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Supreme Court to Decide Whether Discrimination Because of Sexual Orientation or Gender Identity Violates Title VII’s Ban on Discrimination Because of Sex

Posted on: April 22nd, 2019 by Art Leonard No Comments

The U.S. Supreme Court announced on April 22 that it will consider appeals next term in three cases presenting the question whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, covers claims of discrimination because of sexual orientation or gender identity. Because federal courts tend to follow Title VII precedents when interpreting other federal sex discrimination statutes, such as the Fair Housing Act and Title IX of the Education Amendments of 1972, a ruling in these cases could have wider significance than just employment discrimination claims.

The first Petition for certiorari was filed on behalf of Gerald Lynn Bostock, a gay man who claimed he was fired by the Clayton County, Georgia, Juvenile Court System, for which he worked as Child Welfare Services Coordinator, because of his sexual orientation.  Bostock v. Clayton County Board of Commissioners, No. 17-1618 (filed May 25, 2018).  The trial court dismissed his claim, and the Atlanta-based 11th Circuit Court of Appeals affirmed the dismissal, 723 Fed. Appx. 964 (11th Cir., May 10, 2018), petition for en banc review denied, 894 F.3d 1335 (11th Cir., July 18, 2018), reiterating an old circuit precedent from 1979 that Title VII does not forbid discrimination against homosexuals.

The second Petition was filed by Altitude Express, a now-defunct sky-diving company that discharged Donald Zarda, a gay man, who claimed the discharge was at least in part due to his sexual orientation.  Altitude Express v. Zarda, No. 17-1623 (filed May 29, 2018).  The trial court, applying 2nd Circuit precedents, rejected his Title VII claim, and a jury ruled against him on his New York State Human Rights Law claim.  He appealed to the New York-based 2nd Circuit Court of Appeals, which ultimately ruled en banc that the trial judge should not have dismissed the Title VII claim, because that law applies to sexual orientation discrimination.  Zarda v. Altitude Express, 883 F.3d 100 (2nd Cir., Feb. 26, 2018). This overruled numerous earlier 2nd Circuit decisions.

The third petition was filed by R.G. & G.R. Harris Funeral Homes, three establishments located in Detroit and its suburbs, which discharged a funeral director, William Anthony Beasley Stephens, when Stephens informed the proprietor, Thomas Rost, about her planned transition.   R.G. & G.R. Funeral Homes v EEOC, No. 18-107 (filed July 20, 2018).  Rost stated religious objections to gender transition, claiming protection from liability under the Religious Freedom Restoration Act (RFRA) when the Equal Employment Opportunity Commission sued the funeral home under Title VII.  Stephens, who changed her name to Aimee as part of her transition, intervened as a co-plaintiff in the case.  The trial judge found that Title VII had been violated, but that RFRA protected Harris Funeral Homes from liability.  The Cincinnati-based 6th Circuit Court of Appeals affirmed the trial court’s holding that the funeral home violated Title VII, but reversed the RFRA ruling, finding that complying with Title VII would not substantially burden the funeral home’s free exercise of religion.  EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560 (6th Cir., March 7, 2018).  The 6th Circuit’s ruling reaffirmed its 2004 precedent in Smith v. City of Salem, 378 F.3d 566, using a gender stereotyping theory, but also pushed forward to hold directly that gender identity discrimination is a form of sex discrimination under Title VII.

In all three cases, the Court has agreed to consider whether Title VII’s ban on discrimination “because of sex” is limited to discrimination against a person because the person is a man or a woman, or whether, as the EEOC has ruled in several federal employment disputes, it extends to sexual orientation and gender identity discrimination claims.

The question whether the Court would consider these cases has been lingering on its docket almost a year, as the petitions in the Bostock and Zarda cases were filed within days of each other last May, and the funeral home’s petition was filed in July.  The Court originally listed the Bostock and Zarda petitions for consideration during its pre-Term “long conference” at the end of September, but then took them off the conference list at the urging of Alliance Defending Freedom, representing the funeral home, which suggested that the Court should wait until briefing on the funeral home was completed and then take up all three cases together.

The Court returned the petitions to its conference list in December, and the cases were listed continuously since the beginning of this year, sparking speculation about why the Court was delaying, including the possibility that it wanted to put off consideration of this package of controversial cases until its next term, beginning in October 2019.  That makes it likely that the cases will not be argued until next winter, with decisions emerging during the heat of the presidential election campaign next spring, as late as the end of June.

