IJ’s rationale for rejecting the various letters offered by the petitioner, including those from his ex-lovers, and criticized the immigration judge for failing to ask a psychologist to provide input on the question.  “Immigration judges are authorized to do this,” he wrote, “authorized to select and consult, which they may and usually do on the phone, an expert with expertise relevant to the case at hand.”

Most tellingly, however, wrote Posner, “Nor had any reason been given, either by the immigration judge or by the majority opinion in this court, why if [petitioner] is not bisexual he would claim to be in an effort to remain in the United States, knowing that if he failed in this effort to remain he would be in grave danger of persecution when having lost his case he was shipped off to Jamaica. No doubt once back in Jamaica he could deny being bisexual – but no one who was either familiar with this litigation, or had been one of his persecutors before he left Jamaica for the United States, would believe (or at least admit to believing) his denial.”

Posner also threw in his insight that “homosexuals are often antipathetic to bisexuals,” for which he cited some articles from the internet. Posner seems to be an avid googler, judging by his on-line references in this and other cases.  “This is not to say that they would be likely to attack [petitioner] physically when he returned to Jamaica, but they might well talk about his return to the island – the return of a bisexual – and some of the persons to whom they talked might well be heterosexual and want to harm [him] physically.  Word is likely to spread quickly in an island of fewer than three million inhabitants.”  Posner’s parting shot, as noted above, was to suggest that the IJ was ignorant about bisexuality and had a “closed mind” on the subject.

At this point, the petitioner, who has been representing himself without a lawyer (and thus, statistically, never had a particularly good chance of winning his case), likely faces imminent deportation. We have withheld his name in this account of the case to avoid spreading it on the internet and exposing him to further potential harm.

7th Circuit Remands Gay Mexican’s Withholding of Removal Claim to BIA

Posted on: August 28th, 2013 by Art Leonard No Comments
A panel of the U.S. Court of Appeals for the 7th Circuit has granted a petition for review of the Board of Immigration Appeals’ (BIA) decision to deny withholding of removal to a gay, HIV-positive man from Mexico, finding that the BIA had failed to comply with a  regulation governing review of Immigration Judge (IJ) decisions by engaging in de novo review of facts decided by the IJ.  Rosiles-Camerana v. Holder, 2013 U.S. App. LEXIS 17551, 2013 WL 4457283 (August 21, 2013).  The court, in an opinion by Circuit Judge Frank Easterbrook, remanded the case to the BIA for “proceedings consistent with this opinion.”
 

The petitioner, a Mexican citizen, was brought to the U.S. in 1977, when he was ten years old, and became a permanent resident but never applied for citizenship.  He was convicted on a charge of indecent solicitation of a minor, a felony, lost his permanent resident status and was ordered to be removed to Mexico.  He argued that as an openly gay HIV-positive man, he faced a risk of persecution or torture if deported to Mexico, and sought withholding of removal and protection under the Convention Against Torture (CAT).  He persuaded the IJ, who granted both withholding relief under the statute and  under the CAT, only to be reversed by the BIA.  On remand, the IJ “adhered to his position,” but the BIA stubbornly adhered to its position, again reversing the IJ, and petitioner sought relief from the court of appeals.

The most recent BIA decision said that “the probability of future harm is a legal question that we review de novo” and “in assessing the probability of harm de novo, we may give different weight to the evidence than did the Immigration Judge.”  The BIA accepted the IJ’s findings of “historical fact” but “disagreed with the IJ about the risk implied by those facts.”  Most particularly, the IJ was convinced by expert testimony about murders of gay men in Mexico that there would be a substantial risk to the petitioner if he were deported.  But the BIA looked at the same statistics and drew a different conclusion.  The IJ was impressed that there were 148 documented hate crime murders of gays in Mexico between 1995 and 2006.  The BIA looked at that number, did its own calculations, and concluded that this meant that it was “unlikely (a risk of no more than 1 in 100,000) that any given gay man would be killed in any given year.”  Thus, the IJ’s conclusion that anti-gay murders were “frequent” did not impress the BIA, which found that petitioner failed to meet the burden of showing that there was a “clear probability” that he would be murdered if returned to Mexico. 

Wrote Easterbrook, “The Board treated the risk of future harm” – which is a dispositive issue in this kind of case – “as a matter of legislative fact, and it took the view that decisions on mixed (or ‘ultimate’) questions are open to plenary decision” on review.  The court agreed with the petitioner that “the Board made a legal error by engaging in this kind of review, pointing particularly to a regulation, 8 C.F.R. Sec. 1003.1(d)(3), that provides that “The Board will not engage in de novo review of findings of fact determined by an immigration judge,” which would include “findings as to credibility of testimony” which would be subject to a “clearly erroneous” standard for reversals.  In this case, the BIA did not reject the IJ’s findings of fact, but took the position that the determination of whether petitioner would incur a probability of persecution was not the kind of factual finding to which it need defer. 

Easterbrook noted that there is a split of authority among the circuit appeals courts about how to review such BIA decisions, and the 7th Circuit panel favored the authority represented by a 3rd Circuit decision, Kaplun v. Attorney General, 602 F.3d 260 (2010), holding that “the Board is entitled to adopt an independent view about whether a potential harm identified by an IJ amounts to ‘persecution’ or ‘torture,’ but that an IJ’s predictions (which it called the ‘present probability of a future event’) – such that a particular harm is ‘likely’ should an alien return to his native land – are ‘facts’ under clause (i) [of the regulation], and the Board’s role is limited to identifying clear error by the IJ.”

The question here, as Easterbrook puts it, is whether predictions about the probability of persecution depend primarily on country conditions, “not (necessarily) on facts unique to the alien.”  If country conditions are the most important concern, there would be much less reason to defer to findings of historical fact concerning the alien in question in reaching a sound judgment about such probability.  Easterbrook points to the concern that different IJs might reach sharply different conclusions about the probability that a gay man deported to a particular country would be subjected to persecution there, but notes the potential salience of historical facts, regardless of the overall country conditions.  In this case, the petitioner contends that “he is at greater risk” than other gay men.  “He is not only gay and HIV positive but also ‘out’ and planning to live openly with his partner.  He contends, and the IJ found, that his family has disowned him and will not offer any support.  He adds that, because he has lived in the United States most of his life and does not know contemporary Mexican customs, he will find it hard to avoid attracting attention from persons who might do him harm.  And he stresses that injuries (and deprivation of economic opportunities) short of death may amount to persecution.”

The court decided that “the question for the Board on remand is thus not whether aggregate data imply that Rosiles-Camerana is likely to be killed, but whether the IJ clearly erred in finding that he is more likely than not to be persecuted.”  That is not a question for the court to decide, but “for the Board in the first instance.”  However, the court’s summary of the petitioner’s argument makes it sound like a strong claim for individualistic fact-finding.   The court’s powers of review are limited by statute in light of the petitioner’s conviction of a felony, which leaves a large range of discretion to the Board.  On the other hand, the regulation governing the Board’s appellate authority constrains it substantially in second-guessing IJ fact-finding, as this decision shows.