A unanimous three-judge panel of the U.S. Court of Appeals for the 3rd Circuit granted a petition by Adamu Sumaila, a gay man from Ghana, for asylum in the United States, reversing decisions by the Board of Immigration Appeals (BIA) , which had affirmed an Immigration Judge (IJ) decision denying Sumaila’s application. Circuit Judge Luis Felipe Restrepo wrote the opinion in Sumaila v. Attorney General of the United States, 2020 WL 1527070 (3rd Cir., March 31, 2020), which is noteworthy for being outspokenly critical of the administrative decision-making in this case.
Although the IJ did not conclude that Sumaila’s account of what happened to him that caused him to flee Ghana was not credible, the court found that the IJ’s conclusion that Sumaila had not suffered persecution severe enough make him presumptively qualified for asylum was not supported by the record, and furthermore that both the IJ and the BIA had failed to apply the appropriate standard based on 3rd Circuit case law for determining whether Sumaila met the high evidentiary bar of establishing his right to protection under U.S. refugee law.
The court particularly singled out “the instructors and students from the Immigration Law Clinic at West Virginia University College of Law for their skillful pro bono representation of the petitioner in this appeal.” Counsel listed on the opinion representing Sumaila were Adrian N. Roe, the instructor, and Paige Beddow and Scott A. Cain, the students, who were admitted pursuant to Third Circuit LAR 46.3. The opinion indicates that the students actually argued the appeal before the court.
Sumaila testified to a harrowing experience, as Judge Restrepo summarizes his testimony in the opinion. He was born and raised in Accra, Ghana’s capital, and “first realized he was gay” at age 14 when he shared an “intimate encounter with another boy,” Inusah, whom he met at school. Over the next twelve years the two boys continued their relationship but kept it hidden because, Sumaila believed, such a relationship was “not acceptable.” “He could not speak to his family about his feelings,” wrote Restrepo, “because he worried that, as Muslims, they would disapprove of his sexual orientation or, even worse, that his father would kill him.”
“When Sumaila was twenty-six years old, his anxieties materialized into a harsh reality,” wrote the judge. “One morning in January 2016, his father unexpectedly entered Sumaila’s bedroom at the break of dawn and discovered Sumaila having sex with Inusah. His father went into a rage and began shouting that ‘his son was having sex with another man,’ and called on others to ‘come, come and witness what my son is up to!’ He demanded answers from Sumaila and condemned his actions: ‘Why do you engage in homosexuality? You have brought shame to this family and I will make sure you face the wrath of this evil deed.’”
“Upon hearing this uproar, a crowd of neighbors gathered at Sumaila’s house, forming a violent mob. Together with his father, the mob began to beat the two young men with stones, wooden sticks, and iron rods, and dragged them into a courtyard. Some in the mob wanted to report the young men to the police, but others began to argue over how best to punish them: death by burning or beheading. Sumaila believed the death threats were real. He remembers being doused with kerosene, and hearing calls to set him on fire. He also saw someone in the mob brandish a ‘cutlass,’ a curved sword with a sharp edge like a machete. Fearing that his life was in danger, he managed to escape and ran naked, hurt and bleeding to a friend’s house about ten minutes away. Sumaila told his friend about the attack and about his sexual relationship with Inusah. His friend, too, became afraid. He worried that they could both be killed if people found out that Sumaila was hiding there.”
Sumaila was “too frightened to call the police” or to “seek medical care,” so Sumaila asked his friend to drive him to the neighboring country of Togo. He didn’t really feel safe there, either. He contacted his friend, who was able to retrieve Sumail’s passport from his home, and Sumaila was able to fly to Ecuador. “Sumaila has heard that his father has publicly disowned him for being gay, that he is still looking for him, and that he intends to kill him if he finds him,” wrote Restrepo, and he “still worries about Inusah, his partner of more than ten years. Despite numerous attempts, he has not been able to reconnect with him since that horrific day.”
Sumaila eventually made his way across the border into the United States without formal entry papers, and filed an application for asylum. “Sumaila claimed that, after having been violently outed, attacked and threatened by his father and neighbors, he fears that he will be killed or otherwise persecuted in Ghana because he is gay,” wrote Restrepo, stating in summary form the basis for Sumaila’s petition.
