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.