American Immigration court makes decision to deport gay man on grounds "no torture" of

A US Immigration court has agreed to the removal of a gay Jamaican as treatment of gays in Jamaica "do[es] not meet the legal definition of torture".

Source: Leagle

WHITE v. ATTORNEY GENERAL OF U.S.

ARTHUR WAYNE WHITE, Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

No. 11-2649.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) October 7, 2011.
Opinion filed: October 11, 2011.

Before: RENDELL, CHAGARES AND ALDISERT, Circuit Judges.

NOT PRECEDENTIAL

OPINION

PER CURIAM.

Arthur Wayne White, a citizen of Jamaica, was admitted to the United States in 1992 as a nonimmigrant, and later adjusted his status to lawful permanent resident. In December 2009, White pleaded guilty in the Dauphin County Court of Common Pleas to delivery of a controlled substance (crack cocaine), in violation of 35 Pa. Stat. Ann. § 780-113(a)(30). The next year, the Government served White with a Notice to Appear, charging him with removability for having been convicted of an aggravated felony as defined in Immigration and Nationality Act ("INA") § 101(a)(43)(B) [8 U.S.C. § 1101(a)(43)(B)] (illicit trafficking in controlled substance), see INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)], and for having been convicted of a controlled substance offense, see INA § 237(a)(2)(B)(i) [8 U.S.C. § 1227(a)(2)(B)(i)]. White, who identified himself as bisexual, applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT") based on his sexual orientation.

In February 2011, White appeared before an Immigration Judge ("IJ"). White explained that he was known in Jamaica as being homosexual because he had been molested as a child by a male cousin, George Passley. He also stated that he had been assaulted by neighbors and classmates because of his sexual orientation. After one such fight, White went to the police station, where an officer told him that homosexuals can be killed in Jamaica. White's sister testified that Jamaica is a homophobic society and confirmed that White frequently got into fights growing up because he was accused of being gay. She also stated that Passley's father was killed in a fire which was set by arsonists who were motivated by Passely's perceived homosexuality. White also presented the State Department Country Reports for Jamaica, which included a section pertaining to "Societal Abuses, Discrimination, and Acts of Violence Based on Sexual Orientation and Gender Identity."


The IJ sustained the aggravated felony charge and concluded that White's conviction rendered him ineligible for any relief other than deferral of removal under the CAT. With respect to CAT eligibility, the IJ found that White's evidence was insufficient to meet his burden of showing that he would more likely than not be tortured in Jamaica. In particular, the IJ determined that White was credible, that "it is [not] a stretch . . . to characterize Jamaican society as homophobic," but that "because of the sparsity of the evidence . . . [White] just has not been able to meet his burden of proof." The BIA dismissed White's appeal, agreeing that while "there is evidence of significant problems faced by homosexuals in Jamaica, . . . the evidence does not establish that [White] is more likely than not to be tortured upon return to Jamaica . . . ." The BIA also rejected White's claim that the IJ was biased and concluded that White had waived any claims related to the IJ's conclusion that he was ineligible for asylum and withholding of removal. White filed a timely pro se petition for review of the BIA's decision.

We generally lack jurisdiction to review a final order of removal against a criminal alien, like White, who is removable for having committed an offense covered in INA § 237(a)(2). The Court retains jurisdiction, however, to review "constitutional claims or questions of law" raised in a petition for review.1 INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)]; Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). With respect to CAT claims, the question of the likelihood of torture is a mixed one, comprised of a factual component ("what is likely to happen to the petitioner if removed") and a legal one ("does what is likely to happen amount to the legal definition of torture"). Kaplun v. Att'y Gen., 602 F.3d 260, 271 (3d Cir. 2010). Thus, we may review White's claim that the BIA erred in its application of the law governing CAT protection to the undisputed facts of record. Toussaint v. Gonzales, 455 F.3d 409, 412 n.3 (3d Cir. 2006). The relevant question is whether White "has identified ... evidence to compel the conclusion that it is more likely than not that he will be tortured upon return to [Jamaica]." De Leon-Ochoa v. Att'y Gen., 622 F.3d 341, 357 (3d Cir. 2010). "Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining . . . information or a confession, punishing . . . for an act, . . . intimidating or coercing, or for any reason based on discrimination of any kind." 8 C.F.R. § 1208.18(a)(1). Such torture must be "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." Id.

We conclude that the facts concerning what is likely to happen to White, as found by the IJ, do not meet the legal definition of torture. The IJ stated that Jamaican society is homophobic. Indeed, the 2009 State Department Country Report for Jamaica indicated that the law criminalizes homosexual conduct, which is punishable by up to 10 years of imprisonment. In addition, that Report noted the murder of a prominent gay rights advocate, physical assaults on homosexuals, targeted attacks against a gay rights advocacy group and its members, and the failure of the police to investigate such incidents. The IJ also described the testimony provided by White and his sister. 

White claimed that he had been assaulted by neighbors and classmates because he was perceived to be gay. White's sister confirmed this account, and explained that their uncle's house had been burned because his son, who had molested White, was perceived to be homosexual. Based on this evidence, the IJ found that "there could be random violence against Mr. White." Ultimately, however, the IJ concluded that it was unlikely that White is "going to be detained at some point by someone who is not part of the government, that the government would be aware he is being detained and is going to be subjected to torture, and that the government would undertake no efforts to intervene to prevent such nefarious activity." Given this unreviewable factual determination about what is likely to happen to White, we must conclude that the legal definition of torture has not been satisfied in this case.

Finally, White alleges that the IJ was personally biased against him, as demonstrated by comments made at the beginning of a preliminary hearing. During the hearing, at which White submitted his asylum application, the IJ stated, "I need to submit [the asylum application] to the Department of State, even though it's a worthless endeavor. Totally worthless endeavor." The Board concluded that the IJ's comments "reflect[ed] . . . frustration with some of his required processes, but does not suggest any prejudgement [sic] or bias on the [IJ's] part concerning [White's] claim. We agree. The IJ was apparently referring to the requirement that asylum applications be submitted to the State Department for its optional review and comment. 8 C.F.R. § 208.11(a). The "worthless endeavor" did not pertain to White's application itself, but to the process of submitting the application for review by the State Department. In fact, the IJ thoroughly reviewed White's allegations on their merits. Therefore, we conclude that the IJ's comments did not demonstrate bias.

