NJ Domestic Partners Strike Out in Immigration Appeal

Two HIV+ gay men from Colombia, New Jersey domestic partners, lost their appeal to the 3rd Circuit of the denial of their petition for refugee status.  The court affirmed a decision by Immigration Judge Mirlande Talal, which had been affirmed by the Board of Immigration Appeals, that they had failed to meet the standard for "withholding of removal."  Torres v. Attorney General, 2008 Westlaw 683930 (3rd Cir., March 14, 2008) (not selected for official publication).  The court also found no abuse of discretion in the IJ's refusal to consolidate their cases as involving one "family unit."

Circuit Judge Thomas M. Hardiman's short opinion barely sketches out the facts of the case.  The two Colombian natives entered the U.S. in 1999 on I-94 visas, generally used by students or others who are temporarily entering the country for an extended stay of finite length but not as permanent immigrants.  They registered as domestic partners in New Jersey in 2003 when that state's DP law went into effect (prior to the enactment of the more recent Civil Union Act), but neither man applied for asylum in the U.S. within a year of entry.  When their authorized period expired, they applied to the Homeland Security Department for withholding of removal or protection under the Convention Against Torture, alleging that they would be endangered by returning to Colombia.

However, the standard for being treated as a refugee entitled to remain in the United States is very high.  For withholding of removal, the petitioner must prove that it is likely they will suffer persecution because of membership in a particular social group in their home country.  Since a 1990 ruling by the Board of Immigration Appeals, courts have generally accepted that openly gay people are members of a particular social group for this purpose, but as gay rights has advanced around the world, the number of countries from which a gay person can credibly allege fear of persecution has shrunk, and it appears from this decision that Colombia is not one of them.

Each man testified about having incurred problems in Colombia connected with his sexual orientation.  One testified that he was fired from his job when a secretary at his workplace discovered his relationship with his partner.  The other testified that he was arrested and briefly detained as a result of a police raid of a disco where he was a patron.  Neither of these incidents, however, would qualify as persecution for purposes of refugee law, since persecution requires a serious threat to life or freedom at the hands of the government or forces that the government will not or cannot control.  Quoting a prior court decision, the panel noted that the threat of prosecution must be "severe" and "does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional."  That a particular group is the subject of social ostracism or economic discrimination is not a basis for refugee status under applicable statutes and treaties.  In this case, the court observed, the documentary evidence in the record "shows increasing tolerance of homosexuals in Colombia."

The court noted two facts about gays in Colombia to support its decision about "increasing tolerance." First, the Colombian military is actually more pro-gay than the U.S. military, since openly gay men are allowed to serve.  Additionally, the Colombian Constitutional Court has ruled that teachers could not be dismissed solely due to their sexual orientation.  In other words, it appeares that the military and legal systems in Colombia respect the rights of gay men, making it difficult for the applicants in this case to credibly allege that they would be endangered on return to Colombia solely on the basis of their sexual orientation. 

The court said nothing about their HIV status, suggesting that this may not have played a significant role in their argument.  Sometimes applicants have argued that unavailability of the medications they have been taking in the US would endanger their lives, but Judge Hardiman does not mention any such argument in this opinion.

As to the "family unit" issue, the court noted that an IJ has discretion over whether to consolidate proceedings involving family members to promote administrative efficiency, but such cases usually involve derivative claims, where one individual seeks to remain through their relationship with another. There was no derivative claim in this case, and "Appellants’ petitions do not rely exclusively on the same incidents of alleged persecution," wrote Judge Hardiman. Thus, there was no administrative convenience in holding separate proceedings, and each man was certainly entitled to testify at the other’s hearings.  The court found no denial of due process in refusing to treat the men as a "family unit" for purposes of this process.