A unanimous decision by a three-member federal appeals panel offers new hope to a Peruvian gay man, the civil union partner of a New Jersey man, who was abruptly put on a plane in Newark last December and deported –– an enforcement action that proceeded even as Senator Robert Menendez was on the phone with Homeland Security Secretary Janet Napolitano pleading his case.
On August 24, a panel of the Philadelphia-based US Court of Appeals for the 3rd Circuit ruled that the decision by the Board of Immigration Appeals (BIA) to uphold an Immigration Judge's asylum denial for Jair Izquierdo was “flawed.”
The appellate panel ordered the case sent back to the BIA and laid out instructions about the correct legal standard to use.
Paul O'Dwyer, an immigration law specialist in New York City, represents Izquierdo.
The Peruvian man, who was 33 at the time he was deported, met his partner, 47-year-old Richard Dennis, in 2005. The couple moved into an apartment in Fort Lee the following year, entered into a civil union in 2008, and lived in Jersey City since 2009.
Izquierdo arrived in the US on a non-immigrant visa in October 2001, having left Peru to escape harassment from family members. While he and Dennis forged their relationship, removal proceedings were initiated against him.
Izquierdo pursued several avenues for staying in the US –– applying for asylum; for an alternative status known as “withholding of removal,” which requires strong proof that a individual is likely to be persecuted if returned to his home country; and, finally, for relief under the international Convention Against Torture (CAT), a treaty to which the US is party.
By November 2009, Izquierdo’s options had run their course; he was given a final order of removal.
Even though Immigration and Customs Enforcement (ICE) has long emphasized that immigrants with criminal records are the priority for removal proceedings –– a policy that, fortunately, was recently formalized and spelled out in an August 18 letter from Napolitano to Senate Majority Leader Harry Reid –– Izquierdo, a law-abiding New Jersey resident who worked as a make-up stylist, was apprehended in a sting operation last October. He received a call from a purported client asking to schedule a make-up consultation. When Izquierdo arrived at work for the appointment, he was met by ICE officials, who took him into custody.
On December 17, just hours after Dennis had a meeting with Mendendez staff members working to assist Izquierdo, the Peruvian man, in an Elizabeth detention facility, was put on a bus for Newark Airport. Less than three hours later, he was en route to Peru.
At a 2006 hearing before an Immigration Judge (IJ), Izquierdo presented detailed documentary evidence about the situation facing gay people in Peru and his own experience with a cousin blackmailing him with the complicity of the police.
The judge wrote, “There are many instances where gays are not only discriminated against, but there's actual physical beatings at the hands of the authorities. There's also evidence that the authorities stand around and allow gays to be harmed."
That finding would appear sufficient to grant Izquierdo asylum, but according to the appellate panel, the judge incorrectly concluded he could not make a finding of a "pattern or practice of persecution" because he knew of no appellate court authority concerning such a situation in Peru.
The BIA ruling upholding the IJ's denial of relief was a strangely contradictory opinion. It found the IJ was mistaken in thinking he could not grant relief in the absence of any appellate judicial precedent about Peru, but decided the evidence was insufficient to establish the current situation there, because the incidents of beatings and persecutions were based on "older articles," some dating back as far as 12 years, and the most recent documents "relate primarily to incidents against transvestite activists."
As of 2006, the most recent State Department country reports about Peru suggested some improvement in conditions for gay people there.
Izquierdo's first petition for the 3rd Circuit Court of Appeals to review the BIA decision was denied in 2009.
After his apprehension last October, O’Dwyer filed a new petition to reopen Izquierdo’s case. A 2009 State Department report, together with more recent news reports, showed that conditions for gays remained very dangerous in Peru.
The BIA rejected that petition on the same date Izquierdo was deported, December 17, maintaining that the new evidence "does not reflect materially changed country conditions for homosexuals in his native Peru since this case was before the IJ in October of 2006. Rather, such evidence describes a continuance of the on-going and volatile circumstances that gave rise to [his] first claim, a claim that was previously denied by both the [IJ] and the [BIA]."
A "generalized claim of increased harassment" was not sufficient to establish that "there exists a reasonable possibility that [he] would be targeted for harm rising to the level of persecution," the BIA concluded.
The 3rd Circuit panel, in its August 24 ruling, found "the reasoning underlying” the BIA's conclusion "flawed.” In 2006, the BIA found that circumstances in Peru were getting better, yet three years later the same body refused to consider new evidence, claiming that it "describes a continuance of the on-going and volatile circumstances" that gave rise to Izquierdo’s claim, and so added nothing new.
The appeals panel court also found that the BIA subjected the evidence to the wrong legal test. Izquierdo was applying for asylum, which requires he show a "pattern or practice of persecution" of gay people in Peru, but the BIA required him to provide evidence to meet the standard for "withholding of removal" –– individualized evidence that he was likely to be targeted for persecution.
The government attorneys responding to the appeal, in fact, virtually conceded the BIA's error, by including a footnote in their brief suggesting that if the court disagreed with the BIA's conclusion that the new evidence did not warrant reopening the proceedings, it should send the case back "for the agency to consider Izquierdo's claim that he made out a prima facie case of a 'pattern or practice' of persecution."
Though it refused to uphold the December 17 BIA ruling, the appeals panel rejected Izquierdo's request to rule on the merits of whether he is entitled to return to the US, instead sending the case back to the BIA so it "can properly evaluate his motion to reopen."
"We express no opinion on his ability to prevail on that motion," the panel stated.
The court's decision never mentions Izquierdo's partner or his civil union status, but perhaps when the case is sent back to the BIA, the new approach articulated in Secretary Napolitano’s recent letter to Senator Reid –– which specifically makes law-abiding same-sex immigrant partners a low priority for action –– will lead to a favorable reconsideration of the case. -- Additional reporting by Paul Schindler