For the foregoing reasons, we will deny the petition for review.

Footnotes
1. Whether White's conviction constitutes an aggravated felony is a question of law. Jarbough v. Att'y Gen., 483 F.3d 184, 189 (3d Cir. 2007). Importantly, however, White did not raise this issue in his appeal to the BIA. Therefore, as the Government properly notes, we lack jurisdiction to the extent that White now seeks to challenge the basis for his removability. INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)]; Wu v. Att'y Gen., 571 F.3d 314, 317 (3d Cir. 2009).

New Guidelines on Deportation Cases Could Apply to Gay Couples

Andrew Harmon from The Advocate

Immigration officials may be able to consider the circumstances of married binational same-sex couples when making decisions about deportation, although an immigration group in response has asked for further clarification of new federal guidelines.

According to guidelines issued in a Friday June 19th a memo by U.S. Immigration and Customs Enforcement director John Morton to field directors, agents, and attorneys, Morton listed 19 criteria that could be considered in deportation cases, including whether an individual has a U.S. citizen spouse, as well as “the person’s ties and contributions to the community” and whether the individual’s nationality “renders removal unlikely.”

Morton specified that the list “is not exhaustive.” In response, an LGBT immigration advocacy group has asked the agency to clarify whether terms like “spouse” and “family” in the memo include gay partners and spouses.

“While ICE has taken a significant step in recognizing that tearing families apart should not be a government priority, it must be explicit that lesbian and gay families are protected, too,” Immigration Equality executive director Rachel Tiven said in a statement today.

Following the Obama administration’s February announcement that it would no longer defend the Defense of Marriage Act in federal court cases, Tiven’s organization and other advocates have called on officials to exercise their discretion in immigration cases involving married gay binational couples because President Barack Obama has said the 1996 law, which prevents federal recognition of same-sex marriages, is unconstitutional.

In some recent, well-publicized cases, officials have perhaps indicated their willingness to exercise such discretion, though the administration has so far said it will not issue a blanket policy on the matter.

“Neither [the Department of Homeland Security] nor [the Department of Justice] has granted any form of relief to the entire category of cases affected by DOMA,” wrote DHS assistant secretary Nelson Peacock and Assistant Attorney General Ronald Reich in a May letter to Sen. John Kerry, D-Mass., and Rep. Zoe Lofgren, D-Calif., replying to correspondence this spring from the two lawmakers.

Kerry and Lofgren, backed by dozens of colleagues in the House and Senate, had urged restraint in deportation proceedings involving married same-sex couples and asked that any green card application proceedings be put on hold pending legal resolution or legislative repeal of DOMA.

Lavi Soloway, an LGBT immigration attorney and cofounder of Stop the Deportations, said the ICE memo "offers abundant discretion for Immigration and Customs Enforcement attorneys handling deportation matters to consider the circumstances of lesbian and gay binational couples.

There are at least three provisions that will prove to be very important for LGBT deportation cases: consideration of the person's ties to the country of origin and conditions there; consideration of the person's ties to the community, including family relationships; and consideration of whether the person has a spouse, parent or child who is a U.S. citizen or green card holder."

"Stop the Deportations will urge that these guidelines be applied fairly and compassionately to the spouses of lesbian and gay Americans facing deportation," Soloway said.

Meanwhile ..............

Few immigrants want to be deported. Here are three vignettes of South Florida immigrants who face, or recently faced, being returned to their native country, followed by a brief look inside an innovative Immigration Clinic at the University of Miami, where students represent immigrants who cannot afford to defend themselves against deportation.

Immigrant Song: I Don't Want To Leave from John Van Beekum on Vimeo.

A Jamaican brotha is included

Peace and tolerance

H

Presentations from the May 3 Seminar on free movement of same sex families in Europe .....

Silvan Agius, ILGA-Europe

Pál Szirányi, Hungarian Presidency of the Council of the EU

Panel 2: What solutions against discrimination?

Ulrike Lunacek MEP – Introduction

Ben Baks, Dutch Government

Emma Reed, Government of the United Kingdom (Free movement of same-sex families)

Dr Helen Toner, Warwick University School of Law

European Commissioner for Fundamental Rights on the International Day Against Homophobia

US State Department: 2010 Human Rights Report: Jamaica (including lgbt issues)

Societal Abuses, Discrimination, and Acts of Violence Based on Sexual Orientation and Gender Identity

The law prohibits "acts of gross indecency" (generally interpreted as any kind of physical intimacy) between men, in public or in private, which are punishable by 10 years in prison.

The Jamaica Forum for Lesbians, All Sexuals, and Gays (J-FLAG) continued to report human rights abuses, including arbitrary detention, mob attacks, stabbings, harassment of gay and lesbian patients by hospital and prison staff, and targeted shootings of such persons. Police often did not investigate such incidents. During the year, J-FLAG received 43 reports of sexually motivated harassment or abuse, which included 26 cases of attempted or actual assault, including three murders and three cases of rape. This violence created a climate of fear that prompted many gay persons to emigrate, while the gross indecency laws left those who remained vulnerable to extortion from neighbors who threatened to report them to the police unless they were paid off.

In September six men brutally gang-raped a lesbian woman and cut her genitals after the assault ended. These men had previously taunted their victim, and this attack typified a phenomenon known as "corrective rape," whereby rapists justify their actions under the rationale that forcing their victim into sex will somehow convert the injured party to heterosexuality. Three days later a taxi driver raped another lesbian woman in an unrelated attack staged in the same northern parish of St. Ann’s. J-FLAG protested both rapes, stating that the women were attacked because of their sexual orientation. The organization believed that, as with heterosexual women, many homosexual rape victims were hesitant to report their abuse out of fear, shame, or for any number of personal reasons, suggesting that the actual incidence of sexual violence perpetrated against such persons could be notably higher.

