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.