Three Gay Asylum Losses (2 Jamaican Gays loose Asylum Appeal)

By: ARTHUR S. LEONARD
12/18/2008

Three gay men eager to remain in the United States struck out before separate federal circuit court panels in early December. A gay Indonesian had failed to raise issues about his homosexuality early enough in his efforts to stay, ruled the 5th Circuit, based in Houston. Two gay Jamaicans, both of whom ran afoul of the law while in the US, fell short of proving they would be tortured if deported to their homeland, according to the 4th Circuit, based in Richmond, and the 11th Circuit, based in Atlanta.

Because the gay men in these cases will be returned to countries where they may be subjected to attack for their sexual orientation, Gay City News will not publish their names. The brief December 1 ruling concerning the Indonesian man does not mention whether he was represented by a lawyer, but that seems unlikely, considering the shortcomings of his case. The court was considering a motion by the man to have his case returned to the Justice Department's Board of Immigration Appeals (BIA) for reconsideration, on the ground that he wanted to present new evidence to the Immigration Judge that he was gay. Typically, new evidence is considered information not available at the time of the original hearing that might have changed the outcome.

In this case, the man claims, that in raising his homosexuality only at this point in the proceedings, "he had a good explanation for not doing so at his hearing due to cultural taboos and his lack of knowledge that information was relevant." He also claimed that at the time "he did not know his sexual orientation," but "came out" only later.The court was not sympathetic, stating that his "allegation regarding cultural taboos and his lack of knowledge of the relevance of his sexual orientation" explains why he did not present the evidence, but "it does not show that he could not have presented the evidence," which it said is the standard that applies. The court also pointed out that he first contended he did not know he was gay during his original hearing in a brief that he filed with the court of appeals. Under the rules governing these proceedings, an argument cannot be raised for the first time when the case gets to federal court. Since he "did not raise this claim before the BIA, this court does not have jurisdiction to consider it," wrote the court.

In the Jamaican case heard in Richmond, decided on December 3, the petitioner had gained lawful permanent resident status in the US in 1987, but was ordered deported in 1998 by an Immigration Judge due to criminal activity. However, he quickly reentered the USÂ illegally and in 2004 was arrested and convicted of drug trafficking, using a firearm, and illegally reentering the US. He was again ordered deported, but this time he raised the issue of his homosexuality, claiming that he feared persecution or torture if sent back to Jamaica. Appearing before an Immigration Judge, the man's case was bolstered by a 2005 State Department Country Report on Jamaica documenting problems gay men encounter in that intensely homophobic society, including "reports of physical abuse of homosexual prisoners." The petitioner recounted being assaulted by a mob, and his sister testified that neighbors had killed the petitioner's father because of his relationship to his son.

The Immigration Judge found the petitioner eligible for protection under the international Convention Against Torture, concluding he was more likely than not at risk of being imprisoned and tortured for homosexual acts if returned to Jamaica.The man's luck did not last. The Department of Homeland Security appealed his case to the Board of Immigration Appeals, which reversed, finding that the conclusion he faced torture was "based on a series of unsupported suppositions." The BIA concluded it was "not more likely than not that 'any torture the applicant may suffer in Jamaica would be by or at the acquiescence of the government.'" The immigration system offers protection to refugees who suffer from public and publicly-sanctioned abuse, but not atrocities carried out strictly by private citizens.

The petitioner unsuccessfully appealed this ruling to the 4th Circuit in 2007, and the Supreme Court denied his application for review early this year. On the verge of deportation, the petitioner, seizing on a recent BIA ruling in another case involving a gay Jamaican, sought to reopen his case there, but he was denied because his appeal was not timely. He again appealed to the 4th Circuit, but in its latest ruling that court found that Congress's crackdown on non-citizens who engage in serious criminal activity sharply limits its jurisdiction in such cases. The court wrote that it can only review "constitutional and legal questions" at issue, while the petitioner was instead raising an argument based on a more recent precedent that he saw as advantageous. So, even though the BIA has accepted the argument that conditions for gay men in Jamaica are serious enough to warrant letting gay refugees from there stay in the US, the petitioner in this case was too late to benefit. The other gay Jamaican case, decided by the 11th Circuit on December 4, takes a different view of the evidence about dangers facing gay men in Jamaica.

The petitioner entered the US as a legal permanent resident in 1992 as a child accompanying his mother, who was was naturalized as a citizen in 1999. By then, he had already turned 18, so he did not automatically become a citizen as well.The man was later convicted of a felony and sentenced to 18 months in prison for stabbing a man with whom he was living, though it is not clear on whether the victim was his partner, a roommate, or just a short-term visitor. The initial proceedings to deport him were conducted by telephone because he was in prison, and when the Immigration Judge advised him to get an attorney, he responded he "would like to speak on my own behalf," usually a mistake.

He admitted he had been convicted of aggravated battery with a deadly weapon, and that he had also been arrested for prostitution. A criminal conviction of a non-citizen on serious charges subjects him to deportation and disqualifies him from being granted asylum. However, protection under the Convention Against Torture is available if he can show it is likely he would be subjected to torture in his home country. The Immigration Judge, the BIA, and ultimately the circuit court decided that the petitioner had not met this burden, despite presenting the same sort of evidence that has proved persuasive in some other cases. Part of the problem is that the wording of the State Department's Country Reports on Jamaica varies from year to year, and has never stated unequivocally that gays are specifically targeted for torture by the government.

The most recent report indicates that the government prosecuted somebody for murdering a gay rights activist, and that a prison warden in Jamaica had taken steps to separate gay prisoners from the others in order to protect them from attacks by homophobic prisoners. The Immigration Judge found that the petitioner had a legitimate fear of being discriminated against and possibly harmed by other citizens if returned to Jamaica, but that there was "no hard evidence" that the government "condoned or turned a blind eye or participated in such conduct." The BIA backed up that conclusion, as did the federal circuit court.