The IJ, though crediting Sumaila’s story, decided that it was just a single incident, that Sumaila was not severely enough injured to seek medical care, that he did not report it to the police (thus not giving the government a chance to take action against his father or the mob for assaulting him), and consequently that he did not prove the level of persecution necessary to trigger the presumption that he would be subjected to persecution if he were sent back to Ghana. The IJ also asserted that Sumaila could avoid persecution on being sent back to Ghana by relocating to another part of the country and keeping his homosexuality hidden. The BIA affirmed this opinion.
The court of appeals panel evidently found this treatment of Sumaila’s asylum case by both the IJ and the BIA to be rather astonishing, especially in light of Ghana’s criminal law treating homosexual conduct as a crime subject to up to three years in prison, and State Department and other non-governmental human rights orgagnizations’ reports about the violence gay people experience in Ghana, including in prison.
The court noted the extensive circuit-level precedent recognizing that persecution on account of sexual orientation can qualify as a ground for asylum under U.S. law, in opinions dating back several decades to the early years of the Clinton Administration. “In rejecting Sumaila’s claim, however,” wrote the judge, “the IJ found that Sumaila had ‘not established that he suffered mistreatment on account of his sexual orientation that rises to the level of persecution.’ The BIA affirmed that finding without expressly reviewing the alleged motive of Sumaila’s tormentors. We construe the IJ’s and the BIA’s truncated decisions as rejecting both Sumaila’s claim that he was targeted ‘on account of’ his sexual orientation and that he suffered persecution.”
The court reached the contrary conclusion. “Here, there can be no serious dispute that the attack and threats Sumaila suffered were motivated by his sexual orientation,” asserted Restrepo. “Sumaila credibly testified that the mob’s violent and menacing behavior was instigated by his father’s outrage at discovering him having sex with another man and offered evidence that his father explicitly connected this violent response to his disapproval of Sumaila’s “homosexuality.’ Others in the mob wanted to report Sumaila to the police, further indicating that they were reacting to his same-sex relationship since that is the only conduct that could have conceivably incriminated Sumaila under Ghanaian law. Sumaila thus has demonstrated that he was targeted on account of his membership in a statutorily protected group.”
As to whether Sumaila met the test of “persecution” for purposes of U.S. asylum law, the court found that its past precedents supported his claim that a credible threat to his life and liberty because he is gay was sufficient to meet the test. “Crediting Sumaila’s testimony as the BIA did, we know that a violent mob beat Sumaila with makeshift weapons and dragged him across the floor from his room to a courtyard, causing him to bleed from his mouth and suffer injuries to his head and back. Sumaila was then threatened with death by burning or beheading, at the same time that he was being doused with kerosene and exposed to a cutlass. In combination with these violent acts of intimidation and his injuries, the death threats were sufficiently ‘concrete and menacing’ to transform this incident from a ‘simple beating’ into outright persecution.” The court also pointed out that, contrary to the government’s argument, the fact that these threats were “unfulfilled” – i.e., that Sumaila managed to escape – did not make them any less significant, in light of the report that his father continued to threaten his life if he returned to Ghana.
“Neither the IJ nor the BIA addressed the significance of these threats under the dispositive case law available at that time, and that omission derailed their analysis,” concluded the court. “The IJ focused exclusively on the ‘beating,’ finding that this incident was not extreme enough to constitute persecution because Sumaila had only been attacked once and he ‘did not require medical treatment.’” This was a mischaracterization of the record, the court pointed out, because he credibly testified to serious injuries, stating that he was afraid to seek medical assistance because of the hostility toward gay people.
“The BIA agreed that this ‘isolated’ incident did not rise to the level of persecution because Sumaila ‘was not so injured that he required medical attention and he was able to run to his friend’s house, which was some distance away[.]’ That analysis was based on a misunderstanding of the law and must be reversed. . . . It is debatable whether the record contains enough evidence to ascertain the full extent of Sumaila’s injuries, but our decision need not hinge on the severity of those injuries because this case involves so much more. . . . In short, because the IJ and the BIA accepted Sumaila’s testimony as true but then proceeded to misstate and ignore certain relevant aspects of that testimony, and because they committed legal error by finding that a single beating without severe physical injury to Sumaila was dispositive, their determination that his experience did not rise to the level of past persecution must be overturned.”
