Matter of Marcelo Tenorio

File No: A72 093 558, 9th Circuit

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT
San Francisco, California

Charge: Section 241 (a) (1) (B): entry without inspection.

Applications: Asylum, Withholding of deportation, and Voluntary Departure

DECISION OF THE IMMIGRATION JUDGE

Respondent is a 30-year-old single male, native and citizen of Brazil, who entered the United States on or about August 22, 1990. An Order to Show Cause was issued on July 30, 1992, charging that the Respondent was deportable under Section 241 (a) (1) (B) of the Immigration and Nationality Act.

At a hearing before this court on May 20, 1993, Respondent, through Counsel, admitted the factual allegations contained in the Order to Show Cause dated July 30, 1992 and conceded deportability as charged. Based on these admissions, I find that deportability has been established by clear, convincing and unequivocal evidence. Woodby v. INS, 385 U. S. 276 (1966).

Respondent refused to designate a country of deportation; the court designated Brazil. In lieu of deportation, Respondent applied for asylum, withholding of deportation, or in the alternative, voluntary departure.

Standards for Asylum and Withholding of Deportation

Under Section 208 of the Act, the Court may grant asylum as a matter of discretion to a refugee as defined in Section 101 (a) (42) (A) of the Act. This provision defines a refugee as a person who is unable or unwilling to return to or to avail himself or herself of the protection of his or her native country, 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.

In order to show eligibility for asylum, the applicant need only prove past persecution or a well-founded fear of future persecution. The Board of Immigration Appeals has held that past persecution alone is sufficient to meet the refugee definition applicable to asylum cases. Matter of Chen, Int. Dec. No. 3104 (1989). Once past persecution is demonstrated, the likelihood of future persecution becomes relevant in the exercise of discretion. Matter of Chen; see also, 8 CFR 208.14.

On the other hand, a well-founded fear of persecution must be both subjectively and objectively reasonable. The subjective component requires a showing that the applicant's fear is genuine. The objective component requires a showing, by credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution. De Valle v. INS, 901 F. 2d 787 (9th Cir. 1990).

An asylum applicant's testimony is extremely important because individuals applying for such relief are often limited in the additional evidence they can obtain to prove past or future persecution. An applicant's own testimony without corroborative evidence, may be sufficient to prove a well-founded fear of persecution where that testimony is believable, consistent and sufficiently detailed to provide a plausible and coherent account of the basis for the fear. Matter of Moqharrabi, 19 I&N Dec. 439 (1987).

Persecution occurs when there is a difference between the persecutor's views or status and that of the victim; it is oppression which is inflicted on groups or individuals because of a difference that the persecutor will not tolerate. Hernandez-Ortiz v. INS, 777 F. 2d 509 (9th Cir. 1985). Such oppression, however, is insufficient by itself to establish eligibility for asylum unless it is on account of one of the specific grounds enumerated in the Act.

Although a generalized political agenda on the part of a persecutor is not enough to establish persecution on account of political opinion, a specific opinion that the persecutor holds about the claimant is relevant to establish that the persecutor imputed to the claimant a political opinion. INS v. Zacarias, --U. S.--, 112 s. Ct. 812 (1992). A person who has been persecuted on account of an imputed political opinion, or who has a well-founded fear of future persecution on account of imputed political opinion, is a refugee.

Canas-Segovia v. INS, 1992 U. S. App. Lexis 15505 (9th Cir. 1992).

Under Section 208 of the Act, the decision on an application for asylum is a matter of discretion. Even when an applicant is eligible for asylum, he must nonetheless show that he is worthy of a favorable exercise of discretion.

In contrast, the court is required, pursuant to Section 243 (h) of the Act, to withhold deportation when the court determines that the applicant's life would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. Section 243 (h) is a mandatory provision which entitles the applicant to withholding of deportation upon proof of a clear probability of persecution. Diaz-Escobar v. INS, 782 F. 2d 1488 (9th Cir. 1986).

To satisfy the clear probability standard, the applicant must show that the feared persecution is more likely than not to occur. INS v. Stevic, 467 U. S. 407 (1984).

Credibility

Respondent testified before this court in support of his applications for relief. I carefully observed his demeanor. Respondent was candid and forthright in his testimony. I found his demeanor to be particularly compelling and sincere. In general, his testimony was consistent and in accord with his written application. Therefore, I find Respondent's testimony credible, and deserving of full evidentiary weight.

Findings of Fact

Based on the documents in the record and Respondent's credible testimony, the following are this court's findings of fact:

Respondent lived by himself in Rio de Janeiro, Brazil until he left his country in 1990. Both of his parents are deceased, having died in an accident when respondent was eight years old.

