No Asylum for Colombian

Left-leaning, HIV-positive, gay immigrant’s claims rejected

A unanimous three-judge panel of the 11th Circuit U.S. Court of Appeals, based in Atlanta, rejected Luis Fabriciano Rico’s appeal of the denial of his asylum petition. Rico, an HIV-positive gay man from Colombia, had asserted both political and social grounds, but the court found no basis to set aside a determination by an Immigration Judge that his claims lacked credibility.

It appears from the court’s opinion that the credibility problems resulted from Rico’s lack of legal representation at the beginning of his asylum application process. The brief opinion by the court is short on details, however, so it is difficult to draw definitive conclusions.

According to Rico, he was subjected to persecution in Colombia, and has a well-founded fear of future persecution on two grounds. He had been part of a Colombian group called Movement Leaders in Action (called LEA), affiliated with the Colombian Liberal Party, as a result of which he claims to have received death threats aimed at him, his family, and his same-sex partner here in the United States. His asylum bid was also based on being HIV-positive and gay, factors which he said subjected him to harassment, violence, and the denial of appropriate medical care.

However, in his first asylum petition, which he filed on his own, he only discussed his political activism and alluded to threats without spelling out the details. When he filed a second petition ten months later, with the assistance of counsel, he focused entirely on his sexual orientation and medical status and did not even mention his LEA membership. The court’s opinion suggests that Rico’s partner, Juan Carlos Rodriguez, had been granted asylum in the U.S. based both on his participation in LEA and his status as a gay man.

Rico claimed that he didn’t mention being gay or HIV-positive in his first petition because he was not aware that these could be grounds for asylum and was afraid the Immigration Judge might be biased against him for being gay. Despite the clear credibility of this explanation, to the court this sounded dubious. As is frequently the case in asylum decisions, the court focused on discrepancies between the two asylum petitions and the testimony presented at the hearing before the Immigration Judge to conclude that the Judge’s finding had greater weight than Rico’s credibility.

Rico’s case was hurt in particular by his several visits to Colombia while his asylum case was pending, apparently due to concern about his young daughter’s well-being. Rico had left the girl behind when he fled in 1995 after the Revolutionary Armed Forces of Columbia (called FARC) allegedly threatened him with death and tried to demand a “war tax” on his farm. Rico claimed that FARC assassinated his nephew, who was in charge of running the farm, in 1996, and that another one of his friends, who was in LEA and also a gay rights group, Oasis, to which Rico also belonged, was murdered in 2000.

The asylum process is full of traps for foreign nationals who try to navigate the system without the assistance of experienced attorneys who know the grounds on which asylum claims can be brought. Despite the existence of plenty of evidence about the dangers faced by openly gay people in Colombia, the court rejected Rico’s case, and also denied any relief under the Convention Against Torture or other procedural grounds for delaying deportation.