In an unpublished ruling, the U.S. Court of Appeals for the 7th Circuit rejected an appeal of a decision by the Board of Immigration Appeals to deny refugee status to a gay man from India. The court agreed with the BIA that the harassment the man had suffered at the hands of family and classmates during his youth in India did not amount to "persecution" under U.S. immigration law, and that the petitioner had failed to show he would likely face persecution should he be deported back to India. Patel v. Holder, 2012 Westlaw 562612 (Feb. 22, 2012).
The case shows the distinction drawn by the relevant laws between private persecution and public persecution. The concept of asylum (and withholding of removal as a possible remedy for those who are not qualify for asylum) is to protect people from oppression by governmental forces and institutions in their native country. The emphasis is on "official" persecution. In the case of gay people, that would require active discrimination by the government, oppressive criminal laws, assaults by law enforcement agents, and similar sorts of persecution. (One 9th Circuit case ruled years ago that the Soviet Russian practice of subjecting gays to shock therapy to "cure" their homosexuality would stand as persecution, even though it was "intended" as a "medical treatment" rather than a punishment.)
In this case, the court states, the petitioner entered the U.S. with his aunt and uncle in 1999 at age 17, and the record is unclear whether his entry was lawful. But the court asserts that when he was discovered by immigration officials in Chicago in 2007, his presence was unlawful and removal proceedings were begun against him. He applied for asylum, but it was far too late because such applications must be filed within one year of entry in the U.S. There is a lesser form of relief, withholding of removal, which lacks many of the benefits of asylum but allows the individual to remain in the United States. To qualify, a person has to show a history of past persecution underlying a reasonable fear of future persecution based on, in the case of gay people, membership in a particular social group. U.S. immigration authorities treat gay people as being part of a particular social group, so the case would focus on whether actual persecution took play or would likely occur in the future.
The petitioner claimed that his family had "disowned" him because he was gay, and one of his uncles threatened to report him to the police. At the time he was still in India, of course, the 2009 High Court ruling striking down the Victorian-era sodomy law had not yet been issued. Reflecting the time when he was trying to prove his case on withholding of removal, the petitioner had introduced U.S. State Department Country Reports on India from 2007 and 2008, as well as a UK Border Agency Report. These sources all agreed that anti-gay discrimination and assaults by private citizens occur, and sometimes the police join in. As well, arrest threats under the sodomy law, Section 377, have been made. On the other hand, the reports show that actual arrests under Section 377 are rare and generally do not involve private consensual sexual activity, and that the Indian government's "stated policy is to tolerate homosexuality practiced in private."
The petitioner's testimony focused on his personal experiences, said the court, including beatings and ridicule from schoolmates, being kicked out of the house by his parents, and his uncle threatening and slapping him. However, he admitted under questioning that he had never suffered any harm from the government.
The Immigration Judge in his case, denying the petition after hearing his testimony, concluded that he had not established past official persecution or a reasonable fear of future persecution. The private harassment he endured just doesn't count for this area of the law, it seems. Societal intolerance as such is not enough to constitute "persecution." Otherwise, said the court, every gay person in India would be entitled to seek refuge in the United States. The BIA approved the IJ's order to proceed with removal from the U.S.
"The record here does not compel overturning the Board's order," wrote the court, "because the record lacks evidence of widespread police abuse or government-sanctioned intolerance of homosexuals." although there was testimony that police sometimes harm gay men or threaten arrest, "the record reveals scant information about the prevalence of these acts; we know neither how often nor where in India they occur. To the contrary, we know from these reports that the Indian government has proclaimed tolerance of private homosexual conduct and that police arrests under Section 377 are rare." Ultimately, the court commented, "Private acts without state acquiescence, let alone knowledge, is not persecution."
In a footnote, the court notes the July 2009 High Court of Delhi decision on the sodomy law. By interesting coincidence, this decision was issued as the nation's Supreme Court is considering an appeal filed by various anti-gay groups, whose main argument is that homosexuality is a western phenomenon disapproved by traditional Indian culture and that the High Court was wrong to cite and rely upon decisions by western courts (such as the European Court of Human Rights and the U.S. Supreme Court's Lawrence v. Texas decision), as being culturally inapposite. Early press reports of the oral argument suggest that the bench is very skeptical about the appellants' arguments and seems inclined to uphold the High Court's ruling.