Guatemalan Gay Man’s Asylum Bid Denied

Federal appeals court says State Department report found no general anti-gay repression

A unanimous three-judge panel of the U.S. Court of Appeals for the 1st Circuit, based in Boston, has rejected a petition by a gay man from Guatemala for asylum in the United States.

Circuit Judge Sandra L. Lynch wrote the opinion for the court, which was announced on January 27.

Luis Enrique Galicia is a native of Jalapa. He claims that his neighbors beat him up and verbally abused him because he was gay, causing him to flee from Jalapa in 1998. He entered the United States without legal documentation but promptly filed an application for asylum. Due to bureaucratic delays within the Immigration system, he did not have a hearing on his application—before a special magistrate known as an Immigration judge—until September 2002.

The judge granted him “voluntary departure” status, but denied his petition for asylum. Under “voluntary departure,” a person found to be in the U.S. illegally is given a period of time to make his own arrangements to return home, rather than being forcibly deported by Immigration officials on the first available plane. This gives the person time to wind up his affairs in the U.S. and to attempt to communicate with relatives at home to arrange for a place to stay.

The Immigration judge did not dispute or question Galicia’s claims that he had been physically and verbally assaulted in Jalapa for being gay. But the judge found that these problems were all attributable to private individuals, not to the police or to a formal government policy. Under asylum law, the petitioner must show that he was subjected to official persecution, or has a reasonable fear that he would be subjected to such persecution if he returned to his home country. In a case where all the evidence relates to persecution by private citizens, the petitioner needs to show that the police would not provide protection. But Galicia testified that he had never sought assistance from the police. The judge commented that if he feared persecution from his neighbors in Jalapa, he could always live somewhere else in Guatemala.

Galicia appealed this ruling to the Board of Immigration Appeals. Although the U.S. State Department issued a country report on the human rights situation in Guatemala in 2003, Galicia’s attorney did not try to bring this report into the case at that point. The Board upheld the Immigration judge’s decision, without issuing its own opinion, and Galicia appealed to the federal court, this time arguing that the State Department report supported his case.

But, according to Judge Lynch, the State Department report really did not help Galicia, since it found that there was official persecution of gay male sex workers in Guatemala, but stated no such finding regarding gay men generally. Apparently, Galicia’s attempted to obscure that distinction in presenting the case to the court of appeals, as Lynch’s opinion reflected annoyance and a statement that the attorney “should not have attempted to mislead the court by omitting the word ‘sex’ and referring only to ‘homosexual male workers,’” since the Guatemalan man “has never claimed he was a sex worker.”

Donald H. Barnes was the attorney of record representing Galicia.

Lynch said that the appeals court panel had “carefully reviewed the record and the [Immigration judge’s] conclusions are supported by substantial evidence.”

Under the administrative law principles governing judicial review of immigration decisions, the court is not supposed to perform its own separate evaluation of the evidence, but rather to examine the hearing record to determine whether there was substantial evidence in the record to support the hearing judge’s findings. Consequently, the court affirmed the decision by the Immigration judge and the Board of Immigration Appeals. At this point, Galicia could try to petition the U.S. Supreme Court for review, but in light of the court’s discussion of the case, it would be the longest of long shots for him.

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