The court also rejected the government’s argument that Sumaila’s failure to report this incident to the police was “fatal” to his claim. In order to gain asylum, a petitioner has to show that he was subject to persecution by the government or by private forces that the government was unwilling or unable to control. In this case, the government argued that Sumaila’s father and the angry mob were not government officials, and Sumaila never sought to get the government involved in dealing with his situation. But for good reason, wrote the court, pointing to the extensive documentation presented by Sumaila’s counsel about the situation confronted by gay people in Ghana.
“Here, the record is replete with evidence that Ghanaian law deprives gay men such as Sumaila of any meaningful recourse to government protection and that reporting his incident would have been futile and potentially dangerous,” wrote Restrepo. “Ghana criminalizes same-sex male relationships under the guise of ‘unnatural carnal knowledge,’ defined to include ‘sexual intercourse with a person in an unnatural manner or with an animal.’ The text of this law – equating same-sex male relationships to sex with an animal – is already a clear indication of the government’s official position on gay men. Although the law classifies consensual sex between men as a ‘misdemeanor,’ the offense is punishable by up to three years in prison. Prosecution and disproportionate punishment based on any of the INA’s protected grounds, including sexual orientation, are cognizable forms of persecution, ‘even if the law is generally applicable,’ and perhaps significantly more, are sufficiently severe to constitute ‘persecution’ under this Circuit’s standard. . . . Had Sumaila reported the beating or threats, he would have outed himself and his partner to the police and, on that basis, he could have been arrested, prosecuted and incarcerated, compounding the persecution he had already suffered. This fact alone is compelling, if not dispositive, evidence that Sumaila had no meaningful recourse against his father’s and the mob’s homophobic violence. At best, seeking help from the police would have been counterproductive.”
“The record also shows that the Ghanaian government is unable or unwilling to protect LGBTI persons from other forms of mistreatment,” Restrepo continued. “For instance, Ghanaian law does not prohibit anti-gay discrimination even though there is a well-documented hostility towards the LGBTI community throughout the country. According to the State Department country report, ‘societal discrimination against [LGBTI] individuals’ rises to the level of a ‘human rights problem,’ and discrimination against LGBTI individuals in education and employment is ‘widespread.’ The report cites data from Ghana’s Commission on Human Rights and Administrative Justice, showing that ‘men who have sex with men’ are among the groups of people who have reported incidents of ‘stigma and discrimination,’ including breaches of protected health information, blackmail/extortion, harassment/threats, and violence or physical abuse. Amnesty International’s country report confirms that LGBTI individuals face ‘discrimination, violence and instances of blackmail in the wider community.’ Sumaila submitted other evidence echoing these accounts, including a letter from his friend stating that ‘authorities in Ghana have minimal concern for gay rights and politicians are always promising electorates of eradicating gays,’ as well as a news report evincing anti-gay political rhetoric ahead of the 2016 general elections.”
This evidence went not only to implicating the government as a persecuting actor, but also to the issue of Sumaila’s reasonable fear of persecution if he were returned to Ghana by the U.S. as a known homosexual person. Besides the matter of his father’s continuing threat to find and kill him, there was ample evidence in the record that the only way he would be able to survive in Ghana would be to hide his homosexuality, and asylum law treats that as an important factor.
The IJ and BIA hung their conclusions, in part, on a report (unverified) that there was actually a prosecution going on in Ghana of somebody charged with assaulting a gay man, but there is nothing in the record about how that turned out. “Considering that homophobic violence goes largely unreported because LGBTI persons fear harassment and extortion at the hands of police officers,” wrote the court, “one case in which anti-gay violence was supposedly prosecuted is hardly probative of the government’s ability or willingness to protect gay men. Because the IJ and the BIA disregarded, mischaracterized and understated evidence favorable to Sumaila, including relevant portions of his testimony and the country reports, ‘the BIA succeeded in reaching a conclusion not supported by substantial evidence such that we are compelled to reach a conclusion to the contrary.’”
