Opening up a gulf in reasoning with the Ninth Circuit Court of Appeals, which has insisted on a distinction between a government’s official policies and the facts on the ground when evaluating whether gay people would suffer persecution or worse in a particular country, a panel of the New York-based Second Circuit Court of Appeals affirmed a ruling by an Immigration Judge and the Board of Immigration Appeals that a gay man from Brazil could not win refugee status in the US, despite the documented high rate of murders of gay men there and his claim the government is unable to do anything about it.
The unsigned April 24 opinion, from a panel consisting of Judges Reena Raggi, Peter W. Hall, and Denny Chin, is light on facts. The petitioner apparently came to the attention of the Department of Homeland Security due to a criminal conviction, but the court provides no details. He applied for asylum, withholding of removal, and/ or protection under the international Convention against Torture — three different legal avenues open to refugees — all of which were denied by an Immigration Judge (IJ) in May 2014. That decision was affirmed by the Board of Immigration Appeals (BIA) in September 2015. The IJ found that the petitioner failed to show he would likely be subjected to persecution or torture if deported to Brazil and also concluded he could resettle in a safer place in Brazil than where he’d come from. The BIA agreed the man had not met the burden of showing likely persecution or torture if sent back.
The Second Circuit panel summarized the petitioner’s claims by writing, “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 percent 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.”
In contrast to Ninth Circuit, NY-based panel focuses on official policy, not facts on ground
The BIA had acknowledged the evidence about violence and discrimination against gay Brazilians, but put more weight on the “official” developments — gay rights groups, marriage equality, annual pride parades, and city ordinances banning anti-gay discrimination — to conclude that the petitioner “failed to show the Brazilian government would be unwilling or unable to control those responsible for the violence and discrimination.”
The appeals panel wrote, “Although the IJ and BIA decisions are sparse on reasoning, substantial evidence supports that finding.” The court emphasized that the Chicago Tribune article was more than 20 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.”
In reviewing BIA rulings, circuit courts do not conduct a de novo reconsideration, but rather judge whether the agency was “compelled” by the evidence in the record to rule in the petitioner’s favor. The Second Circuit found the BIA was not so compelled.
On the petitioner’s claim under the Convention Against Torture, the court found that BIA “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.”
Robert C. Ross of West Haven, Connecticut, represented the petitioner.
The Second Circuit’s approach deviates from that recently taken by the Ninth Circuit in appeals by gay men from Mexico, another country where 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 an April ruling by that circuit, 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 US immigration authorities look beyond such “official” positions to consider the situation that gay people actually face in countries with pervasive anti-gay hostility about which the governments do little.
The Ninth Circuit has been particularly emphatic in protecting transgender refugee applicants. In cases where local police officials are part of the problem, that 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.
