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2nd Circuit Rejects Gay Brazilian Man’s Refugee Claims, Despite Evidence About Anti-Gay Violence in Brazil

Posted on: May 1st, 2017 by Art Leonard No Comments

Opening up a gulf in reasoning with the 9th Circuit, which has insisted on a distinction between the official policies of a government and the facts on the ground in evaluating whether gay people would suffer persecution or worse in a particular country, a panel of the U.S. Court of Appeals for the 2nd Circuit affirmed a ruling by an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) that a gay man from Brazil could not win refugee status in the United States, despite the documented high rate of murders of gay men in that country and the asserted inability of the government to do anything about it. Dias v. Sessions, 2017 WL 1437117, 2017 U.S. App. LEXIS 7088 (2nd Cir., April 24, 2017) (not  published in F.3d).

Because the appeal was decided under the 2nd Circuit’s special summary proceeding method to deal with the huge caseload of refugee appeals generated in the New York metropolitan region, the per curiam opinion emanating from a panel consisting of Circuit Judges Reena Raggi, Peter W. Hall and Denny Chin is light on facts.  The Petitioner, a native and citizen of Brazil, apparently came to the attention of the Department of Homeland Security as a result of a criminal conviction, but the court does not state any details about that, or the circumstances under which he came to be in the United States and subject to removal.  Petitioner applied for asylum, withholding of removal, and/or protection under the Convention against Torture (CAT), all of which were denied by an Immigration Judge on May 7, 2014, in a decision that was affirmed by the Board of Immigration Appeals (BIA) on September 9, 2015.  In addition to finding that the Petitioner failed to meet the burden of showing he would likely be subjected to persecution or torture if removed to Brazil, the IJ found that he could relocate within Brazil to a safer place than that from which he came.  The BIA did not affirm on the relocation finding, which was unnecessary in light of the finding on the merits.

“Although [Petitioner] did not articulate it as such,” wrote the court, “his claim is that private parties have a pattern or practice of persecuting gay men in Brazil, which the government is unable to stop. [He] predicts that people in Brazil will discover that he is gay either from the Internet article about his crime, from his family, or from a future relationship with a man.  He asserts that homophobic violence is rampant in Brazil, citing a State Department report that killings based on sexual orientation rose from 2011 to 2012, and a Chicago Tribune article on a 1995 study that found 59% of gay Brazilians had suffered some type of homophobic violence.  He cites a study finding that a gay person’s risk of being killed there is 785 percent greater than in the United States and several high-profile cases of homophobic murders.  He acknowledges that Brazil has gay marriage, active gay rights groups, and certain cities with anti-discrimination laws, but argues that this evidences shows that Brazil is willing but unable to stop the violence.”

The BIA, in disagreeing with these arguments, “acknowledged the evidence of violence and discrimination against gay Brazilians.” But the agency put more weight on the “official” developments – gay rights groups, gay marriage, annual gay pride parade, and city ordinances banning anti-gay discrimination – to find that the Petitioner had “failed to show the Brazilian government would be unwilling or unable to control those responsible for the violence and discrimination.”

The court commented: “Although the IJ and BIA decisions are sparse on reasoning, substantial evidence supports that finding.” The court emphasized that the Chicago Tribune article on which Petitioner relied was more than twenty years old, and that the State Department report, while citing “338 killings based on sexual orientation, acknowledged the Brazilian government’s efforts to fight discrimination and promote gay rights.”

The standard for review of a BIA determination is not a de novo reconsideration, but rather a determination whether the agency should have been “compelled” by the evidence in the record to rule in favor of the Petitioner.  Under this standard, the 2nd Circuit panel found that the BIA was not “compelled” to grant asylum or withholding of removal to the Petitioner.

Turning to the CAT claim, the court found that the agency “reasonably concluded that his predicted chain of events was speculative. Even if it is likely that [he] will have a romantic relationship with a man, the record did not compel the agency to find it more likely than not that [he] will be tortured by, or with the acquiescence of, Brazilian authorities.”

Petitioner is represented by Robert C. Ross of West Haven, CT.