Prior to coming to United States, respondent worked as an assistant chef in the 'Copacabana Palace' restaurant for approximately one year in Rio de Janeiro. He had also worked for a video show previously while living there.

Respondent testified that he is homosexual. He has been a practicing homosexual since the age of fourteen. He asserted that he is afraid to return to Rio de Janeiro due to an incident that occurred in 1989. Respondent explained this incident as follows: respondent left a gay discotheque, 'Encontro', and walked through a small park to the bus stop in front of the club. He stood alone at this bus stop at approximately 3:00 a. m. waiting for the bus to go home. However, the discotheque did not actually close until 6:00 a. m. While respondent was standing at the bus stop, a car stopped near him. Individuals in the car yelled at him that he was gay. They got out of the car and called him a "faggot," "gay" and similar names and swore at him. They asked him what he was doing there, saying "A strong black man like you. What are you doing here in a place of faggots"? Respondent did not make any statements to them. They began to beat him. They told him that if he returned to the discotheque or was found in that area again that they would get him again and it would be worse the next time. One man got out of the car, pulled out a knife and stabbed respondent in his side. After being attacked, respondent fainted.

When respondent awoke, he discovered that he was in the emergency room in the hospital. He remained in the hospital for one day, for approximately ten hours. They stitched up his stab wound and sent him away. He then returned to his home. There are no records of his medical treatment because nothing was registered at the hospital. He stated that records are not kept for emergency room visits. Respondent exhibited a scar to the court, which appeared to be almost 20 centimeters long, on his upper rib cage on his left side.

Respondent discovered that his attackers had taken his money. However, he stated that it was not an ordinary robbery because people there don't rob in that particular way. He explained that if they were going to rob him they would have just robbed him by asking for the money. He would have given them the money. Additionally, they knew he was poor because he didn't have money to dress well in Rio de Janeiro. Respondent had been working at the 'Copacabana Palace' restaurant before being attacked. He was unable to work for two weeks after the attack due to the injuries he suffered. He continued to work there until he came to the United States.

Respondent did not report the incident of the physical attack upon him to the police. He stated that he didn't think they would do anything and he was afraid to go to the police station because it could have been the officers themselves who attacked him. He testified that in Brazil, the police are the ones who form gangs.

Respondent came to the United States approximately one year after this attack. During this period of time he suffered additional mistreatment when people yelled at him on the streets, calling him derogatory names because of his homosexuality. Respondent stayed in Brazil after this attack only because for six months he attempted to get a visa to come to the United States. He did not leave immediately because he wanted to come to the United States legally. Although he had applied four times for a visitor's visa to come to the United States at the U. S. Consulate in Rio de Janeiro, he had been denied each time because he couldn't prove that he had sufficient income. Respondent never told anyone at the U. S. Consulate that he wanted to come to the United States because he feared persecution in Brazil. He did not think it was necessary and he never had the opportunity to talk to anyone there. They reviewed his documents and denied him a visa based upon those documents.

Respondent came to the United States without a visa through Mexico. He stated that he came to the United States because he knew that he could live his gay lifestyle in San Francisco with freedom.

Respondent believes he will be persecuted if he returns to Rio de Janeiro because of his homosexuality. He believes that the men who attacked him will remember him, particularly since he lived in a poor area where everyone knows each other. He asserted that even if he returned to a different city in Brazil, he would still have problems because he would continue to live his gay lifestyle. Oftentimes in Brazil, people knew that he was gay just because of his voice. Furthermore, people knew he was gay because he lived among other gays.

Respondent was never arrested in Brazil. He was never a member of a political organization. He belonged to the Workers' Union, but was only a member and was never actively involved with the union.

While living in Brazil, respondent once had difficulty finding employment because the prospective employer knew he was a homosexual. He was required to supply this information on paper at an interview for a security job with a private company. They told him that he was turned down because he noted that he was a homosexual. However, he was able to obtain other employment thereafter.

Testimony of Dr. Luiz Mott

Dr. Lriz Mott testified as an expert witness on behalf of respondent. Dr. Mott is a citizen of Brazil and has been a professor at the Federal University of Bahia since 1979. He obtained a Masters Degree in Ethnology at the Sorbonne in Paris, and a PH. D. in Anthropology in Brazil. He is a member of the National Brazilian AIDS Control Commission of the Health Department and recently published a book about the history and repression of sexuality in Brazil. Additionally, Dr. Mott is the founder and President of Grupo Gay da Bahia (hereinafter "Gay Group of Bahia"), a gay organization in Salvador, the capital of Bahia. Dr. Mott started this organization in 1980, in response to an assault he suffered due to his homosexuality. At that time he decided to organize a group to fight against homophobia and to secure rights for homosexuals in Brazil.