J-FLAG members also suffered attacks on their property and home intrusions, as people demanded to know the number of persons and beds in a home. Victims reported numerous cases of threats and intimidation to J-FLAG. In many instances family members expelled their own relatives from homes because of sexual orientation. In other cases neighbors drove gay and lesbian persons out of their communities, slashing tires and hurling insults. Many gays and lesbians faced death and arson threats, with some threats also directed at J-FLAG offices.

As a result of such threats, J-FLAG elected not to publicize its location, and one of its officials reported feeling unsafe having meetings with clients at the organization’s office.

The trial of six suspects arrested for the 2005 robbery and murder of prominent gay rights advocate Lenford "Steve" Harvey, initially begun and then postponed in 2007, was scheduled to recommence in early 2011.

Male inmates deemed by prison wardens to be gay were held in a separate facility for their protection. The method used for determining their sexual orientation was subjective and not regulated by the prison system, although inmates were said to confirm their homosexuality for their own safety. There were numerous reports of violence against gay inmates, perpetrated by the wardens and by other inmates, but few inmates sought recourse through the prison system.

Gay men were hesitant to report incidents against them because of fear for their physical well-being. Human rights NGOs and government entities agreed that brutality against such persons, primarily by private citizens, was widespread in the community.

Other Societal Violence or Discrimination

No laws protect persons with HIV/AIDS from discrimination. Human rights NGOs reported severe stigma and discrimination against this group. The International Labor Organization (ILO) worked with the Ministry of Labor on a program to reduce the stigma of HIV/AIDS in the workplace and to assist employers in designing policies for workers with HIV/AIDS. Health-care facilities were prepared to handle patients with HIV/AIDS, but health-care workers often neglected such patients. The Ministry of Labor, in conjunction with the ILO and the Ministry of Health, conducted workplace education programs on HIV/AIDS issues. Laws banning homosexual acts and societal attitudes prevented distribution of condoms in prisons and similar institutions.

Academic Freedom and Cultural Events

There were no government restrictions on academic freedom.

With respect to cultural events, the Jamaica Broadcasting Commission (JBC) sought to regulate and limit the dissemination of certain popular music deemed inconsistent with public morality. Since 2009 the JBC banned certain lyrics deemed inappropriate to broadcast, including dancehall songs referring to the simulation of aggressive or violent sex, and employed editing methods to expunge lyrics thought unfit for broadcast. The commission stated that its directive was aimed at "all types of musical broadcast output, including soca music and carnival music."

Download the FULL REPORT

European Parliament calls for special protection of LGBT asylum-seekers

Members of the European Parliament voted today to modernise the EU-wide system for examining asylum claims. Among the measures adopted today, groups of asylum-seekers with special needs were updated to include people fleeing persecution based on their sexual orientation or gender identity.

In a report drafted by French centre-left MEP Sylvie Guillaume (Socialists & Democrats), the European Parliament adopted a series of amendments to guarantee that lesbian, gay, bisexual or transgender people seeking asylum in the EU would receive particular attention.

Measures include providing expert advice to asylum officials on sexual orientation and gender identity; protecting claimants’ privacy; guaranteeing that physical examinations fully respect human dignity and integrity, for instance in cases involving minors or transgender people; and ensuring that applications by LGBT asylum-seekers are not ‘fast-tracked’ for removal to their country of origin.

Sirpa Pietikäinen, Member of the centre-right European People’s Party and Vice-President of the LGBT Intergroup, commented: “I am particularly proud that my centre-right colleagues agreed on the need for special protection, regardless of their general position on asylum. Lesbian, gay, bisexual and transgender people fleeing countries such as Iraq, Uganda, Honduras or Indonesia must receive particular protection taking into account cultural sensitivity. This is a major step towards fully complying with our engagements under international asylum law.”

Rui Tavares MEP, Civil Liberties Coordinator of the left GUE/NGL political group and Vice-President of the LGBT Intergroup, added: “The European Parliament is showing that asylum rules need updating to reflect reality: 76 countries criminalise homosexual acts, and 7 foresee the death penalty (maybe 8 soon with Uganda). I regret that other progressive provisions did not pass, but today’s text will ultimately bring more fairness for LGBT asylum‑seekers.”

The text adopted today is the European Parliament’s formal position at first reading. Asylum rules will effectively be amended once EU governments examine the text and conclude an agreement with the European Parliament.

Read more:

• Read the legislative resolution (not yet amended following today’s votes)

Trinidad Happenings: Guardian Newspaper on Asylum

thanks to CAISO for alerting us to this:

The story read:

Trini gets US asylum after gay persecution claim

Wesley Gibbings

At least one T&T national was granted asylum in the United States last year, based on the claim that he faced continued persecution in this country as a result of his sexual orientation. Immigration Equality (IE), a US-based human rights NGO, handled 37 asylum claims from T&T in 2010. There were 38 successful actions by Jamaican nationals and four from Grenada. The names of applicants are not usually disclosed and not all claims are handled by the organisation. Legislative shortcomings that do not address discrimination on the grounds of sexual orientation were cited in most instances.

“In many cases, the clients who turn to Immigration Equality for help are literally running for their lives,” IE executive director Rachel B Tiven said in a press release. This, US-based Puerto Rican immigration attorney Sheila Velez said, frequently occurs because there was a lack of access to adequate anti-discrimination legislation in the Caribbean and the result can often be acts of violence including torture and outright job and other discrimination. Local activists do not believe such claims were exaggerated.

Gay, lesbian, bisexual and transgender (GLBT) spokesman, Cyrus Sylvester, told the Guardian: “While some may be of the opinion that this claim is overstated, for many members of the GLBT community here in Trinidad and Tobago, persecution based on sexual orientation is a frightening reality. “While all claims for asylum will not be of the same merit, I strongly believe that some of these cases can amount to legitimate claims for asylum in other, more tolerant societies,” he said, adding he was aware of other successful applications in Canada and Europe.