Title VII was adopted as part of the Civil Rights Act of 1964 and went into effect in July 1965.  “Sex” was added as a forbidden ground of discrimination in employment in a floor amendment shortly before House passage of the bill.  The EEOC, originally charged with receiving and investigating employment discrimination charges and attempting to conciliate between the parties, quickly determined that it had no jurisdiction over complaints charging sexual orientation or gender identity discrimination, and federal courts uniformly agreed with the EEOC.

The courts’ attitude began to change after the Supreme Court ruled in 1989 that evidence of sex stereotyping by employers could support a sex discrimination charge under Title VII in the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (plurality opinion by Justice William J. Brennan), and in 1998 in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (opinion by Justice Antonin Scalia), the Court suggested that Title VII could apply to a “same-sex harassment” case.   Justice Scalia stated that Title VII’s application was not limited to the concerns of the legislators who voted for it, but would extend to “comparable evils.”

These two rulings were part of a series of cases in which the Supreme Court took an increasingly flexible approach to interpreting discrimination “because of sex,” which in turn led lower federal courts earlier in this century to reconsider their earlier rulings in LGBT discrimination cases.  Federal appeals court rulings finding protection for transgender plaintiffs relied on Price Waterhouse’s sex stereotyping analysis, eventually leading the EEOC to rule in 2012 that a transgender applicant for a federal job, Mia Macy, could bring a Title VII claim against the federal employer.  Macy v. Holder, 2012 WL 1435995. In 2015, the EEOC extended that analysis to a claim brought by a gay air traffic controller, David Baldwin, against the U.S. Transportation Department, Baldwin v. Foxx, 2015 WL 4397641, and the EEOC has followed up these rulings by filing discrimination claims in federal court on behalf of LGBT plaintiffs and appearing as amicus curiae in such cases as Zarda v. Altitude Express.

In the Harris Funeral Homes case, the 6th Circuit became the first federal appeals court to go beyond the sex stereotype theory for gender identity discrimination claims, agreeing with the EEOC that discrimination because of gender identity is always discrimination because of sex, as it involves the employer taking account of the sex of the individual in making a personnel decision.  The EEOC’s argument along the same lines for sexual orientation discrimination was adopted by the Chicago-based 7th Circuit Court of Appeals in 2017 in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. en banc), a case that the losing employer did not appeal to the Supreme Court.  In 2018, the 2nd Circuit endorsed the EEOC’s view in the Zarda case.

During the oral argument of Zarda in the 2nd Circuit, the judges expressed some amusement and confusion when an attorney for the EEOC argued in support of Zarda’s claim, and an attorney for the Justice Department argued in opposition.  When the case was argued in September 2017, the EEOC still had a majority of commissioners appointed by President Obama who continued to support the Baldwin decision, but Attorney General Jeff Sessions took the position on behalf of the Justice Department that federal sex discrimination laws do not apply to sexual orientation or gender identity discrimination claims.

Due to the Trump Administration’s failure to fill vacancies on the EEOC, the Commission currently lacks a quorum and cannot decide new cases.  Thus, the Solicitor General’s response for the government to Harris Funeral Home’s petition for review did not really present the position of the Commission, although the Solicitor General urged the Court to take up the sexual orientation cases and defer deciding the gender identity case.  Perhaps this was a strategic recognition that unless the Court was going to back away from or narrow the Price Waterhouse ruling on sex stereotyping, it was more likely to uphold the 6th Circuit’s gender identity ruling than the 2nd Circuit’s sexual orientation ruling in Zarda, since the role of sex stereotyping in a gender identity case seems more intuitively obvious to federal judges, at least as reflected in many district and appeals court decisions in recent years.

The Court sometimes tips its hand a bit when granting certiorari by reframing the questions posed by the Petitioner.  It did not do this regarding sexual orientation, merely stating that it would consolidate the two cases and allot one hour for oral argument.  Further instructions will undoubtedly come from the Court about how many attorneys will be allotted argument time, and whether the Solicitor General or the EEOC will argue on the sexual orientation issue as amicus curiae.

