Tuesday, September 14, 2004
Page 1
Ninth Circuit Rules:
Homosexual Torture Victim Was Wrongly Denied Immigration Relief
By DAVID WATSON, Staff Writer
A homosexual who dresses as a woman and fled El Salvador after being beaten and raped as a teenager was wrongly denied relief under the Convention Against Torture by an immigration judge, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Judge M. Margaret McKeown said the IJ erred in relying on the fact that Luis Reyes-Reyes did not claim the mistreatment came at the hands of government officials to reject his application to remain in the United States. Reyes conceded he entered the country illegally, but argued he faced persecution if returned to El Salvador.
Reyes, who has not undergone a sex change operation but has dressed and acted as a woman for the past 16 years and has used a series of women’s first names, told the IJ he was kidnapped, raped and beaten by a group of men because of his sexual orientation when he was 13 and living with his family in San Salvador. The attackers threatened reprisal if he reported the incident, and he never told either the authorities or his family.
Instead, at the age of 17, he came to the United States. When authorities here moved to deport him, he represented himself in immigration proceedings, telling the IJ he had concluded “homosexuals are not welcome” in his home country.
Wrong Standard
The IJ made no finding that Reyes’ testimony was not credible, but ruled he had failed to satisfy the requirements of the law because he “failed to state that anyone in the government or acting on behalf of the government tortured him.”
That was not the correct standard to apply under the convention, McKeown said.
Regulations implementing the convention define torture to include acts committed “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity,” the appellate jurist observed.
McKeown said the test used in Reyes’ case was “even more stringent than the one urged by the INS and rejected by the court in” Zheng v. Ashcroft, 332 F.3d 1186(9th Cir. 2003). In Zheng, she pointed out, the Ninth Circuit held that establishing “consent or acquiescence” does not require a showing that the government accepted or even knew about the torture; rather, she said, “the ‘willful blindness’ of government officials suffices.”
Governing Regulation
The IJ who considered his application “required Reyes to show that he would suffer torture ‘by or at the instigation of’ the government,” McKeown wrote, adding:
“This standard contravenes the plain language of the governing regulation.”
She reasoned:
“By rejecting Reyes’s petition because he had ‘failed to state that anyone in the government or acting on behalf of the government tortured him,’ the IJ effectively excised the phrase ‘or with the consent or acquiescence of’ from the regulation.”
McKeown noted that the Board of Immigration Appeals summarily affirmed the IJ’s decision without stating any alternative ground for its action. Under those circumstances, a remand was necessary in order to permit Reyes’ application to be considered under the proper legal standard, she said.
When the BIA avails itself of the summary affirmance procedure, the judge said, it “pays for the opacity of its decision” by assuming a risk of reversal if the rationale of the IJ who heard the matter proves to have been faulty.
In addition, she said, remand was appropriate to create “an incentive for the agency to consistently apply a coherent set of rules.”
She explained:
“When the BIA at times acknowledges the ‘consent or acquiescence’ prong of the regulation—and at times disregards it—the net result is unpredictability and irregularity that undermines public confidence in the immigration process.”
The IJ’s ruling on Reyes’ application for withholding of removal suffered from the same defect as the ruling under the Convention Against Torture, McKeown said, since evidence of past persecution would entitle him to a presumption that he faces a threat of future harm because of his membership in a particular social group.
She said it was unnecessary for the court to reach Reyes’ contention that the IJ improperly “imposed a per se rule requiring a victim of persecution to report the act.” But she added that adoption of such a “bright line rule would indeed be troubling” in view of case law recognizing homosexuals with a female sexual identity as a distinct entity in South America subject to increased risk of abuse, evidence in the record that rape victims in El Salvador often fail to report the crime because of “the poor response of the authorities,” and documentation in other cases that police in that country have been involved in attacks on and threats against homosexuals.
The IJ was right, however, in concluding that Reyes’ asylum application was untimely, since it was filed more than a year after his arrival in this country, McKeown said.
U.S. District Judge Charles R. Breyer of the Northern District of California, sitting by designation, concurred, but Judge Jay S. Bybee concurred only with regard to the asylum claim and in the judgment.
Bybee said he could not join in McKeown’s reasoning with respect to the Convention Against Torture and withholding removal, since he did not agree that the IJ had required Reyes to show he was tortured by government agents. The IJ’s only error was the failure to “address whether any public official might have been” aware of the abuse and have breached a duty to intervene and prevent it, Bybee declared.
Such a showing would be required to obtain relief on remand, he opined.
The case is Reyes-Reyes v. Ashcroft, 03-72100.
Copyright 2004, Metropolitan News Company