“It (persecution) happens and some persons are so traumatised by these attacks that they sometimes contemplate or even commit suicide, some become withdrawn from (GLBT) social activities and continue a life in seclusion, some become introverted and some even attempt desperately to flee from these shores vowing never to return,” Sylvester said. Velez, who has spoken extensively on Caribbean human rights issues, suggested in an interview with the T&T Guardian that “the stigma and discrimination against all homosexual acts, gays, lesbians, transgenders and ‘all sexuals’ in Caribbean societies is largely due to a longstanding heteronormative culture.

“However, the fact that it is a long- standing part of our culture does not mean we should not do away with it,” she said. The immigration attorney cited as one example, moves to address issues such as domestic violence—something she said that was “for many years sanctioned as part of the justified exercise of authority and control of a husband over his wife. “By now, most Caribbean states have adopted legislation protecting women from domestic violence,” Velez said. Colin Robinson, who serves on the steering committee of the Coalition Advocating for Inclusion of Sexual Orientation (Caiso), expressed some discomfort with media attention on the issue. “Irresponsible media scrutiny on a mechanism that can be a matter of life and death can trigger political conservatism and responses that can be quite harmful,” he said.

Caiso has rebuffed a proposal by Gender Affairs Minister Mary King to have a national debate and referendum on same-sex marriages, saying it would make the country a “laughing stock” in the international community. When the suggestion arose in the Senate, Minister in the Ministry of National Security Subhas Panday cited a “chapter” in the biblical book of Leviticus in an apparent attempt to invoke religious opposition to the practice of homosexuality. This incident, Caiso said in one blog, was evidence of the “circus” the national debate was likely to become.

article ENDS

notes:

Of course the twin island republic has been seeing vigourous debate on same sex marriage, sexual orientation and other related issues in the recent month of February with the historic debate on same sex marriage among other things in their parliament a steady stream of articles in the major newspapers as well most of which seem well written have also been appearing feeding the discussion with The Coalition Advocating for the Inclusion of Sexual Orientation (CAISO) being the leading voice advocating for lgbt rights and recognition.

CAISO calls for equal rights - TV6 Morning edition, 21 February 2011 from CAISO on Vimeo.

The new T&T Gov't doesn't have a position on whether gay people have a right to life from CAISO on Vimeo.

The most recent article appeared in the Express newspaper entitiled the Gay Debate and Equality part of which reads:

While the words of our national anthem suggest equality for all, this notion should not be confused with the spurious idea that one has the right to do whatever one pleases or prefers regardless of its moral and ethical offensiveness to a large cross-section of society, or the bitter consequences of violating the norms of nature, and, ultimately, to exhibit behaviour that is an affront to and rebellion against God's creative order.

The postmodern thinker, the secular humanist, the new-age philosopher, the atheist, etc may all immediately raise a red flag here at my reference to God, but that is the sad mistake that so many are making. Truth cannot be suddenly discovered in a bag or some esoteric emotional feeling; if it is truth at all, it must be first ontological (from the foundation of what is "really real") before it is epistemological (what is known or believed).

Thus policies or precepts governing human life must be rooted in objective reality, which cannot get more fundamental than God as the architect or designer of morality. The question of equality cannot be divorced from moral or ethical standards already established by the one Being who only can do so—God, our Creator—or simply an ultimate appeal to theology.

This brings us to the present gay debate. One cannot speak of "failure to admit sexual orientation as a ground of discrimination" as causing T&T to lag "behind the rest of the progressive world" (to quote a newspaper columnist), when such sexual orientation was never a choice allowed for by our original design.
The male and female genitals were designed mainly for procreation. That is the means by which all of us, living or dead, came into this world. Sexual satisfaction was never meant to be the ultimate purpose, and a pivot on which legal policy must be based. This was to be a private, fringe benefit to the married heterosexual.

By J Vernon Duncan

Read the rest here

We are watching developments there as closely as possible.

Peace and tolerance

H

America far safer for gay Jamaicans (Observer Letter/Column)

Dear Editor,

It was satisfying to see the February 12 headline, "28 gay Jamaicans granted asylum in US last year" because indeed, gay Jamaicans are running for their lives. They seek refuge from some in academia, the self-righteous, political grandstanding and poor policing.

Where one, two, three or more of these "institutions" are gathered touching anything concerning the "funny-man" or "she-man," then "Father Hate" and "Uncle Murder" are in the midst to do Jamaica's good.

Who will deny the usefulness of the frequent islandwide homophobic rhetoric in uniting "Holy-Ghost tongue-talking" Jamaicans, rude boys coming together to salute with guns, some politicians standing in oneness to applaud because there will be a Gomorrah-free Cabinet, and lousy music artistes firing up a crowd, not with lyrics but with "fire bun them"?

And where are the academic divas and wisdom rebels to inject logic, to water down the fire, clean up the blood and bury the gay murder rate?

Are the divas and rebels in an intellectual fowl coop hiding?

Jamaica is not the only murderous country. The problem with much of Jamaica is that it seems to be obsessed with violence. Inflicting blood, pain and shame give too many Jamaicans a consensual mood which appears to have become a cultural thrill.

Indeed, it would be naïve of anyone to think that America is paradise for those gay Jamaicans whom it has granted refuge. America has many cases of homophobia where there is a higher level of alarm when it's homophobia against whites and a lower level for other races.

That is something America should be ashamed of. There doesn't seem to be much evidence that America has sufficient conscience on that matter.

However, Immigration Equality rightly understands that America is nonetheless far safer for gay Jamaicans.

Pity that most Jamaicans are still in such denial!

Dadland Maye
New York, New York
dadland@gmail.com

ENDS

My notes:

The two questions highlighted in bold above in the letter are fundamental ones for us and especially those in advocacy in particular , they ask in essence why aren't the intellectuals and those in academia who are gay and who know better and are even friends with some of the same politicians who know better that the Buggery Law should be scrapped but grandstand in parliament but privately have different views due to fear of political suicide. The letter writer is directing the criticism where it belongs which I and a few others have gone against the grade and not tow the line.

