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2nd Circuit Rejects Gay Brazilian Man’s Refugee Claims, Despite Evidence About Anti-Gay Violence in Brazil

Posted on: May 1st, 2017 by Art Leonard No Comments

Opening up a gulf in reasoning with the 9th Circuit, which has insisted on a distinction between the official policies of a government and the facts on the ground in evaluating whether gay people would suffer persecution or worse in a particular country, a panel of the U.S. Court of Appeals for the 2nd Circuit affirmed a ruling by an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) that a gay man from Brazil could not win refugee status in the United States, despite the documented high rate of murders of gay men in that country and the asserted inability of the government to do anything about it. Dias v. Sessions, 2017 WL 1437117, 2017 U.S. App. LEXIS 7088 (2nd Cir., April 24, 2017) (not  published in F.3d).

Because the appeal was decided under the 2nd Circuit’s special summary proceeding method to deal with the huge caseload of refugee appeals generated in the New York metropolitan region, the per curiam opinion emanating from a panel consisting of Circuit Judges Reena Raggi, Peter W. Hall and Denny Chin is light on facts.  The Petitioner, a native and citizen of Brazil, apparently came to the attention of the Department of Homeland Security as a result of a criminal conviction, but the court does not state any details about that, or the circumstances under which he came to be in the United States and subject to removal.  Petitioner applied for asylum, withholding of removal, and/or protection under the Convention against Torture (CAT), all of which were denied by an Immigration Judge on May 7, 2014, in a decision that was affirmed by the Board of Immigration Appeals (BIA) on September 9, 2015.  In addition to finding that the Petitioner failed to meet the burden of showing he would likely be subjected to persecution or torture if removed to Brazil, the IJ found that he could relocate within Brazil to a safer place than that from which he came.  The BIA did not affirm on the relocation finding, which was unnecessary in light of the finding on the merits.

“Although [Petitioner] did not articulate it as such,” wrote the court, “his claim is that private parties have a pattern or practice of persecuting gay men in Brazil, which the government is unable to stop. [He] predicts that people in Brazil will discover that he is gay either from the Internet article about his crime, from his family, or from a future relationship with a man.  He asserts that homophobic violence is rampant in Brazil, citing a State Department report that killings based on sexual orientation rose from 2011 to 2012, and a Chicago Tribune article on a 1995 study that found 59% of gay Brazilians had suffered some type of homophobic violence.  He cites a study finding that a gay person’s risk of being killed there is 785 percent greater than in the United States and several high-profile cases of homophobic murders.  He acknowledges that Brazil has gay marriage, active gay rights groups, and certain cities with anti-discrimination laws, but argues that this evidences shows that Brazil is willing but unable to stop the violence.”

The BIA, in disagreeing with these arguments, “acknowledged the evidence of violence and discrimination against gay Brazilians.” But the agency put more weight on the “official” developments – gay rights groups, gay marriage, annual gay pride parade, and city ordinances banning anti-gay discrimination – to find that the Petitioner had “failed to show the Brazilian government would be unwilling or unable to control those responsible for the violence and discrimination.”

The court commented: “Although the IJ and BIA decisions are sparse on reasoning, substantial evidence supports that finding.” The court emphasized that the Chicago Tribune article on which Petitioner relied was more than twenty years old, and that the State Department report, while citing “338 killings based on sexual orientation, acknowledged the Brazilian government’s efforts to fight discrimination and promote gay rights.”

The standard for review of a BIA determination is not a de novo reconsideration, but rather a determination whether the agency should have been “compelled” by the evidence in the record to rule in favor of the Petitioner.  Under this standard, the 2nd Circuit panel found that the BIA was not “compelled” to grant asylum or withholding of removal to the Petitioner.

Turning to the CAT claim, the court found that the agency “reasonably concluded that his predicted chain of events was speculative. Even if it is likely that [he] will have a romantic relationship with a man, the record did not compel the agency to find it more likely than not that [he] will be tortured by, or with the acquiescence of, Brazilian authorities.”

Petitioner is represented by Robert C. Ross of West Haven, CT.

