A unanimous panel of the U.S. Court of Appeals for the 8th Circuit denied a petition by a lesbian from Venezuela for review of the Board of Immigration Appeals' rejection of her asylum and withholding of removal claims based on her sexual orientation and political views. The court agreed with the BIA and the Immigration Judge that there was not sufficient evidence of persecution of homosexuals by the Venezuelan government to justify treating the petitioner as a refugee. L-A v. Holder, 2011 Westlaw 3557854 (Aug. 15, 2011).
According to the opinion for the court by Circuit Judge Michael Joseph Melloy, the petitioner entered the U.S. lawfully on a tourist visa on July 26, 2002, and obtained a six-month extension to allow her to stay through July 26, 2003. During the extension period, she sought a student visa, which was denied, and the school to which she applied advised that she had to return to Venezuela, but she overstayed in the U.S. and filed a petition for asylum or withholding of removal in September or October 2003. Representing herself, she alleged in this petition that she suffered persecution based on her sexual orientation. She obtained several postponements of her case while trying to obtain legal counsel. After she obtained counsel, a new petition was filed, adding that she also feared persecution based on political affiliations.
The petitioner claimed that she and her family (mother and sisters) had been involved with the Democratic Action Party, which was out of power as a result of the rise of the Chavez regime, and that she had been involved in a political demonstration on April 11, 2002, during which government snipers fired on the demonstrators. After the demonstration, she claimed, she was stopped by the police at checkpoints several times. She also alleged that a police officer had harassed her and her same-sex partner as they were walking in a park. She left her job and the country a few months later on the tourist visa, and evidently hoped not to have to return. She still owns two condominium apartments in Venezuela, and her mother and other family members remain behind.
She also presented U.S. State Department Country Reports on Venezuela dating from 2007 through 2009, as well as other reports and articles indicating that the Venezuelan government had lists of Venezuelans who applied for asylum and that the government was using that database to deny passports to individuals, and that "unknown assailants physically assaulted and threatened opposition leaders in Venezuela." As well, the 2009 State Department Country Report, the first to be compiled after the State Department came under the leadership of Hillary Clinton, stated that "violence against lesbian, gay, transgender, and bisexual communities reportedly occurred during the year," and that "unknown perpetrators" had killed thirteen transgender individuals in Venezuela between November 2008 and May 2009.
Based on this record, the Immigration Judge found that she had missed the deadline for filing her asylum petition (which should have been filed within a year of her entry in the U.S.), but even if it were deemed timely, she did not meet the criteria for asylum. The BIA agreed with this conclusion on the merits, as did the court.
The court found that the trial record supported the BIA's conclusion that the petitioner had not shown that she was individually targeted by the government for persecution, and indeed that her mother and other relatives in Venezuela had not suffered persecution on account of their political views. There was no evidence that her experience with police checkpoints was different from anybody else in Venezuela, or particularly targeted at her. And the one incident of sexual orientation-related harassment by a police officer, said the court, "does not rise to the level of persecution" that would qualify her for asylum, as she "was not physically harmed during this incident, and the police officer's ridicule does not constitute the extreme concept of persecution required for asylum."
Thus, the petitioner was found not to have suffered past persecution, as that term is used in asylum law. Furthermore, she could not meet the more demanding standard for withholding of removal, which is available for those who don't earn asylum if they can show that it is more likely than not that they would be subjected to persecution if they were returned to their home country. Although she might have shown evidence that her politics and sexuality could result in discriminatory economic treatment, this is not sufficient to meet the standard of persecution, which concerns the likelihood of severe physical injury or death at the hands of government operatives or lawless forces that the government will not or cannot control.
The court was particularly dismissive of the petitioner's reliance on the Country Report about the murder of transsexuals, pointing out that she is not transsexual. The petitioner did not claim that she was at risk for torture, so the court observed that she also could not qualify for relief under the Convention Against Torture. "The BIA was left with a general report of alleged violence based on sexual orientation," commented Judge Melloy. "While troubling, this information does not demonstrate that [the petitioner] will be singled out and persecuted."
Thus, the court affirmed the BIA, upholding the Immigration Judge's order that the petitioner leave the United States.