Having concluded that Sumaila had proved that he was subjected to past persecution, the next step in the court’s analysis, focusing on the question whether he had a reasonable fear of persecution if returned to Ghana, would focus on whether the government had rebutted the presumption that he would face persecution in the future. While ordinarily at this point the case would be remanded to the BIA, and subsequently to the IJ, to allow the government a chance to attempt to rebut the presumption, “remand for this purpose is not necessary here, because even without applying the presumption and corresponding burden-shifting framework, the IJ’s and the BIA’s finding that Sumaila does not have a well-founded fear of future persecution cannot stand on this record,” wrote Retrepo.
“The IJ found that, although Sumaila ‘had]credibly testified that he subjectively fears persecution if returned to Ghana,’ he failed to show that ‘a reasonable person would fear the same.’ There is no dispute that Sumaila’s subjective fear is genuine. Thus, we focus on whether Sumaila’s fear of future persecution is objectively reasonable.” The court found the IJ’s conclusions on this point, affirmed by the BIA , to be “not supported by substantial evidence, because they are based on mischaracterizations, unreasonable inferences, and an incomplete assessment of the record.”
“Up until the attack, Sumaila’s ability to avoid this sort of homophobic abuse hinged on his ability to dissemble his sexual orientation and keep his sexual relationship with his partner hidden,” wrote the court. “No major leap is required to conclude that other gay men like Sumaila are escaping persecution by hiding or suppressing their sexuality as well. Indeed, anti-gay laws such as Ghana’s criminalization of sex between men are intended to stigmatize and punish, in effect, to suppress the expression of gay identity and sexuality in society. Secreting his gay identity is not a workable solution for Sumaila. Now that he has been publicly outed by his father, the risk of future persecution at the hands of uncontrolled private actors has increased, as evidenced by his father’s success at enlisting neighbors willing to assault and kill Sumaila because he is gay.”
“Sumaila is also at a higher risk of being prosecuted and punished, i.e., persecuted by the state, after being outed as a gay man. The Government responds that any future risk of arrest is not persecution because it would be ‘arbitrary.’ That argument misses the mark. The issue is not arbitrary arrest but state-sanctioned prosecution and punishment on account of a statutorily protected status. In no other context would prosecution and disproportionate punishment based on any of the INA’s protected grounds be anything other than persecution. If Sumaila were facing these risks because of his religious beliefs or political opinion, we would not hesitate to find an objectively reasonable fear of future persecution in these circumstances.”
“In short,” wrote the court, “we hold that Sumaila’s objective experience with anti-gay violence, the ongoing threats to his life, Ghana’s criminalization of same-sex male relationships and the widespread unchecked discrimination against LGBTI persons, combine to satisfy the requirement that his fear of persecution be objectively reasonable.”
Finally, the court addressed the IJ’s bizarre assertion that Sumaila could avoid persecution by staying away from Accra, his hometown, or by hiding his homosexuality. “The IJ found that there was no indication that Sumaila ‘would not be safe from his family if he relocated to another part of Ghana.’ That finding is based on unreasonable presumptions and a misunderstanding or mischaracterization of relevant evidence. Sumaila has reason to believe his father is still looking for him. Nothing in the record suggests that Sumaila’s father cannot travel freely around the country in search of Sumaila. Considering that Ghana’s criminalization of same-sex male relationships is country-wide, and that ‘widespread’ homophobia and anti-gay abuse is a ‘human rights problem,’ relocation is not an effective option for escaping persecution. Nor is it a reasonable solution,” the court continued. “Relocation is not reasonable if it requires a person to ‘live in hiding.’ To avoid persecution now that he has been outed, Sumaila would have to return to hiding and suppressing his identity and sexuality as a gay man. Tellingly, the IJ’s observation, no matter how ill-advised, that Sumaila could avoid persecution and live a ‘full life’ if he kept ‘his homosexuality a secret,’ was a tacit admission that suppressing his identity and sexuality as a gay man is the only option Sumaila has to stay safe in Ghana. The notion that one can live a ‘full life’ while being forced to hide or suppress a core component of one’s identity is an oxymoron.”
