Good news on LGBT immigration cases just keeps rolling in. A recently come-to-light Board of Immigration Appeals (B.I.A.) decision (unpublished, issued in May of 2013) practically scolded the immigration judge (IJ) for denying the case of a gay man from Cameroon.
The applicant had applied for asylum and withholding of deportation based on his sexual orientation, past victimization in the form of sexual assaults, and Cameroon’s criminalization of homosexuality.
The man submitted his asylum claim far too late — many years after the one-year deadline on applying for this remedy, unfortunately. That left the B.I.A. with no apparent choice but to uphold the IJ’s denial of the asylum part of the application. But that still left the man’s claim for withholding of removal, a last-ditch remedy protecting would-be asylees from deportation. (Withholding does not, however, lead to a green card like asylum does.)
To be eligible for withholding of removal, an applicant must prove that it’s more likely than not that he would be persecuted or tortured upon return to his home country. The IJ denied this applicant based on a finding that his testimony was implausible and inconsistent, and therefore not credible (believable). Here’s where things get interesting.
A classic inconsistency in an asylum case would be, for instance, where an applicant states in his Form I-589 application for asylum that his sister was threatened and his brother was killed, but testifies in court that his sister was killed and his brother threatened. No matter how horrific the facts, a judge could hardly grant asylum to someone who couldn’t get key aspects of his story straight. Mixing up dates of critical events is also a reason for some applicants to be denied on credibility grounds.
But the inconsistencies noted by the IJ in this man’s case (according to the B.I.A.’s characterization of them) were far more subtle, and included certain judgments about human behavior that the B.I.A. called “erroneous” and I might call “out on a limb.”
For instance, the IJ couldn’t believe that the applicant “could not pinpoint the time that he realized that he was homosexual.” Before I start spluttering about how many people can remember the moment when they determined their own sexuality one way or another, I’ll simply repeat the B.I.A’s statement that this finding was “speculative, at best, and is an inappropriate consideration in a credibility analysis.” The applicant did, after all (quoting the B.I.A. again) “repeatedly state that he did not know and that he was still a child when many of these events occurred.”
The IJ also said that “it was illogical for his parents to acknowledge that he told them he was homosexual, but continue to pressure him to pursue heterosexual relationships.” Well, surely they wouldn’t be the first parents to hold onto every last hope that their child would do what society expects! Actually, the B.I.A. said it just as well: “The Immigration Judge provided no support for his belief that parents could not be supportive, yet pressure their child to pursue a more traditional and acceptable way of life.”
This case isn’t completely sewn up yet (as far as I know). The B.I.A. remanded it back to the Immigration Judge for a final decision, giving the Department of Homeland Security a chance to run some security checks. But based on the B.I.A.’s finding, there should at last be some good news coming to this applicant.