As for the "gay murder rate" referred to there are issues that are misconstrued even by the community itself I fear, the conflation with downlow/clandestine homosexual affairs gone wrong vs abuse to include power differentials and the homo negativity from paedophilia with the psychology of sexual abuse are issues the community and experts are going to have to carefully sift through solve and then present to the nation to get the discussion going properly late as it is, better late than never.

More to come on this though in the meantime see the tabs linked to this post below to see previous posts on downlow issues and related matters.

Peace and tolerance

H

EU court to rule on gay asylum 'discretion test'

Source: Migration News Sheet

The German judiciary has referred questions for a preliminary ruling concerning homosexual asylum-seekers to the European Court of Justice (ECJ), more specifically asking whether and to what extent they may lay claim to provisions of protection contained in Council Directive 2004/83/EC of 29 April 2004on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [the 'qualification directive'].

The case (C-563/10) concerns an Iranian asylum-seeker, Mr Khavand, who arrived in Germany from Turkey in November 2000 and applied for asylum, claiming to have fled from persecution on account of his homosexuality.

His application was rejected in April 2001 and he has since challenged the negative decision on several occasions, the latest with the claim that since his arrival in the Netherlands he has espoused the Christian faith.

The new ground for asylum was also rejected with the argument that “converts” in Iran are only persecuted if they carry out “missionary” activities.

As for his homosexuality, the German authorities argue that he should not face any persecution as long as the Iranian authorities do not know about it.

They have also dismissed his fears about being flogged or subject to the death penalty, insisting that he should have no problems in his home country as long as his homosexuality experiences are not shown openly.


The questions for a preliminary ruling refer to Article 10 of the afore-mentioned Directive which covers reasons for persecution, in particular paragraph d). Under the terms of this provision, a group entitled to protection “can be considered to form a particular social group where in particular:

• members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and
• that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;
• depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article”.

The questions raised by the referring jurisdiction are as follows:

1. To what extent is homosexual activity protected?
2. Can a homosexual person be told to live with his or her sexual orientation in his or her home country in secret and not allow it to become known to others?
3. Are specific prohibitions for the protection of public order and morals relevant when interpreting and applying Article 10(1)(d) of Directive 2004/83/EC or should homosexual activity be protected in the same way as for heterosexual people?

Some of the questions have already been answered, referring not to the afore-mentioned EU Directive but to refugee law in the UK.

The reasons given by the British authorities for turning down the applications of asylum-seekers claiming persecution on account of their homosexuality were almost identical: there was nothing to fear as long as they behaved discretely and did not exhibit their sexual orientation in public.

On 7 July 2010, five Supreme Court judges in the UK ruled unanimouslythat obliging homosexuals to hide their sexual preference in order to avoid persecution amounted to a violation of their fundamental right of freedom of association with people of the same sexual orientation.

Lord Rodger, one of the five judges, declared that homosexual asylum-seekers must be “free to enjoy themselves going to Kylie concerts and drinking exotically coloured cocktails” without fear of persecution.

He added that they should have the same rights to display their sexuality as heterosexual men who “play rugby, drink beer and talk about girls with their mates”.

Lord Hope, the Deputy President, said that:

“The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does (…) he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it”.

Washington Post on J'can gays seeking asylum

The Washington Post carried an interesting story on February 11th on the ordeal of a Jamaican man who has won asylum in the United States which is by no means an easy feat, here is an excerpt below from the extensive article.

However I was particularly offended by the quote from the Deputy Chief of the Jamaican Consulate in Washington who said to the Post "I don't believe we are more homophobic than anywhere else, I believe we are more tolerant than anywhere else." from Cheryl Gordon. I wonder what planet does this official resides or is she too showing her homophobic side by pretending the persecutions faced by some same gender loving persons in Jamaica is somehow a fib or figment of our imagination in order to get asylum overseas ???

She continued her obvious face saving rhetoric as our officials are known for to hide the truth and real shame by saying "We go after crimes committed against people irrespective of their race, ethnicity, sexual orientation and political leaning, as long as people report there has been some crime against them,"

It would be funny if it weren't so tragic.

Here is an section of the three paged piece:

Jamaica's gays finding refuge by applying for U.S. asylum

By Shankar Vedantam

Washington Post Staff Writer

From the time he was in grade school in his native Jamaica, Andrae Bent was the target of taunts and attacks.

A classmate once stabbed him near his eye with a pencil for being effeminate. Another time, a man pulled a knife on him and asked if he was "one of them," Bent said, meaning homosexual. Fearing for his life, Bent denied his homosexuality.

"I was called faggot, gay, batty man, chichi man," he said. "This would be from classmates, from people on the streets when I was walking home. Wherever I went in Jamaica, it was a nightmare."

Five months ago, Bent, now 24, won asylum in the United States on the grounds that he had credible fear of persecution as a gay man if he were to go back to Jamaica. He joined what has become a small wave of gay Jamaicans fleeing homophobia in the Caribbean nation.

Despite its image as a laid-back island paradise for American tourists, Jamaica still criminalizes sodomy and has long been regarded by human rights activists as virulently anti-gay.

The federal government doesn't track how many people are granted asylum on the basis of homophobia or what countries they are from. But of the 92 gays and lesbians who won asylum in 2010 with the help of Immigration Equality, an immigrant gay-rights group,

28 were from Jamaica - meaning that nearly a third were from a single country ranked 138th in world population.

Advocacy groups say they also regularly see asylum seekers from other English-speaking Caribbean countries, such as Barbados and St. Lucia.

"The Caribbean is the part of the world where we see the highest number of cases," said Victoria Neilson, legal director at Immigration Equality, which estimates that it handles about half of all successful asylum cases brought on behalf of gay and lesbian foreigners.

Part of the reason, she said, is that those seeking asylum have to be in the United States when they apply, a formidable hurdle for people from more distant countries such as Uganda. Homophobia in Uganda is so virulent that the parliament is considering a bill to execute gays and a prominent gay activist was slain two weeks ago.

But while many Americans are aware of homophobia in Africa, fewer are aware of the issue in the Caribbean, Neilsen said. "There is a great deal of violence, and in many Caribbean countries there are laws on the books that criminalize consensual sodomy, which makes it difficult for people to report violence to the police."

