Claimant Wins New Hearing in Gay Asylum Claim

Reversing an anti-gay asylum decision so incompetent that a panel of three federal appeals judges appointed by George W. Bush could not stomach it, the U.S. Court of Appeals for the 8^th Circuit, based in St. Louis, ordered that "John Doe" [we have deleted the appellant's real name at his request] receive a new hearing on his asylum petition. 2007 Westlaw 958144.   The opinion by Circuit Judge William Jay Riley, issued on April 2, took the unusual step of instructing the Attorney General to assign a different Immigration Judge to hear the case.

According to Judge Riley’s opinion, "Doe" entered the U.S. illegally and promptly filed an asylum petition. At his hearing before an Immigration Judge (IJ), "Doe" offered two reasons for fearing persecution if he was returned to [an eastern European country whose name we are withholding at the claimant's request]. First, he claimed that he had reported election fraud to government officials in June 2001, which resulted in his being beaten and sodomized by police officers. Second, he claimed to be gay, and said that the officers had made repeated derogatory references to his homosexuality when they beat him. He also testified that the police had threatened to harm him and his family.

According to Riley’s opinion, "[The appellant] denied being a member of any homosexual organization and said his family was unaware of his homosexual orientation. [Doe] indicated he had only one homosexual friend, and he did not know the friend’s whereabouts. [Doe] presented the IJ with witness affidavits, documentation of [the country's] historical events, and evidence of the political conditions in [the country]."

Ultimately, [Doe]’s asylum claim really came down to a question of his own credibility, and this is where the IJ’s written opinion itself becomes incredible. The IJ decided that [Doe]’s account was not credible for three reasons. First, "neither [his] dress, nor his mannerisms, nor his style of speech give any indication that he is a homosexual, nor is there any indication that he engaged in a pattern or practice of behavior in homosexuals [sic] in [the country], which gives expression to his claim at present."

Second, "he never reported the abuse, the physical abuse that he received from the police, the sexual assault to any homosexual organization which one would suppose would have reported it and provided counseling at least to him. While one can understand that he would not report it to the police, since they were the alleged perpetrators, it is simply implausible that he would not report it to an organization whose job it is to represent the interest of homosexuals in [the country]."

Finally, the judge commented that in his "experience, better than three-quarters of ... homosexual applicants [from that country] have used the claim that they were election observers to justify their claim for asylum."

The Board of Immigration Appeals approved the judge’s decision, "except insofar as the IJ’s decision referred to circumstances from other proceedings and found implausible that he would not have reported his claimed attack to an organization that represents the interest of homosexuals in [the country]." Incredibly enough, this means that the main basis on which the BIA approved the IJ’s decision was his conclusion that [Doe] was not gay because he failed to conform to the stereotype of gay men held by the IJ!

[Doe] appealed this ruling to the 8^th Circuit, which sent the case back to the BIA for "further consideration of the IJ’s decision." The BIA responded by reaffirming its approval of the IJ’s decision, repeating its prior reservations and adding that it no longer would approvd the part of the IJ’s decision that "found that ‘neither his dress, nor his mannerisms, nor his style of speech give any indication that he is homosexual." In other words, having disapproved all of the bases on which the IJ had rejected the asylum petition, the BIA nonetheless approved the IJ’s conclusion that [Doe] had not established his right to asylum.

"In addition," noted Riley, "the BIA found no clear error in the IJ’s determination that [Doe]’s ‘testimony lacked credibility for the reasons discussed in pages 6-12 of the IJ’s decision, including his failure to present any evidence corroborating his claim that he is a homosexual.’"

This was too much for the 8^th Circuit panel. "Even under this deferential standard of review," wrote Riley, "we conclude the IJ’s adverse credibility findings are not supported by this record. The IJ discredited [Doe]’s claim of persecution due to homosexual orientation based on (1) the IJ’s personal and improper opinion [Doe] did not dress or speak like or exhibit the mannerisms of a homosexual, (2) [Doe]'s lack of membership in any ... homosexual organizations, and (3) the IJ’s personal experience that three-quarters of all homosexual ... applicants [from that country] who seek asylum profess persecution based on election observers. The BIA excised these findings, but nonetheless affirmed the IJ’s decision in all other respects, finding no clear error in the IJ’s credibility determination."

The problem, of course, is that having excised all these findings, there was nothing left on which to base the credibility determination, and "the BIA did not explain how the IJ’s remaining findings and credibility determination as a whole were not tainted by the IJ’s bias. Nor did the BIA explain, in the absence of integral findings regarding [Doe]'s claim of persecution based on his homosexual orientation, how the balance of the record could adequately support the IJ’s credibility determination, which went to the heart of [Doe]’s asylum claim."

In other words, both the IJ and the BIA acted incompetently in this case. The court then cited three prior decisions from other circuit courts of appeals in which the courts had instructed the Attorney General to assign asylum cases to different judges in order to avoid bias and incompetence, and recommended that the same be done in this case. Riley pointed out that the court was not taking any position on the merits of [Doe]’s asylum claim.

The court does not mention the Immigration Judge’s name, but the opinion for the court indicates that St. Louis attorney Barbara Davydov Bleisch represented [Doe] in his appeal of the decision.