Metropolitan News-Enterprise


Monday, December 2, 2013


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Court Orders BIA to Reconsider Denial of Asylum to Gay Russian


By JUSTIN LEVINE, Staff Writer


An applicant who presented evidence that he was persecuted by fellow Russians due to his homosexuality may be eligible for asylum, even without a showing that the Russian government actively sponsored or condoned the persecution, the Ninth U.S. Circuit Court of Appeals has ruled.

The petitioner, identified by the court as “John Doe,” said he had been beaten by Russian mobs on two separate occasions and that police in his country dismissed the seriousness of his complaint when he asked to file assault charges. He said the second attack caused him to be hospitalized for three weeks with a concussion and internal brain hemorrhaging. 

He later came to the Unites States to attend school on a nonimmigrant student visa, but the Department of Homeland Security initiated removal proceedings against him after he stopped attending classes.

After Homeland Security acted, Doe applied for asylum, arguing that he was eligible due to his past persecution in Russia as a homosexual and that he feared future persecution if he returned.

Credibility Finding

An immigration judge found that he testified credibly, but still denied his application for asylum because the record did not suggest that the Russian government was unable or unwilling to protect him.

The immigration judge also denied Doe’s requested relief under the Convention Against Torture, concluding that he failed to prove that it was “more likely than not” that he would be tortured if he was sent back to Russia.

The Board of Immigration Appeals upheld the decision, saying that Doe’s claim was based on “isolated hate crimes” that did not establish an eligibility for asylum even though the panel called such incidents “deplorable.” The BIA agreed that since Doe had not demonstrated a widespread persecution of homosexuals that was “sponsored or condoned by the Russian government,” his application should be rejected.

The Ninth Circuit granted Doe’s petition to review his denial of asylum and concluded that the BIA erred in its decision.

Undisputed Testimony

Writing for the court, Senior Judge Arthur Alarcon said the government failed to present any evidence that rebutted Doe’s undisputed testimony that he suffered serious assaults because of his homosexuality or that the Russian government was “able and willing to control nongovernmental actors who attack homosexuals.”

After noting precedent from the court which held that homosexuality was a “protected ground” that allows one to qualify for asylum, Alarcon wrote:

“Neither this Court nor the Supreme Court has required (or implied) a direct nexus between the government’s inability or unwillingness to control nongovernmental persecutors and a statutorily-protected ground. The only nexus requirement is that the actual persecutors, whether governmental or nongovernmental, act on a protected ground. Indeed, we have held that ‘[i]t does not matter that financial considerations may account for such an inability to stop elements of ethnic persecution. What matters instead is that the government ‘is unwilling or unable to control those elements of its society’ committing the acts of persecution.’”

Government Unwillingness

Alarcon distinguished between instances where police are legitimately unable to solve a crime and those where they act in such a way that suggests a government is unwilling to protect the victim.

“Here, Doe presented evidence that the Russian police rejected his first complaint out of hand, questioning why he did not simply defend himself, and subsequently dismissed his second complaint without doing anything more than interviewing him at the hospital where he was being treated for his injuries,” Alarcon wrote. “The police did so even though Doe did identify his attackers both times, and there was substantial evidence that the assaults were motivated by anti-homosexual bias.”

He said that in light of the showings that Doe had made, the Government should then have the burden to show by a preponderance of the evidence that a “fundamental change in circumstances” has occurred such that Doe no longer had a well-founded fear of persecution. 

The court remanded the matter back to the BIA to determine if the Government could meet its evidentiary burden before removing Doe. It also asked the BIA to consider Doe’s evidence of discrimination he suffered in Moscow due to his Buryat ethnicity to determine if he would be properly eligible to relocate to that city in order to avoid homosexual discrimination.

Buryatia, in eastern Siberia, is an autonomous republic within the Russian Federation.

The case is Doe v. Holder, 09-72161.


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