John Doe v. Attorney General United States ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-1342
_____________
JOHN DOE,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent.
______________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A209-390-025)
Immigration Judge: Leo Finston
______________
Argued: April 30, 2019
______________
Before: RESTREPO, ROTH and FISHER, Circuit Judges.
(Filed: April 16, 2020)
Adrian N. Roe
First Floor
428 Boulevard of the Allies
Pittsburgh, PA 15219
Paige Beddow [ARGUED]
Scott A. Cain [ARGUED]
(Admitted Pursuant to Third Circuit LAR 46.3)
West Virginia University College of Law
101 Law School Drive
Morgantown, WV 26506
Pro Bono Counsel for Petitioner
Jeffrey R. Meyer
Jonathan K. Ross [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
______________
OPINION OF THE COURT
______________
RESTREPO, Circuit Judge.
Petitioner fled his home country of Ghana and entered
the United States without authorization after his father and
neighbors assaulted him and threatened his life when they
2
discovered that he was in a same-sex relationship. Petitioner
seeks asylum and withholding of removal under the
Immigration and Nationality Act (INA) and protection from
removal under the Convention Against Torture (CAT),
because he fears being persecuted or tortured on account of his
sexual orientation and identity as a gay man if returned to
Ghana – a country that criminalizes same-sex male
relationships and has no proven track record of combatting
widespread anti-gay violence, harassment and discrimination.
The Immigration Judge (IJ) denied his application and ordered
his removal, and the Board of Immigration Appeals (BIA)
affirmed.
He now petitions this Court for review of the BIA’s final
decision. He argues that the BIA erred in finding, among
others, that he had not suffered past persecution and did not
have a well-founded fear of future persecution. For the
following reasons, we will vacate the BIA’s decision and
remand for further proceedings consistent with this opinion.1
I. BACKGROUND
A. Petitioner’s Experience in Ghana
Petitioner was born and raised in Ghana’s capital,
Accra. He first realized he was gay when he was fourteen years
old. He came to this realization after sharing an intimate
encounter with another boy, whom he had met at Muslim
school. One afternoon, the two boys were spending time
together in Petitioner’s bedroom and, after sharing a toffee that
1
Because we believe this case can be disposed of on the merits
of Petitioner’s asylum claim, we will not resolve his
withholding of removal or CAT claims at this time.
3
Petitioner had bought for his schoolmate, they had sex for the
first time. Over the next twelve years, the two young men
continued to see each other but kept their sexual relationship
hidden. Being gay in Ghana, Petitioner believed, was simply
“not acceptable.” JA101. He could not speak to his family
about his feelings because he worried that, as Muslims, they
would disapprove of his sexual orientation or, even worse, that
his father would kill him.
When Petitioner was twenty-six years old, his anxieties
materialized into a harsh reality. One morning in January
2016, his father unexpectedly entered Petitioner’s bedroom at
the break of dawn and discovered him having sex with his
partner. His father went into a rage and began shouting that
“his son was hav[ing] sex with another man,” JA215, and
called on others to “come, come and witness what my son is up
to[!]” JA99 (Tr. 37:20–21). He demanded answers from his
son and condemned his actions: “Why do you engage in
homosexuality? You have brought shame to this family and I
will make sure you face the wrath of this evil deed.” JA166.
Upon hearing this uproar, a crowd of neighbors
gathered at Petitioner’s house, forming a violent mob.
Together with his father, the mob began to beat the two young
men with stones, wooden sticks, and iron rods, and dragged
them into a courtyard. Some in the mob wanted to report the
young men to the police, but others began to argue over how
best to punish them: death by burning or beheading.
Petitioner believed the death threats were real. He
remembers being doused with kerosene, and hearing calls to
set him on fire. He also saw someone in the mob brandish a
“cutlass,” JA215, a curved sword with a sharp edge like a
machete. Fearing that his life was in danger, he managed to
4
escape and ran naked, hurt and bleeding to a friend’s house
about ten minutes away. Petitioner told his friend about the
attack and about his sexual relationship with his partner. His
friend, too, became afraid. He worried that they could both be
killed if people found out that Petitioner was hiding there.
Too frightened to call the police, or seek medical care,
Petitioner asked his friend to drive him to neighboring Togo.
But Petitioner did not feel safe there either; he was concerned
that the Togolese government and people disliked gay men too.
Within about two weeks, he retrieved his passport from his
home with his friend’s help and arranged to fly from Ghana to
Ecuador. Petitioner has heard that his father has publicly
disowned him for being gay, that he is still looking for him,
and that he intends to kill him if he finds him.
Petitioner still worries about his partner of more than
ten years. Despite numerous attempts, he has not been able to
reconnect with him since that horrific day.
B. Procedural History
Petitioner eventually found his way to safety in the
United States but entered the country without valid documents.
Soon after, the Department of Homeland Security began
proceedings to remove Petitioner and return him to Ghana. In
the course of removal proceedings, he applied for asylum,
among other forms of relief. Petitioner claimed that, after
having been violently outed, attacked and threatened by his
father and neighbors, he fears that he will be killed or otherwise
persecuted in Ghana because he is gay.
The IJ denied Petitioner’s application. Although he
found portions of Petitioner’s testimony to be less credible than
5
others, the IJ declined to make an adverse credibility
determination. Still, the IJ concluded that Petitioner had not
established “past persecution” or a “well-founded fear of future
persecution.” JA24-25. Notably, the IJ observed that “there
[was] no reason to believe that [Petitioner] would not be able
to live a full life, especially if he were to continue to keep his
homosexuality a secret.” JA25. Petitioner appealed to the
BIA.
The BIA affirmed the IJ’s decision and dismissed the
appeal. Though it credited Petitioner’s account as credible, the
BIA agreed that he had not established “past persecution” or a
“well-founded fear or clear probability of future persecution.”
JA14, 15. The BIA “distance[d]” itself from the IJ’s
observation that Petitioner could live a “full life” if he kept “his
homosexuality a secret.” JA15.
Petitioner now seeks review of the BIA’s decision. 2
II. STANDARD OF REVIEW
“[P]ersecution” and “well-founded fear of persecution”
are “findings of fact that we review under the deferential
substantial evidence standard[.]” Abdille v. Ashcroft, 242 F.3d
477, 483 (3d Cir. 2001). “Substantial evidence is more than a
mere scintilla and is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id.
(citation omitted). Under this evidentiary standard, we defer
to factual findings “unless any reasonable adjudicator would
2
The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b) and
1240.15. We have jurisdiction under 8 U.S.C. § 1252(a).
Petitioner timely petitioned for review. See 8 U.S.C.
§ 1252(b)(1).
6
be compelled to conclude to the contrary.” Espinosa-Cortez v.
Att’y Gen. U.S., 607 F.3d 101, 106-07 (3d Cir. 2010) (quoting
8 U.S.C. § 1252(b)(4)(B)); Balasubramanrim v. I.N.S., 143
F.3d 157, 161 (3d Cir. 1998) (“We will uphold the agency’s
findings of fact to the extent they are ‘supported by reasonable,
substantial, and probative evidence on the record considered as
a whole.’”) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478,
481 (1992)). We accord no deference to factual findings that
“are based on inferences or presumptions that are not
reasonably grounded in the record.” Dia v. Ashcroft, 353 F.3d
228, 249 (3d Cir. 2003) (en banc) (quoting El Moraghy v.
