Thursday, July 25, 2013
Ninth Circuit Says Gay Filipino Cannot Be Deported
By a MetNews Staff Writer
A gay man who an immigration judge found was persecuted by authorities in the Philippines because of his sexual orientation cannot be returned to that country after overstaying his visa, the Ninth U.S. Circuit Court of Appeals said yesterday.
Judge Harry Pregerson, writing for the panel, castigated the Board of Immigration Appeals for overruling an immigration judge without an evidentiary basis. Dennis Q. Vitug, the judge said, is entitled to the remedy of withholding of removal, as recommended by the IJ, because he was likely persecuted and the government failed to rebut the presumption that his life or freedom would be in danger if he were returned to his native country.
Vitug, the judge explained, presented evidence that he was shunned and mistreated by his own relatives, as well as by authorities, when it became clear in his childhood that he was “different.” He was threatened with expulsion from school, molested over a two-year period by a man who worked for his grandparents, and was forced to move to Manila at age 16 after his family lost its home in the Mt. Pinatubo volcanic eruption and relatives would not take him in because he was gay.
In Manila, he testified, he was beaten and robbed five times, incidents that he did not report to police due to past experiences, including being harassed and extorted by officers at a bus stop. He visited the United States as a tourist in 1996, returned after six months, was unable to find work because he was gay, and came back to this country in 1999.
He overstayed his visa and took jobs here, including work as a hotel auditor in Sherman Oaks. He acknowledged that he became addicted to methamphetamine, was arrested several times, and eventually was sentenced to a year in jail for possession.
It was while serving that sentence that he received notice of the government’s intent to deport him.
At the immigration hearing, the IJ found him credible and, based on his testimony and documentary evidence regarding police abuse of gay men in the Philippines, found that he was persecuted for being a gay man, and that conditions for gay men in his native country had not improved to the point where further persecution would be unlikely. Nor, he found, would relocation within the Philippines likely enable him to avoid persecution.
The IJ recommended both withholding of removal and relief under the Convention Against Torture.
The BIA, however, rejected those recommendations. It found that Vitug was victimized, but not persecuted or tortured; that because he had not sought the help of the authorities, he could not establish that they would be unwilling to protect him in the future; and that there was no evidence that he would face torture.
The Ninth Circuit agreed with the board on the torture issue, but overturned the denial of withholding of removal because the board did not apply the clear error standard of review and because it had ignored credible evidence.
Pregerson said Vitug could not be faulted for not reporting the robberies and beatings.
“While Vitug did not report these attacks, he credibly testified that it is well known in the Philippines that police harass gay men and turn a blind eye to hate crimes committed against gay men,” the judge wrote. “Vitug bolstered this testimony with documentary evidence of a police raid on a gay theater during which police beat and robbed the patrons. Moreover, he credibly testified to his personal experience of being threatened and harassed by police in the Philippines.”
The judge acknowledged the government’s effort to rebut the presumption of future persecution by showing that there is organized gay activism in the Philippines and that one of the country’s larger cities has enacted an anti-discrimination ordinance.
“Such evidence, however, does not indicate that there is any less violence against gay men or
that police have become more responsive to reports of antigay hate crimes,” he wrote. “The government therefore failed to meet its burden of proof to show by a preponderance of the evidence
that the circumstances within the Philippines have changed such that Vitug no longer faces a threat to his life or freedom in the Philippines.”
Judges William A. Fletcher and Jacqueline H. Nguyen concurred in the opinion.
Joanna S. McCallum of Manatt, Phelps, & Phillips, LLP argued the case for Vitug. Carol Federighi of the Office of Immigration Litigation represented the government.
The case is Vitug v. Holder, 07-74754.
Copyright 2013, Metropolitan News Company