The Court was more informative as to Harris Funeral Homes, slightly rephrasing the question presented in the Petition.  The Court said that the Petition “is granted limited to the following question: Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.”  One wonders why the Supreme Court used the phrase “status as transgender” rather than “gender identity” in describing the first part of the question, since “gender identity” fits more neatly into the terminology of Title VII than a reference to “status.”

None of the members of the Court have addressed the questions presented in these three cases during their judicial careers up to this point, so venturing predictions about how these cases will be decided is difficult lacking pertinent information.  The four most recent appointees to the Court with substantial federal judicial careers prior to their Supreme Court appointment – Samuel Alito, Sonia Sotomayor, Neil Gorsuch, and Brett Kavanaugh – have never written a published opinion on sexual orientation or gender identity discrimination, and neither did Chief Justice John Roberts during his brief service on the D.C. Circuit Court of Appeals.  However, it seems predictable that the justices most committed to construing civil rights laws narrowly in the context of the time when they were adopted will be skeptical about the argument that the 1964 statute can be interpreted to extend to sexual orientation or gender identity discrimination.

The counsel of record for Bostock is Brian J. Sutherland of Buckley Beal LLP, Atlanta.  Clayton County, Georgia, retained Jack R. Hancock of Freeman Mathis & Gary LLP, of Forest Park, Georgia, to submit its response to the Bostock Petition.  Counsel of record for Altitude Express is Saul D. Zabell of Bohemia, New York.  The brief in opposition was filed on behalf of the Zarda Estate by Gregory Antollino of New York City.  Zabell and Antollino were both trial counsel in the case and have pursued it through the appellate process.  Several attorneys from Alliance Defending Freedom, the Scottsdale, Arizona, based conservative religious liberty litigation group, represent Harris Funeral Home, and Solicitor General Noel J. Francisco’s office represents the EEOC.   John A. Knight of the ACLU Foundation, Chicago, is counsel of record for Aimee Stephens.  It is not unusual when the Supreme Court grants review for private parties to seek out experienced Supreme Court advocates to present their arguments to the Court, so some of these attorneys listed on the Petitions and other Briefs will likely not be appearing before the Court when the cases are argued next winter.

 

 

 

 

Supreme Court Receives Two New Certiorari Petitions on Title VII Sexual Orientation Discrimination Claims

Posted on: May 31st, 2018 by Art Leonard No Comments

At the end of May the Supreme Court had received two new petitions asking it to address the question whether the ban on employment discrimination “because of sex” under Title VII of the Civil Rights Act of 1964 can be interpreted to apply to claims of discrimination because of sexual orientation.

Altitude Express, the former employer of the late Donald Zarda, a skydiving instructor who claimed he was dismissed because of his sexual orientation in violation of Title VII, has asked the Court to reverse a February 26 ruling by the U.S. Court of Appeals for the 2nd Circuit.  The 2nd Circuit ruled in Zarda v. Altitude Express, 883 F.3d 100 (en banc), that the district court erred in dismissing Zarda’s Title VII claim as not covered under the statute, and sent the case back to the U.S. District Court, holding that sexual orientation discrimination is a “subset” of sex discrimination.

Gerald Lynn Bostock, a gay man who claims he was fired from his job as the Child Welfare Services Coordinator for the Clayton County, Georgia, Juvenile Court System because of his sexual orientation, is asking the Court to overturn a ruling by the 11th Circuit Court of Appeals, which reiterated in his case its recent ruling in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), cert. denied, 138 S. Ct. 557 (2017), that an old precedent requires three-judge panels within the 11th Circuit to dismiss sexual orientation claims under Title VII.  As in the Evans case, the 11th Circuit refused Bostock’s request to consider the question en banc. See Bostock v. Clayton County Board of Commissioners, 2018 U.S. App. LEXIS 12405, 2018 WL 2149179 (11th Cir., May 10, 2018).

The question whether Title VII can be used to challenge adverse employment decisions motivated by the worker’s actual or perceived sexual orientation is important as a matter of federal law, and even more important nationally because a majority of states do not forbid such discrimination by state statute. Although Title VII applies only to employers with at least 15 employees, thus leaving regulation of small businesses to the states and localities, its applicability to sexual orientation discrimination claims would make a big difference for many lesbian, gay and bisexual workers in substantial portions of the country where such protection is otherwise unavailable outside those municipalities and counties that have local ordinances that cover sexual orientation claims. It would give them both a federal forum to litigate their employment discrimination claims and substantive protection under Title VII.  For example, not one state in the southeastern United States forbids sexual orientation discrimination by statute.  In Georgia, individuals employed outside of a handful of municipalities are, like Gerald Bostock in Clayton County, out of luck unless the federal law can be construed to protect them.  Thus, an affirmative ruling by the Supreme Court would be especially valuable for rural employees who are unlikely to have any state or local protection.  (The question whether a county or city ordinance provides protection depends on where the employer does business, not where the employee lives, so somebody living in Birmingham, Alabama, but working in a factory or a retail business outside the city limits, would not be protected by the city’s ordinance.)