“Because Sumaila suffered past persecution and has a well-founded fear of future persecution on account of his sexual orientation and identity as a gay man, he qualifies as a refugee under the INA. Therefore, we will vacate the BIA’s decision and remand for further proceedings consistent with this opinion,” concluded the court.
The court supplemented its opinion with a footnote critical of the IJ’s performance in this case. “In case the BIA decides to remand to the IJ for any reason, we caution the IJ to exercise greater sensitivity when processing Sumaila’s application, as we are troubled by some of the IJ’s comments and questions,” wrote Restrepo. “In addition to suggesting that Sumaila would be better off hiding his identity as a gay man, the IJ questioned Sumaila in explicit detail about his sexual relations with Inusah, going so far as to ask about sexual positions. It is unclear why that line of questioning would be relevant to Sumaila’s claim, but to the extent those questions were intended to establish or test his self-identification as a gay man, they were off base and inappropriate. We urge IJs to heed sensible questioning techniques for all applicants, including LGBTI applicants.”
Judge Restrepo, a native of Colombia who became a U.S. citizen in 1993, was appointed to the district court and a few years later to the 3rd Circuit Court of Appeals by President Barack Obama.
Posts Tagged ‘Board of Immigration Appeals’
3rd Circuit Court of Appeals Orders Asylum for Gay Man From Ghana
2nd Circuit Remands CAT Claim by Gay Jamaican Man
A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit has remanded to the Board of Immigration Appeals (BIA) for reconsideration a claim for relief under the Convention Against Torture (CAT) by a gay man from Jamaica who was subject to deportation based on some state law convictions in Connecticut. Walker v. Lynch, 2016 WL 4191844, 2016 U.S. App. LEXIS 14554 (August 9, 2016). The panel, consisting of Circuit Judges Pierre N. Leval, Reena Raggi, and Raymond J. Lohier, Jr., found that the BIA had misapplied the law and inexplicably failed to respond to strong evidence from the U.S. State Department’s Human Rights Report on Jamaica as well as from a former leader of a Jamaican gay rights group about the dangers facing men known to be gay in Jamaica.
The court designated this decision as an “unpublished summary order,” so it does not include a detailed account of what the petitioner claimed to have happened to him growing up in Jamaica, but it mentions his claim that he was raped by an uncle, who allegedly threatened to “slit his throat for revealing the rapes and spreading rumors” that the uncle is gay, and that a cousin (the son of this uncle) had threatened to kill him “for levying accusations of homosexuality” at the cousin’s brother and father, who were “the two individuals responsible for his childhood sexual traumas.” The petitioner claimed that he was widely known to be gay in Jamaica.
The petitioner is resorting to a CAT claim because his criminal record in the U.S. precludes an application for asylum or withholding of removal. A non-citizen can be deported by the government, even if there is a probability that he would be subjected to persecution in his home country, if he is convicted of a serious crime in the U.S. The court in this case is not specific about the crimes for which the petitioner was convicted, merely commenting in passing that he was found to be removable “by reason of having been convicted of, inter alia, an aggravated felony and a controlled substance offense.” In order to claim protection against deportation to his home country under the CAT, the petitioner has to show that (1) “it is more likely than not that he or she would be tortured if removed to the proposed country of removal” and (2) “government officials would inflict such torture, or otherwise acquiesce in it.” In this context, torture is defined as being “subjected to acts ‘by which severe pain or suffering is intentionally inflicted for any reason based on discrimination of any kind.’” Acquiescence by the government describes a situation where the government “knows of or is willfully blind to anticipated acts of torture and breaches its legal responsibility to prevent it.”
