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| Asylum Wins in NYC, Boston |
| By: ARTHUR S. LEONARD (gay city) |
Federal appeals courts reached mixed results in two recent gay asylum disputes involving petitioners from Indonesia and Guatemala, while an Immigration Judge in Manhattan concluded that things are so horrendous for HIV-positive people in Jamaica that an immigrant from that nation should be allowed to stay in the US to continue her successful treatment, even though she has a criminal record.
The gay cases, emanating from opposite coasts, illustrate the importance of filing prompt and truthful asylum petitions. The First Circuit Court of Appeals, based in Boston, reversed a decision by the Board of Immigration Appeals (BIA), ordering a new hearing for a gay doctor from Indonesia who argued that the current homophobic climate there makes it impossible for him to work in his field there.
But the San Francisco-based Ninth Circuit Court of Appeals upheld a decision by the BIA ordering the deportation of a gay Guatemalan, finding that his initial untruthful asylum petition undermined his credibility and supported the BIA's conclusion that he did not have the good moral character required under statute for staying in the US.
This ruling drew a forceful dissent from one judge on the panel.
The Indonesian doctor filed his asylum petition shortly after arriving in the US on a tourist visa. He had worked as a doctor in a Jakarta hospital from 1992 until 2001, and was simultaneously working at a clinic from 1997 to 1999. The doctor testified that the owner of the clinic discharged him because he heard rumors that he was gay, and told him that he could not "tolerate your behavior."
Two years later the board of the hospital summoned the doctor to grill him about rumors of his homosexuality, which he refused to speak about, stating that it was a "a private matter."
But word spread, as patients refused his services and other doctors refused to work with him. Finally the hospital demanded his resignation and, when he refused, assigned him to menial tasks without patient contact. He sued the hospital for discrimination, but claims he withdrew the suit when it became clear that the judge was only interested in investigating his sexuality. It was at this point that he traveled to the US as a tourist and sought asylum.
The Immigration Judge (IJ) found the doctor's story credible and concluded that he met the burden of proving a "well-founded fear of persecution" in his home country.
"In Indonesia there is an attitude, atmosphere, and an environment of hostility towards the gay community, which is so
discriminatory and so pervasive as to rise to the level of persecution," the IJ wrote, concluding that a reasonable person in the doctor's position could fear persecution, which is the standard required for winning asylum in the US.
The government appealed this ruling, and the BIA disagreed with the IJ, finding that the doctor faced discrimination but not persecution. The BIA panel focused on the fact that State Department human rights reports on Indonesia did not mention violence against gay people.
Writing for the Boston appeals panel, Judge Juan Torruella stated that there are precedents that support claims of economic persecution, but that the BIA had been inconsistent in its approach to this issue, leaving confusion about what the appropriate standard is. Torruella noted that a recent decision from the BIA articulated an economic persecution standard that included "deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment, or other essentials of life." The judge wrote that it was unclear that this standard had been applied in the doctor's case, either by the IJ or the BIA.
"Because we are unable to determine what standard the agency used in rejecting the economic persecution claim," wrote Torruella, the court sent the case back to the BIA so that it could instruct the IJ to reconsider the asylum petition under the BIA standard the appeals court opinion quoted.
Torruella observed that "based on his testimony and the evidence that he submitted," the doctor "may be able to sustain a claim for economic persecution." Judging that question, however, was not the issue before the court, which felt it could not properly review the BIA's decision denying asylum without a properly articulated legal standard.
In the case heard by the San Francisco panel, a Guatemalan man arrived in the US in the early 1990s and filed his asylum petition in 1992, claiming he had been threatened with violence by the government as the leader of a dissident student group at the University of San Carlos. When this story was rejected as a basis for asylum, he claimed he had been persecuted for being gay and was seeking asylum based on his sexual orientation.
Between the time of his first asylum petition and his amended claim of sexual orientation persecution, Bill Clinton took office and his attorney general, Janet Reno, established a precedent based on an asylum ruling that gay people could be considered a "particular social group" eligible to be considered for asylum. In short order, there were some well-publicized cases granting asylum to gay refugees.