The 2nd Circuit panel’s approach deviates from that recently taken by the 9th Circuit in appeals by gay men from Mexico, another country in which the movement for marriage equality has made major gains, some municipalities now ban sexual orientation discrimination, and formerly anti-gay criminal laws have been reformed, but anti-gay violence at the hands of criminal gangs, police officers, and family members of gay people remains a major concern.  In Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017), recently reiterated in Hernandez v. Sessions, 2017 WL 1404699 (9th Cir., April 20, 2017), the court “made clear” that its earlier precedents on refugee claims by gay Mexicans “falsely equated legislative and executive enactments prohibiting persecution with on-the-ground progress” and insisted that the U.S. immigration authorities must look beyond such “official” positions to consider the situation that gay people actually face in countries where there is pervasive anti-gay hostility about which the governments can do little.  The 9th Circuit has been particularly emphatic in protecting transgender refugee applicants.  In cases where local police officials are part of the problem, the 9th Circuit has chided immigration authorities for failing to recognize such harassment as being attributable to the government.  The Supreme Court has yet to decide any case involving a claim for refugee status in the United States by a gay or transgender applicant.

Federal Court Denies Motion to Dismiss Tort Claim by Uganda Gay Group Against American Minister

Posted on: August 15th, 2013 by Art Leonard No Comments

U.S. District Judge Michael A. Ponsor (D. Mass.) has refused to dismiss a lawsuit filed on behalf of Sexual Minorities Uganda, a gay rights group, against Scott Lively, described in the complaint as an attorney, author, and evangelical minister who has allegedly work to “foment” what the plaintiff alleges to be “an atmosphere of harsh and frightening repression against LGBTI people in Uganda.”  Ponsor found that the allegations in the complaint were sufficient to put in play liability under the U.S. Alien Tort Statute (ATS), which authorizes federal courts to adjudicate claims by foreign individuals or entities against U.S. citizens for violations of the “law of nations.”  2013 U.S. Dist. LEXIS 114754 (D. Mass., Aug. 14, 2013).

According to the allegations of the complaint, Lively has visited Uganda several times and met with various private and government officials there and in the U.S., encouraging a compaign to enact harsh criminal laws and impose severe social repression on gay, lesbian, bisexual, transgender and intersexual people in Uganda.  He is alleged to have engaged in many of the relevant activities from his home in Massachusetts, including receiving and reviewing proposed legislation and communicating on strategy.  The complaint names specific individuals in Uganda with whom Lively is alleged to have conspired, including the legislative sponsor of the draconian “Anti-Homosexuality Bill.”

The complaint also claims some violations of Massachusetts  law, but the main focus is on the federal claims under the ATS.  The Center for Constitutional Rights represents the plaintiff, an umbrella group for various LGBTI community organizations in Uganda.  According to the complaint, such a case could not be brought against Lively in Uganda due to limitations of Ugandan law.

In moving to dismiss, Lively relied on the rather narrow focus of the ATS, 28 U.S.C. Section 1350,as it has been construed by the Supreme Court and lower federal courts.  The ATS gives federal courts jurisdiction of “any civil action by an alien for tort only, committed in violation of the law of nations or a treaty of the United States.”  Lively argues that nothing he was alleged to have done violates the “law of nations,” that the ATS does not extend to actions taken overseas, that the plaintiff organization lacks standing to bring the case, that the First Amendment shields him from any liability for his advocacy activities, and that the state law claims lack an adequate legal foundation.

Judge Ponsor rejected all of Lively’s arguments.  In deciding a motion to dismiss, the court assumes the truth of the plaintiff’s factual assertions, and then asks whether those facts, if proven, would be sufficient to support the legal claims that the plaintiff is asserting.  Ponsor emphasized that denying the motion to dismiss is not a ruling on the merits, and plaintiffs will have to prove their factual assertions after having a chance to conduct discovery, which would undoubtedly including getting a chance to examine Lively under oath about his activities and to get access to his correspondence with individuals in Uganda.

Most significantly, Ponsor concluded, based on a review of international legal materials, “widespread, systematic persecution of LGBTI people constitutes a crime against humanity that unquestionably violates international norms,” and that a review of “applicable authorities” shows that “aiding and abetting in the commission of a crime against humanity is one of the limited group of international law violations for which the ATS furnishes jurisdiction.”  Ponsor also found that persecution can be considered a crime against humanity if it is “part of a widespread or systematic attack directed against any civilian population.”

“Defendant argues that persecution based on sexual orientation or gender identity has not been sufficiently recognized under international law to be actionable under the ATS,” wrote Ponsor.  “It is true that many of the international treaties and instruments that provide jurisdiction over crimes against humanity list particular protected groups without specifying LGBTI people,” but “virtually all of these instruments provide savings clauses,” quoting, as an example, the Rome Statute, which, after listing protected characteristics, mentions “other grounds that are universally recognized as impermissible under international law” in its definition.  “Even when they do not” list sexual orientation or gender identity, he wrote, “international courts have interpreted the identity of the group requirement broadly to encompass persecution of a discrete identity.”

