Seventh Circuit Upholds Denial of Relief to Bisexual Jamaican Man

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By Bryan Johnson-Xenitelis

The U.S. Court of Appeals for the 7th Circuit upheld the Board of Immigration Appeals’ affirmance of an Immigration Judge’s denial of the statutory relief of withholding of removal and deferral under the Convention Against Torture (CAT) to a bisexual Jamaican man, finding that the court lacked jurisdiction to re-determine whether the petitioner’s conviction for domestic battery was a ‘particularly serious’ offense pretermitting his withholding claim, and ruling that substantial evidence supported a ruling that he he failed to show that he was more likely than not to be tortured in Jamaica, as required to obtain relief under the CAT in the case, Bernard v. Sessions.

The Petitioner testified to knowing he was bisexual as early as his pre-teen years and that he had a same-sex relationship in Jamaica at that age. He relocated to the United States in 1998 when he was 19 and testified that in the United States he had relationships with both men and women.

Following multiple convictions for weapons, drugs, and a domestic battery offense, Petitioner was detained and placed in removal proceedings, where he was found removable from the United States but sought relief of withholding of removal and protection under the CAT. He and his father testified that he “came out” to his father while in detention. He testified to witnessing harm of LGBT persons in Jamaica in his childhood. His family and friends testified that some family in Jamaica knew the petitioner’s sexual orientation, that one family member even had threatened to “beat it out” of him if he returned to Jamaica. They also confirmed reports of violence against LGBT people and the murders of family members.

The Immigration Judge ruled that the Petitioner’s domestic battery crime constituted a “particularly serious” offense, barring withholding relief. She further found that while the Petitioner’s testimony was “credible,” it was also “consistently vague” regarding childhood instances where he witnessed violence against LGBT people, a general perception of violence, and that Petitioner had failed to show that he would be unable to relocate to a different area of Jamaica safely. The Board of Immigration Appeals affirmed the decision, holding that even if the Petitioner had established he would be harassed because of his sexual orientation, his CAT claim would require
“stringing together a series of suppositions” — namely, that “individuals will discover that he is bisexual; that he will be ostracized by members of the community due to his sexual orientation; that these individuals will torture him; and that the police will not intervene to protect him.”

In a per curiam opinion, the three-judge panel ruled that it lacked jurisdiction over the discretionary question of whether the domestic battery offense constituted a “particularly serious” crime, leaving Petitioner ineligible for all relief except possibly for deferral of removal under the CAT. The panel disposed of the Attorney General’s argument that Petitioner’s case should be dismissed for his failure to specifically address the finding that he could safely relocate within Jamaica, noting that Petitioner’s briefs to the Court “assert that violence against and persecution of the LGBT community exist everywhere in Jamaica” and that his general challenge of the Immigration Judge’s decision “encompasses the finding that he could safely relocate.”

The panel, however, ruled that the Immigration Judge’s decision was supported by substantial evidence, in that Petitioner failed to establish he was likely to suffer “extreme” treatment when his “decades-old experiences (which did not themselves amount to torture and, indeed, did not even involve [Petitioner] directly) nor the general reports of violence in Jamaica were sufficient to show that he specifically would be targeted for extreme violence in the future.”

The panel rejected one of the Immigration Judge’s implications that Petitioner could be safe if he hid his sexual orientation, citing an earlier Seventh Circuit ruling that “the law does not require people to hide characteristics
like religion or sexual orientation.”

Finally, the panel rejected Petitioner’s secondary argument that he would also face torture because of his family’s political affiliations, ruling “his fear of torture based on political affiliation is otherwise too speculative to justify relief under the CAT.”

Accordingly, the panel dismissed for lack of jurisdiction the “particularly serious” issue and denied the remainder of the petition for

Each month for the last 40 years, the LGBT Bar Association of New York publishes LGBT Law Notes, the most comprehensive monthly publication covering the latest legal and legislative developments affecting the LGBT community here and abroad.

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