Mixed Results on Asylum Claims

Federal appeals courts differ in evaluating credibility findings

Gay asylum applicants achieved two wins and one loss within the past month, as gay men from Mexico and Albania won chances for reconsideration of their petitions while a lesbian from Colombia was denied further review. In the Mexican case, the Immigration Judge applied what the appeals court found was an inappropriate standard for evaluating whether the asylum applicant’s persecution required that his petition be approved. In the other two cases, the applicants’ credibility was questioned at immigration hearings, and in all three, the Board of Immigration Appeals, following the customary practice during the Bush years, rubber-stamped the results.

On June 2, the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled that Jorge Soto Vega, a gay man from Mexico, is entitled to reconsideration of an Immigration Judge’s decision to deny him asylum. The Immigration Judge found Soto Vega’s hearing testimony to be “essentially credible,” concluding it “did demonstrate past persecution.” However, the Judge then stated that it was up to Soto Vega to show “a clear probability that life or freedom would be threatened on account of his membership in this social group” and that he had failed to do so.

Lambda Legal, arguing Soto Vega’s appeal to the 9th Circuit, noted that the Immigration Judge questioned Soto Vega’s claim that he feared persecution because he did not appear stereotypically effeminate or gay. The 9th Circuit Court found that once the applicant established that he had been a victim of persecution, he enjoyed a presumption of asylum eligibility, and the burden was on the government “to rebut the presumption by showing a fundamental change in country circumstances or that the petitioner could reasonably relocate to another part of his native country.” The court also found that the Immigration Judge incorrectly applied a “clear probability” standard to Soto Vega’s fear of future persecution in Mexico, when an asylum petitioner need merely show a “reasonable possibility.”

The court sent the case back to the Board of Immigration Appeals.

In the case of the gay Albanian, the 3rd Circuit Court of Appeals, based in Philadelphia, ruled on June 30 that the Immigration Judge’s stated reasons for rejecting the man’s story did not stand up. Ardian Rezhdo and Pellum Berberi were lovers, but Berberi’s brother, Genc, a bodyguard for the former Albanian prime minister, was unhappy about this situation and outraged to learn that the coupled applied for a marriage license.

Rezhdo claimed that Genc arranged to have him beaten up, burned his business down—and even obtained permission from his own family to have him murdered. When police took no action on his complaints about his business and a judge urged him to drop his assault charges, Rezhdo and his lover fled the country. While the couple was in an Italian hotel, an intruder murdered Pellum Berberi, and Rezhdo fled, illegally entering the U.S. and applying for asylum.

The Immigration Judge expressed incredulity about details Rezhdo described about the aftermath of Pellum’s murder’s and that his own family would agree to have Genc kill him. He also noted that Rezhdo became confused in his testimony, later correcting himself, and that he appeared nervous and sweaty during his hearing.

Writing for the 3rd Circuit panel, Chief Judge Anthony J. Scirica dismissed all of the Immigration Judge’s reasons for questioning Rezhdo, noting in particular that his testimony about having high blood pressure could explain his nervous appearance while testifying. Scirica also rejected the Immigration Judge’s suggestion that Rezhdo could safely return to another region in Albania, noting that Genc Berberi allegedly arranged to have his own brother Pellum killed in Italy.

Scirica ordered that Rezhdo deserves a new immigration hearing.

The 11th Circuit Court of Appeals, based in Atlanta, in contrast, found no basis to question the Immigration Judge’s credibility determination about a lesbian from Columbia in its July 3 decision.

Doris De La Immaculad Tavera Lara claimed that after she came out to her supervisor she was discharged from a job in which she had earned promotions. She was later harassed on the street and received mysterious phone calls and threatening notes. She testified that private militias hostile to gay people operate in Columbia, sometimes with acquiescence of the police, and that a friend of hers was abducted and killed by such people.

The Immigration Judge received voluminous testimony about the problems facing gays in Columbia from a variety of sources. Still, he rejected Tavera Lara’s claim that she feared persecution, mainly because after fleeing to the U.S. she returned to Colombia briefly at Christmas to visit her children. She testified that she had done so in the hopes that things would be better, but quickly concluded otherwise. The Judge also cited discrepancies among Tavera Lara’s original statement to Immigration officials, her written asylum application, and the testimony she gave at the hearing.

The 11th Circuit panel, in an unsigned opinion, reviewed the evidence of anti-gay violence in Colombia, but affirmed the Immigration Judge based on the discrepancies among Tavera Lara’s accounts. The court also cited her brief return to Colombia and the improbability of a person fearing persecution revealing her sexual orientation to her boss. Even had Tavera Lara proved her claims of persecution—including an account of being beaten up by militia members—she failed to show a reasonable fear that such abuse would continue in the future, the court found.

These cases point to several common themes. First, many Immigration Judges are extremely suspicious of claims that asylum applicants are gay people who fear persecution, and are inclined to discredit their stories unless they are provided in fully consistent, letter-perfect rendition. Second, federal courts circuits vary widely in how closely they will scrutinize Immigration Judge decisions for logic and bias. Finally, it is clear that the asylum process is no place for amateurs; many of the pitfalls that trip up the applicants could be avoided with the assistance of experienced counsel. But since it is not a criminal proceeding, applicants have no constitutional right to appointed counsel, so many applicants, on their own, without knowledge of non-profits that provide legal assistance, face the luck of the draw.

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