The main evidence presented to the Immigration Judge (IJ) in addition to the petitioner’s credible claims about sexual assault and threats from relatives was a 2013 Human Rights Report published by the U.S. State Department, the kind of document that is supposed to carry great weight in these kinds of proceedings. The court wrote that this document “states that, in Jamaica – where laws criminalize ‘acts of gross indecency … between persons of the same sex’ – lesbian, gay, bisexual, and transgender (“LGBT”) individuals suffer ‘serious human rights abuses, including assault with deadly weapons, ‘corrective rape’ of women accused of being lesbians, arbitrary detention, mob attacks, stabbings, harassment . . . by hospital and prison staff, and targeted shootings.” The Report “further states that ‘brutality against [gay men], primarily by private citizens, was widespread in the community,’ and that ‘gay men hesitated to report such incidents against them because of fear for their physical well-being.’ Moreover, ‘although individual police officers expressed sympathy for the plight of the LGBT community and worked to prevent and resolve instances of abuse, the police force in general did not recognize the extent and seriousness of violence against members of the LGBT community, and failed to investigate such incidents.”
The court also referred to a letter from “the former director of the Jamaica Forum for Lesbians, All-Sexuals & Gays (‘J-FLAG’),” placed in evidence before the IJ, which stated that while “there have been improvements in the overall response of the police in the past year, the police frequently refuse to investigate crimes against gay individuals.” As a result, said the letter, “gay Jamaicans are not simply subject to violent persecution, but also are understood as safe targets for robbery, extortion and murder because of their outcast status.”
The IJ concluded based on this evidentiary record that the petitioner had failed to show “government acquiescence” because there was “insufficient evidence that the Jamaican government ‘indirectly condones the torture’ of gay individuals,” and the BIA approved this based on its conclusion that the evidence “does not describe whether the failure to investigate in most cases was purposeful and because of the victim’s sexuality.” The 2nd Circuit panel found that the IJ’s statement “appears to have ‘totally overlooked’ the contrary record evidence, and the BIA’s statement “appears to have misapplied the applicable standard by ‘conflating’ the CAT’s ‘specific intent requirement with the concept of state acquiescence.” In other words, it is not necessary for the petitioner to show that the government wants people to torture gays or intends to leave gays at the mercy of the mob; it is enough to show that the government “know of or remain willfully blind to an act and thereafter breach their legal responsibility to prevent it.” In short, if gays in Jamaica can’t depend on the government to bring to bear reasonable law enforcement efforts to combat anti-gay persecution amidst an environment that is extreme hostile to gay people, the standard set by the CAT has been met.
In this regard, the CAT standard resembles the “deliberate indifference” standard the courts use in 8th Amendment cases challenging prison living conditions that pose serious risk of harm to inmates. The plaintiff has to show that government officials are aware of the situation and are effectively refusing to deal with it, leaving the plaintiff in danger of serious harm. This sounds very much like what the State Department found in Jamaica. (As a matter of political note, it is worth observing that during the Bush Administration the State Department itself seemed willfully blind to anti-gay persecution in many of its Human Rights Reports, while the Obama Administration, with Hillary Clinton and John Kerry heading the State Department, provided much more inclusive and accurate reporting about anti-gay conditions around the world.)
“Accordingly,” wrote the court, “we remand for the agency to consider, consistent with the controlling precedent referenced, whether it is more likely than not that [Petitioner] will be tortured if removed to Jamaica and that the government will acquiesce in such torture, particularly in light of (1) the evidence discussed herein regarding the general failure of the Jamaican police to investigate crimes against gay individuals, and (2) [Petitioner’s] testimony regarding threats he received from family members.”
The ruling is an effective bench-slap against the BIA for ignoring the strongly-worded State Department Human Rights report on Jamaica – a report that is regularly confirmed by press accounts of anti-gay activity in the country – and a major victory for the Petitioner’s attorney on appeal, Jon Bauer of the Legal Clinic at the University of Connecticut School of Law.
7th Circuit Remands Gay Mexican’s Withholding of Removal Claim to BIA
The petitioner, a Mexican citizen, was brought to the U.S. in 1977, when he was ten years old, and became a permanent resident but never applied for citizenship. He was convicted on a charge of indecent solicitation of a minor, a felony, lost his permanent resident status and was ordered to be removed to Mexico. He argued that as an openly gay HIV-positive man, he faced a risk of persecution or torture if deported to Mexico, and sought withholding of removal and protection under the Convention Against Torture (CAT). He persuaded the IJ, who granted both withholding relief under the statute and under the CAT, only to be reversed by the BIA. On remand, the IJ “adhered to his position,” but the BIA stubbornly adhered to its position, again reversing the IJ, and petitioner sought relief from the court of appeals.
