8th Circuit Judge Jane Kelly (the Only Liberal on the Court) Dissents in Denial of Gay Liberian Man’s Asylum Claim

By Bryan Xenitelis for LGBT Bar NY’s LGBT Law Notes.

The U.S. Court of Appeals for the 8th Circuit has dismissed the Petition for Review of the Board of Immigration Appeal’s decision to deny claims of asylum, withholding of removal, and protection under the Convention Against Torture of a Liberian man fearing persecution on account of being gay if returned, in Samolu v. Barr, 2019 WL 4949365 (October 8, 2019).

Petitioner, a lawfully admitted permanent resident to the United States, was convicted of violating protection orders against him by his mother and sister, and was placed in removal proceedings. He brought two separate pro se lawsuits: 1) that he was fearful of returning to Liberia for his membership in a political group, his assault and torture by the Liberian Drug Enforcement Agency, and as a gay man and gay rights activist; and 2) challenging his continued detention by Immigration and Customs Enforcement.

On the asylum claim, Petitioner testified about the threats and attacks against him, disclosed he had a girlfriend and child in Liberia, but considered himself a “swinger” who had relationships with men, and that he considered himself to be a gay activist. The Immigration Judge found, based on his “demeanor, responsiveness, his many inconsistent and contradictory statements, the totality of the circumstances, and the lack of corroborating evidence to support his claims,” that he was “totally unreliable,” and denied all claims stating that Petitioner “can’t keep it straight” and “appeared to be making it up as he goes.” The Board of Immigration Appeals affirmed the decision and the Petition for review was timely brought.

The 8th Circuit’s per curiam panel decision noted that unless “any reasonable adjudicator would be compelled to conclude to the contrary” the Board’s decision should stand. They agreed that adverse credibility determination was sufficiently supported, and denied the Petition. The panel did find, however, that Petitioner’s continued detention claim was not within their jurisdiction and remanded to district court “for its consideration in the first instance.”

Judge Jane L. Kelly, dissenting, first agreed with the Per Curiam with respect to Petitioner’s membership in the political group and past assault and torture by the Liberian Drug Enforcement Agency; however, she disagreed with the panel, stating: “I find the [Immigration Judge’s] reasoning as to the [fear of returning] claim more troubling. She quoted testimony of Petitioner stating: “As a gay in Africa, you can’t open up who you are. You got to find a way to cover up your — you’ve got to find a way to cover up all your sexuality… [T]he easiest way is to have a kid and a wife — or a girlfriend living with you. And that way, they will not look as you as gay. They will not think of you as gay.”

Judge Kelly noted that the statement was “consistent with a country report… stating that ‘the law prohibits same-sex consensual activity’… that ‘discrimination against LGBTI persons is prevalent throughout the society… LGBTI persons were cautious about revealing their sexual orientation or gender identities.’” Judge Kelly stated: “To the extent that the IJ found [Petitioner’s] testimony incredible based on nothing more than his own view that a gay man could not be involved in a relationship with a woman, I cannot say that the IJ’s conclusion was supported by ‘specific, cogent reasons.’”

She further noted that the IJ made a mistake regarding Petitioner’s testimony about a romantic partner, claiming he was inconsistent when in fact the record reflected he was not. For those reasons, Judge Kelly stated that she would have granted the Petition.