Board of Immigration Appeals Rejects Ruling Based on Stereotypes About Coming Out
(New York, October 31, 2013) - Today, Lambda Legal and The Center for HIV Law & Policy (CHLP) announced that the Board of Immigration Appeals (BIA) has reversed an Immigration Judge's ruling that denied a Jamaican immigrant's application for protection under the U.N. Convention Against Torture (CAT) against being sent to Jamaica, and remanded the case back to the immigration court for further review. Lambda Legal and CHLP submitted a friend-of-the-court in this case.
"We are pleased that our brief helped the BIA overturn the Immigration Judge's ruling, which relied on stereotyped assumptions about the process of coming out and was unjust," Lambda Legal Senior Staff Attorney Thomas W. Ude, Jr. said. "Given the well-documented and high level of violence that LGB people face in Jamaica, a decision that fails to acknowledge this complexity virtually guarantees that LGB immigrants will be sent to very dangerous conditions. With this decision, Anthony can now go back before the Immigration Judge, to whom he has already submitted voluminous evidence that in Jamaica he would face torture for being gay. He is one step closer - a big step - to getting the protection that he needs."
"Anthony" is a pseudonym, because the immigrant seeking relief has requested anonymity based on his fear that if he is identified as a gay man, he will be tortured and killed if he is removed to Jamaica.
The friend-of-the-court brief, authored by Lambda Legal, CHLP and Cleary Gottlieb Steen & Hamilton LLP concerns the case of Anthony, who immigrated to the United States when he was a teenager. In its decision, the BIA found that he realized he was gay when he was 25 but - like many other LGB people - continued to struggle for years to come to terms with his sexual orientation, because of homophobia in both his family and his community, reinforced by the antigay religious views of his family. While navigating his coming out process, he fathered two children. As the BIA found, Anthony's testimony about his own sexual orientation was bolstered by testimony from both a former and current romantic partner.
Last April, the Immigration Judge concluded that Anthony had not proved he was gay, pointing to the children, to Anthony's earlier relationships with women, and to testimony that Anthony had not told his children or their mothers that he is gay. However, in their friend-of-the-court brief, Lambda Legal and CHLP cited several studies documenting that for many LGB individuals, acknowledging that one is lesbian, gay or bisexual is often a prolonged process. Citing the friend-of-the-court brief, the BIA reversed the lower immigration court ruling, which had concluded that Anthony had not proved he was gay, and ordered the Immigration Judge to address whether Anthony would likely face torture in Jamaica because he is gay.
"Immigration judges cannot be permitted to set unrealistic standards that an individual must meet to demonstrate his or her sexual orientation in immigration proceedings. The outcome of this case is important because gay men often face a uniquely intense form of persecution in Jamaica, where uninformed assumptions and stereotypes about gay men reinforce and perpetuate homophobia, discrimination, and HIV stigma. There are widespread presumptions in Jamaica that gay men are HIV positive and dangerous to be around, and so long as those false beliefs persist and remain widespread, Jamaica is a very dangerous place to be a gay man," said CHLP Legal Director Iván Espinoza-Madrigal.
Lambda Legal and CHLP were joined by the following organizations as co-amici on this brief: the International Gay and Lesbian Human Rights Commission, the National Association of Social Workers, the National Association of Social Workers Connecticut Chapter, the Fellowship of Affirming Ministries, the National Black Justice Coalition, the National Black Leadership Commission on AIDS, the American Civil Liberties Union, and the American Civil Liberties Union of Connecticut.
Anthony is represented by the Worker and Immigrant Rights Advocacy Clinic within the Jerome Frank Legal Services Organization at Yale Law School. The amicus brief was authored by Lambda Legal Senior Staff Attorney Thomas W. Ude, Jr. and CHLP Legal Director Iván Espinoza-Madrigal with pro bono support from Carmine D. Boccuzzi, Jr., Jaclyn A. Link, Clair B. Kwon, and Yana Chernobilsky of Cleary Gottlieb Steen & Hamilton LLP.