Deported Peruvian Civil Partner Wins New Hope With Appellate Ruling

A unanimous decision by a panel of the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit, issued on August 24, gave new hope to Jair Izquierdo, a gay Peruvian who was deported and separated from his civil union partner last year after the Board of Immigration Appeals (BIA) upheld an Immigration Judge's decision to deny asylum and a different panel of the 3rd Circuit denied his petition for review. 

Izquierdo and his partner of five years, Richard Dennis, had been living together in New Jersey and had contracted a New Jersey civil union, and Izquierdo had petitioned for reopening of his case, presenting new evidence about the dangerous situation for gay people in Peru, but he was apprehended in a sting operation and deported to Peru – ironically, on the very day that the BIA denied his motion to reopen the case.

The August 24 ruling on his appeal of the denial of reopening criticized the BIA decision as "flawed," and ordered the case sent back to the agency so that it could reconsider based on the correct legal standard as instructed by the court.  Immigration law specialist Paul O'Dwyer represents Izquierdo.

Gay foreign nationals seeking to remain in the United States as refugees can seek asylum, which would allow them to stay here and apply for citizenship.  In order to gain asylum, they need to show that they have a reasonable fear of persecution on account of their membership in a particular social group if required to return to their home country.  The government recognizes gay people as being part of a particular social group for this purpose.  The problem is providing sufficient, up-to-date documentation about a pattern of persecution of gay people in the home country.

If the petition for relief is filed too late to seek asylum, or if the petition falls short for other reasons, a person can still seek relief in the form of "withholding of removal," which would allow them to remain in the United States, but this requires strong proof that the individual is likely to be subjected to persecution if returned to his home country.   Finally, if there is good evidence that the individual is likely to be subjected to torture (serious physical harm or death) if returned to their home country, they would be entitled to relief under the Convention Against Torture (CAT), a treaty to which the United States is a party.

Izquierdo arrived in the U.S. on a non-immigrant visa in October 2001, having left Peru to escape harassment from family members.  He overstayed his visa, having met Dennis and begun a relationship, but removal proceedings were initiated against him.  Conceding that he was removable, he applied for asylum or withholding of removal or relief under the CAT, based on his fear of encountering persecution as a gay man in Peru. 

At a hearing before an Immigration Judge (IJ) in October 2006, he presented detailed documentary evidence about the situation facing gay people in Peru.  Summarizing the evidence in a written decision denying relief, the IJ wrote that "(t)here are many instances where gays are not only discriminated against, but there's actual physical beatings at the hands of the authorities.  There's also evidence that the authorities stand around and allow gays to be harmed."  This appears to meet the standard, but the IJ incorrectly concluded that he could not make a finding of a "pattern or practice of persecution" because, he said, he could not find any appellate court authority concerning such a situation in Peru. 

The BIA upheld the IJ's denial of relief, in a strangely contradictory opinion.  While finding that the IJ was mistaken in thinking he could not grant relief in the absence of any appellate judicial precedent about Peru, the BIA decided that the evidence in the record was insufficient to establish the current situation there, because the incidents of beatings and persecutions were based on "older articles," some dating back as far as twelve years, and the most recent documents "relate primarily to incidents against transvestite activists."  As of 2006, the most recent State Department country reports about Peru suggested some improvement in conditions for gay people there.  Izquierdo petitioned the 3rd Circuit Court of Appeals to review the BIA decision, but his petition was denied in 2009. 

On October 20, 2010, he was apprehended by Immigration Control and Enforcement (ICE) agents when he responded to a fake business request, and he was placed in detention pending deportation.  His co-workers alerted Dennis, who contacted his attorney, and a new petition was filed to reopen his case.  A 2009 State Department report, which had not been available at the time of his prior asylum hearing, together with more recent articles, showed that conditions for gays remained very dangerous in Peru.  But the BIA rejected his petition on the same date he was deported, December 17.

The BIA's reasoning for denying the motion to reopen his case asserted that the new evidence he offered "does not reflect materially changed country conditions for homosexuals in his native Peru since this case was before the IJ in October of 2006.  Rather, such evidence describes a continuance of the on-going and volatile circumstances that gave rise to [his] first claim, a claim that was previously denied by both the [IJ] and the [BIA]."  The BIA went on to assert that a "generalized claim of increased harassment" was not sufficient to establish that "there exists a reasonable possibility that [he] would be targeted for harm rising to the level of persecution on account of a protected ground."  The BIA said that evidence of the likelihood of torture was lacking as well. 

Finding that "the reasoning underlying" the BIA's conclusion is "flawed," the 3rd Circuit highlighted the internal contradictions.  Whereas the BIA's first decision rejected relief on the ground that the 2006 hearing evidence showed things were getting better, the new decision rejected more recent evidence on the ground that it "describes a continuance of the on-going and volatile circumstances" that gave rise to his original claim, and so added nothing new.  Either the earlier decision was wrong in finding that things were getting better, or the new evidence is correct in showing that the "on-going and volatile circumstances" described in the older sources were continuing.  Thus, it is possible that the newer evidence negates the BIA's original decision, and should have been considered as a basis for reopening the case, because current conditions in Peru are the relevant issue.

Furthermore, the court observed, the BIA was subjecting this evidence to the wrong legal test.  As an asylum applicant, Izquierdo was claiming that there was a "pattern or practice of persecution" of gay people in Peru, but the BIA was subjecting this evidence to the "withholding of removal" test, which would require an individualized showing that he was likely to be targeted for persecution.  Indeed, the court pointed out, even the government attorneys responding to this appeal had virtually conceded the BIA's error on this point, by including a footnote in their brief suggesting that if the court disagreed with the BIA's conclusion that the new evidence did not warrant reopening the proceedings, it should send the case back "for the agency to consider Izquierdo's claim that he made out a prima facie case of a 'pattern or practice' of persecution."

"Given the above-noted flaws in the BIA's analysis," concluded the court, "we cannot uphold its December 17, 2010, decision on either of the two grounds articulated by the agency."  But the court rejected Izquierdo's request to rule on the merits that he is entitled to return to the United States, instead sending the case back to the BIA so it "can properly evaluate his motion to reopen," and added, "We express no opinion on his ability to prevail on that motion."

The court's decision never mentions Izquierdo's partner or his civil union status, but perhaps when the case is sent back to the BIA, the new approach announced by the Obama Administration to deal with the issue of same-sex binational couples might contribute to the reconsideration of the case.  A few weeks ago, the Administration announced that it was refocusing its deportation efforts to concentrate on removing criminals, and directed that ICE use its prosecutorial discretion in a way that would avoid breaking up families, including LGBT families. Several IJ decisions in recent months have taken this approach, delaying or deferring deportation proceedings in light of established same-sex relationships (in some cases civil unions or marriages).  Certainly, Izquierdo and Dennis, who lived together for five years and contracted a civil union, should qualify for such consideration.


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