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 Editorials | Issues | October 2007 
Gay Mexican's Asylum Denied
 Arthur S. Leonard - GayCityNews
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 |  | The applicant failed to show the objective likelihood of persecution needed to support his claim for withholding of removal. |  | |
The U.S. Court of Appeals for the 2nd Circuit, based in New York City, has ruled in an unpublished decision that the current level of anti-gay persecution in Mexico is not sufficient to justify granting a withholding of removal for a gay immigrant who claimed to fear persecution if returned to that nation.
The ruling, which affirmed a decision by the Board of Immigration Appeals (BIA), reversed what had seemed a trend toward granting the claims of sexual minority refugees from Mexico.
Earlier cases had focused on effeminate men, transvestites, and transsexuals, but the documentation of social hostility and police harassment of people perceived as gay or lesbian had appeared relatively strong in prior case law. In this new case, the court painted a sunnier picture.
A gay Mexican asylum applicant had not filed a petition within the statutory one-year period after his arrival so that route was doomed from the start. However, "withholding of removal" is a mechanism that offers a second bite of the apple if it can be shown that an immigrant is more likely than not that to face persecution if returned home.
Documenting past persecution could create a presumption that he has a reasonable fear of the same in the future, but all this applicant was able to provide was his claim that evidence showed gay men were subject to persecution in Mexico, justifying his fears.
The court wrote that the applicant "does not argue that he will be singled out for persecution, but challenges the BIA's finding that there is no 'pattern or practice of persecution of' homosexual men in Mexico.' Our review of the record evidence leads us to conclude that substantial evidence supports the BIA's finding."
Acknowledging the BIA's observation of "numerous disturbing incidents of violence against gay men," the court agreed with the Board that "the evidence does not unambiguously militate in favor of a finding that these incidents are in any way 'systemic, pervasive, or organized,' thus giving rise to a pattern or practice of persecution."
As well, the court found, there is no evidence the Mexican government engages in repression of gay men; instead it "appears to be taking affirmative steps to combat discrimination and violence against homosexuals."
The applicant "failed to show the objective likelihood of persecution needed to support his claim for withholding of removal," the court concluded.
The applicant also filed a claim under the international Convention Against Torture, but given the assessment of the climate in Mexico, that too failed.
The court rejected the applicant's argument that he was disadvantaged in his initial appearance before an Immigration judge by his attorney's inability to attend, finding there is no constitutional right to counsel in a "civil" proceeding. No judicial notice was taken of the dramatically different outcomes in such complicated proceedings that result from an immigrant applicant having to represent themselves. The applicant was without counsel before the appeals court as well.
The court also rejected the Mexican man's appeal that he be allowed to have his case heard in California, where he currently lives, rather than New York, where the case was originally filed. It found no reason to conclude that the venue could prejudice the outcome, despite the fact that many of the decisions upholding asylum claims by gay Mexicans have come from the 9th Circuit Court of Appeals based in San Francisco. |
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