Francisco Ornelas-Chavez, a gay man from Mexico who presents what a judge termed a “female sexual identity,” has become the third LGBT applicant in recent weeks to win a new hearing before an Immigration Judge on his claim for political asylum.
A divided panel of the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, ruled on August 21 that immigration authorities used the wrong legal standard to decide his case. The ruling reversed a decision by the Board of Immigration Appeals, an internal Homeland Security panel.
According to Senior Circuit Judge James R. Browning’s opinion, Ornelas-Chavez came to the U.S. illegally in 1998 “to escape a lifetime of abuse suffered on account of his female sexual identity.” That finding placed him within a “particular social group”—gay female-identified men from Mexico—previously ruled entitled to asylum protection by the 9th Circuit.
Browning wrote in detail about Ornelas-Chavez’s “abuse in his youth because of his homosexuality and female sexual identity.”
“Once, his father conspired with a friend to humiliate Ornelas-Chavez by permitting the friend to rape the boy after drugging him.” Brown wrote, who also noted that the man’s father arranged with the local police chief to detain his son in jail to “teach him to behave,” and threaten him with re-arrest if he continued having sex with men. Rape and assault from relatives, schoolmates, and co-workers plagued Ornelas-Chavez. Working as a corrections officer at a prison, he was nearly smothered with a pillow by his co-workers who were “finally going to get rid of another homo,” according to Browning’s opinion. The man also testified that two of his gay friends were gruesomely murdered by police.
Ornelas-Chavez fared better living with a sympathetic aunt in Mexicali beginning in 1993, but in 1998 when his father learned of his whereabouts, he traveled there and beat his son severely, breaking his nose with a bottle.
Soon after, Ornelas-Chavez left Mexico for the United States.”
The man came to the attention of U.S. immigration authorities in 2003, and the government moved to deport him. Ornelas-Chavez filed his application for asylum, which required that he show a reasonable fear of official persecution if forced to return to Mexico.
The Immigration Judge did not question the truth of Ornelas-Chavez’s story, but ruled against him, finding that he had “provided no evidence” that his suffering was due to government actions. The Board of Immigration Appeals ruled that Ornelas-Chavez had suffered only one instance of harm that was relevant—his detention by police at his father’s request and even that did not “rise to the level of persecution.” The rest of his suffering was at the hands of private citizens and thus irrelevant to his petition, the appeals board found.
This problem hobbles many gay asylum applicants who face merciless persecution from their families and other private citizens in their home countries. The rules governing political asylum focus on official persecution. Applicants from countries that claim to be tolerant may have a very difficult time winning asylum. Persecution by private individuals is only taken into account when there is evidence that the government encouraged, tolerated, or failed to stop the abuse.
Also, asylum is intended to protect persecuted individuals from future abuse, so the question is not whether conditions at the time justified an immigrant’s decision to flee their home country, but rather whether they remain bad enough to make fears of future persecution reasonable.
Circuit Judge Diarmuid F. O’Scannlain, in dissent, pointed to the substantial change in the legal rights of gay people in Mexico in recent years. Since Ornelas-Chavez fled the country, the federal government has banned sexual orientation discrimination and worked to protect children from abusive parents. The country has more openly gay people, some of whom are gaining respect in the professions and government, O’Scannlain maintained. The State Department reports on Mexico indicate a much more accepting atmosphere today than a decade ago. This evidence cuts against Ornelas-Chavez’s claim he has a reasonable belief he would face official persecution on his return, though his past abuse came not only from being gay but also because of his feminine gender presentation.
The 9th circuit panel majority, in contrast, scrutinized the emphasis the Immigration Judge and the Board of Immigration Appeals placed on Ornelas-Chavez’s failure to report his abuse and rape to law enforcement authorities. The man himself testified that law enforcement authorities were part of the problem—he feared he would be beat up or even imprisoned if he went public with his suffering.
Browning pointed out that federal law does not require that an asylum applicant show a record of reporting persecution to authorities. “In fact,” he wrote, “any such requirement would contradict the BIA’s own precedent,” where such reporting might be futile or even dangerous. Browning noted that when Ornelas-Chavez reported his abuse while a public prison employee, he was in effect informing the government of his persecution—and he won no redress.
As a result of this analysis, the appellate panel majority found that the wrong legal standard had been applied in Ornelas-Chavez’s case, and it was sent back to an Immigration Judge for reconsideration.
This is the third major federal appeals court decision to reverse an asylum denial to a gay applicant in recent weeks, with the 2nd Circuit in New York and the 6th Circuit in Cincinnati also doing so. These findings buttress the conclusion that the Bush administration’s immigration system, reassigned to the Department of Homeland Security created after 9/11, shows a hostility to gay asylum claims that had been in abeyance during the Clinton years.