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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The court designated this decision as an “unpublished summary order,” so it does not include a detailed account of what the petitioner claimed to have happened to him growing up in Jamaica, but it mentions his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.

Zero Dark Thirty

Posted on: January 25th, 2013 by Art Leonard No Comments

This film was high on my list, but it took a while to find the time to go.  I went earlier this week and have been trying to “process” for myself what I think about this film. 

Zero Dark Thirty presents a dramatic version of the search for Osama bin Laden, launched after the 9/11/2001 suicide attacks on the World Trade Center and the Pentagon.  The focus is on a particular female CIA agent who, in the film, participates in the effort to determine Bin Laden’s location.  Early scenes vividly portray the torture of a captured suspect by CIA operatives seeking information about the operations of Al Qaeda and Bin Laden’s location.  Our main character observes but does not personally inflict physical force on the suspect. The presentation can be somewhat confusing, because little explanation is provided to the viewer.  There is little in the way of comprehensible exposition in the early stages of the film.  It is unclear whether any information that the torture subject reveals is used or contributes directly to apprehending terrorists.  Later scenes cast some doubt on the reliability of intelligence upon which the CIA operatives are taking action.  Ultimately, of course, Bin Laden’s whereabouts are discovered, after ten years of effort, and a major portion of the film is devoted to a re-enactment of the successful raid on his compound.  My interpretation of what was happening was that lucky breaks, good detective work, and the obsessive focus of the central character, played by Jessica Chastain, resulted in locating and terminating BinLaden.  (My understanding is that the character portrayed by Chastain may be something of a composite, not totally based on just one individual.)

This is a thrilling piece of film-making, giving the viewer a sense of being present and observing real events unwinding.  It is confusing to follow at times, because the narrative is fast-paced, many of the characters speak quickly in jargon-laden language, and there is sometimes no explanation about what is going on – one just watches things unfold and has to supply one’s own explanation.  The casting and directing is very strong.  I was particularly amused at James Gandolfini (“Tony Soprano”) being cast as Director of the CIA.  Once a boss, always a boss, I guess.  He gives a great performance, as he always does, even though it is a brief bit part.

This film has attracted some harsh criticism as being said to communicate that torture results in useful intelligence.  It is not clear to me that the film would send that message to a viewer who is watching intently and interpreting carefully what is presented.  One of my facebook friends questioned why the torture scenes were included if they were not relevant to the discovery of Bin Laden’s location?  My response is that the vehicle for presenting this story is the central character and a dramatic account of her experiences, which would include from the time she arrived in the Middle East as part of the intelligence-gathering mission after 9/11, a time that included these extreme interrogation techniques.  These were experiences that marked her and influenced how she proceeded.  It seemed to me that Chastain portrayed the character as being uncomfortable with these techniques and being devoted to other means of investigation.  She ultimately uncovers Bin Laden’s location after these techniques were officially abandoned, and it is not clear from the film that any intelligence traced to torture of captives directly contributed to the discovery.

It is now accepted by critics of the extreme interrogation techniques that in addition to being immoral they are not effective because a subject under such interrogation will say what they think they have to say to end the torture, regardless of its truth, and — as I think is well illustrated in these violent scenes — will tell interrogators what the interrogators want to hear, just reinforcing what may be incorrect suppositions.  Experts in the field contend that verbal interrogation, skillfully conducted, can be much more effective in eliciting accurate information.  I don’t think this film, as a dramatic work, can settle that question one way or the other.  I do think that the graphic depiction of these violent interrogation techniques is likely to bring home to the viewer how repulsive such techniques are, demeaning of human dignity and contrary to the concepts upon which our country is founded, including ideas of due process of law and protection of individual autonomy as well as respect for the physical integrity of the individual.  We reject the notion that the ends always justify the means, and if the ends are illusory and the means are disgusting, all the more reason to reject the means.

At bottom, I think the criticism of the filmmakers is overly-generalized and inadequately sensitive to the details of the film they made.  Depicting such activities is not equivalent to approving of them.  I would be very upset if the film overtly depicted a torture victim spouting obviously valuable and accurate intelligence in the course of this activity, but that is not my impression of the scenes in this film.