9th Circuit Revives Asylum Claim of Gay Man From Russia

Finding that the Board of Immigration appeals erred in finding that a gay asylum applicant from Russia had failed to show that he had been subjected to persecution by non-governmental actors whom the Russian government was unable or unwilling to control, a panel of the U.S. Court of Appeals for the 9th Circuit granted the petition for review and remanded the case so that the Board of Immigration Appeals can determine whether the government has met its burden of showing a change in conditions for gay people in Russia that would overcome the presumption that the applicant has a well-founded fear of persecution if required to return there.  Doe v. Holder, 2013 WL 6182985, 2013 U.S. App. LEXIS 23855 (November 27, 2013).  In light of recent news reports about the severe harassment to which gays in Russia are being subjected, recent anti-gay legislation, and the failure of Russian law enforcement to provide effective protection for GLBT groups there, the government may not be able to meet this burden.

Before addressing the merits of the appeal, Circuit Judge Arthur L. Alarcon observed that generally plaintiffs are not allowed to proceed anonymously in federal court, but that the courts will allow a “John Doe” filing “in exceptional cases where necessary to protect a person from harassment, injury, ridicule or personal embarrassment.”  The court held that this was such an “unusual case” and referred to the Petitioner throughout the opinion as “John Doe.”

An Immigration Judge expressly found that Doe’s testimony about his experiences growing up in Russia was credible.  Doe testified that while attending East Siberian Technological University in his hometown, Ulan-Ude, for two years, he joined a club for gay students, but when some of his classmates saw him socializing with club members, the word spread that he was gay and “almost ‘everybody [he] knew’ – classmates, persons from Doe’s wrestling club, students from his former school – began mocking him.”  Doe described two violent attacks he suffered from classmates.  After the first, during which he was beaten and suffered injuries to an eye and body bruises, he went to the police, but the police officer on duty said he did not want to receive the crime report, that the “case is not so serious,” and asked why Doe, a man, had not defended himself.  Basically, the police didn’t want to hear about it.

Doe suffered a second attack, much more severe, in April 2003, being beaten in a restaurant by other customers while he was sitting with his boyfriend.  Both Doe and his boyfriend were beaten, Doe so severely that he lost consciousness, only awakening in the ambulance, and he suffered internal brain hemorrhaging and a concussion, being hospitalized for three weeks.  His father reported the attack to the police, who sent an officer to interview him in the hospital, but Doe believed that the police took no further action in the case, even though he gave the officer the names of some of his attackers, who were known to him from school.  Doe later received a “Confirmation Paper” from the police, indicating that his father’s application that the assailants be prosecuted “was rejected on the basis of Criminal Code of the Russian Federation, Regulation 24, Chapter 1, Paragraph 2.”  The “Confirmation Paper” did not include the text of this regulation, and neither Doe nor the government placed it in evidence in the immigration hearing.  Doe says that after he was released from the hospital, he saw some of his attackers, who resumed harassing him.  He soon moved to Moscow, where he lived for four months until he came to the U.S. on a student visa.  He says he encountered discrimination in Moscow because of his ethnicity, Buryat.  He believes he was singled out because members of his ethnic minority do not look like ethnic Russians and are treated by the police as suspect foreigners.

Doe enrolled in the American Language Communications Center in New York, but eventually stopped attending classes, and received a notice from Homeland Security to appear because his non-attendance violated the terms of his nonimmigrant status.  At that point, Doe applied for asylum, withholding of removal and protection under the Convention Against Torture.

Although the Immigration Judge found his testimony credible, and that he had suffered physical injury and persecution in his home city because he was gay, the IJ found that “the record does not support the conclusion that the government was unable or unwilling to protect the respondent.”  While the comments of the local police officer in response to the first incident reflected prejudice, the IJ said that the police action in sending an officer to interview Doe in the hospital after the second incident was a response.  Wrote Judge Alarcon, “The IJ observed that the police rejected that report on the basis of a specific provision of Russian law, but that the record did not contain evidence of what the cited code section said.  The IJ stated, ‘Without more the Court is unable to conclude that the police decision was based on an improper motive,’ because the Russian police had taken ‘affirmative action in response to the complaint and appeared not to have rejected the complaint out of hand.’  As a result, the IJ held, ‘The record does not support the conclusion that the government was unable or unwilling to protect the respondent.’”   The IJ also noted that Doe was able to relocate to Moscow to escape his local persecutors.  That he suffered discrimination due to his ethnicity in Moscow was not deemed relevant, since it was not due to his sexual orientation.