Ashcroft, 331 F.3d 195, 202 (1st Cir. 2003)). If the BIA
“mischaracterized and understated the nature of the evidence
supporting [an applicant]’s claims,” its findings are not
supported by substantial evidence. Chavarria v. Gonzales, 446
F.3d 508, 517 (3d Cir. 2006).
If factual findings are based on a misunderstanding of
the law, we will review the abstract legal determination de
novo, subject to Chevron deference when applicable, to ensure
uniformity in the application of the law. Huang v. Att’y Gen.
U.S., 620 F.3d 372, 379 (3d Cir. 2010) (citing Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)); see
Ramirez-Peyro v. Holder, 574 F.3d 893, 899 (8th Cir. 2009)
(exercising de novo review where the BIA “misunderstood and
misapplied the parameters” of the relevant legal standard,
“leading [the BIA] to conduct improper factual findings when
applying that standard”); Foroglou v. I.N.S., 170 F.3d 68, 70
(1st Cir. 1999) (“The [BIA’s] application of the legal standards
to specific facts is also entitled to deference,” but “[a]bstract
rulings of law are subject to de novo review.”).
When the BIA affirms the IJ’s determinations without
expressly rejecting any of its findings and only adds its own
7
gloss to the analysis, we may review both the BIA’s and the
IJ’s decisions. Sandie v. Att’y Gen. U.S., 562 F.3d 246, 250
(3d Cir. 2009).
III. DISCUSSION
Under the INA, any person who is physically present in
the United States, irrespective of his immigration status, may
be granted asylum if he is a refugee within the meaning of the
statute. 8 U.S.C. § 1158(a)(1), (b)(1). A refugee is anyone
who is unable or unwilling to return to their country of origin
“because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a
particular social group, or political opinion.” Id.
§ 1101(a)(42)(A). An applicant can meet this definition by
showing either (i) that he suffered past persecution or (ii) that
he has a well-founded fear of being persecuted if returned to
his home country. In either case, the alleged persecution must
be on account of a statutorily protected ground. Chavarria,
446 F.3d at 516.
Although past persecution and future persecution are
independent, “doctrinally distinct” grounds for asylum, they
“intersect” in one significant respect: a showing of past
persecution entitles the applicant to a rebuttable presumption
of a well-founded fear of future persecution, which, if rebutted,
could remove the basis for granting asylum. 3 Camara v. Att’y
3
Regardless of this rebuttable presumption, past persecution
remains an independent basis for asylum because, in some
cases, “the favorable exercise of discretion is warranted for
humanitarian reasons even if there is little likelihood of future
persecution.” Al-Fara v. Gonzales, 404 F.3d 733, 740 (3d Cir.
2005) (quoting Matter of Chen, 20 I. & N. Dec. 16, 18-19 (BIA
8
Gen. U.S., 580 F.3d 196, 202 (3d Cir. 2009) (citing 8 C.F.R.
§ 208.13(b)(1)). “Ultimately, therefore, a well-founded fear of
future persecution is the touchstone of asylum.” Id. Thus, we
first examine Petitioner’s claim of past persecution before
considering whether he has a well-founded fear of future
persecution.
A. Past Persecution
To establish past persecution, an applicant must show
(i) that he was targeted for mistreatment “on account of one of
the statutorily-protected grounds,” (ii) that the “incident, or
incidents” of mistreatment “rise to the level of persecution,”
and (iii) that the persecution was “committed by the
government or forces the government is either unable or
unwilling to control.” Abdulrahman v. Ashcroft, 330 F.3d 587,
592 (3d Cir. 2003) (internal quotation marks and citation
omitted).
As to the first requirement, the Government has not
contested that Petitioner fits within one of the INA’s protected
categories. Nor could it. Petitioner’s sexual orientation and
identity as a gay man is enough to establish his membership in
the lesbian, gay, bisexual, transgender and intersex (LGBTI)
1989)); accord Vongsakdy v. I.N.S., 171 F.3d 1203, 1206-07
(9th Cir. 1999); Skalak v. I.N.S., 944 F.2d 364, 365 (7th Cir.
1991) (explaining that, in some situations, the “experience of
persecution may so sear a person with distressing associations
with his native country that it would be inhumane to force him
to return there, even though he is in no danger of further
persecution”). Petitioner has not made that argument here, so
we will not address it any further.
9
community in Ghana, a “particular social group” within the
meaning of the INA, 8 U.S.C. § 1101(a)(42)(A). 4 Amanfi v.
Ashcroft, 328 F.3d 719, 730 (3d Cir. 2003) (holding that sexual
orientation is a cognizable basis for “membership in a social
group”); accord Bringas-Rodriguez v. Sessions, 850 F.3d
1051, 1073 (9th Cir. 2017) (en banc) (affirming that “sexual
orientation and sexual identity can be the basis for establishing
a particular social group”); Ayala v. Att’y Gen. U.S., 605 F.3d
941, 949 (11th Cir. 2010); Kadri v. Mukasey, 543 F.3d 16, 21
(1st Cir. 2008); Moab v. Gonzales, 500 F.3d 656, 661 n.2 (7th
Cir. 2007); Nabulwala v. Gonzales, 481 F.3d 1115, 1117 (8th
Cir. 2007) (recognizing that lesbians are members of a
“particular social group” based on sexual orientation);
Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1094 (9th Cir.
2000) (holding that transgender individuals may be classified
into a “particular social group” based on their “sexual
orientation and sexual identity”), overruled on other grounds
by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005); Matter
of Toboso-Alfonso, 20 I. & N. Dec. 819, 822 (BIA 1990).
In rejecting Petitioner’s claim, however, the IJ found
that Petitioner had “not established that he suffered
mistreatment on account of his sexual orientation that rises to
4
We have adopted the term LGBTI in this opinion because we
found it to be the more common formulation used across the
relevant guidelines and reports issued by the U.S. Citizenship
and Immigrations Services (USCIS), the U.S. State
Department, and the United Nations High Commissioner for
Refugees (UNHCR). We note that the IJ used the term
LGBTQ (lesbian, gay, bisexual, transgender and queer or
questioning). We see no meaningful distinction between these
two formulations for purposes of our analysis.
10
the level of persecution.” JA24 (emphasis added). The BIA
affirmed that finding without expressly reviewing the alleged
motive of Petitioner’s tormentors. We construe the IJ’s and the
BIA’s truncated decisions as rejecting both Petitioner’s claim
that he was targeted “on account of” his sexual orientation and
that he suffered persecution. See Gomez-Zuluaga v. Att’y Gen.
U.S., 527 F.3d 330, 346-47 (3d Cir. 2008). To satisfy the “on
account of” or nexus requirement, Petitioner’s sexual
orientation must have been a motivating factor or “at least
one central reason” for the alleged persecution. Id. at 340
(quoting 8 U.S.C. § 1158(b)(1)(B)(i)); Lukwago v.
Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003) (“A persecutor may
have multiple motivations for his or her conduct, but the
persecutor must be motivated, at least in part, by one of the
enumerated grounds.”). Here, there can be no serious dispute
that the attack and threats Petitioner suffered were motivated
by his sexual orientation. Petitioner credibly testified that the
mob’s violent and menacing behavior was instigated by his
father’s outrage at discovering him having sex with another
man and offered evidence that his father explicitly connected
this violent response to his disapproval of his son’s
“homosexuality,” JA166. Others in the mob wanted to report
Petitioner to the police, further indicating that they were
reacting to his same-sex relationship since that is the only
conduct that could have conceivably incriminated him under
Ghanaian law. Petitioner thus has demonstrated that he was
targeted on account of his membership in a statutorily
protected group.
