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3rd Circuit Court of Appeals Orders Asylum for Gay Man From Ghana

Posted on: April 4th, 2020 by Art Leonard No Comments

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.

9th Circuit Revives Asylum Claim of Gay Man From Russia

Posted on: November 28th, 2013 by Art Leonard No Comments

Finding that the Board of Immigration appeals erred in finding that a gay asylum applicant from Russia had failed to show that he had been subjected to persecution by non-governmental actors whom the Russian government was unable or unwilling to control, a panel of the U.S. Court of Appeals for the 9th Circuit granted the petition for review and remanded the case so that the Board of Immigration Appeals can determine whether the government has met its burden of showing a change in conditions for gay people in Russia that would overcome the presumption that the applicant has a well-founded fear of persecution if required to return there.  Doe v. Holder, 2013 WL 6182985, 2013 U.S. App. LEXIS 23855 (November 27, 2013).  In light of recent news reports about the severe harassment to which gays in Russia are being subjected, recent anti-gay legislation, and the failure of Russian law enforcement to provide effective protection for GLBT groups there, the government may not be able to meet this burden.

Before addressing the merits of the appeal, Circuit Judge Arthur L. Alarcon observed that generally plaintiffs are not allowed to proceed anonymously in federal court, but that the courts will allow a “John Doe” filing “in exceptional cases where necessary to protect a person from harassment, injury, ridicule or personal embarrassment.”  The court held that this was such an “unusual case” and referred to the Petitioner throughout the opinion as “John Doe.”

An Immigration Judge expressly found that Doe’s testimony about his experiences growing up in Russia was credible.  Doe testified that while attending East Siberian Technological University in his hometown, Ulan-Ude, for two years, he joined a club for gay students, but when some of his classmates saw him socializing with club members, the word spread that he was gay and “almost ‘everybody [he] knew’ – classmates, persons from Doe’s wrestling club, students from his former school – began mocking him.”  Doe described two violent attacks he suffered from classmates.  After the first, during which he was beaten and suffered injuries to an eye and body bruises, he went to the police, but the police officer on duty said he did not want to receive the crime report, that the “case is not so serious,” and asked why Doe, a man, had not defended himself.  Basically, the police didn’t want to hear about it.

Doe suffered a second attack, much more severe, in April 2003, being beaten in a restaurant by other customers while he was sitting with his boyfriend.  Both Doe and his boyfriend were beaten, Doe so severely that he lost consciousness, only awakening in the ambulance, and he suffered internal brain hemorrhaging and a concussion, being hospitalized for three weeks.  His father reported the attack to the police, who sent an officer to interview him in the hospital, but Doe believed that the police took no further action in the case, even though he gave the officer the names of some of his attackers, who were known to him from school.  Doe later received a “Confirmation Paper” from the police, indicating that his father’s application that the assailants be prosecuted “was rejected on the basis of Criminal Code of the Russian Federation, Regulation 24, Chapter 1, Paragraph 2.”  The “Confirmation Paper” did not include the text of this regulation, and neither Doe nor the government placed it in evidence in the immigration hearing.  Doe says that after he was released from the hospital, he saw some of his attackers, who resumed harassing him.  He soon moved to Moscow, where he lived for four months until he came to the U.S. on a student visa.  He says he encountered discrimination in Moscow because of his ethnicity, Buryat.  He believes he was singled out because members of his ethnic minority do not look like ethnic Russians and are treated by the police as suspect foreigners.

Doe enrolled in the American Language Communications Center in New York, but eventually stopped attending classes, and received a notice from Homeland Security to appear because his non-attendance violated the terms of his nonimmigrant status.  At that point, Doe applied for asylum, withholding of removal and protection under the Convention Against Torture.

