Gay South American Denied U.S. Refuge

Finding that being beaten by police officers did not provide a sufficient basis for finding a gay man from South America reasonably feared that "his life or freedom would be threatened" if he were forced to return to Bolivia, a panel of the 11th Circuit Court of Appeals affirmed a decision by the Board of Immigration Appeals rejecting the man’s application for "withholding of removal." Unfortunately, the applicant had waited too long after arriving in the U.S. to file a timely asylum application.  Del Carpio-Diaz v. U.S. Attorney General, 2007 WL 2302200 (Aug. 14, 2007) (not officially published).

The court’s per curiam decision relates that in his application for asylum asylum, the man, who was born and raised in Peru, claimed that "he was mistreated as a child because of his homosexuality, he was sexually abused by an adult at his Catholic middle school, and police detained and abused persons at a dance club where [he] and his boyfriend had been dancing." The court noted that the applicant provided inconsistent details about this dance club incident, asserting in the asylum application that he and his boyfriend escaped from the club after the police arrived and only later learned second-hand what happened to the others there, while at his asylum hearing, he testified that he had been detained and abused by the police on that occasion.

The applicant then claimed that after he moved to Bolivia as an adult, he encountered renewed harassment for being gay. He claimed that he had been discharged from a job for being gay, and that on one occasion two police officers beat him, indicating that they knew he was gay. Finally, he fled to the U.S., arriving in May 2001, but he did not file papers seeking refuge here until 2003. The Immigration Judge determined that his failure to comply with the one-year deadline for asylum applications was not excused by any special circumstances, and he never raised any claim under the Convention Against Torture, a treaty to which the U.S. is a party, so his only hope to stay in the U.S. would be to gain an order withholding removal.

"An alien seeking withholding of removal must show that his life or freedom would be threatened because of a protected ground, such as membership in a particular social group. Therefore, an alien bears the burden of demonstrating that he more-likely-than-not would be persecuted or tortured upon return to his country of nationality." Such a burden can be met by proving past persecution, shifting the burden to the government to show either that conditions had changed in a relevant way in the applicant’s home country, or that it would be possible to avoid problems by relocating to a different part of the country.

In this case, although the applicant had submitted a letter from his doctor stating that he was being treated for "stress-related disorders resulting from mistreatment at his workplace," the Immigration Judge focused on the applicant’s failure to provide any evidence to corroborate his story about being mistreated in Peru and Bolivia because he was gay. The court noted that uncorroborated evidence that is credible may suffice in some cases, but that in this case, even if his evidence was believed, the court did not believe that it met the standard necessary to entitle him to U.S. refuge. "The record does not compel the conclusion that [he] more-likely-than-not would be persecuted or tortured if returned to Peru or Bolivia," wrote the court, noting that in his appellate brief, the applicant had even stated that his case involved "the absence of physical harm" and was based primarily on testimony about his psychological state.

Sometimes cases such as this can be won based on overwhelming documentary evidence about the adverse conditions for gay people in the home country, but in this case the court mentioned no such documentation concerning Peru or Bolivia. Interestingly, this opinion was issued the day before a constitutional court in Bolivia ruled that the national health service there must provide gender transition surgery for individuals diagnosed as transsexual, based on the constitutional right to health care guaranteed in that country.