Our focus now turns to the second requirement: whether
the attack and death threats Petitioner suffered were serious
enough to rise to the level of persecution. “While this Court
has not yet drawn a precise line concerning where a simple
11
beating ends and persecution begins, our cases suggest that
isolated incidents that do not result in serious injury do not rise
to the level of persecution.” Voci v. Att’y Gen. U.S., 409 F.3d
607, 615 (3d Cir. 2005). In addition, it is “well settled that
persecution does not encompass all forms of unfair, unjust, or
even unlawful treatment.” Chavarria, 446 F.3d at 518 (citing
Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993)). However,
it is equally settled that persecution includes “death threats,
involuntary confinement, torture, and other severe affronts to
the life or freedom of the applicant.” Gomez-Zuluaga, 527
F.3d at 341 (citing Lin v. I.N.S., 238 F.3d 239, 244 (3d Cir.
2001)); Chavarria, 446 F.3d at 518.
The parties’ disagreement centers around the reach of
our decision in Chavarria. There, we held that death threats
that are “highly imminent, concrete and menacing,” and that
“cause significant actual suffering or harm,” are cognizable
forms of persecution. 446 F.3d at 518, 520 (internal citations
and quotation marks omitted). The petitioner, Chavarria,
witnessed paramilitary forces assault two women who were
local human rights activists. After the assailants left, Chavarria
returned to help the women. He later noticed that he was being
surveilled outside his home by men that looked like the
assailants, which he understood to be an act of intimidation by
government forces because of his actions in helping these two
political activists. Id. at 513 & nn.2-4. While he was driving
near his home one night, several men ran him off the road,
forced him into the backseat of his car, and robbed him at gun
point. The men held a gun to his head and told him, “We are
going to leave you alone today, but if we ever catch you again
you won’t live to talk about it.” Id. at 513, 519. We understood
that event to be “about as clear a death threat as we might
expect attackers to make.” Id. at 520. And even though there
12
was no evidence of “physical harm,” id. at 515, we concluded
that Chavarria suffered harm because he was “actually robbed”
with a “gun to his face,” id. at 520. We reversed the BIA and
held that these violent acts of intimidation constituted
persecution. Id.
In a recent decision, issued after close of argument in
this case, we elaborated on the test for when death threats
amount to persecution. See Herrera-Reyes v. Att’y Gen. U.S.,
__ F.3d __, No. 19-2255, 2020 WL 962071 (3d Cir. Feb. 28,
2020). In Herrera-Reyes, we reviewed our threat cases,
including Chavarria, and concluded that a threat is persecutory
when “the cumulative effect of the threat and its corroboration
presents a real threat to a petitioner’s life or freedom.” Id. at
*5. We clarified that “imminence” is not a distinct
requirement, but rather “a concept subsumed in the inquiry as
to whether the threat is ‘concrete.’” Id. at *4. “We therefore
refer to the standard going forward simply as ‘concrete and
menacing.’” Id. (citation omitted). A threat is “concrete”
when it is “corroborated by credible evidence,” and it is
“menacing” when it reveals an “intention to inflict harm.” Id.
at *5 (internal quotation marks and citations omitted).
Physical harm to the applicant is one factor in the cumulative
analysis, it is not required to render a threat “concrete and
menacing.” Id. at *6-*7. The ultimate question, therefore, is
whether “the aggregate effect” of the applicant’s experience,
“including or culminating in the threat,” put the applicant’s
“life in peril or created an atmosphere of fear so oppressive that
it severely curtailed [his] liberty.” Id. at *5.
Crediting Petitioner’s testimony as the BIA did, we
know that a violent mob beat Petitioner with makeshift
weapons and dragged him across the floor from his room to a
courtyard, causing him to bleed from his mouth and suffer
13
injuries to his head and back. Petitioner was then threatened
with death by burning or beheading, at the same time that he
was being doused with kerosene and exposed to a cutlass. In
combination with these violent acts of intimidation and his
injuries, the death threats were sufficiently “concrete and
menacing,” id., to transform this incident from a “simple
beating,” Voci, 409 F.3d at 615, into outright persecution.
Accord Gashi v. Holder, 702 F.3d 130, 138 (2d Cir. 2012)
(“Given the unrebutted evidence that Gashi was repeatedly
warned, threatened with death, and attacked with deadly
weapons including a knife and a metal knob while one attacker
urged another to ‘[k]ill this dog here,’ we do not see why such
abuse does not constitute persecution.” (alteration in original)
(internal citation omitted)).
On appeal, the Government argues, rather insistently,
that the threats to Petitioner’s life were not “imminent or
menacing” enough because they remained “unfulfilled,”
relying on Li v. Att’y Gen. U.S., 400 F.3d 157 (3d Cir. 2005).
Resp’t Br. 18 n.4. While we appreciate that the Government
did not have the benefit of our decision in Herrera-Reyes, that
case squarely foreclosed this argument. We held that whether
a threat is sufficiently “concrete and menacing,” which
includes the notion of “imminence,” does not turn on whether
the threat was ultimately fulfilled, but on whether – in the
context of the applicant’s cumulative experience – it was a
“severe affront” to his “life or freedom.” Herrera-Reyes, 2020
WL 962071, at *5 (internal quotation marks and citation
omitted). The threats in Li were not persecutory because of
“the lack of any corroborating harm” to the applicant or his
close associates, not merely because they were unfulfilled. Id.
at *4 (citing Li, 400 F.3d at 165).
Moreover, in Li, the applicant was threatened with
14
forced sterilization, detention and physical abuse for violating
China’s population control policy, not death, so it made sense
that we would consider whether any of those threats remained
unfulfilled in concluding that they were not sufficiently
concrete and menacing. 400 F.3d at 159, 165. We find it odd
for the Government to make this argument here considering
that Petitioner was threatened with death by fire or decapitation
while being assaulted, doused with fuel and exposed to a
cutlass. All that was left for the mob to do was to cut off his
head or set him on fire. See Chavarria, 446 F.3d at 520 (“This
threat is unlike the threats we encountered in Li, which were
merely verbal and not concrete because here, the attackers
actually robbed Chavarria, pointed a gun to his face, and
threatened him with death if he told his story.”). Had Petitioner
not managed to escape, he might very well be dead. To expect
Petitioner to remain idle in that situation – waiting to see if his
would-be executioners would go through with their threats –
before he could qualify as a refugee would upend the
“fundamental humanitarian concerns of asylum law.” Matter
of S-P-, 21 I. & N. Dec. 486, 492 (BIA 1996) (“In enacting the
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102
[amending the INA], Congress sought to bring the Act’s
definition of ‘refugee’ into conformity with the United Nations
Convention and Protocol Relating to the Status of
Refugees and, in so doing, give ‘statutory meaning to our
national commitment to human rights and humanitarian
concerns.’”) (footnote omitted) (citing S. Rep. No. 256, 96th
Cong., 2d Sess. 1, 4, reprinted in 1980 U.S.C.C.A.N. 141,
144).
Neither the IJ nor the BIA addressed the significance of
these threats under the dispositive case law available at that
time, namely Chavarria, and that omission derailed their
15
analysis. The IJ focused exclusively on the “beating,” finding
that this incident was not extreme enough to constitute
persecution because Petitioner had only been attacked once
and he “did not require medical treatment.” JA24 (relying on
Kibinda v. Att’y Gen. U.S., 477 F.3d 113, 119-20 (3d Cir.