The 2nd Circuit panel’s approach deviates from that recently taken by the 9th Circuit in appeals by gay men from Mexico, another country in which the movement for marriage equality has made major gains, some municipalities now ban sexual orientation discrimination, and formerly anti-gay criminal laws have been reformed, but anti-gay violence at the hands of criminal gangs, police officers, and family members of gay people remains a major concern.  In Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017), recently reiterated in Hernandez v. Sessions, 2017 WL 1404699 (9th Cir., April 20, 2017), the court “made clear” that its earlier precedents on refugee claims by gay Mexicans “falsely equated legislative and executive enactments prohibiting persecution with on-the-ground progress” and insisted that the U.S. immigration authorities must look beyond such “official” positions to consider the situation that gay people actually face in countries where there is pervasive anti-gay hostility about which the governments can do little.  The 9th Circuit has been particularly emphatic in protecting transgender refugee applicants.  In cases where local police officials are part of the problem, the 9th Circuit has chided immigration authorities for failing to recognize such harassment as being attributable to the government.  The Supreme Court has yet to decide any case involving a claim for refugee status in the United States by a gay or transgender applicant.

Denial of Refuge to Jamaican Who Claims to Be Bisexual Sparks Disagreement on 7th Circuit Panel

Posted on: August 21st, 2016 by Art Leonard No Comments

By a 2-1 vote, a panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit affirmed a decision by the Board of Immigration Appeals (BIA) to deny relief under the Convention Against Torture to a Jamaican man who claims to be bisexual.  [Petitioner] v. Lynch, 2016 WL 4376516, 2016 U.S. App. LEXIS 15127 (August 17, 2016).  The majority of the panel, in an opinion by Judge Diane Pamela Wood, found that under the deferential standard for reviewing administrative decisions in the immigration system, the evidentiary record that led the Immigration Judge to conclude that the petitioner had failed to prove he was bisexual did not compel a contrary conclusion and so could not be overturned.

Dissenting, Judge Richard Posner contended that the Immigration Judge had “fastened on what are unquestionable, but trivial and indeed irrelevant, mistakes or falsehoods in [petitioner’s] testimony,” and, furthermore, “The weakest part of the immigration judge’s opinion is its conclusion that [petitioner] is not bisexual, a conclusion premised on the fact that he’s had sexual relations with women (including a marriage). Apparently the immigration judge does not know the meaning of bisexual.  The fact that he refused even to believe there is hostility to bisexuals in Jamaica suggests a closed mind and gravely undermines his critical finding that [petitioner] is not bisexual.”

According to Judge Wood’s decision summarizing the record in the case, the petitioner, who was born and grew up in Jamaica, claims to have begun having sex with both men and women while a teenager. He fell in love with an American woman visiting Jamaica and they married and moved to the U.S., where she sponsored him for resident status.  However, the marriage didn’t last and their failure to attend a required interview with immigration officials resulted in termination of his status, after which they divorced.  Around the same time, he pled guilty to an attempted criminal sexual assault charge, was sentenced to probation, violated his probation and was resentenced to prison time.  After his release from prison, he was swooped up by Homeland Security and processed for deportation.  In the course of those proceedings, he raised the horrendous conditions for gay and bi people in Jamaica, seeking protection under the Convention Against Torture (CAT).

The Immigration Judge concluded that his criminal record prevented granting him withholding of removal, and most of the attention in the case focused on the CAT claim. A person who is otherwise deportable may win relief under the CAT by showing that they would likely be subjected to torture or serious harm at the hands of the government or those the government is unable to control.  While numerous sources, including State Department Human Rights reports from 2012 and 2013, document the fierce homophobia in Jamaica and the failure of the government to address it effectively, the BIA continues to dither about whether LGBT refugees from Jamaica are entitled to CAT relief.  The U.S. Court of Appeals for the 2nd Circuit recently remanded another Jamaican case to the BIA for reconsideration in light of this information.

In this case, the IJ, following the BIA line, rejected the claim, but most of the attention was focused on the credibility of petitioner’s claim to be bisexual and that he would be known as such in Jamaica and thus likely to encounter serious harm there. The IJ focused on the numerous inconsistencies in his testimony about his experiences in Jamaica, in which he mixed up dates, places, and names to such an extent that the IJ found his claims to be not credible.  The IJ rejected the submission of letters from various people attesting to his bisexuality (including two letters signed by former boyfriends now living in other states), doubting their validity.

The BIA “found no clear error in the IJ’s findings that [petitioner] ‘did not credibly testify and did not establish that he has ever been bisexual.’,” wrote Judge Wood, “And because [petitioner] had not established that he was bisexual or that he would be perceived in Jamaica as bisexual – the basis of his purported fear of torture – he had not met his burden of proof under the CAT.”

In refusing to upset this ruling, the majority of the 7th Circuit panel focused on its limited authority to review factual findings by an IJ, stating that the question is “whether the facts compel a conclusion contrary to the one that the IJ reached.  While we might wish it were otherwise, there is no exception under which plenary review is available for factual questions of enormous consequence, as this one is for [petitioner].”