During the first several decades after Title VII went into effect on July 2, 1965, every attempt by LGBT plaintiffs to assert sexual orientation or gender identity discrimination claims was rejected by the Equal Employment Opportunity Commission (EEOC) and the federal courts. Two Supreme Court decisions adopting broad interpretations of the meaning of discrimination “because of sex” have led to a movement to reconsider that old position.  In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court accepted the argument that an employer who discriminates against a worker because of the worker’s failure to comport with stereotypes the employer holds about sex and gender may have acted out of a forbidden motivation under Title VII.  And in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), holding that the interpretation of “because of sex” was not limited to the factual scenarios envisioned by Congress in 1964, the Court rejected the 5th Circuit’s holding that Title VII could not apply to a case where a man was being subjected to hostile environment harassment of a sexual nature by male co-workers.  In that case, the Court (speaking unanimously through Justice Antonin Scalia) said that Title VII could be applied to “comparable evils” to those envisioned by Congress.  Taking these two cases together as precedents, lower federal courts began to interpret federal laws forbidding sex discrimination to be susceptible to broader interpretations, first in cases involving transgender plaintiffs, and then more recently in cases involving lesbian, gay or bisexual plaintiffs.

The EEOC embraced this movement in the lower federal courts during the Obama Administration in rulings reversing half a century of agency precedent to extend jurisdiction to gender identity and sexual orientation claims. The key sexual orientation ruling is Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015), issued just weeks after the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.  The EEOC’s rulings are not binding on the federal courts, however, and the agency does not have the power to enforce its rulings without the courts’ assistance.  It does have power to investigate charges of discrimination and to attempt to persuade employers to agree to settle cases that the agency finds to be meritorious. The decision that the statute covers sexual orientation also provides a basis to ground retaliation claims under Title VII when employees suffer adverse employment actions because they oppose discrimination or participate in enforcement proceedings.

Plaintiffs bringing these sexual orientation cases in federal courts have had an uphill battle because of the weight of older circuit court decisions rejecting such claims. Under circuit court rules, old appellate decisions remain binding not only on the district courts in each circuit but also on the three-judge circuit court panels that normally hear appeals.  Only a ruling en banc by an expanded (eleven judges in the huge 9th Circuit) or full bench of the circuit court can overrule a prior circuit precedent, in addition, of course, to the Supreme Court, which can overrule circuit court decisions.  Some have argued, as the petition recently filed in Bostock argues, that Price Waterhouse and Oncale implicitly overrule those older precedents, including the case that the 11th Circuit cites as binding, Blum v. Golf Oil Corporation, 597 F.2d 936 (5th Cir. 1979), a case from the old 5th Circuit.  (Congress subsequently split the 5th Circuit, separating off its eastern half to create a new 11th Circuit, which treats as binding old 5th Circuit precedents that have not been overruled en banc by the 11th Circuit.)  The 2nd Circuit ruling in Zarda specifically looked to Price Waterhouse and Oncale as well as the EEOC’s Baldwin decision to overrule several earlier panel decisions and establish a new interpretation of Title VII for the federal courts in Vermont, New York, and Connecticut.

Before the Zarda decision, the only circuit court to issue a similar ruling as a result of en banc review was the 7th Circuit in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017).  At the time of Hively, two out of the three states in the 7th Circuit – Wisconsin and Illinois – already had state laws banning sexual orientation discrimination, so the ruling was most important for people working in Indiana.  A three-judge panel of the 8th Circuit, covering seven Midwestern states, most of which do not have state laws banning sexual orientation discrimination, will be hearing argument on this issue soon in Horton v. Midwest Geriatric Management, 2017 U.S. Dist. LEXIS 209996, 2017 WL 6536576 (E.D. Mo. Dec. 21, 2017), in which the U.S. District Court dismissed a sexual orientation discrimination claim in reliance on a 1989 decision by an 8th Circuit panel.