2007); Voci, 409 F.3d at 615; and Chen v. Ashcroft, 381 F.3d
221, 235 (3d Cir. 2004)). The BIA agreed that this “isolated”
incident did not rise to the level of persecution because
Petitioner “was not so injured that he required medical
attention and he was able to run to his friend’s house, which
was some distance away[.]” JA14 (relying on Chen, 381 F.3d
at 234-35). That analysis was based on a misunderstanding of
the law and must be reversed.
We have never held that persecution requires more than
one incident. Rather, we have left open the possibility that a
single incident, if sufficiently egregious, may constitute
persecution. Voci, 409 F.3d at 615 (explaining that “the
existence of multiple incidents is not a requirement”). In Voci,
we cited two decisions from the Seventh Circuit to stress that
the number of past incidents is “merely one variable” for
finding past persecution, id. at 615 (quoting Dandan v.
Ashcroft, 339 F.3d 567, 573 (7th Cir. 2003)), and that “even a
single beating can constitute persecution,” id. (citing Asani v.
I.N.S., 154 F.3d 719, 722-23 (7th Cir. 1998)).
Nor have we conditioned a finding of past persecution
on whether the victim required medical attention or on whether
he was too hurt to escape his aggressors, or even on whether
the victim was physically harmed at all. See Herrera-Reyes,
2020 WL 962071, at *6 (“We have never reduced our
persecution analysis to a checklist or suggested that physical
violence—or any other single type of mistreatment—is a
required element of the past persecution determination.”);
16
Kibinda, 477 F.3d at 120 (“[W]e do not mean to suggest that
the severity of an injury should be measured in stitches[.]”).
Quite the opposite. In Chavarria, we held that violent death
threats crossed the threshold into persecution, even though
there was no indication that the applicant required medical
care, was unable to run away, or was otherwise physically
harmed. 446 F.3d at 515, 520; see also Herrera-Reyes, 2020
WL 962071, at *8 (holding that, in context, a single death
threat was persecution even without physical harm to the
applicant). 5
Petitioner’s claim is more obvious than Chavarria’s (or
Herrera-Reyes’). In addition to having his life credibly
threatened by accompanying acts of violent intimidation,
Petitioner suffered actual physical harm from the beating, not
to mention the emotional suffering he has endured. See
Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004)
(“Persecution may be emotional or psychological, as well as
physical.”). The Government admits that the assault caused
“physically painful” injuries but insists that that record does
not compel finding that this “unfortunate” beating was serious
enough to be persecution. Oral Ar. at 14:40-53. It is debatable
whether the record contains enough evidence to ascertain the
5
Neither Chen nor Kibinda foreclosed the possibility that
outrageous conduct, even if limited to a single event without
physical harm, could rise to the level of persecution, as was the
case in Chavarria. Indeed, we have since made clear that
physical harm is not required for a threat to be “concrete and
menacing,” so long as it “placed [the applicant’s] life in peril
or created an atmosphere of fear so oppressive that it severely
curtailed [his] liberty.” Herrera-Reyes, 2020 WL 962071, at
*5.
17
full extent of Petitioner’s injuries, but our decision need not
hinge on the severity of those injuries because this case
involves so much more.
Although Petitioner would succeed even in the absence
of any physical injury under Chavarria (and now also under
Herrera-Reyes), we note that the IJ and the BIA
mischaracterized or misunderstood his testimony with respect
to his injuries. Petitioner never testified that he “did not require
medical treatment.” JA24. He testified: “I was so afraid, I was
so, so afraid that I couldn’t even go to a hospital. I was just
afraid.” JA115 (Tr. 53:20–21) (emphasis added). It may be
that he should have sought medical care or that medical
treatment was otherwise required. All we know from his
testimony is that he did not seek medical care because he feared
for his well-being. Nor does the fact that he had the strength
to escape execution diminish the risk he faced or the severity
of his injuries. To the contrary, it is a testament to the extreme
fear he felt and to the sheer human will to survive the most
dangerous of situations.
In short, because the IJ and the BIA accepted
Petitioner’s testimony as true “but then proceeded to misstate
and ignore certain relevant aspects of that testimony,”
Chavarria, 446 F.3d at 522, and because they committed legal
error by finding that a single beating without severe physical
injury to Petitioner was dispositive, their determination that his
experience did not rise to the level of past persecution must be
overturned.
This brings us to the third requirement. Because
Petitioner contends that he was attacked by private rather than
government actors, he must demonstrate that Ghanaian
authorities are unable or unwilling to control this sort of anti-
18
gay violence. The Government argues that Petitioner cannot
meet this requirement because he did not report the assault to
the police – an omission that the Government believes is “fatal”
to his claim. Resp’t Br. 18. We disagree.
“The absence of a report to police does not reveal
anything about a government’s ability or willingness to control
private attackers; instead, it leaves a gap in proof about how
the government would respond if asked, which the petitioner
may attempt to fill by other methods.” Bringas-Rodriguez, 850
F.3d at 1066 (quoting Rahimzadeh v. Holder, 613 F.3d 916,
922 (9th Cir. 2010)). An applicant may “fill the evidentiary
gap” in various ways:
1) demonstrating that a country’s
laws or customs effectively
deprive the petitioner of any
meaningful recourse to
governmental protection,
2) describing [p]rior interactions
with the authorities,
3) showing that others have made
reports of similar incidents to no
avail,
4) establishing that private
persecution of a particular sort is
widespread and well-known but
not controlled by the government,
or
5) convincingly establish[ing] that
19
[reporting] would have been futile
or [would] have subjected [the
applicant] to further abuse.
Id. at 1066–67 (alterations in original) (internal quotation
marks and citations omitted).
In Bringas-Rodriguez, the Ninth Circuit held that a gay
applicant was not required to report abusers to Mexican
authorities because “ample evidence,” including the
applicant’s testimony, affidavits, country reports, and news
clippings, “demonstrate[d] that reporting would have been
futile and dangerous.” Id. at 1073-74; see Hernandez-Avalos
v. Lynch, 784 F.3d 944, 952 (4th Cir. 2015) (excusing the
applicant’s failure to report death threats to the police, because
credible testimony and country conditions provided “abundant
evidence” to conclude that reporting would have been
counterproductive); Matter of S-A-, 22 I. & N. Dec. 1328,
1330, 1333, 1335 (BIA 2000) (concluding that a Muslim
woman with liberal religious beliefs did not need to report her
abusive orthodox father to police to establish the Moroccan
government’s inability or unwillingness to protect her, because
it was clear from country conditions and credible testimony
that it would have been “unproductive” and “potentially
dangerous” to do so under Moroccan law and “societal
religious mores”).
Here, the record is replete with evidence that Ghanaian
law deprives gay men such as Petitioner of any meaningful
recourse to government protection and that reporting his
incident would have been futile and potentially dangerous.
Ghana criminalizes same-sex male relationships under
the guise of “unnatural carnal knowledge,” defined to include
20
“sexual intercourse with a person in an unnatural manner or
with an animal.” Ghana Criminal Code § 104(2); see JA183.