Human Rights Watch Report

'Hated to death'

additional photo (not in the article) of the man from the Hated To Death HRW report - One of the darkest moments on our nation as a people in general and as lgbt people specifically was in November 2002 where the photographed male was brutally attacked by a machete wielding, stick bearing, cursing mob outside of Falmouth in Trelawny.

(not to be confused with the cross dresser mob attack in 2007 as shown above)

He was chopped several places on his body but survived his ordeal, thankfully to tell the tale. Out of that came the most pronounced collection of data at that time regarding homophobic attacks in Jamaica and related stigma and acts of discrimination as compiled by Human Rights Watch. He has since been promoted to glory after a brief illness but is not forgotten for allowing this report to come to life by contributing his story.

It caused the gay community to pause and look at itself.

Jamaica in particular, she said, "is one of the most violently homophobic countries that exist in the western hemisphere."

That Jamaican government sharply disputes that characterization.

ENDS

Peace and tolerance

H

(photo included in the post only for reference)

Gays Seeking Asylum in U.S. Encounter a New Hurdle

Romulo Castro considered attending his asylum interview in Rosedale, Queens, dressed as Fidela Castro, a towering drag queen in six-inch stilettos, a bright green poodle skirt and a mane of strawberry blond hair. In the end, Mr. Castro, 34, opted for what he described as understatement: pink eye shadow, a bright pink V-neck shirt and intermittent outbursts of tears.

After years of trying to conceal his sexual orientation back home in Brazil (where Fidela never made an appearance), Mr. Castro had been advised by his immigration lawyer that flaunting it was now his best weapon against deportation.

“I was persecuted for being fruity, a boy-girl, a fatso, a faggot — I felt like a monster,” said Mr. Castro, who reported being raped by an uncle at age 12, sexually abused by two police officers, and hounded and beaten by his peers before fleeing to the United States in 2000. “Here, being gay was my salvation. So I knew I had to put on the performance of my life.”

Amid international outcry over news of the Czech Republic’s testing the veracity of claims of purportedly gay asylum seekers by attaching genital cuffs to monitor their arousal while they watched pornography, some gay refugees and their advocates in New York are complaining that they can be penalized for not outwardly expressing their sexuality. While asylum-seekers and rights groups here expressed relief that use of the so-called erotic lie detector is impossible to imagine in the United States, some lamented in recent interviews that here too, homosexuals seeking asylum may risk being dismissed as not being gay enough.

The very notion of “gay enough,” of course, or proving one’s sexuality through appearance, dress and demeanor, can be offensive — and increasingly androgynous fashions and the social trend known as metrosexuality have blurred identities in many people’s minds.

“Judges and immigration officials are adding a new hurdle in gay asylum cases that an applicant’s homosexuality must be socially visible,” said Lori Adams, a lawyer at Human Rights First, a nonprofit group, who advises people seeking asylum based on sexuality. “The rationale is that if you don’t look obviously gay, you can go home and hide your sexuality and don’t need to be worried about being persecuted.”

Jhuan Marrero, 18, who was born in Venezuela but has lived — illegally — in New York since he was 4, said the immigration officer at his asylum interview last week challenged him about his macho demeanor.

“I was brought up by my parents to walk and talk like a man,” said Mr. Marrero, who volunteers at the Queens Pride House, a gay and lesbian center in Jackson Heights.

“The officer said: ‘You’re not a transsexual. You don’t look gay. How are you at risk?’ I insisted that if I was sent back to Venezuela, I would speak out about being gay and suffer the consequences.”

Victoria Neilson, legal director of the New York-based Immigration Equality, which provides assistance to asylum seekers, recalled the case of a 21-year-old lesbian who had been threatened with gang rape in her native Albania to cure her of her sexual orientation, but was initially denied asylum, Ms. Neilson said, because she was young, attractive and single, apparently not conforming to the officer’s stereotype of a lesbian. (A judge later granted her asylum, Ms. Neilson said.)

Chris Rhatigan, a spokeswoman for the United States Citizenship and Immigration Services, said each case is examined individually, both for evidence of sexual orientation and the conditions of the country of origin. While she declined to comment specifically on the examples cited by Mr. Marrero and Ms. Neilson, Ms. Rhatigan said such behavior by immigration officers would not be condoned.

“We don’t say that someone is insufficiently gay or homosexual, whatever that would mean, or that he or she could be saved by hiding his or her homosexuality,” Ms. Rhatigan said. “Sexual preference is an immutable characteristic. It is something an individual can’t or shouldn’t change.”

Citizenship and Immigration Services received 38,000 asylum applications between October 2009 and September 2010, but the agency does not track how many cite being gay or lesbian as a reason. People may qualify for asylum if they can demonstrate past persecution or a well-founded fear of future persecution based on membership in a particular social group; in 1994, the scope of the law was expanded to specifically include homosexuals.

Illegal immigrants seeking asylum are interviewed by immigration officers, who can either approve their applications or refer them to an immigration judge. Gay applicants must marshal evidence of their sexual orientation and their risk of persecution, like affidavits from same-sex partners or police and medical reports of abuse. But legal experts said that the burden of proof can be difficult for people from places like Saudi Arabia or Iran where homosexuality is punishable by death and it can be dangerous to be openly gay or report an anti-gay hate crime — or from Western countries that are believed to be sexually tolerant.

continue here to read the rest and to see the video interview on the NY Times page.

Man wins refugee status in Canada

A openly gay man who is married to his partner has won a bid for refugee status due to concerns his life may be in jeopardy if he is deported to his native Jamaica.

Marlon Cunningham, 45, who lives in Toronto, had his refugee case thrown out in September 2009 after a member of the immigration and refugee board failed to consider all the evidence at his hearing.

Cunningham filed an appeal to the Federal Court of Canada and was granted another hearing last week.

Justice Frederick Gibson said the IRB member didn’t consider information on the treatment of homosexuals in the Caribbean.

The member “erred in discounting reports of violence against homosexuals in Guyana,” Gibson said in his decision.