The Gay Group of Bahia has three goals: 1) To denounce all discrimination against homosexuals; 2) to transmit correct information about homosexuality; and 3) to make homosexuals conscious of their rights as citizens. Dr. Mott testified that since 1821, homosexuality has not been a crime in Brazil, in education, employment and from family members. He stated that physical violence is perpetrated by the police when homosexuals are arrested on the street in Brazil. He asserted that "assassinations" of homosexuals occur frequently in Brazil.

The State Department's Country Reports on Human Rights Practices for 1992 states that there were allegations that the "defense of honor" is applied to violence against and murder of homosexuals. Gay Group of Bahia claims that a homosexual is murdered every five days in Brazil. In the few cases where charges are filed, the accused generally are acquitted or receive very light sentences. Dr. Mott testified that machismo in Brazil is used as justification for abuses against and murder of women and homosexuals, as a traditional right of the Brazilian "macho," which considers homosexuals and women as inferior beings. "Defense of honor" is used to legitimize such abuse and murder.

Dr. Mott claimed that only 10& of the "assassins" of homosexuals were tried. They received sentence much lighter than those accused of crimes committed against heterosexuals. Although he testified that criminal statistics in Brazil are incomplete, Gay Group of Bahia reached its conclusions through press and media documentation.

He discussed a recent newspaper article about the attitudes towards homosexuals in Brazil. This article referred to homosexuals as "deer" and hustlers as "hunters." It was also stated that to kill "deer" , or gays, is not killing, but is hunting.

The Country Reports for 1992 on Brazil also refers to Gay Group of Bahia's claims that it has documented the existence of 12 paramilitary groups dedicated to killing homosexuals and transvestites, one of which (Comando da Caca aos Gays) publicly claimed responsibility for killing and mutilating several transvestites in Rio de Janeiro. Dr. Mott testified that during the last ten years, the media revealed the existence of 12 death squads against homosexuals. Some of these groups wear t-shirts that have the words "Gay Commandos" written on them. Their strategy is to attack gays in homosexual ghettos, and some actually commit homocide against gays. Recently neo-Nazi groups have begun to wear t-shits bearing the words "Hunt the Gays."

In reference to the police and their actions in Brazil, Dr. Mott testified that the police themselves are involved in actual violence against gays. Additionally, they arbitrarily arrest homosexuals on the street, and commit extortion or blackmail against gays.

He stated that although Rio de Janeiro has the reputation of a liberal city, the image does not correspond with reality any longer, Rio de Janeiro has the highest murder rate of all cities is Brazil. Furthermore, sexual violence against homosexuals is greatest there and the death squads are the most violent. He asserts that homosexuals are not free to do what they want in Rio de Janeiro. For two years, the police conducted a census of gays, in order to establish restricted areas for homosexuals.

Brazil has the fourth highest number of AIDS is referred to as the 'Gay Plague'. The general population still believes that AIDS is a gay disease, although Dr. Mott testified that gays represent 55% of all AIDS cases.

Dr. Mott discussed the homicide of Renildo Jose dos Santos, a local council member and the first Brazilian politician to publicly declare himself homosexual. This politician lived in a small town in northeast Brazil. He was allegedly threatened with death by the mayor and the mayor's family. Although he had requested protection from the state authorities, the following week he was kidnapped and found brutally tortured, mutilated and murdered. The people responsible for the murder were arrested, bur released a week later. Gay Group of Bahia protested internationally against their release.

Dr. Mott stated that he is certain that if respondent returned to Brazil, his physical integrity will be in serious danger. Gay Group of Bahis has substantial documentation about very similar incidents that other gay men have suffered in Bahia, San Salvador, Rio de Janeiro, and Sao Paulo. Dr. Mott does not believe that the attack against respondent was an isolated aggression. He believes that it was specific against respondent because he was gay. Furthermore, Dr. Mott believes that poor gays and black gays are more vulnerable to police intolerance. Dr. Mott testified that several ways in which respondent would be identified as a homosexual is by living in a gay ghetto and wearing an earring.

Dr. Mott himself does not fear persecution because of his homosexuality. He testified that due to his social status, he feels somewhat protected. However, he fears that he could become the victim of violence due to his high visibility as a leader in the cause for gay rights. Five years ago he was the victim of an attempted kidnapping, and he has received many threatening telephone calls. However, he does not wish to abandon his country due to his involvement in securing rights for the gay minoity.