The text of this law – equating same-sex male relationships to
sex with an animal – is already a clear indication of the
government’s official position on gay men. Although the law
classifies consensual sex between men as a “misdemeanor,”
Ghana Criminal Code § 104(1)(b), the offense is punishable by
up to three years in prison, Ghana Criminal Procedure Code
§ 296(4). 6 Prosecution and disproportionate punishment based
on any of the INA’s protected grounds, including sexual
orientation, are cognizable forms of persecution, “even if the
law is ‘generally’ applicable.” Chang v. I.N.S., 119 F.3d 1055,
1061, 1067 (3d Cir. 1997) (holding that prosecution and
“punishment of up to one year of imprisonment [on account of
political opinion], and perhaps significantly more, are
sufficiently severe to constitute ‘persecution’ under this
Circuit’s standard in Fatin”) (citing Rodriguez-Roman v.
I.N.S., 98 F.3d 416, 431 (9th Cir. 1996), and Matter of Janus
& Janek, 12 I. & N. Dec. 866, 875 (BIA 1968)); accord
6
When a foreign law is raised, federal courts have
discretionary authority to investigate the content of that law
pursuant to Federal Rule of Civil Procedure 44.1, which states
that “the court may consider any relevant material or source
. . . whether or not submitted by a party,” and “the court’s
determination must be treated as a ruling on a question of law.”
See Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092 (9th Cir.
2013) (en banc); Abdille, 242 F.3d at 489-90 n.10 (recognizing
this discretionary authority in the context of reviewing asylum
appeals but declining to exercise it in the circumstances of that
case) (citing Sidali v. I.N.S., 107 F.3d 191, 197 n.9 (3d Cir.
1997)); Sidali, 107 F.3d at 197 (“The determination of foreign
law in the federal courts is a question of law.”).
21
Bromfield v. Mukasey, 543 F.3d 1071, 1077 (9th Cir. 2008)
(“Because the prohibition [of homosexual conduct] is directly
related to a protected ground—membership in the particular
social group of homosexual men—prosecution under the law
will always constitute persecution.”); Perkovic v. I.N.S., 33
F.3d 615, 622 (6th Cir. 1994) (holding that prosecution and
incarceration under a law prohibiting “peaceful expression of
dissenting political opinion” would amount to persecution).
Had Petitioner reported the beating or threats, he would
have outed himself and his partner to the police and, on that
basis, he could have been arrested, prosecuted and
incarcerated, compounding the persecution he had already
suffered. This fact alone is compelling, if not dispositive,
evidence that Petitioner had no meaningful recourse against his
father’s and the mob’s homophobic violence. At best, seeking
help from the police would have been counterproductive.
Furthermore, the State Department’s 2016 country
report indicates that LGBTI persons in Ghana are generally
afraid to report homophobic abuse because they fear further
harassment and intimidation at the hands of police officers.
The report states:
[LGBTI persons] faced police
harassment and extortion attempts.
There were reports police were
reluctant to investigate claims of
assault or violence against LGBTI
persons. . . .
While there were no reported cases
of police or government violence
against LGBTI persons during the
22
year, stigma, intimidation, and the
attitude of the police toward
LGBTI persons were factors in
preventing victims from reporting
incidents of abuse.
JA183-84 (emphasis added). The Amnesty International
2016/17 country report provides additional support for that
assessment, stating that “[l]ocal organizations reported that
LGBTI people continued to face police harassment.” JA195.
In fact, Petitioner credibly testified that he did not report
the assault and death threats because he feared negative
repercussions for being gay: “I know that [homosexuality] is
not something that is acceptable in my country, I know that the
police would not like it as well, so my heart was racing, I was
afraid. I was very afraid.” JA102 (Tr. 40:10-12). Petitioner
was not alone in his fear. His friend was also afraid to call the
police out of concern that his own life would be threatened for
sheltering a gay man. There is also evidence that Petitioner’s
tormentors felt empowered by law to respond violently to his
same-sex relationship. Petitioner testified that certain people
in the mob wanted to report him to police, not because they
wanted to rescue him, but because they wanted to punish him,
apparently fearing no consequences for their own homicidal
and criminal conduct. In those circumstances, it is
unreasonable to expect Petitioner to turn to the police for
protection.
The record also shows that the Ghanaian government is
unable or unwilling to protect LGBTI persons from other forms
of mistreatment. For instance, Ghanaian law does not prohibit
anti-gay discrimination even though there is a well-
documented hostility towards the LGBTI community
23
throughout the country. According to the State Department
country report, “societal discrimination against [LGBTI]
individuals” rises to the level of a “human rights problem,”
JA173, and discrimination against LGBTI individuals in
education and employment is “widespread,” JA183. The
report cites data from Ghana’s Commission on Human Rights
and Administrative Justice, showing that “men who have sex
with men” are among the groups of people who have reported
incidents of “stigma and discrimination,” including breaches
of protected health information, blackmail/extortion,
harassment/threats, and violence or physical abuse. JA184.
Amnesty International’s country report confirms that LGBTI
individuals face “discrimination, violence and instances of
blackmail in the wider community.” JA195. Petitioner
submitted other evidence echoing these accounts, including a
letter from his friend stating that “authorities in Ghana ha[ve]
minimal concern[] for gay rights and politicians are always
promising electorates of eradicating gays,” JA162 ¶ 11, as well
as a news report evincing anti-gay political rhetoric ahead of
the 2016 general elections.
Notwithstanding all of this evidence, the IJ concluded
that “country conditions do not indicate” that the Ghanaian
government is unable or unwilling to protect Petitioner as a gay
man. JA25. The IJ found that, even though same-sex male
relationships are criminalized and “discrimination against
LGBTQ individuals is not illegal,” Ghanaian authorities could
be expected to “prosecute individuals who commit assault
against LGBTQ persons because of their sexual orientation.”
JA25. He noted that the State Department country report
referenced “a case that was underway in which an individual
was being prosecuted for assaulting a gay man in Accra in
2015.” JA25 n.2. The IJ also discounted reports of “stigma
24
[and] intimidation by the police,” because “there were no
reports of police or government violence against LGBTQ
persons.” JA25. In affirming the IJ’s decision, the BIA
emphasized that, even though sex between men is
criminalized, “the offense is only a misdemeanor.” JA15, 25.
Given the totality of the record, these findings cannot
withstand even our most deferential review. Although
technically correct that sex between men is classified as a
“misdemeanor,” the IJ and the BIA failed to appreciate the
serious risks of revealing a same-sex relationship to the police,
not the least of which is the affront to the victim’s freedom
from being prosecuted and punished like a common criminal,
or how those risks effectively prevent victims of anti-gay
violence from seeking government protection. See Lawrence
v. Texas, 539 U.S. 558, 575 (2003) (“The offense [consensual
sex between men], to be sure, is but a class C misdemeanor, a
minor offense in the Texas legal system. Still, it remains a
criminal offense with all that imports for the dignity of the
persons charged.”).
The IJ and the BIA also ignored the fact that “stigma,
intimidation, and the attitude of the police toward LGBTI
persons” are “factors in preventing victims from reporting
incidents of abuse.” JA184. Considering that homophobic
violence goes largely unreported because LGBTI persons fear
harassment and extortion at the hands of police officers, one
case in which anti-gay violence was supposedly prosecuted is
hardly probative of the government’s ability or willingness to
protect gay men. Because the IJ and the BIA disregarded,
mischaracterized and understated evidence favorable to
Petitioner, including relevant portions of his testimony and the
country reports, “the BIA succeeded in reaching a conclusion
not supported by substantial evidence such that we are
25
compelled to reach a conclusion to the contrary.” Chavarria,
446 F.3d at 517-18.
Lastly, days before oral argument, the Government filed
a letter styled under Federal Rule of Appellate Procedure 28(j),
suggesting for the first time that, if this case were remanded,
we should instruct the BIA to reconsider the issue of whether
the Ghanaian government is unable or unwilling to control the
alleged persecution under the Attorney General’s guidance in
Matter of A-B-,27 I. & N. Dec. 316 (A.G. 2018).