Bostock’s petition argues that circuit courts should not be treating as binding pre-Price Waterhouse rulings on this issue.  Under this logic, the 8th Circuit panel in Horton should be able to disclaim that circuit’s 1989 ruling, although it is more likely that an overruling would require an en banc hearing, unless, of course, the Supreme Court grants one of the new petitions and sides with the plaintiffs in these cases.

Altitude Express’s petition, by contrast, relies on the Supreme Court’s general disposition against recognizing “implied” overruling, arguing that the 2nd and 7th Circuits have erred in interpreting Title VII to apply to claims that Congress did not intend to address when it passed Title VII in 1964, and that neither Price Waterhouse nor Oncale has directly overruled the old circuit court precedents.  While the Altitude Express petition states sympathy, even support, for the contention that sexual orientation discrimination should be illegal, it lines up with the dissenters in the 2nd and 7th Circuits who argued that it is up to Congress, not the courts, to add “sexual orientation” through the legislative process.

A similar interpretation battle is playing out in the circuit courts of appeals concerning gender identity discrimination claims. However, plaintiffs are having more success with these claims than with sexual orientation claims because it is easier for the courts to conceptualize gender identity – especially in the context of transition – as non-conformity with gender stereotypes, and thus encompassed directly within the scope of Price Waterhouse.  Although only one circuit court – again the 7th – has gone so far as to embrace the EEOC’s determination that gender identity discrimination claims can be considered discrimination “because of sex” without resorting to a stereotyping theory, most of the courts of appeals that have considered the question have agreed that the stereotyping theory can be put to work under Title VII to allow transgender plaintiffs to pursue their claims in federal court, and many have also applied it under Title IX of the Education Amendments Act of 1972 to find protection for transgender students. If the Supreme Court were to take up the sexual orientation issue, a resulting decision could have significance for gender identity claims as well, depending on the Court’s rationale in deciding the case.

The timing of these two petitions, filed late in the Term and after all oral arguments have been concluded, means that if the Court wants to take up this issue, the earliest it could be argued would be after the new Term begins on October 1, 2018. As of now, nobody knows for certain what the composition of the Court will be when the new term begins.  Rumors of the possible retirement of Justice Anthony Kennedy (who will turn 82 in July), likely to be the “swing” voter on this as on all LGBT rights cases, are rife, and although Justices Ruth Bader Ginsburg (recently turned 85) and Stephen Breyer (turning 80 in August) have expressed no intentions of stepping down, they are – together with Kennedy – the oldest members of the Court.  Justice Clarence Thomas, a decisive vote against LGBT rights at all times, who was appointed by George H.W. Bush in 1991, is the second-longest serving member of the Court after Kennedy (a Reagan appointee in 1987), but Thomas, who was relatively young at his appointment, will turn 70 on June 23, and most justices have continued to serve well past that age, so occasional speculation about his retirement is probably premature.  With the exception of Jimmy Carter, who did not get to appoint any Supreme Court justices during his single term, every president in modern times has gotten to appoint at least two justices to the Court during their first (or only) term.  So there is considerable suspense as to the composition of the Court for its 2018-2019 Term.  If the Justices are thinking strategically about their certiorari votes on controversial issues, they might well hold back from deciding whether to grant these petitions until they see the lay of the land after the Court’s summer recess.

The Altitude Express petition was filed by Saul D. Zabell and Ryan T. Biesenbach, Zabell & Associates, P.C., of Bohemia, N.Y. The Zarda Estate is represented by Gregory Antollino and Stephen Bergstein, of Bergstein & Ullrich, LLP.  The Bostock petition was filed by Brian J. Sutherland and Thomas J. Mew IV of Buckley Beal LLP, Atlanta, Georgia.  The Trump Administration Justice Department sided with Altitude Express in the en banc argument before the 2nd Circuit in Zarda, while the EEOC sided with the Estate of Zarda.  The Bostock petition seizes on this divided view from the government representatives in the Zarda argument as yet another reason why the Supreme Court should take up the issue and resolve it once and for all.  Numerous amicus briefs were filed for the 2nd Circuit en banc argument.  The Bostock 11th Circuit appeal attracted little notice and no amicus briefs.

 

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.

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.