Doe filed an appeal to the BIA on November 23, 2007, arguing that the IJ erred concerning the attitude of the police and the issue of relocation within the country to avoid persecution, but the BIA agreed with the IJ that Doe failed to prove he was eligible for asylum or withholding of removal.  (Doe didn’t pursue the CAT claim, which the IJ had also rejected.)  According to the BIA, wrote Alarcon, Doe’s “claim is based on isolated hate crimes which, while deplorable, do not establish his eligibility for asylum or withholding of removal.”  BIA concluded that Doe had “not shown that there is widespread persecution of homosexuals in Russia which is sponsored or condoned by the Russian government.”  According to the BIA, Doe had failed to show that the police to whom he reported the attacks he suffered had failed to undertake adequate investigations, that he had failed to “explain” the Russian law cited in the Compliance Paper, and that the burden was on him of “establishing foreign law on which he relied.”  The BIA concluded that Doe failed to establish his entitlement to asylum, either on grounds of homosexuality or ethnicity.  One must remember that this decision emanated from the generally anti-gay BIA that functioned under the Bush Administration. Whatever may have been the case when the BIA’s decision was written several years ago, these assertions sound ludicrous in light of recent news reports from Russia.  Doe petitioned the 9th Circuit to review this ruling on July 13, 2009.

“We are persuaded, after reviewing this record, that the BIA erred in concluding that Doe failed to demonstrate that the Russian government was unable or unwilling to control the persons he identified as having persecuted him on account of his homosexuality,” wrote Judge Alarcon.  “The Government failed to present any evidence to rebut Doe’s undisputed testimony that he suffered serious assaults at the hands of individuals on account of his homosexuality or to show that the Russian government was able and willing to control nongovernmental actors who attack homosexuals.  Because the evidence demonstrated that Doe was subjected to past persecution on account of his homosexuality and that the Russian government was unable or unwilling to control his persecutors, the BIA should have presumed that Doe has a well-founded fear of future persecution.  It should then have required the Government to meet its burden to show by a preponderance of the evidence that ‘there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution’ or ‘the applicant could avoid future persecution by relocating to another part of the applicant’s country.’  Because of these errors, we remand this matter to the BIA for further evidentiary proceedings to determine whether the Government can meet this burden.”

The court said that the BIA erred when it regarded the discrimination Doe encountered in Moscow on account of his ethnicity as, in effect, a separate asylum claim.  “This was error,” wrote the court. “Doe raised these issues to support his contention that he could not reasonably relocate to Moscow, not as a separate ground for asylum.”  The court pointed out that the issue regarding relocation was not whether Doe suffered asylum-worthy persecution in Moscow, but rather whether it was “reasonable” for him to relocate to a part of the country where he “would face other serious harm in the place of the suggested relocation.”  The court referred back to its decision in Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005), where it found that a gay HIV-positive man from Mexico could not escape the persecution he had suffered in his hometown by relocation because “hostility towards and discrimination against HIV/AIDS patients is common in Mexico.”

“The BIA did not address the reasonable feasibility of relocation at all with respect to ethnicity or sexual orientation,” commented the court, “as it held that Doe had not suffered cognizable past persecution on any protected ground.  We remand so that it may do so, leaving it to the agency to consider the evidence of ethnic discrimination and discrimination based on sexual orientation in Moscow under the standard applicable to the relocation question.”

This case now presents an interesting test for the Obama Administration, as it puts the government in the position of having to take a stand in a judicial forum on the question whether the Russian government is now complicit in the severely oppressive situation confronting gay people in Russia today, or whether it is buying into Russian President Putin’s incredible statements that Russia does not discriminate against gays at the same time that he signs into law various anti-gay measures.

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