The Government did not raise remand or Matter of A-B-
in its brief, even though that case was issued months after the
BIA’s ruling and months before the Government filed its brief
in this Court. Therefore, that argument is waived. See United
States v. Hoffecker, 530 F.3d 137, 163 (3d Cir. 2008) (holding
that appellant had waived argument raised for the first time in
a Rule 28(j) letter); United States v. Leeson, 453 F.3d 631, 638
n.4 (4th Cir. 2006) (holding that appellant had waived
argument based on a case raised for the first time in a Rule 28(j)
letter when that case was readily available at the time appellant
filed its brief).7
7
In any event, at oral argument, the Government took
seemingly conflicting positions, conceding at one point that
Matter of A-B- does not apply to this case. Given the
Government’s own hesitation in relying on Matter of A-B- in
this case, the relevance of that decision is doubtful at best, so
we see no benefit in remanding to the BIA with instructions to
revisit this issue. We take no position as to whether Matter of
A-B- has materially changed the relevant standard or whether
the Government could properly move to relitigate this issue on
remand. See Grace v. Whitaker, 344 F. Supp. 3d 96, 130, 146
26
In sum, the record before us compels finding that
Petitioner suffered past persecution.
B. Well-Founded Fear of Future Persecution
Next, we review the IJ’s and the BIA’s determination
that Petitioner does not have a well-founded fear of future
persecution. Given that Petitioner has demonstrated past
persecution on account of his sexual orientation and identity as
a gay man, he is entitled to a rebuttable presumption of a “well-
founded fear of future persecution” on the same basis. 8 C.F.R.
§ 208.13(b)(1).
To rebut that presumption, the Government would need
to prove by a preponderance of the evidence either that
Petitioner could escape persecution by relocating to another
part of Ghana and that “relocation would be reasonable,” or
that conditions in Ghana have so fundamentally changed, i.e.,
improved for gay men specifically since Petitioner was
persecuted in 2016, that his past persecution is no longer
indicative of the risk he faces if returned to Ghana. Leia v.
Ashcroft, 393 F.3d 427, 437 (3d Cir. 2005); Konan v. Att’y
Gen. U.S., 432 F.3d 497, 501 (3d Cir. 2005); see Berishaj v.
Ashcroft, 378 F.3d 314, 327 (3d Cir. 2004) (“[G]eneralized
(D.D.C. 2018) (permanently enjoining the Government from
applying certain aspects of Matter of A-B- as arbitrary,
capricious, and unlawful, and holding that the “‘unwilling or
unable’ persecution standard was settled at the time the
Refugee Act was codified, and therefore the Attorney
General’s ‘condoned’ or ‘complete helplessness’ standard is
not a permissible construction of the persecution
requirement”), appeal pending, No. 19-5013 (D.C. Cir.).
27
improvements in country conditions will not suffice as
rebuttals to credible testimony and other evidence establishing
past persecution.”), abrogated on other grounds by Nbaye v.
Att’y Gen. U.S., 665 F.3d 57 (3d Cir. 2011). The Government
was not held to this burden, nor was Petitioner afforded the
benefit of this favorable presumption, because both the IJ and
the BIA incorrectly concluded that he had not suffered past
persecution.
Ordinarily, we would vacate this portion of the BIA’s
decision and remand with instructions to reconsider the issue
of future persecution from the correct vantage point. See
Konan, 432 F.3d at 501 (explaining that our review of the
BIA’s decision “is limited to the rationale that the agency
provides,” and that we are “powerless to decide in the first
instance issues that an agency does not reach”); Lusingo v.
Gonzales, 420 F.3d 193, 201 (3d Cir. 2005) (“When
deficiencies in the BIA’s decision make it impossible for us to
meaningfully review its decision, we must vacate that decision
and remand so that the BIA can further explain its reasoning.”
(quoting Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir.
2003))). But remand for this purpose is not necessary here,
because even without applying the presumption and
corresponding burden-shifting framework, the IJ’s and the
BIA’s finding that Petitioner does not have a well-founded fear
of future persecution cannot stand on this record. See
Chavarria, 446 F.3d at 520-22 (reversing BIA on past
persecution and future persecution without applying the
presumption).
Furthermore, considering that the Government did not
introduce evidence of changed country conditions or even
attempt to make the case that conditions have changed, it
would be unfair to give the Government a second bite at the
28
apple. See Toure v. Att’y Gen. U.S., 443 F.3d 310, 321-23 (3d
Cir. 2006); Baballah v. Ashcroft, 367 F.3d 1067, 1078 & n.11
(9th Cir. 2004). Thus, we review the IJ’s and the BIA’s future
persecution determination as they made it: putting the burden
on Petitioner.
An applicant that has not suffered past persecution may
still qualify for asylum if he can demonstrate that he has a well-
founded fear of future persecution either (i) “because he would
be individually singled out for persecution” on account of a
statutorily protected ground, or (ii) “because there is a pattern
or practice in his home country of persecution against a group
of which he is a member.” Khan v. Att’y Gen. U.S., 691 F.3d
488, 496 (3d Cir. 2012) (quoting Huang, 620 F.3d at 381).
“The source of the persecution must be the government or
forces that the government is unwilling or unable to control.”
Id. (quoting Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir.
2007)). The applicant’s fear of persecution must be “genuine”
and “reasonable in light of all of the record evidence.”
Lusingo, 420 F.3d at 199 (characterizing “well-founded fear of
future persecution” as having both a subjective and objective
component). The IJ found that, although Petitioner “ha[d]
credibly testified that he subjectively fears persecution if
returned to Ghana,” he failed to show that “a reasonable person
would fear the same.” JA25. There is no dispute that
Petitioner’s subjective fear is genuine. Thus, we focus on
whether his fear of future persecution is objectively reasonable.
To satisfy the objective component, an applicant must
produce evidence showing that future persecution is a
“reasonable possibility.” Lukwago, 329 F.3d at 175. Under
this standard, the applicant is not required to prove that future
persecution is “more likely than not” to occur. Id. at 177 (citing
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987)). Even a
29
ten percent chance will do. Cardoza-Fonseca, 480 U.S. at 431.
The applicant’s credible testimony alone may be enough to
satisfy this requirement. Dong v. Att’y Gen. U.S., 638 F.3d
223, 228 (3d Cir. 2011) (citing 8 C.F.R. § 208.13(a) (“The
testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration.”)). He may
also rely on the testimony of corroborating witnesses and
evidence of country conditions to bolster his claim. Id.
