A lesbian from Jamaica lost her bid to stay in the United States on February 3, when U.S. District Judge William H. Yohn, Jr., found no fault with a decision by the Board of Immigration Appeals to overrule an immigration judge on the question whether she would be subject to torture in her home country.
Under the Convention Against Torture, an international treaty to which the United States is a party, somebody otherwise subject to deportation qualifies for asylum if they demonstrate a reasonable fear of suffering torture in their home country.
Marcia Forrester, a Jamaican citizen, came to the U.S. as a lawful permanent resident in 1992. In 2003, she was convicted of the attempted sale of a controlled substance in the third degree for transporting small amounts of cocaine for a drug dealer, for which she was paid $10 per delivery. Under the federal criminal statutes, as viewed by the Ashcroft Department of Justice, this constituted an “aggravated felony” and a “particularly serious crime” posing grave harm to the American people, and thus Forrester, currently incarcerated, must be deported back to Jamaica.
Forrester attempted to persuade an immigration judge that she should not be deported, arguing that the drug offense was minor in nature, and further that based on her past experience, she believes she would be tortured because she is a lesbian if sent back to Jamaica. To support the torture claim, she testified that prior to leaving Jamaica, she had been stoned by an angry crowd after she had sex with another woman. She also submitted documentation that Jamaica treats gay sex as a felony and imposes substantial prison terms, and that gay people are routinely harassed and beaten on the streets.
The immigration judge found that Forrester’s drug offense did subject her to deportation under existing precedents, but that she would “more likely than not be tortured” if she was sent back to Jamaica. An immigration appellate board upheld the judge’s decision on the drug matter, but reversed the torture finding, stating that Forrester “failed to meet her burden of proof.”
Forrester then appealed to the federal district court in Philadelphia. Her primary argument was that she had been denied due process of law by the drug ruling. Judge Yohn devoted a substantial part of his opinion to the intricacies of federal immigration laws applying to lawful immigrants who are convicted of criminal acts in the U.S.
Of more immediate interest, however, is Yohn’s treatment of the Torture Convention claim. Under the Convention Against Torture, or CAT, a person subject to removal from the U.S. because they are convicted of a crime may nonetheless obtain “deferral of removal” if they can show that they are “more likely than not to be tortured” upon return to their home country.
However, an immigrant from a country where gay people are routinely beaten up or harassed by fellow citizens does not necessarily qualify for protection under the CAT, unless they can show that the government instigates such activity or “acquiesces” in it. The immigration judge found, based on documentation provided by Forrester, including news stories obtained on the Internet, that he could take “administrative notice” of “a de facto government policy of gay bashing throughout the country with little or no legal consequences.”
The board of Immigration Appeals ruled that this was erroneous, in that none of the evidence provided in the hearing record showed either that Forrester herself had been tortured in the past or that there is any evidence of government acquiescence in torture of “homosexuals.”
Unfortunately for Forrester, the court was rather limited in the degree to which it could inquire into the merits of this ruling by the immigration board. Under principles of administrative law, courts are not supposed to second-guess administrative agencies, if the agencies’ decisions have some basis in the hearing record.
“Although the record contains disturbing depictions of violence toward homosexuals,” Yohn wrote, “there is no evidence that the board misapplied the law. The board found that Forrester ‘failed to provide any evidence of past torture’” by the government, because the stoning incident did not involve any “consent or acquiescence of a public official.”
“Forrester testified that following this incident she did not call the police because she knew they would not offer protection and she feared that they would harm her ‘for being gay,’” wrote Yohn.
But this was not evidence of actual government complicity, merely of her fears that.
“Forrester never suggests that the Jamaican police ever knew about the crowd that attacked her,” Yohn found. “Moreover, she never alleges that the police have ever actually harmed her. Thus, the Board correctly held that Forrester failed to provide any evidence of past ‘torture.’”
Furthermore, imprisonment “at hard labor” for homosexual conduct is not considered torture under the CAT, even if gay prisoners are occasionally assaulted by other prisoners.
Clearly, the CAT, as currently interpreted and applied by U.S. immigration officials and the courts, is of limited usefulness for gay people coming from countries where the culture is pervasively homophobic, but the government does not generally take overt steps to reinforce that homophobia through direct assaults by the police or other officials.
On the other hand, it has been useful in some cases involving countries with much more egregious official anti-gay policies.