The U.S. Courts of Appeals have issued two new rulings in cases where gay men are battling to stay in the United States rather than to be deported to their countries of origin. In one, involving a gay man from Trinidad & Tobago, the 3rd Circuit granted the government's motion to dismiss the appeal on jurisdictional grounds. In the other, involving a gay man from Kenya, the 8th Circuit remanded the case to the Board of Immigration Appeals (BIA) to deal with problems with the transcript of the hearing, having affirmed the BIA's requirement that the petitioner provide some corroboration for the story of past persecution he presented to the Immigration Judge (IJ). [Petitioner] v. Attorney General, 2012 WL 843174 (3rd Cir., March 14, 2012) (not selected for publication); [Petitioner]v. Holder, 2012 WL 851111 (8th Cir., March 15, 2012) (to be published in F3d.)
The Petitioner in the first case, a native and citizen of Trinidad and Tobago, came to the U.S. in 1984. In June 1994 he pled guilty to a state law robbery charge and was sentenced to nine years in prison. After getting out of prison, he again got into trouble, pleading guilty in June 2004 to a state heroin possession charge, incurring a sentence of 364 days plus a term of probation. Eventually his criminal record caught up to him with Homeland Security, as he received a Notice to Appear on January 27, 2010, charging him with being a removable alien. He responded by filing an I-589 application for asylum (clearly untimely), withholding of removal and protection under the Convention Against Torture (CAT), arguing that the situation for homosexuals in Trinidad & Tobago was so dangerous that he should be allowed to remain in the U.S. as a refugee.
The problem for the Petitioner was that Congress has sharply limited the circumstances under which an alien with a serious criminal record can win refugee status and be allowed to remain in the United States. Denying his petition, the IJ found that he had failed to meet the burden of showing that he would more likely than not be tortured due to his sexual orientaiton were he removed to Trinidad & Tobago, and the BIA affirmed. The court of appeals noted that its powers to review this determination were quite limited. In effect, Petitioner was arguing that the BIA had "incorrectly weighed evidence, failed to consider evidence, or improperly weighed equitable factors." The court said that such arguments were not within its jurisdiction, which is limited in such cases to questions of law or constitutional errors. The court noted that none of the cases about homosexual petitioners cited by the Petitioner (who is representing himself without counsel) involved "an order of removal made in connection with aggravated-felony status." Thus, the court found, it had to grant the government's motion to dismiss.
In the 8th Circuit case, the gay Petitioner from Kenya won a limited new opportunity to pursue his claim. The Petitioner arrived in the U.S. as a visitor in June 2001 and filed his asylum application within one year of entry, seeking refugee status based on his sexual orientation. His application was initially denied by the IJ based on a credibility determination, but the BIA reversed and remanded for a new hearing, finding that the IJ's credibility findings were based on "minor inconsistencies, speculation, and conjecture."
The second time around, the IJ found that Petitioner was a credible witness about the incident which provided the basis for his asylum claim. He testified that he and his then-boyfriend, K, had been arrested by the police, beaten, and forced to perform sex acts in front of the police guards. He arranged for his former boyfriend, still in Kenya, to submit an affidavit in support of his claim. The problem is that although the affidavit from K confirmed their past sexual relationship and the arrest, it did not go into detail about their alleged mistreatment by the policy, recounting only that they were subsequently released for lack of evidence, and that K also wished to be able to come to the U.S. The IJ found that the affidavit did not corroborate the Petitioner's allegations of mistreatment by the police, and again denied the asylum claim.
The BIA found that the IJ had properly required corroboration, despite the fact that the asylum petition pre-dated, and thus was not covered by, the express statutory corroboration requirements of the REAL ID Act of 2005. Petitioner argued that there were gaps in the transcript of the IJ hearing, as a result of which his evidence about why he could not get a further, more detailed affidavit from K – whose whereabouts by then were unknown to Petitioner – were not considered by the BIA in ruling on his appeal from the IJ decision. It seems that in preparing a transcript, the court reporter omitted many words and phrases, labeling them as indecipherable.
Much of the court's opinion is taken up with explaining the corroboration requirement. Although some other circuits had found prior to passage of the REAL ID Act that corroboration might not be required for detailed testimony by a petitioner who was deemed to be credible, the 8th Circuit had taken an opposing view, holding that where corroborative evidence was offered that did not fully support the important points of a petitioner's testimony, the IJ could reject the asylum application on grounds of lack of corroboration, in the absence of an adequate explanation of why further corroboration could not be obtained.
In this case, the failure of K's affidavit to refer to the events that were recounted with such vivid detail by Petitioner in his hearing testimony could justify the IJ in resolving the application against the Petitioner, wrote the court. The court quoted the IJ's explanation: "Although the credible testimony of an applicant may suffice without corroboration, in light of the material and central nature of the events at the Kamukunji police station, it was reasonable to expect corroboration of those events" in the affidavit submit by the only other witness to them.
"The IJ did not err in first making a credibility determination and then explaining why corroborative evidence was reasonably required," wrote the court. "Because [Petitioner] offered the affidavit of K to corroborate his account of what occurred at the police station, it was reasonable for the IJ to expect K's account to at least mention mistreatment by the guards. K's failure to make any reference to such mistreatment calls into question the crux of [Petitioner's] claims. As a result, we do not believe it was unreasonable for the IJ and the BIA to expect further corroborative evidence from K."
The problem, insisted the Petitioner, was that K has "disappeared" and it was not possible to obtain further corroborative evidence from him. Petitioner insists that he offered this explanation to the IJ, but it was omitted from the hearing transcript and, he claims, the BIA failed to address that evidence in its decision affirming the IJ. Wrote the court, "Although the BIA's order adopted the IJ's findings as to the availability of evidence, noting that [Petitioner] 'could not sufficiently explain the glaring omission,' it never addressed [Petitioner]'s argument that the transcript below was deficient. As a result, it is not apparent to us in our review that the BIA ever considered the explanation [Petitioner] alleges he made during the IJ hearing as to why he was unable to contact K. The Due Process Clause of the Fifth Amendment entitles [Petitioner] to a fair hearing, which includes 'the opportunity to be heard at a meaningful time and in a meaningful manner.' Although we express no opinion on the issue of whether an inaccurate or incomplete transcript may have prejudiced [Petitioner]'s 'ability to perfect an appeal,' we find that remand is appropriate to allow the BIA to address the issue in the first instance."
Throughout this account of the two cases, the word "Petitioner" has been substituted for surnames to protect confidentiality for individuals who might eventually be deported and face difficulties in their home countries.