Another successful asylum appeal....

As the circuit courts catch up with the inadequacies of the Immigration administrative process, we find yet another rebuff for the BIA from the 9th Circuit, this time in an asylum case brought by a gay man from Singapore, Christopher Kiankok Yeoh.   (Yeoh v. Gonzales, 2006 Westlaw 2846849, October 4, 2006, unpublished disposition.)

Mr. Yeoh was denied asylum by the Immigration Judge and the BIA, and also suffered denial of his requests for withholding of removal and relief under the Convention Against Torture.  According to the per curiam opinion issued by the panel of 9th Circuit Judges Hawkins and Berzon and Arizona District Judge Silver, there was no dispute that Yeoh had demonstrated past persecution, as found by the IJ.  The only ground for dispute was the issue of fear of future persecution should he return to Singapore.   The IJ concluded, correctly according to the court, that there is "no evidence that the government of Singapore is actively seeking out and prosecuting homosexual relationships or individuals engaging in those relationships," and there is "no evidence at all presented that the government of Singapore is prosecuting homosexuals for private acts."

On the other hand, Yeoh did present evidence of unequal or selective enforcement and punishment of gays in Singapore, said the court, including "documents suggesting that (1) gay men are 'singled out as subjects' of a law that is broad enough to include heterosexual conduct; (2) Singapore's Penal Code criminalizes, without an opposite-gender analogue, the abetting of certain male-to-male sexual activity; (3) Singaporean plainclothes police officers routinely pose as decoys and arrest gay men who approach them; and (4) Singapore's sentencing regime permits punishing gay men in a manner that is disproportionate to the crimes they have committed."  Although this evidence was introduced, none of it was mentioned in the IJ decision.  Thus, "we cannot confidently determine that the IJ fulfilled his duty to consider all the evidence of record," said the court, so the case has to be remanded to the IJ "to consider all record evidence relating to the unequal or selective prosecution or punishment of homosexual males in Singapore and, having done so, to redetermine, in light of the full record, whether Yeoh has met his burden of establishing a 'well-founded fear of [future] persecution' on account of his sexual orientation if forced to return to Singapore." 

Without intimating its views as to the ultimate merits, the court did indicate that if Yeoh failed to meet the test for asylum, he would necessarily fall short of satisfying the "more stringent standard for withholding of removal" or of protection under the CAT.