10th Circuit Rejects Gay Stereotyping in Immigration Case

A gay Moroccan man won his quest for reconsideration of a decision in which an Immigration Judge had rejected his request for withholding of removal from the US on the ground that he didn't "look gay"

 

and thus was unlikely to be persecuted if returned to the Islamic nation.  Razkane v. Holder, 2009 Westlaw 1058053 (10th Cir., April 21, 2009). 

According to the opinion by Circuit Judge Murphy, the petitioner credibly testified that a neighbor had held a knife to his neck and told him that his "death is better than your life because you are gay," but the Immigration Judge held this did not count as persecution because the neighbor's family later apologized for his actions.  (Can you believe this??  I mean that the IJ could find that the neighbor's family's apology downgrades this from a death threat to something harmless?)  The court recounted that petitioner "was haunted by fear of more attacks, social ostracism, family rejection, and imprisonment because of his sexual orientation," and sought out a way to come to the US to study, eventually gaining entry under the Fulbright program.  He overstayed his visa and by the time Homeland Security caught up with him, an asylum petition was untimely, so he was left to seeking withholding of removal or relief under the Convention Against Torture, both of which were denied by the IJ and the Board of Immigration Appeals.

The petitioner showed that Morocco is an "overwhelmingly Islamic country," his expert testified that "most orders of Islam, including those practiced in Morocco, view homosexuality as an abomination, a violation of the natural order intended for mankind by Allah," and that Moroccan law makes homosexual conduct a crime.  The petition provided evidence that gays are imprisoned for something as innocent as flirting with or socializing with others, and that "those suspected of being homosexual have been harassed, beaten, raped and even killed," and that "police protection of homosexuals is often non-existent" and that "it is common for the police to harm, beat or rape with impunity the people whom they see as vulnerable because of sexual orientation."

Analyzing petitioner's claim for withholding of removal, "The IJ first determined that [he] had not been subjected to past persecution because the attack he suffered had not resulted in injury and the familiy of the assailant apologized."  Evidently psychological injury, emotional distress, and being put in fear of your life don't count....  On the likelihood of future persecution, the IJ found that despite the evidence mentioned above, the petition "could not show his status as a homosexual would likely lead to persecution in Morocco," finding that his "appearance does not have anything about it that would designate [him] as being gay.  [He] does not dress in an effeminate manner or affect any effeminate mannerisms."  (!!!!!)   In other words, as far as this IJ was concerned, anybody who does not conform to some effeminacy stereotype associated with gay men would be safe from persecution in Morocco...

Rejecting this approach, Judge Murphy wrote for the court, "In determining whether [petitioner] would be identified as a homosexual, however, the IJ relied on his own views of what would identify an individual as a homosexual rather than any evidence presented.  Specifically, the IJ found there was nothing in [petitioner's] appearance that would designate him as being gay because he did not 'dress in an effeminate manner or affect any effeminate mannerisms.'"  Judge Murphy then noted a recent 2nd Circuit ruling criticizing such an approach, Ali v. Mukasey, 529 F.3d 478 (2nd Cir. 2008), as well as an earlier 8th Circuit ruling to the same effect, Shahinaj v. Gonzales, 481 F.3d 1027 (8th Cir. 2007).  In both cases, circuit courts had been critical of IJ's relying on their own stereotyped images concerning effeminate gay men in rejecting likelihood of future persecution claims.

"The IJ's homosexual stereotyping likewise precludes meaningful review in this case," wrote Murphy.  "The IJ's reliance on his own views of the appearance, dress, and affect of a homosexual led to his conclusion that [petitioner] would not be identified as a homosexual.  From that conclusion, the IJ determined that [petitioner] had not made a showing it was more likely than not that he would face persecution in Morocco.  This analysis elevated stereotypical assumptions to evidence upon which factual inferences were drawn and legal conclusions made.  To condone this style of judging, unhinged from the prerequisite of substantial evidence, would inevitably lead to unpredictable, inconsistent, and unreviewable results.  The fair adjudication of a claim for restriction on removal is dependent on a system grounded in the requirement of substantial evidence and free from vagaries flowing from notions of the assigned IJ.  Such stereotyping would not be tolerated in other contexts, such as race or religion. . .  As a consequence, remand is necessary so that all findings are based on evidence and subject to meaningful review."

The court also stated, "If on remand the BIA concludes further consideration by an IJ is warranted, this matter should be reassigned to a different IJ," citing two prior court of appeals rulings similarly instructing the BIA to reassign matters to a new IJ to ensure an "unbiased proceeding."   The court also noted that the court had entered a temporary stay of removal, and indicated that this would be in effect "while this court has jurisdiction and will expire upon issuance of the mandate."  The petitioner is represented by Jayne E. Fleming of the Oakland, California, office of Reed Smith LLP.

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