Although the Immigration Judge found his testimony credible, and that he had suffered physical injury and persecution in his home city because he was gay, the IJ found that “the record does not support the conclusion that the government was unable or unwilling to protect the respondent.”  While the comments of the local police officer in response to the first incident reflected prejudice, the IJ said that the police action in sending an officer to interview Doe in the hospital after the second incident was a response.  Wrote Judge Alarcon, “The IJ observed that the police rejected that report on the basis of a specific provision of Russian law, but that the record did not contain evidence of what the cited code section said.  The IJ stated, ‘Without more the Court is unable to conclude that the police decision was based on an improper motive,’ because the Russian police had taken ‘affirmative action in response to the complaint and appeared not to have rejected the complaint out of hand.’  As a result, the IJ held, ‘The record does not support the conclusion that the government was unable or unwilling to protect the respondent.’”   The IJ also noted that Doe was able to relocate to Moscow to escape his local persecutors.  That he suffered discrimination due to his ethnicity in Moscow was not deemed relevant, since it was not due to his sexual orientation.

Doe filed an appeal to the BIA on November 23, 2007, arguing that the IJ erred concerning the attitude of the police and the issue of relocation within the country to avoid persecution, but the BIA agreed with the IJ that Doe failed to prove he was eligible for asylum or withholding of removal.  (Doe didn’t pursue the CAT claim, which the IJ had also rejected.)  According to the BIA, wrote Alarcon, Doe’s “claim is based on isolated hate crimes which, while deplorable, do not establish his eligibility for asylum or withholding of removal.”  BIA concluded that Doe had “not shown that there is widespread persecution of homosexuals in Russia which is sponsored or condoned by the Russian government.”  According to the BIA, Doe had failed to show that the police to whom he reported the attacks he suffered had failed to undertake adequate investigations, that he had failed to “explain” the Russian law cited in the Compliance Paper, and that the burden was on him of “establishing foreign law on which he relied.”  The BIA concluded that Doe failed to establish his entitlement to asylum, either on grounds of homosexuality or ethnicity.  One must remember that this decision emanated from the generally anti-gay BIA that functioned under the Bush Administration. Whatever may have been the case when the BIA’s decision was written several years ago, these assertions sound ludicrous in light of recent news reports from Russia.  Doe petitioned the 9th Circuit to review this ruling on July 13, 2009.

“We are persuaded, after reviewing this record, that the BIA erred in concluding that Doe failed to demonstrate that the Russian government was unable or unwilling to control the persons he identified as having persecuted him on account of his homosexuality,” wrote Judge Alarcon.  “The Government failed to present any evidence to rebut Doe’s undisputed testimony that he suffered serious assaults at the hands of individuals on account of his homosexuality or to show that the Russian government was able and willing to control nongovernmental actors who attack homosexuals.  Because the evidence demonstrated that Doe was subjected to past persecution on account of his homosexuality and that the Russian government was unable or unwilling to control his persecutors, the BIA should have presumed that Doe has a well-founded fear of future persecution.  It should then have required the Government to meet its burden to show by a preponderance of the evidence that ‘there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution’ or ‘the applicant could avoid future persecution by relocating to another part of the applicant’s country.’  Because of these errors, we remand this matter to the BIA for further evidentiary proceedings to determine whether the Government can meet this burden.”

The court said that the BIA erred when it regarded the discrimination Doe encountered in Moscow on account of his ethnicity as, in effect, a separate asylum claim.  “This was error,” wrote the court. “Doe raised these issues to support his contention that he could not reasonably relocate to Moscow, not as a separate ground for asylum.”  The court pointed out that the issue regarding relocation was not whether Doe suffered asylum-worthy persecution in Moscow, but rather whether it was “reasonable” for him to relocate to a part of the country where he “would face other serious harm in the place of the suggested relocation.”  The court referred back to its decision in Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005), where it found that a gay HIV-positive man from Mexico could not escape the persecution he had suffered in his hometown by relocation because “hostility towards and discrimination against HIV/AIDS patients is common in Mexico.”

“The BIA did not address the reasonable feasibility of relocation at all with respect to ethnicity or sexual orientation,” commented the court, “as it held that Doe had not suffered cognizable past persecution on any protected ground.  We remand so that it may do so, leaving it to the agency to consider the evidence of ethnic discrimination and discrimination based on sexual orientation in Moscow under the standard applicable to the relocation question.”

This case now presents an interesting test for the Obama Administration, as it puts the government in the position of having to take a stand in a judicial forum on the question whether the Russian government is now complicit in the severely oppressive situation confronting gay people in Russia today, or whether it is buying into Russian President Putin’s incredible statements that Russia does not discriminate against gays at the same time that he signs into law various anti-gay measures.