The most recent BIA decision said that “the probability of future harm is a legal question that we review de novo” and “in assessing the probability of harm de novo, we may give different weight to the evidence than did the Immigration Judge.” The BIA accepted the IJ’s findings of “historical fact” but “disagreed with the IJ about the risk implied by those facts.” Most particularly, the IJ was convinced by expert testimony about murders of gay men in Mexico that there would be a substantial risk to the petitioner if he were deported. But the BIA looked at the same statistics and drew a different conclusion. The IJ was impressed that there were 148 documented hate crime murders of gays in Mexico between 1995 and 2006. The BIA looked at that number, did its own calculations, and concluded that this meant that it was “unlikely (a risk of no more than 1 in 100,000) that any given gay man would be killed in any given year.” Thus, the IJ’s conclusion that anti-gay murders were “frequent” did not impress the BIA, which found that petitioner failed to meet the burden of showing that there was a “clear probability” that he would be murdered if returned to Mexico.
Wrote Easterbrook, “The Board treated the risk of future harm” – which is a dispositive issue in this kind of case – “as a matter of legislative fact, and it took the view that decisions on mixed (or ‘ultimate’) questions are open to plenary decision” on review. The court agreed with the petitioner that “the Board made a legal error by engaging in this kind of review, pointing particularly to a regulation, 8 C.F.R. Sec. 1003.1(d)(3), that provides that “The Board will not engage in de novo review of findings of fact determined by an immigration judge,” which would include “findings as to credibility of testimony” which would be subject to a “clearly erroneous” standard for reversals. In this case, the BIA did not reject the IJ’s findings of fact, but took the position that the determination of whether petitioner would incur a probability of persecution was not the kind of factual finding to which it need defer.
Easterbrook noted that there is a split of authority among the circuit appeals courts about how to review such BIA decisions, and the 7th Circuit panel favored the authority represented by a 3rd Circuit decision, Kaplun v. Attorney General, 602 F.3d 260 (2010), holding that “the Board is entitled to adopt an independent view about whether a potential harm identified by an IJ amounts to ‘persecution’ or ‘torture,’ but that an IJ’s predictions (which it called the ‘present probability of a future event’) – such that a particular harm is ‘likely’ should an alien return to his native land – are ‘facts’ under clause (i) [of the regulation], and the Board’s role is limited to identifying clear error by the IJ.”
The question here, as Easterbrook puts it, is whether predictions about the probability of persecution depend primarily on country conditions, “not (necessarily) on facts unique to the alien.” If country conditions are the most important concern, there would be much less reason to defer to findings of historical fact concerning the alien in question in reaching a sound judgment about such probability. Easterbrook points to the concern that different IJs might reach sharply different conclusions about the probability that a gay man deported to a particular country would be subjected to persecution there, but notes the potential salience of historical facts, regardless of the overall country conditions. In this case, the petitioner contends that “he is at greater risk” than other gay men. “He is not only gay and HIV positive but also ‘out’ and planning to live openly with his partner. He contends, and the IJ found, that his family has disowned him and will not offer any support. He adds that, because he has lived in the United States most of his life and does not know contemporary Mexican customs, he will find it hard to avoid attracting attention from persons who might do him harm. And he stresses that injuries (and deprivation of economic opportunities) short of death may amount to persecution.”
The court decided that “the question for the Board on remand is thus not whether aggregate data imply that Rosiles-Camerana is likely to be killed, but whether the IJ clearly erred in finding that he is more likely than not to be persecuted.” That is not a question for the court to decide, but “for the Board in the first instance.” However, the court’s summary of the petitioner’s argument makes it sound like a strong claim for individualistic fact-finding. The court’s powers of review are limited by statute in light of the petitioner’s conviction of a felony, which leaves a large range of discretion to the Board. On the other hand, the regulation governing the Board’s appellate authority constrains it substantially in second-guessing IJ fact-finding, as this decision shows.