“Significantly,” he continued, “the boundaries of persecution are almost always defined by those carrying out the persecution against a particular group. . .  This fact strongly argues in favor of a generous interpretation of what groups enjoy protection under international norms,” and he found “unpersuasive” the argument that such international norms would not today be construed to protect LGBTI people from systematic persecution.

Lively argued that because LGBTI people are subject to persecution in many countries, there is no clear international norm against such persecution.  “This argument is utterly specious,” wrote Ponsor, pointing out that Uganda’s highest court has itself ruled that gay and lesbian people are entitled to equal treatment under that country’s law.  “More importantly,” he wrote, “even a glance at the history of treatment of gays and lesbians makes it clear that the discrimination suffered by them is on a par with the treatment meted out to other groups, defined by religion, race, or some other accepted characteristic. . .  The fact that a group continues to be vulnerable to widespread, systematic persecution in some parts of the world simply cannot shield one who commits a crime against humanity from liability.”

In Lively’s case, the court found that the complaint’s allegations were sufficient to invoke jurisdiction under the ATS.  “The allegations feature Defendant’s active involvement in well orchestrated initiatives by legislative and executive branch officials and powerful private parties in Uganda, including elements of the media, to intimidate LGBTI people and to deprive them of their fundamental human rights to freedom of expression, life, liberty and property,” wrote the court, pointing out that jurisdiction had been extended to aiding and abetting such activity as well as those committing direct acts of persecution, referring to various prosecutions in international tribunals beginning with the Nuremburg proceedings after World War II.  In this case, the complaint alleges that Lively provided practical assistance, his role alleged to be “analogous to that of an upper-level manager or leader of a criminal enterprise,” who “participated in formulating the enterprise’s policies and strategies.”  Indeed, the complaint alleges that Lively had himself acknowledged that “his efforts made him instrumental in detonating ‘a nuclear bomb against the “gay” agenda in Uganda.'”

The Supreme Court has recently ruled that ATS has very limited extraterritorial application, but Judge Ponsor found that the allegations in this case were sufficient to meet the Court’s requirement of a nexus with the United States.  Lively is a U.S. citizen, resident in Massachusetts, and the complaint “alleges that the tortious acts committed by Defendant took place to a substantial degree within the United States, over many years, with only infrequent actual visits to Uganda.  The fact that the impact of Defendant’s conduct was felt in Uganda cannot deprive Plaintiff of a claim.  Defendant’s alleged actions in planning and managing a campaign of repression in Uganda from the United States are analogous to a terrorist designing and manufacturing a bomb in this country, which he then mails to Uganda with the intent that it explode there.”

The court found that Plaintiff’s own interests were affected by Lively’s alleged actions, and that Plaintiff also “has associational standing to bring claims on behalf of its members and the LGBTI community for injunctive relief” to prevent Lively from continuing his alleged actions intended to “strip away and/or deprive Plaintiff and LGBTI community in Uganda of their fundamental rights.”

Turning to Lively’s First Amendment argument, Ponsor wrote, “It is well-established that speech that constitutes criminal aiding and abetting is not protected by the First Amendment.  It is equally well supported that the same logic extends to civil actions for aiding and abetting. . .  Plaintiff contends that Defendant’s conduct has gone far beyond mere expression into the realm not only of advocacy of imminent criminal conduct, in this case advocacy of a crime against humanity, but management of actual crimes — repression of free expression through intimidation, false arrests, assaults, and criminalization of peaceful activity and even the status of being gay or lesbian — that no jury could find to enjoy the protection of the First Amendment.”

While “mindful of the chilling effect that can occur when potential tort liability is extended to unpopular opinions that are expressed as part of a public debate on policy,” wrote Ponsor, the complaint “sets out plausible claims to hold Defendant liable for his role in systematic persecution, rather than merely for opinions that Plaintiff finds abhorrent.  The complexion of the case at this stage entitles Plaintiff to discovery and requires the court to deny Defendant’s motion to dismiss.”

Judge Ponsor also concluded that it would be premature to dismiss the state law civil conspiracy and negligence claims in advance of discovery.  The judge referred the case to Magistrate Judge Kenneth P. Neiman for a pretrial scheduling conference to set out the schedule for discovery.

The case was first filed in 2012 in the federal district court in Springfield, Massachusetts.  Judge Ponsor, a senior district judge since 2011, is a graduate of Yale Law School. He was appointed to the federal bench by President Bill Clinton in 1994.