Here, the IJ found that, even though Petitioner “fears his
father will try to kill him if he returns to Ghana,” he had not
proven “by a preponderance of credible and probative
evidence” that “he faces a ‘reasonable possibility’ of being
singled out for persecution in Ghana.” JA25. The IJ noted that
“country conditions do not indicate” that Petitioner would be
subject to any mistreatment that rises to the level of
persecution. JA25. The IJ also found that, while there may be
a risk of “stigma or intimidation by the police,” the risk was
not significant enough because “there were no reports of police
or government violence against LGBTQ persons.” JA25. And
although “discrimination against LGBTQ individuals is not
illegal,” the IJ found that Ghanaian authorities could be
expected to protect gay men from homophobic abuse based on
a single case in which anti-gay violence was supposedly
prosecuted. JA25. In affirming the IJ’s decision, the BIA
emphasized that sex between men is “only a misdemeanor” and
that any “discrimination” Petitioner “may face in Ghana does
not rise to the level of persecution.” JA15. These findings are
not supported by substantial evidence, because they are based
on mischaracterizations, unreasonable inferences, and an
incomplete assessment of the record.
Petitioner has produced ample evidence to conclude that
there is a reasonable possibility that he would be singled out
30
for persecution in Ghana because he is gay. He credibly
testified that his father is still looking for him and continues to
tell people that he will kill Petitioner when he finds him
because he is ashamed of his sexual orientation. These are not
empty threats. Recall that Petitioner’s father and his cohort
beat him with iron rods and wooden sticks and dragged him
across the floor from his bedroom into a courtyard, where they
doused him with fuel and brandished a cutlass, all while
threatening to decapitate him or set him on fire. That incident
is indicative of the type of anti-gay violence awaiting Petitioner
if he returns home. See Chavarria, 446 F.3d at 520 (noting
that, even if past threats are not treated as persecution, “they
are often quite indicative of a danger of future persecution”).
Based on Petitioner’s experience, we hold that the ongoing
threats to his life are “menacing and credible” enough to
“imply a risk of future persecution.” R.R.D. v. Holder, 746
F.3d 807, 810 (7th Cir. 2014) (accepting the applicant’s
testimony that his persecutors were still looking for him and
threatening him). The IJ’s and the BIA’s failure to consider
the risk presented by these threats in light of Petitioner’s
experience doomed their future persecution analysis.
Petitioner has also demonstrated that his experience was
not a random or isolated act of private violence, but rather part
of a pattern or practice of persecution against the LGBTI
community in Ghana more generally. He credibly testified that
anti-gay attitudes are not unique to his family or neighbors;
they are common among the country’s Muslim and Christian
populations at large. The State Department’s and Amnesty
International’s country reports concur that anti-gay
discrimination, harassment, and violence are a country-wide
human rights problem, due in large part to the fact that same-
sex male relationships are criminalized and discrimination
31
against LGBTI persons is not illegal. As explained more fully
above, Petitioner cannot count on Ghanaian authorities to
protect him as an outed gay man. When “stigma, intimidation,
and the attitude of the police toward LGBTI persons” are
significant “factors in preventing victims from reporting” anti-
gay violence, JA184, the absence of reported incidents cannot
be dispositive of the degree of risk of future persecution.
Up until the attack, Petitioner’s ability to avoid this sort
of homophobic abuse hinged on his ability to dissemble his
sexual orientation and keep his sexual relationship with his
partner hidden. No major leap is required to conclude that
other gay men like Petitioner are escaping persecution by
hiding or suppressing their sexuality as well. Indeed, anti-gay
laws such as Ghana’s criminalization of sex between men are
intended to stigmatize and punish, in effect, to suppress the
expression of gay identity and sexuality in society. Cf.
Lawrence, 539 U.S. at 581 (O’Connor, J., concurring) (“[T]he
effect of Texas’ sodomy law is not just limited to the threat of
prosecution or consequence of conviction. Texas’ sodomy law
brands all homosexuals as criminals, thereby making it more
difficult for homosexuals to be treated in the same manner as
everyone else.”). Secreting his gay identity is not a workable
solution for Petitioner. Now that he has been publicly outed
by his father, the risk of future persecution at the hands of
uncontrolled private actors has increased, as evidenced by his
father’s success at enlisting neighbors willing to assault and
kill him because he is gay.
Petitioner is also at a higher risk of being prosecuted and
punished, i.e., persecuted by the state, after being outed as a
32
gay man.8 The Government responds that any future risk of
arrest is not persecution because it would be “arbitrary.” Oral
Arg. at 21:25. That argument misses the mark. The issue is
not arbitrary arrest but state-sanctioned prosecution and
punishment on account of a statutorily protected status. In no
other context would prosecution and disproportionate
punishment based on any of the INA’s protected grounds be
anything other than persecution. If Petitioner were facing these
risks because of his religious beliefs or political opinion, we
would not hesitate to find an objectively reasonable fear of
future persecution in these circumstances. See, e.g., Chang,
119 F.3d at 1067 (finding reasonable fear of future persecution
based on the risk of being prosecuted and incarcerated for up
to a year or more on account of political opinion).
The Government further argues that any
“discrimination” Petitioner faces in Ghana is “insufficient to
rise to the level of persecution.” Resp’t Br. 19 (citing
Gonzalez-Posadas v. Att’y Gen. U.S., 781 F.3d 677 (3d Cir.
2015)). To be clear, “discrimination” is a gross
mischaracterization of the risk Petitioner faces if returned to
Ghana. Moreover, Gonzalez-Posadas is inapposite. That case
did not deal with asylum but with withholding of removal,
which requires a higher threshold than the more forgiving
“reasonable possibility” standard required for asylum. See id.
at 688. There, the court upheld the BIA’s finding that a
8
Incarceration is not the only risk. According to the State
Department country report, “[g]ay men in prison were often
subjected to sexual and other physical abuse.” JA183-84.
Nothing in the record suggests that Ghanaian authorities are
making any efforts to combat that sort of homophobic
violence.
33
Honduran gay man had not established that it was “more likely
than not” that he would be persecuted “on account of his sexual
orientation,” and ruled that “the record [did] not compel the
conclusion that there [was] a ‘systematic, pervasive, or
organized’ pattern or practice of persecution of LGBT persons
in Honduras,” to warrant withholding of removal. Id. Notably,
unlike here, there was no indication that Honduras criminalizes
same-sex male relationships. And, unlike here, “the Honduran
government ha[d] established a special unit in the attorney
general’s office to investigate crimes against LGBT persons
and other vulnerable groups.” Id. Inversely, here, unlike in
Gonzalez-Posadas, there is no dispute that Petitioner was
targeted because of his sexual orientation.
In short, we hold that Petitioner’s objective experience
with anti-gay violence, the ongoing threats to his life, Ghana’s
criminalization of same-sex male relationships and the
widespread unchecked discrimination against LGBTI persons,
“combine to satisfy the requirement that [his] fear of
persecution be objectively reasonable.” Gomez-Zuluaga, 527
F.3d at 348 (holding that an applicant’s fear was objectively
reasonable based on her “objective experience” of past
violence against her family, “the threats she herself ha[d]
received,” and the country reports corroborating the
widespread risk of further persecution); accord Chavarria, 446
F.3d at 521-22.
Lastly, Petitioner must show that he cannot avoid
persecution by relocating to another part of the country or that
relocation is unreasonable. 8 C.F.R. § 208.13(b)(2)(ii). The IJ
found that there was no indication that Petitioner “would not
be safe from his family if he relocated to another part of
Ghana.” JA25. That finding is based on unreasonable
presumptions and a misunderstanding or mischaracterization
34
of relevant evidence. Petitioner has reason to believe his father
is still looking for him. Nothing in the record suggests that his
father cannot travel freely around the country in search of
Petitioner. Considering that Ghana’s criminalization of same-
sex male relationships is country-wide, and that “widespread,”
JA183, homophobia and anti-gay abuse is a “human rights
problem,” JA173, relocation is not an effective option for
escaping persecution.
