4th Circuit Remands Gay Asylum Case to US Board of Immigration Appeals For Failure to Explain Decision

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by Katie Hansson

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In Molina Mendoza v. Sessions, 2018 WL 460654, 2018 U.S. App. LEXIS 1185 (4th Cir. Jan. 18, 2018), the U.S. Court of Appeals for the 4th Circuit remanded the case of a gay Mexican citizen seeking asylum in the United States to the Board of Immigration Appeals (BIA) for failure to explain its decision in terms that would permit effective judicial review. “Show your work,” directed Circuit Judge Allyson K. Duncan for the court.

On March 16, 2014, the Petitioner, Felipe de Jesus Molina Mendoza, presented himself at the U.S. border and requested asylum based on two grounds. First, he claimed that he suffered persecution due to his sexual orientation while living in Mexico. Second, he claimed a well-founded fear of future persecution due to his sexual orientation if he returned. In the context of asylum claims, the term persecution is an extreme concept that includes “the infliction or threat of death, torture, or injury to one’s person or freedom.” Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005). In order to establish a “well-founded fear of future prosecution,” an asylum applicant must demonstrate that his or her fear is objectively reasonable. Mirisawo v. Holder, 599 F.3d 391, 396 (4th Cir. 2010).

From an early age, Molina Mendoza was mistreated for being gay. When he was five or six years old, a female caretaker sexually abused him. Additionally, his father beat him with a belt for wearing women’s clothing. He first entered the U.S. in 2000 without authorization, and remained here for nine years. He experienced temporary freedom from discrimination by hiding his sexual orientation. He returned to Mexico City in 2009 to pursue a university education. While living as an openly gay man in Mexico City, Molina Mendoza experienced harassment and discrimination.

In the proceedings before the Immigration Judge, Molina Mendoza testified about the mistreatment he experienced in Mexico, and proffered documentary evidence that discrimination and violence against Mexico’s LGBTQ community is widespread. The documentary evidence included: (1) a report by Northwestern University School of Law finding that over 250 LGBTQ individuals were murdered in Mexico between 2010 and 2013, and that the Mexican government failed to adequately investigate and prosecute many of the murders; (2) a report by a Canadian human rights organization finding that 76.4% of LGBTQ people in Mexico experienced physical violence because of their sexual orientation or gender identity; and (3) a report by Mexico’s National Human Rights Commission concluding that “Mexico suffers from a discrimination problem against the LGBT[Q] population.” Conversely, one of the articles in the record contained evidence that the Mexican government is working to fight discrimination against the LGBTQ community.

On March 9, 2016, the Immigration Judge denied Molina Mendoza’s application for asylum. The Immigration Judge found that Molina Mendoza failed to establish that LGBTQ individuals in Mexico face a pattern of harm, and that even if LGBTQ individuals in Mexico face a pattern of harm, Molina Mendoza failed to demonstrate that such harm is sufficiently severe to constitute persecution. The Immigration Judge specifically stated that Molina Mendoza did not proffer persuasive evidence that his “life or freedom [would] be threatened” if he returned to Mexico. The Immigration Judge did not use any of the record evidence that Molina Mendoza proffered that demonstrated LGBTQ individuals in Mexico are routinely harassed, attacked, and murdered because of their sexual orientation.

Molina Mendoza timely appealed his future-persecution claim to the BIA, and the BIA adopted and affirmed the Immigration Judge’s decision. The BIA did not make any new factual determinations or provide any further explanation for the Immigration Judge’s findings.

Molina Mendoza subsequently petitioned the 4th Circuit to review the BIA’s decision. The court of appeals remanded the case without reaching the merits of Molina Mendoza’s challenge, because the Immigration Judge and the BIA failed to explain their findings in a manner that permits effective judicial review.

Specifically, Judge Duncan wrote for the court, “The Immigration Judge and the BIA failed to meaningfully assess evidence contradicting two of their key findings: (1) that LGBTQ individuals in Mexico do not face a pattern or practice of harm, and (2) that, even if a pattern of harm exists, the mistreatment does not rise to the level of persecution, i.e., the threat or infliction of death, torture or serious injury to the victim’s person or freedom.” Judge Duncan noted that the record contained significant evidence that undermined the Immigration Judge’s determination that LGBTQ individuals in Mexico do not face a pattern of discrimination and harm. In fact, the Immigration Judge failed to address two of the reports in their entirety.

The court ultimately held that the Immigration Judge did not meaningfully account for much of the evidence on the record, and thus remanded the case for the BIA to reevaluate whether Molina Mendoza’s fear of future prosecution was objectively reasonable. Judge Duncan opined that “our review is obstructed by ‘a problem that has become all too common among administrative decisions challenged in this court — a problem decision makers could avoid by following the admonition they have no doubt heard since their grade-school math classes: Show your work’” (citing Patterson v. Comm’r of Soc. Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017).

Molina Mendoza is represented by Helen Parsonage, of Elliot Morgan Parsonage, Winston-Salem, North Carolina.

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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