“We are not insensible to the fact that immigration judges sometimes make mistakes, and that the costs of such errors can be terrible,” wrote Wood. “A mistaken denial of asylum can be fatal to the person sent back to a country where persecution on account of a protected characteristic occurs; a mistaken denial of deferral of removal under the Torture Convention can have ghastly consequences.  If we could balance the magnitude of the risk times the probability of its occurrence against the cost of offering a few additional procedures, or a few more years in the United States, we would.”

While admitting that this result is harsh, Judge Wood dangled hope that if the petitioner could come up with more credible evidence, he might be able to persuade the IJ to grant a motion to reopen his case.

This did not satisfy Judge Posner, who really ripped into the majority in his dissenting opinion. Posner pointed out that the merits of the petitioner’s claim “depend on how two issues are resolved: whether [petitioner] is bisexual and whether bisexuals are persecuted in Jamaica.  The rejection of the second point by the Immigration Judge, upheld by the Board of Immigration Appeals, is cursory and unconvincing; but if he isn’t bisexual the error is harmless.  But the rejection of his claim to be bisexual is also unconvincing.  The immigration judge emphasized such things as [his] lack of detailed recollection of events that go back as far as 1983 and a supposed lack of ‘proof’ of bisexuality.  Well, even members of this panel have forgotten a lot of 33-year-old details.  And how exactly does one prove that he (or she) is bisexual?  Persuade all one’s male sex partners to testify, to write letters, etc.?  No, because most Jamaican homosexuals are not going to go public with their homosexuality given the vicious Jamaican discrimination against lesbian, gay, bisexual, and transgender (“LGBT”) persons, which is undeniable….”

Posner recited at some length information easily available on-line and from the State Department, and asserted that the immigration judge’s opinion “is oblivious to these facts.” He pointed out that the court’s opinion “does not explain” how many of the consistencies of testimony “could have any bearing on the question of [his] sexual orientation.”  Posner ripped to shreds the IJ’s rationale for rejecting the various letters offered by the petitioner, including those from his ex-lovers, and criticized the immigration judge for failing to ask a psychologist to provide input on the question.  “Immigration judges are authorized to do this,” he wrote, “authorized to select and consult, which they may and usually do on the phone, an expert with expertise relevant to the case at hand.”

Most tellingly, however, wrote Posner, “Nor had any reason been given, either by the immigration judge or by the majority opinion in this court, why if [petitioner] is not bisexual he would claim to be in an effort to remain in the United States, knowing that if he failed in this effort to remain he would be in grave danger of persecution when having lost his case he was shipped off to Jamaica. No doubt once back in Jamaica he could deny being bisexual – but no one who was either familiar with this litigation, or had been one of his persecutors before he left Jamaica for the United States, would believe (or at least admit to believing) his denial.”

Posner also threw in his insight that “homosexuals are often antipathetic to bisexuals,” for which he cited some articles from the internet. Posner seems to be an avid googler, judging by his on-line references in this and other cases.  “This is not to say that they would be likely to attack [petitioner] physically when he returned to Jamaica, but they might well talk about his return to the island – the return of a bisexual – and some of the persons to whom they talked might well be heterosexual and want to harm [him] physically.  Word is likely to spread quickly in an island of fewer than three million inhabitants.”  Posner’s parting shot, as noted above, was to suggest that the IJ was ignorant about bisexuality and had a “closed mind” on the subject.

At this point, the petitioner, who has been representing himself without a lawyer (and thus, statistically, never had a particularly good chance of winning his case), likely faces imminent deportation. We have withheld his name in this account of the case to avoid spreading it on the internet and exposing him to further potential harm.

2nd Circuit Remands CAT Claim by Gay Jamaican Man

Posted on: August 16th, 2016 by Art Leonard No Comments

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

Posted on: August 28th, 2013 by Art Leonard No Comments
A panel of the U.S. Court of Appeals for the 7th Circuit has granted a petition for review of the Board of Immigration Appeals’ (BIA) decision to deny withholding of removal to a gay, HIV-positive man from Mexico, finding that the BIA had failed to comply with a  regulation governing review of Immigration Judge (IJ) decisions by engaging in de novo review of facts decided by the IJ.  Rosiles-Camerana v. Holder, 2013 U.S. App. LEXIS 17551, 2013 WL 4457283 (August 21, 2013).  The court, in an opinion by Circuit Judge Frank Easterbrook, remanded the case to the BIA for “proceedings consistent with this opinion.”
 

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.