“The failure to consider relevant evidence would be sufficient to grant a judicial review,” he wrote.

Cunningham married a fellow Jamaican in July 2009 and is active in the Jamaican-Canadian community, court heard.

“He faces risk if returned to Jamaica,” Gibson wrote.

He said a failure to acknowledge new evidence or take it into account can lead to Cunningham facing “a personalized risk of persecution or a risk to his life.”

He faces “cruel and unusual treatment or punishment if returned to Jamaica,” the decision said.

The board has recognized that gay men and women are targeted in Jamaica.
ENDS

notes:
Some of the comments on the story's page from the Toronto Sun are not so kind however as many persons are critical of the immigration system in allowing LGBT persons refugee status.

Here are a few, please go the article for the full story plus comments:

Some comments include:

So what if he gay. He is not canadian so send him home. He knew about the treatment of "his kind" at home so too bad!!!!!!

Justified I suppose... so is the boat on its way with Tamel Tiger Terrorrists full of gay guy?
Canada..... open for whatever comes our way!

Is it only white Europeans that get grief and hassle trying to get into your country, after all we helped build your nation. Do you have to be gay or Jamican or Nigerian with a false passport or have HIV. There is thousands of skilled Europeans and law abiding immigrants trying to get to Canada but get treated like shit. After what happened with the Nigerian your immigration people should have been sacked, i wonder when the next innocent person gets killed because of your ass-holes in immigration!

Another shining example of our immigration system. Good thing the feds have tons of money to spend on scum like this. Canada is the sucker country of the world and every freak or criminal in the world knows it. How very Canadian.
Well, I guess the feds with have to give the queers a bit more money for queer fest next year now that there is one more. Just an absolute joke when there is so many deserving people all over the world who would love to come here and be part of Canada but you have to be queer or better still a Chinese thug to be allowed here.
Just another low class Jamician to come here and live off welfare and then kill someone and go to jail.

Canada. Door mat and Dumping ground for the world. You Canadians are mugs. Really mugs.

What a pile of bull sheet. They have got to be kidding. No wonder the refugee system is so screwed. So are we, we pay for this type of crap. This should be appealed, big time, and this scam artist held in detention until a decision is made.

If you are critical of Canadas immigration system, fine. If you fell like people abuse the refugee process, that's ok too. If you're upset about crime commited by Jamaicans in Canada, that's certainly an issue. But you cant use those reasons to pretend like Gays aren't spefically targeted, including by law enforcement. One imbecile said "Feb 1 2008 was the last reported incident involving homosexual prejudice". Did this fool know that homosexual acts are ILLEGAL in Jamaica, and punishable with prison sentances, and hard labor? You don't consider THAT homosexual prejudice?? You see, when people have to lie to make their point, it is because the truth won't suffice..........

So if I understand this, the The member “erred in discounting reports of violence against homosexuals in Guyana?" Wasn't this about a Jamaican refugee? He's born in Jamaica. What the hell does Guyana have to do with it? Perhaps the member erred in discounting reports of violence against homosexuals in Iran or any other country this guy doesn't live in. Sounds like someone was looking for any excuse to toss out Immigrations decision doesn't it. Hey,.....I want an inquiry!

You must be kidding. Now we are providing refugee status to a gay Jamaican?
Who will stop this madness?
Who will return the common sense to our Gov't?
He was gay before he got here. He was not the only gay man in Jamaica.
They may not be as "progressive" as Canada but why should that be a basis for allowing refugee status?
I just shake my head and wonder about who makes these dumbass decisions.
If he is not comfortable being gay in Jamaica, then apply to enter another country legally.
Canada must stop being the pasty of the international community.
Oh well, lets get ready for the ship of Sri Lankans off B.C.'s coast. Bet all will claim to be "gay" now.

It's the same old story claimed by every refugee trying to get into Canada; the land of milk and honey. If you send me back I will be persecuted by everyone, blah, blah, blah. How did these people manage to live 25, 30 or 40 years in seemingly robust health in a country that is now trying to kill them? It's very simple to concoct a story that can't be checked out and these applicants know this as do the lawyers and immigration consultants that coach these people. It is so simple to beat Canadian refugee laws these people just chuckle in disbelief. With our lax refugee system and people knowing they won't be turned away, who can blame them? A sucker is born every minute and thy name is Canada. Wait, the boat from Sri Lanka, everyone gets in.

"Dudley Do Right"....your an idiot. I bet you're some white idiot making an ignorant comment based on CRAP!!! Have you been to Jamaica? Have you seen first-hand how openly gay individuals are treated? I BET NOT!!! I HAD A FRIEND MURDERED IN DEC 09. House was set a blaze, tormented for months as he walked down the street, death threats to family......so please if your going to comment on anything...KNOW THAT FACTS!! HOMOSEXUALITY IS NOT ACCEPTED IN JAMAICA!! And the reason you don't hear about it is because it's not something they are going to broadcast to the media. Please tell me a story where you've heard of gay men being murdered in Toronto at the same rate as Jamaicans!!!!

Dudley Do Right originally commented -
What insanity! Our Immigration and Refugee Systems are totally broken. There is as much chance for a homosexual to experience violence in Jamaica as there is in Canada. The last reported attempt at violence in Jamaica, against homosexuals, occured February 1, 2008, where nobody got hurt except for their feelings.
Don't judges look up this information or do they just believe the word of the proponent for the refugee claim?

More comments from the piece go HERE

As for me I am not particularly interested in simply running away from Jamaica because someone makes a threat at me or even worse, we going to have to make up our minds, I have been outed publicly several years ago and even threatened several times but I chose not run down the underground railroad as an excuse to lef yaad. There is nowhere like home even if it is problematic but tell me where in world isn't?
One can live it down and come back again, I am living proof of that, I guess it's how mentally strong one is as well, so much so that I learnt over the years that many who hit out are merely hiding behind active homophobia their own struggle with their sexuality and percieved notions about male homosexuality in our context, so one hits out publicly then practices privately.

