Tuesday, September 16, 2008
Gay Man From Jamaica Eligible for Asylum, Ninth Circuit Rules
By SHERRI M. OKAMOTO, Staff Writer
Evidence of targeted violence against homosexuals in Jamaica coupled with a Jamaican law criminalizing homosexual activity demonstrated a pattern of persecution of gay men, the Ninth U.S. Circuit Court of Appeals held yesterday.
The three-judge panel reversed an immigration judge’s denial of Damion Bromfield’s request for withholding of removal and remanded his claim for relief under the Convention Against Torture for the Board of Immigration Appeals to determine in the first instance whether Bromfield, a homosexual, was likely to be tortured if removed to Jamaica in light of the country’s practice of persecuting gay individuals.
Bromfield came to the United States from Jamaica as a legal permanent resident at the age of 15. Before he “came out” as a gay man four years later, he made two trips to his native country to visit family without incident. Once he identified himself as a homosexual, his father refused to speak to him for over two years before reconciling with him, but Bromfield never traveled to Jamaica again.
He was placed in removal proceedings after pleading guilty to misdemeanor sexual abuse and contributing to the sexual delinquency of a minor, and conceded removability.
The immigration judge found Bromfield ineligible for asylum, but did not find that Bromfield had been convicted of a particularly serious crime or make an adverse credibility finding.
Bromfield testified that as a gay man, he feared he would be beaten and killed if he returned to Jamaica.
The 2005 U.S. State Department Country Report for Jamaica stated that the country had a “culture of severe discrimination” against homosexuals, and detailed mob attacks, stabbings, and targeted shootings by police and vigilante groups.
It described the brutality against homosexuals as “widespread,” and perpetrated by both private individuals and public officials, including police officers and prison personnel.
Further, the report noted that under the Offenses Against the Person Act, which prohibits “‘acts of gross indecency,” which is generally interpreted as any kind of physical intimacy between men, in public or in private, punishes homosexuals act by up to 10 years’ imprisonment.
The report emphasized that the law was being enforced and that then-Prime Minister P.J. Patterson had responded to criticism from the international community by maintaining Jamaica would not be pressured into changing its anti-homosexual laws.
The immigration judge denied Bromfield’s CAT claim on the merits, determining that Bromfield had not “demonstrated any…interest or risk to him from the [Jamaican] government,” based on the fact that Bromfield had visited Jamaica twice without incident, continued to have contact with his Jamaican-born father, and was not politically active.
While acknowledging the country report as evidence that gay people suffered discrimination, the immigration judge characterized such discrimination as harassment and “random acts of violence” that did not constitute persecution. The immigration judge concluded Bromfield was not entitled to relief, and the Board of Immigration Appeals affirmed.
Writing for the appellate court, Senior Judge Betty B. Fletcher explained that withholding of removal under CAT is nondiscretionary relief that must be granted to any alien who establishes that he will more likely than not be tortured in the proposed country of removal, and that the immigration judge had committed “glaring error” in interpreting the country report as detailing “random violence” against gays.
“If a perpetrator is motivated by his victim’s protected status—including sexual orientation—he is engaging in persecution, not random violence,” she wrote, reasoning that the report “makes clear that homosexuals are the victims of targeted violence on account of their sexual orientation.”
The immigration judge also erred in failing to consider the Offenses Against the Person Act, Fletcher continued, concluding that prosecution under the statute would be a form of persecution.
“Because the prohibition is directly related to a protected ground—membership in the particular social group of homosexual men—prosecution under the law will always constitute persecution,” she concluded.
The fact that Bromfield’s father had not disowned him and that Bromfield had visited Jamaica twice before identifying himself as homosexual were “entirely irrelevant” to a determination of whether Bromfield will be subject to further persecution, Fletcher added, as was Bromfield’s lack of political activism.
“In light of the statute criminalizing homosexual conduct and the widespread, targeted violence against homosexuals, all gay men are at risk [of future persecution],” Fletcher wrote.
Judge Richard A. Paez and Senior U.S. District Judge William W Schwarzer of the Northern District of California, sitting by designation, joined Fletcher in her opinion.
The case is Bromfield v. Mukasey, 05-75844.
Copyright 2008, Metropolitan News Company