Nor is it a reasonable solution. Relocation is not
reasonable if it requires a person to “liv[e] in hiding.” Agbor
v. Gonzales, 487 F.3d 499, 505 (7th Cir. 2007); accord Singh
v. Sessions, 898 F.3d 518, 522 (5th Cir. 2018) (“The case law
is clear that an alien cannot be forced to live in hiding in order
to avoid persecution.”). To avoid persecution now that he has
been outed, Petitioner would have to return to hiding and
suppressing his identity and sexuality as a gay man. Tellingly,
the IJ’s observation, no matter how ill-advised, that Petitioner
could avoid persecution and live a “full life” if he kept “his
homosexuality a secret,” JA25, was a tacit admission that
suppressing his identity and sexuality as a gay man is the only
option Petitioner has to stay safe in Ghana. The notion that one
can live a “full life” while being forced to hide or suppress a
core component of one’s identity is an oxymoron. See Qiu v.
Holder, 611 F.3d 403, 409 (7th Cir. 2010) (“[T]he only way
Qiu can avoid persecution is to cease the practice of [his
religion] or hope to evade discovery. Putting Qiu to such a
choice runs contrary to the language and purpose of
our asylum laws.”); UNHCR, Guidelines on International
Protection No. 9: Claims to Refugee Status based on Sexual
Orientation and/or Gender Identity within the context of
Article 1A(2) of the 1951 Convention and/or its 1967 Protocol
Relating to the Status of Refugees at ¶ 27 (2012) [hereinafter
35
“UNHCR Sexual Orientation Guidelines”] (“Even if
irregularly, rarely or ever enforced, criminal laws prohibiting
same-sex relations could lead to an intolerable predicament for
an LGB person rising to the level of persecution.”). 9 Thus, on
this record, Petitioner has made a compelling case that moving
to another part of the country is not an effective or reasonable
means of avoiding persecution.
In summary, the record compels finding that there is, at
least, a “reasonable possibility” that Petitioner will be
persecuted in Ghana because he is gay, and therefore, he has
demonstrated a well-founded fear of future persecution.
* * *
We conclude with a final observation about Petitioner’s
claim for withholding of removal. Unlike asylum, withholding
9
The introduction to the UNHCR Sexual Orientation
Guidelines notes that they are intended to “complement the
UNHCR Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention
(Reissued, Geneva, 2011).” While these sources lack the
“force of law,” they provide “significant guidance” for
processing asylum claims in accordance with international
standards in the United States. Chang, 119 F.3d at 1061-62
(quoting Cardoza-Fonseca, 480 U.S. at 439 n.22); see, e.g.,
Bringas-Rodriguez, 850 F.3d at 1057 n.2 (referencing UNHCR
Sexual Orientation Guidelines); N-A-M v. Holder, 587 F.3d
1052, 1061 (10th Cir. 2009) (Henry, J., concurring) (noting
that “our Supreme Court has consistently turned for assistance
[to UNHCR] in interpreting our obligations under the Refugee
Convention”).
36
of removal is nondiscretionary if the applicant can show a
“clear probability” of future persecution, i.e., that the feared
persecution is “more likely than not” to occur. Gonzalez-
Posadas, 781 F.3d at 684, 687.
In the absence of evidence that the Ghanaian
government is looking to prosecute Petitioner or that other gay
men have been prosecuted in Ghana, or other evidence that
government officials are directly responsible for persecutory
violence against LGBTI persons, the current record does not
compel – nor preclude – finding that Petitioner is “more likely
than not” to be persecuted by government actors if returned to
Ghana. See Bromfield, 543 F.3d at 1079 (remanding on the
issue of “clear probability” with instructions to consider
whether “the Jamaican law criminalizing homosexual
conduct,” “combined with evidence of widespread violence
targeted at homosexuals, makes it more likely than not that [the
applicant] will be persecuted on account of his sexual
orientation”).
By contrast, Petitioner has made a stronger showing
that, now that he has been outed as a gay man, he is more likely
than not to be singled out for persecution by uncontrolled
private actors. That finding may even be compelled by the
record when viewed through the lens of the favorable
presumption to which he is entitled. See Gonzalez-Posadas,
781 F.3d at 684 (noting that this presumption applies to
withholding of removal). Because we believe our decision
today is enough to qualify Petitioner for a discretionary grant
of asylum, we will not undertake to apply this presumption in
the first instance, even though it would be appropriate to do so
since the Government has not attempted to make the case that
country conditions have changed. See Toure, 443 F.3d at 322
(applying the presumption in the first instance). Therefore, we
37
leave it to the BIA, if necessary, to reconsider on remand the
question of whether Petitioner has satisfied the heightened
standard for withholding of removal consistent with our
finding that he suffered past persecution and has a well-
founded fear of future persecution. 10
IV. CONCLUSION
Because Petitioner suffered past persecution and has a
10
In case the BIA decides to remand to the IJ for any reason,
we caution the IJ to exercise greater sensitivity when
processing Petitioner’s application, as we are troubled by some
of the IJ’s comments and questions. In addition to suggesting
that Petitioner would be better off hiding his identity as a gay
man, the IJ questioned him in explicit detail about his sexual
relations with his partner, going so far as to ask about sexual
positions. It is unclear why that line of questioning would be
relevant to Petitioner’s claim, but to the extent those questions
were intended to establish or test his self-identification as a gay
man, they were off base and inappropriate. We urge IJs to heed
sensible questioning techniques for all applicants, including
LGBTI applicants. See Razkane v. Holder, 562 F.3d 1283,
1288 (10th Cir. 2009) (censuring an IJ for relying on his own
misguided stereotypes of gay men); Ali v. Mukasey, 529 F.3d
478, 492 (2d Cir. 2008) (cautioning against “impermissible
reliance on preconceived assumptions about homosexuality
and homosexuals”); USCIS, RAIO Directorate – Officer
Training: Guidance for Adjudicating Lesbian, Gay, Bisexual,
Transgender, and Intersex (LGBTI) Refugee and Asylum
Claims 34 (Dec. 28, 2011) (“The applicant’s specific sexual
practices are not relevant to the claim for asylum or refugee
status. Therefore, asking questions about ‘what he or she does
in bed’ is never appropriate.”); UNHCR Sexual Orientation
38
well-founded fear of future persecution on account of his
sexual orientation and identity as a gay man, he qualifies as a
refugee under the INA. Therefore, we will vacate the BIA’s
decision and remand for further proceedings consistent with
this opinion. 11
Guidelines ¶ 63.vii (“Detailed questions about the applicant’s
sex life should be avoided.”); see also Kimberly Topel, “So,
What Should I Ask Him to Prove that He’s Gay?”: How
Sincerity, and Not Stereotype, Should Dictate the Outcome of
an LGB Asylum Claim in the United States, 102 IOWA L.
REV. 2357, 2374 (2017) (“IJs who use stereotypes as a basis
for their decisions and subject respondents to demeaning and
irrelevant questioning about their sexuality do more than just
risk excluding those who truly are refugees—the negative
psychological effects on respondents in these situations have
been well-documented.”).
11
We acknowledge and thank the instructors and students from
the Immigration Law Clinic at West Virginia University
College of Law for their skillful pro bono representation of
Petitioner in this appeal.
39