Immigration Review Panel Announces Same-Sex Marriage Recognition Rule
Shortly after the Supreme Court held Section 3 of the Defense of Marriage Act (DOMA) unconstitutional on June 26 in U.S. v. Windsor, Department of Homeland Security Secretary Janet Napolitano announced that the immigration service under her department would recognize same-sex marriages that were valid where they were performed, using the “place of celebration rule.” But her announcement, which varied from standard practice of considering whether a marriage was recognized where the couple was residing, the “place of domicile rule,” was not binding outside her department. On July 17, the administrative body whose opinion on this would be crucial also opted for the “place of celebration rule,” as the Board of Immigration Appeals (BIA), a body within the Justice Department’s Executive Office for Immigration Review, ruled on a pending petition by a U.S. citizen seeking lawful resident status for his same-sex spouse.
The case is Matter of Oleg B. Zeleniak, 26 I & N Dec. 158, Interim Decision 3787, 2013 WL 3777692 (BIA July 17, 2013).
Serge Polajenko, a U.S. citizen, filed a Petition for Alien Relative, called an I-130, on March 10, 2010, on behalf of his husband, Oleg Zeleniak, after the men were married in Vermont. The petition was denied on July 27, 2010, on the ground that DOMA, Section 3, barred immigration authorities from recognizing same-sex marriages. Polajenko appealed to the BIA, which issued a decision on April 18, 2012, sending the case back to the National Benefits Center Director to address two issues: first, whether the Polajenko-Zeleniak marriage was valid under state law, and second, whether the marriage qualifies as bona fide as required by the Immigration and Nationality Act. At that time, of course, the Justice Department was on record as finding that DOMA Section 3 was unconstitutional, and it had stopped defending the statute in litigation, but was committed to continuing to enforce it pending a final decision from the Supreme Court. Remanding the case for these further determinations was, in effect, a holding action.
The questions posed by BIA are two distinctly separate issues, arising under two different bodies of law. The second concerns the requirement that a marriage be “bona fide,” not a marriage of convenience entered for the purpose of getting a “green card” (authorization to live and work in the United States), but rather a “real marriage” of parties intending to live as spouses. In response to the BIA, the Director issued a new decision on June 19, 2012, finding that the couple was validly married under Vermont law, but refusing to consider whether the marriage was bona fide for immigration purposes and again denying a visa for Zeleniak. Again Polajenko appealed. This time, as litigation involving DOMA was coming to a climax in several federal courts and clearly headed to the Supreme Court, the BIA sat on the appeal, as it has on many pending cases, waiting for the Supreme Court to rule.
The BIA’s new decision on Polajenko’s petition holds that the Windsor decision “removed Section 3 of the DOMA as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated. This ruling is applicable to various provisions of the Act, including but not limited to” fiancée and fiancée visas, immigrant visa petitions, refugee and asylee derivative status, inadmissibility and waivers of inadmissibility, removability and waivers of removability, cancellation of removal, and adjustment of status.
Thus, the BIA sustained Polajenko’s appeal, finding that the Director had already determined that the marriage is valid under Vermont law, “where the marriage was celebrated. Thus, the sole remaining inquiry is whether the petitioner has established that his marriage to the beneficiary is bona fide. We will remand the record to allow the Director to make that determination.”
The BIA’s ruling now becomes the precedent, and presumably a stream of rulings on backed-up appeals will follow. Although the BIA did not address the issue directly, presumably the place of celebration rule also extends to marriages between U.S. citizens and foreign nationals that take place outside the U.S., in one of the dozen or so other countries that allow same-sex marriages. While Homeland Security has been issuing green cards over the past few weeks in response to I-130 petitions in accord with Napolitano’s direction, the BIA ruling lines up the Justice Department with Homeland Security on the important issue of “place of celebration,” which means that married same-sex couples will be recognized for immigration purposes, regardless of where they are living, so long as their marriages are found to be bona fide.