Total Defeat for the US Government on Refugee Claims Brought by a Gay Man Fleeing Torture in Ghana

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By Professor Arthur S. Leonard. This article appeared in LGBT Bar NY’s LGBT Law Notes. Subscribe here!

“What explains this blatant misfeasance by federal officials? Dare we say animus against gay Africans? Or just against any Africans who come from countries characterized by President Trump in his “private” moments by a racist expletive that we will not repeat here. Has the president’s racism so quickly infected the career ranks of bureaucracy?”

First addressing the asylum claim, the court wrote, “The BIA’s only basis for denying Abass’s asylum application was that Abass had not met his burden to show that the Ghanian government is ‘unable or unwilling to protect him from anti-gay violence or harm.’ In its answering brief, the government does not argue that Abass did not suffer past persecution; rather, the government only asks us to remand because, in light of our decision in Bringas-Rodriguez, the agency should have another opportunity to elicit testimony from Abass about whether he reported his attack to the police, and if not, why not.”

“Our ‘unable and unwilling’ standard was already established at the time both the IJ and the BIA rendered their decisions,” said the court, pointing out that as far back as 2010 the 9th Circuit had ruled that “reporting persecution to government authorities is not essential to demonstrating that the government is unable or unwilling to protect [a petitioner] from private actors,” citing Afriyie v. Holder. “Even under these already established standards,” continued the court, “the BIA disregarded and mischaracterized substantial evidence demonstrating that Ghanian officials are unwilling to protect LGBT individuals. The record shows that police often partake in extortions targeting gay persons and are reluctant to investigate claims of homophobic attacks. When police do intervene in mob attacks of gay persons, they, at times, arrest the victims. Most importantly, consensual intercourse between two men is illegal in Ghana, and revealing homosexual identity to the police can subject that individual to potential arrest and prosecution. Therefore, ‘[Ghana’s] laws [and] customs effectively deprive [Abass] of any meaningful recourse’ and thus reporting his persecution would be ‘futile.’ Given the overwhelming evidence compels the conclusion the Ghanian government is unwilling to protect LGBT individuals, it is unnecessary for Abass to provide additional testimony on this point.”

The court went on to find that this documentation of the treatment of LGBT people in Ghana more than suffices to establish that Abass has a well-founded fear of future persecution if he were returned to Ghana. The court found that the same accumulated evidence would support withholding of removal, stating, “A rebuttable presumption that Abass would suffer future persecution if he were returned to Ghana is equally applicable to his claim for withholding of removal. For all the reasons that support Abass’s well-founded fear of future persecution and ‘because the government has failed to rebut this presumption,’ any reasonable trier of fact would be compelled to conclude that it is ‘more likely than not that [Abass] would be subject to persecution upon returning to [Ghana]. . . Thus, in addition to remanding to the Attorney General to exercise discretion regarding asylum, we also remand for an appropriate order withholding removal of Abass.”

Finally, the court turned to the Convention against Torture (CAT). The BIA had denied relief for two reasons: “The BIA found that Abass did not demonstrate that Ghanian officials acquiesced in his past torture or would acquiesce in any future torture, and the BIA concluded that Abass could safely relocate to another part of Ghana.” In light of the evidence place before them, one asks which universe the IJ and BIA inhabit? “Not only does Ghana have a law that criminalizes homosexual conduct,” wrote the court, “other evidence in the record points to Ghanian officials’ acquiescence to torture of LGBT persons. Various political leaders call for rounding up LGBT persons, and even call for them to by lynched. The U.S. Human Rights Report likewise states that ‘the attitude of the police toward LGBT persons’ was a factor ‘preventing victims from reporting incidents of abuse.’ The record also contains multiples examples of police extortion of gay men. Thus, . . . we find that the record compels the factual finding that the government acquiesces to torture of LGBT persons.”

“Any reasonable trier of fact would be compelled to conclude that Abass would more likely than not be subject to torture if removed to Ghana. . . Abass’s past torture is the primary factor we permissibly rely on when deciding whether he would more likely than not suffer future torture in Ghana. . . Second, the BIA’s finding that Abass would be able to safely relocate was not supported by substantial evidence . . . Abass’s testimony supports that he was in hiding for a month before fleeing Ghana and that relocation is difficult because of pervasive homophobic attitudes throughout the country. Abass provided two declarations stating that he would be killed upon returning to Ghana, and one of them even stated that his lover had already been killed. Further, we have established that CAT cannot be denied on the basis of a petitioner being expected to conceal his or her identity or beliefs.” Indeed, the court noted that the U.K. Border Agency Report “states that relocation in Ghana is difficult because homophobic attitudes are so pervasive. In short, nothing in the record supports the BIA’s conclusion that Abass would be able to safely relocate.” In addition, the court found, the record supports a finding that “Ghana is rife with ‘gross, flagrant or mass violations of human rights,” citing to numerous newspaper clippings in the record. Abass had also provided evidence that the Education Ministry had vowed “to severely punish any student caught engaging in homosexual or lesbianism activities.” The court noted that Amnesty International has condemned “public officials for publicly endorsing lynching gay people.”

“No further fact-finding is required to support Abass’s CAT claim because the record already compels the conclusion that he is entitled to CAT relief. . . . The government does not offer any arguments on the merits of Abass’s CAT claim and therefore waived any challenge. Because ‘the BIA has already fully considered [Abass’s] CAT claim’ and CAT relief is nondiscretionary, we only ‘remand for the agency to grant’ withholding of removal under CAT.”

In conclusion, the court wrote: “We hold that Abass is statutorily eligible for asylum and remand so the Attorney General may exercise discretion in granting asylum. We also hold that Abass is entitled to withholding of removal under IIRIRA. And because we hold that ‘[Abass] has met his CAT burden . . . he is entitled to mandatory withholding of removal on the basis of his claim under the Convention.”

What is implicit in this unsigned memorandum opinion, emanating from a panel consisting of Senior Circuit Judge Dorothy W. Nelson, Senior Circuit Judge Andrew Jay Kleinfeld, and Circuit Judge William A. Fletcher, is that the IJ and the BIA totally “blew it” in this case… to such an extent as to raise the inference that they were pursuing an agenda of denying refugee status to gay petitioners from Africa regardless of the evidence. More than once the court says that a reasonable trier of the facts would reach a conclusion opposite to that stated by the IJ and the BIA in this case. What explains this blatant misfeasance by federal officials? Dare we say animus against gay Africans? Or just against any Africans who come from countries characterized by President Trump in his “private” moments by a racist expletive that we will not repeat here. Has the president’s racism so quickly infected the career ranks of bureaucracy?

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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