Since the man's claim of sexual orientation persecution involved disavowing his earlier petition, Judge Stephen Trott, writing for a majority of the San Francisco court, found that the IJ and the BIA were justified in doubting the petitioner's credibility. Trott also accepted the conclusion that the petitioner lacked even the good moral character to allow him "voluntary departure" - that is, trusting him to leave the US on his own.
But Judge Harry Pregerson, dissenting, did not agree that the circumstances necessarily supported the conclusion that the petitioner betrayed bad moral character or was dishonest. Assuming for argument's sake that he had suffered sexual orientation discrimination in Guatemala, Pregerson noted that he arrived in the US at a time when it was unclear that his bad treatment would considered as the basis for an asylum petition. Indeed, until 1990, US immigration law excluded gay people from coming into the country.
Under those circumstances, Pregerson found it understandable that the man would come up with a different story to support his initial asylum claim, and then change his tune after the law had changed. Pregerson argued for giving the petitioner the opportunity to prove his gay persecution claim.
Immigration Judge Alan Page's decision regarding the Jamaican-born woman in Manhattan relied heavily based on expert testimony by Dr. Farley Cleghorn regarding the situation confronting people living with HIV in the island nation. Cleghorn, currently head of The Futures Group, a private company that contracts with US government agencies to implement health programs overseas, testified in great detail about the enormous deficiencies in HIV treatment in Jamaica, and the intense hostility that HIV-positive people encounter there.
The depth and detail of Cleghorn's testimony, which evidently was not shaken to any significant degree on cross-examination, appeared to impress Page, who essentially adopted his diagnosis of the situation in Jamaica.
Homeland Security instituted deportation proceedings to deport the woman based on her criminal record, including several convictions for possession of controlled substances. The woman came to the US as a very young child and grew up in the Bronx, where her father still lives. She has no immediate family in Jamaica.
The woman was first diagnosed as HIV-positive in 2000 and testified that she now has an AIDS diagnosis, but she never received treatment until detained by Homeland Security last year.
Her criminal record makes her unqualified for customary asylum procedures, but Page determined she was eligible for "withholding of removal," a status that would allow her to remain in the US because of the severe difficulties she would encounter if forced to return to Jamaica. The judge concluded it was unlikely she would be able to connect with appropriate treatment there, which would be catastrophic, given her AIDS diagnosis.
"Women in the late stages of an HIV infection are highly visible to persecutors and other members of Jamaican society," Page wrote. "According to Dr. Cleghorn, persons suffering from late stage HIV exhibit a number of visible symptoms... Further, in his written statement, the doctor indicates that Jamaicans recognize these symptoms as relating to AIDS. The latest US State Department report shows that Jamaican society stigmatizes persons suffering from HIV and subjects them to discrimination."
The judge also noted that health care workers in Jamaica, employed by the government, "do not respect the confidentiality of their HIV patients and often deliberately reveal their diagnosis to members of the public." He noted Cleghorn's testimony that "when people with AIDS are admitted to the hospital, they are often simply left to die," and a confirmatory report from Human Rights Watch that "some AIDS sufferers are denied treatment altogether."
Page concluded that it was "likely" the woman "will be physically harmed if she is returned to Jamaica," taking note of Amnesty International reports documenting HIV-positive women who "have been driven from their homes and had their homes burnt down." The woman would probably have trouble finding "legitimate employment" in Jamaica, the judge wrote, adding that there is "a significant likelihood" she would face "economic persecution."
Without out indicating whether or not the woman is a lesbian, Page noted the routine violence against gay people in Jamaica and the fact that many there equate AIDS with homosexuality.
Given this record, Page concluded that the woman had met the stringent test for showing eligibility for "withholding of removal," despite her criminal record.
Sunita Patel of the Legal Aid Society successfully represented the woman in battling the deportation effort in the Immigration Court, but there is the possibility that the government will appeal this ruling to the BIA, which is known for its stinginess in approving "withholding of removal" for felons. |
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Asylum Wins in NYC, Boston