Friday, July 28, 2006

Gay man beaten by Argentinean cops wins new asylum hearing

Sorry for another immigration post, but these decisions are fascinating in light of the global village we live in and the nebulous method for determining who stays in the U.S. and who gets deported (see previous post).

In a decision from the 3rd U.S. Circuit Court of Appeals, the appellate panel rejected a Board of Immigration Appeals decision that a gay man from Argentina who claims he was harassed, beaten and jailed by police because of his sexuality had not established the required evidence of past persecution and "well-founded fear" of future persecution needed to gain asylum.

"Although [Juan Pablo] Maldonado did not claim that the individual physical assaults resulted in severe injuries or that he was ever detained for more than twelve hours at a time, we conclude that the mistreatment Maldonado suffered at the hands of the police, which occurred at least twenty times over a period of several years, rises to the level of persecution," the 3rd Circuit said.

The court said that U.S. government officials notably did not dispute that the harassment was enough to establish persecution, but that Maldonado did not belong to a group of oppressed people.

As outlined in my previous post, those claiming persecution have to convince an immigration judge that they have suffered past persecution because of their inclusion in a particular social group - usually politically or religiously affiliaited - and that he had a "well-founded fear" of being persecuted upon returning to their home country. Discrimination alone is not enough to meet that threshold, appellat courts have held.

Immigrants from around the globe apply for asylum, trying to convince American judges that conditions in their home country qualify them for asylum. Chinese asylum seekers often claim to be escaping China's forced birth-control policies or the government's alleged oppression of of the Falun Gong religion. Those living in Muslim countries have sought asylum based on Christian beliefs or support or past dealings with the U.S. Natives of Colombia often claim fear of kidnapping or death at the hands of paramilitary forces there, while Haitians have claimed torture or oppression at the hands of the various factions who controlled that country at one time or another.

In this case, the 3rd Circuit rejected the idea that Maldonado was not a member of qualifying social group.

"Even assuming that Maldonado is a member of a particular social group, however, the
government alleges that the persecution was not 'on account' of that membership, but
occurred instead because he engaged in an activity (leaving gay discos late at night) that
he was free to modify," the 3rd Circuit explained. "This is a distinction without a difference. The fact that Maldonado was targeted by the police only while engaged in an elective activity does not foreclose the possibility that he was persecuted on account of his membership in a particular social group...It is clear that the police were motivated by Maldonado’s sexuality. The police targeted him only as he was leaving gay discos and made disparaging remarks about his sexual orientation while arresting him."

The court continued by explaining that Maldonado's claim were supported by a 2001 State Department Country Reports on Human Rights Practices detailing torture and harrassment of gays in Argetina by police, and explaing that police in Argentina are allowed to detain gays and other members of sexual minorities for non-criminal activites.

"The culture of anti-homosexual prejudice in Argentina is further supported in the record by reports from human rights organizations, newspaper stories, magazine articles, and excerpts from books, all of which detail mistreatment of homosexuals by the Argentinean police," the 3rd Circuit said.

Maldonado detailed two incidents and provided eyewitnesses statements supporting his claims of persecution by law enforcement. He claimed that in a Sept. 1998 incident, police stopped him and a friend for a purported ID check. When the police discovered they had come from a gay club, Maldonado alleges, the officers yelled, “you faggots have just come from seeing a transvestite show.” They then allegedly threw both men into a police car and took them to a police station where officers made threats like, “you faggots deserve to die” and “you need a hot iron bar stuck up your ass.” Maldonado said he and his friend were held for six hours and then released without charge.

In a December 1999 incident, Maldonado said he left a gay club and was immediately thrown into a police vehicle, where he was hit with a nightstick until he was "dizzy and confused." He was held again until morning and claims he had to pay a "tip" to get his ID card back.

Maldonado also claimed police did nothing to protect him when citizens attacked him, as they allegedly did in 1999 when they threatened his life, threw garbage cans at him, kicked and punched him, and urinated on him.

Maldonado came to the U.S. in April 2002 on a tourist visa. In February 2003 he applied for asylum, but deportation proceedings began in that July. The Immigration Judge in Maldonado's case held that he was persecuted not because he was gay -- which would have made him eligible for asylum, but "on account of his 'social preferences'", particularly choosing to spend all night at gay dance clubs and leaving in the early morning hours. (Because of procedural reasons, the 3rd Circuit noted it was reviewing the BIA's decision on whether Maldonado met the past persecution/"well-founded fear" of future persecution threshold and not the Immigration Judge's ruling.)

The Board of Immigration also agreed that Maldonado did not meet the past persecution/fear of future persecution threshold and denied Maldonado asylum. He then appealed to the 3rd Circuit.

As explained above, the court rejected the BIA's analysis of the case:

"In light of the evidence described above, we conclude that the record compels the conclusion that Maldonado was persecuted on account of his membership in a particular social group. Because Maldonado has shown past persecution, it is presumed that he has demonstrated a well-founded fear of future persecution, unless the government establishes by a preponderance of the evidence that the 'applicant could reasonably avoid persecution by relocating to another part of his or her country or that conditions in the applicant’s country have changed so as to make his or her fear no longer reasonable,'" the panel said, citing precedent. "We express no opinion, however, as to whether the presumption has been rebutted in this case."

The 3rd Circuit granted Maldonado's petition for review, vacated the BIA's decision, and remanded the case for further proceedings.

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