(trust mi, a nuff a dat a gwaan)

Over the years though many clients (JFLAG years) and friends I know leave mainly due to feeling a sense of security elsewhere and the cause of justice and equality is far more balanced than our jurisdiction has offered over the history of this nation although attitudes are painstakingly slow in changing. Of course where death threats are present in some cases the consideration is understandably stronger to relocate or sometimes they do not second guess to grasp the opportunity.

No offence to those who chose to leave and taking into account the differing views contending I do not see a reason to at this time to leave no matter what, stay the course and live it out to the end I say, not run away to someone else's country to face the kind of commentry as seen above, remember there are homophobes there too. Who will stay and fight, this issue of staying or leaving Jamaica because of homophobia and related issues has always had rigid a split with some persons otping to even go the route of martyrdom if required though that group is in the minority, there are however strong views on both sides.

Besides there aren't good men like a yaad men out there comically said by many as well who use that as a reason to stay. To each his own eh?

Peace and tolerance.

H

Cameroon & Iranian Gay asylum seekers win challenge in UK's Supreme court, implications for others

The historic ruling was handed down today as was watched by human rights groups, lgbt advocates, immigration and asylum proponents. There is almost a collective sigh of relief worldwide as the news became apparent.

The men had met a roadblock in their legal attempts in the Appeals court where the ruling that was handed down then suggested the men return to their respective homelands and become discreet in order to hide thier homosexuality.

They were told by the Home Office they could safely return home if they were "discreet" about their sexual orientation. The idea had been supported in principle by the previous UK government.

The Cameroonian man, HT, argued he was told he could be sent home despite being attacked after he was seen kissing his partner.

The Iranian man, HJ, was told by a tribunal that he must expect persecution for his homosexuality and could avoid it by being discreet.

The case was brought on behalf of the men by the London office of the United Nations High Commissioner for Refugees.

The men's lawyer, Iona Harding, of Baker & McKenzie, said: "This is an excellent result which will ensure that lesbian, gay and bisexual people receive the protection they are entitled to as refugees in the UK and are not expected to hide their identity in order to escape execution, long prison sentences or other forms of persecution."

Gay asylum campaigner Paul Canning told PinkNews.co.uk that the decision had "extremely broad implications" for gay asylum seekers in other countries due to the EU trying to bring standardise asylum policy.

He added: "This is a clear victory. It is one in the eye for the last government."

The court's judgment said that the term "concealment" was preferred to discretion, as this recognises that gay people in homophobic countries may need to be dishonest about their sexuality and that the average person would find it intolerable to have to conceal their sexuality for fear of persecution.

It added that UK authorities must consider whether asylum applicants have to conceal their sexuality at home for fear of persecution and if so, they should be given refugee status regardless of whether they can successfully keep their sexuality secret.

The new coalition government has said it will introduce new rules to prevent the deportation of any gay asylum seeker who faces "imprisonment, torture or execution" if sent home.

Lord Hope, who read out the judgment, said: "To compel a homosexual person to pretend that his sexuality does not exist or suppress the behaviour by which to manifest itself is to deny him the fundamental right to be who he is."

Home secretary Theresa May said: "I welcome the ruling of the Supreme Court, which vindicates the position of the coalition government.

"We have already promised to stop the removal of asylum seekers who have had to leave particular countries because their sexual orientation or gender identification puts them at proven risk of imprisonment, torture or execution.

"I do not believe it is acceptable to send people home and expect them to hide their sexuality to avoid persecution."

"From today, asylum decisions will be considered under the new rules and the judgment gives an immediate legal basis for us to reframe our guidance for assessing claims based on sexuality, taking into account relevant country guidance and the merits of each individual case."

"We will, of course, take any decisions on a case-by-case basis looking at the situation in the country of origin and the merits of individual cases in line with our commitment."

With many LGBT Jamaicans still processing their cases in the United Kingdom this is welcomed news and by extension those from other countries where homophobia is expressed far more violently in torture, harsh laws (flogging in Iran) or death penalty under sharia law in some parts of the world.

Peace and tolerance

H

Star News Reports - GAY STORY KEEPS JAMAICAN IN USA - Says he was being attacked here

A Jamaican man who was staring in the face of imminent deportation from the United States of America (USA) after overstaying and being convicted of crimes in that country was spared the embarrassing trip home after telling American authorities he was a homosexual and would killed if was sent back home.

According information contained in a Miami, Florida court document dated March 2 which THE STAR perused, the local man, 28, grew up in St Ann. He, however, left that parish for St Catherine in 1997 after a run-in with friends.

The document read: "When he was attending Marcus Garvey High School, he was stoned and beaten when they found out he was gay. He was on his way home from school, and he was hugging his friend (name omitted), when some other friends saw him and they beat him and stoned him."

After fleeing to St Catherine to live with an aunt, the court document states that the alleged gay man had another life-threatening encounter all because of his sexual preference. The file read that while living in Bridgeport, a group of attackers confronted him and "held a knife at his throat and told him it was because he was gay. He was lucky that someone came along who knew him and saved him".

vistor's visa

Information continued that following that incident, the man's mother, who was in the US, flew down and filed for him and he obtained a visitor's visa and went to that country in April 1998.

Reports further stated that he was never granted permanent resident status and remained in American beyond the six months period he was authorised to stay.

Close to five years later, he was convicted in February 2002 for unlawful use of a false name or Identity. He was also convicted of burglary of a dwelling and escaped on October 3, 2008.

Subsequent to the convictions, immigration authorities ruled that the Jamaican man be deported for violation of sections of the US Immigration and Nationality Act, particularly staying beyond the time authorised, being convicted of a crime involving a controlled substance and being convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.

However, legal representation for the reportedly gay man filed an application for withholding of removal (a staying of the deportation order), "arguing that the (Jamaican man) would be persecuted and/or tortured in Jamaica because he is a homosexual".

Although the document stated that the man did not file for asylum until his troubles with the law started and that application was denied, the Florida court ruled: "While the respondent has committed crimes in this country, and did come to the United States with the intent of staying, facts which might cause a denial of asylum as a matter of discretion, there is no discretion with regard to withholding of removal. Therefore, the court will grant withholding of removal to Jamaica."