Two Gay Asylum Bids Nixed in NYC

Appeals court accepts Immigration Judges’ findings on Costa Rican, Chinese men

The federal appeals court in Manhattan has denied political asylum claims by two foreign-born gay men, ruling against José Joaquin-Porras of Costa Rica on December 8 and Wei Yong Ni of China on December 9. The opinion in the Porras case provides a much more detailed account of the circumstances.

Porras claims he was raped by a male police officer in Costa Rica when he was 17 years old, but that he was too fearful to tell anybody about it at the time. Seven years later, in 1991, he came to the U.S. on an 18-month visa to work at a bed-and-breakfast in upstate Ithaca. In 1993 and again in 1996, he was able to obtain three-year visas to work for an Ithaca catering company.

Hoping to gain permanent residence and citizenship, Porras married an American lesbian, and in 1999, the couple applied for him to receive permanent U.S. residence, employment authorization, and the ability to leave and re-enter the country at will. In this application, though, Porras falsely stated that he and his wife lived together. In 2000, he traveled to Costa Rica to visit his family, and later said that while there he encountered trouble with a police officer after leaving a San José gay bar, then briefly jailed and verbally abused as a “faggot,” but released unharmed except for the theft of $40 from his wallet.

Shortly after his return, in an interview with an immigration agent, Porras did nothing to disabuse the agent of the notion that he and his wife lived together. Two weeks later, however, Porras’ wife withdrew his application and the Immigration Service initiated removal proceedings against him since his work visa had expired. At his removal hearing, he admitted that he had lied. In early 2001, Porras applied for asylum, an alternative known as an order of withholding of removal, and relief under the Convention Against Torture. A new round of investigation and hearings began.

An Immigration Judge ruled against Porras on all counts. Immigrants must file asylum petitions within one year of “last arriving” in the U.S. The judge determined that his 2000 return from a brief visit in Costa Rica did not count. Alternatively, Porras argued that his incident with the police during that visit created the ground for his asylum application, but the judge did not buy that either, finding his credibility dubious given his fraudulent marriage. The judge also found that his decision to visit Costa Rica undermined his claim that he feared persecution or physical danger there as a gay man.

Writing for the appeals court, Judge Robert Sack found that the hearing record provided substantial evidence to support the Immigration Judge’s conclusion, noting that both regulations and past immigration decisions were in agreement that the 2000 return from Costa Rica did not keep Porras’ asylum eligibility alive.

Sack also backed up the Immigration Judge’s refusal to make an “exception” in Porras’ case based on the incident with the Costa Rican police officer, concurring with the Immigration Services’ finding that he “is not an unsophisticated alien. He is educated and either directly or indirectly, was aware of certain Immigration processes which he used not only to change his status, but to extend his non-immigrant stay. Instead of pursuing lawful remedies, he chose to engage in an elaborate scheme to perpetrate a fraud on the Government, the only purpose of which was to remain in the Untied States.”

The appeals court also rejected the plea for the withholding of removal and the torture convention claims, finding that the evidence was not sufficient to justify them. The court agreed that the rape, verbal mistreatment, and false arrest, regrettable as they were, did not prove that Porras would face imminent danger were he to return to Costa Rica. During the 1990s, Congress significantly tightened up the requirements for demonstrating such risk, and the Department of State recently reported that despite occasional police misconduct, human rights conditions in Costa Rica have improved.

The court’s opinion in Ni’s case is much less detailed, merely noting that he was raised in China, had made no mention of his sexual orientation in his asylum application in 1992 or in his interview with an asylum officer in 1997, and had unaccountably failed in a supplementary statement he filed in 2000 to mention having been detained and beaten by government officers and mistreated by the dean of his school for being gay. Ni raised these issues for the first time in testimony at his immigration hearing.

The Immigration Judge found Ni’s testimony that he was gay credible and was sympathetic to his argument that he didn’t disclose his sexual orientation earlier because of reluctance to share such information with the government, but found that the failure to mention any of his testimony in his 2000 written statement sharply undercut his credibility. The Immigration Judge also noted that Ni failed to get corroborating evidence from available family members.

In its unsigned brief opinion, the appeals court concluded that doubts about Ni’s credibility were supported by the record. Further, the State Department profile on human rights in China, which Ni introduced as evidence, actually cut against him, since it states that the Chinese government has become “somewhat more tolerant” of gay men recently.

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