Legal Analysis

This court has no doubt that Respondent has a subjective fear of persecution if he returned to Brazil. As previously indicated, Respondent testified in a sincere and credible fashion. He clearly communicated his subjective fear of persecution. Therefore, this court finds that Respondent's fear of persecution is genuine, and that he satisfies the subjective component required for a grant of asylum.

Although Respondent has satisfied the subjective component, this court most next address whether the persecution which the Respondent fears is "on account of" one of the grounds enumerated in the Act.

Respondent testified that he is openly homosexual and bases his asylum claim upon membership in a particular social group (homosexuals). In Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), the Board interpreted the phrase "persecution on account of membership in a particular social group" to mean:

Persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one…whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. Id. at 234.

Respondent's principal claim for relief in this matter is based upon the theory that he belongs to an identifiable "social group" of homosexuals. Since members of this "particular social group" are allegedly targeted for persecution as a class by organized groups the government is unable or unwilling to control, respondent claims his membership in this group is sufficient in itself to establish his eligibility for relief.

In Sanchez-Trujillo, 801 F.2d 1571 (9th Cir. 1986), the court noted that it had previously strongly indicated that, under the proper circumstances, a claim of persecution premised solely upon group membership could be maintained. Id. at 1574. However, the claim made by respondent in this case, that of persecution based upon status as a homosexual, has never been raised in the Ninth Circuit.

In support of respondent's claim for asylum based upon his membership in a particular social group, he has submitted substantial evidence, through an expert witness and numerous exhibits. Both the witness and the exhibits demonstrate that homosexuals are targeted by specific anti-gay groups, and allegedly by local police groups. In Sanchez-Trujillo, the court set forth the criteria that must be considered in determining whether a respondent has established eligibility for relief premised upon group membership. Four questions must be answered: 1) whether the class of people identified by respondent is cognizable as a "particular social group" under the immigration statues; 2) respondent must have established that he qualifies as a member of the group; 3) it must be determined whether the purported "social group" has in fact been targeted for persecution on account of the characteristics of the group member; and 4) consideration must be given to whether such "special circumstances" are present to warrant finding that mere membership in that "social group" constitutes per se eligibility for asylum or prohibition of deportation. /1[1] Id. at 1574-75.

The initial question is whether respondent's class of homosexuals constitutes that type of "particular social group," in which membership is indicative of refugee status under the applicable immigration statutes. As discussed in Sanchez-Trujillo, there is little guidance provided in the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status (1988), or in case law, in construing the meaning of "particular social group." The Handbook does not define the term. Subparagraphs 77 and 79 provide:

77.A "particular social group" normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i. e. race, religion or nationality.

79.Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground to fear persecution.

Furthermore, the term "special circumstances" is not explained in the Handbook. Thus, it is not clear what circumstances would provide a sufficient ground to fear persecution based upon mere membership in that particular social group.

The court in Sanchez-Trujillo stated:

[T]he phrase "particular social group" implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group. Id. at 1576.

Additionally, in Anaeh-Firempong, 766 F. 2d 621 (1st Cir. 1985), referring to the Acosta decision, the First Circuit found that the threat of persecution in question arose out of "characteristics that are essentially beyond the petitioner's power to change." Id. at 626.

In order to determine whether homosexuals as a group is the type of "social group" for which the immigration laws provide protection from persecution, it may be useful to review a foreign country's finding on this issue. In a decision from the Immigration and Refugee Board (Refugee Division) of Canada (T91-04459, April 9, 1992), it was determined that the claimant was persecuted because of his homosexuality and could be considered a Convention refugee within the meaning provided in the Immigration Act of Canada.

The claimant argued that the reason he was persecuted is because he is a homosexual, and, as such, is a member of a particular social group. The Immigration and Refugee Board of Canada further determined that homosexuality is an immutable characteristic, and that even if homosexuality were a voluntary condition, it is one so fundamental to a person's identity that a claimant ought not to be compelled to change it. Slip op. at 5.

This court is in agreement with this analysis. There exists a voluntary associational relationship among the members, and a common characteristic that is fundamental to their identity as a member of the social group. Sexual orientation is arguably an immutable characteristic, and one which an asylum applicant should not be compelled to change. Thus, homosexuals are considered to be members of a particular social group.

It must next be determined if respondent qualifies as a member of this particular social group. Respondent testified that he is openly homosexual, lived in a gay ghetto in Rio de Janeiro, frequented gay clubs, and wore an earring as an expression of his homosexuality. Respondent's sexual orientation was not disputed by the Service. Respondent therefore qualifies as a member of this particular social group.

A third consideration is whether the social group has in fact been targeted for persecution on account of the characteristics of the group members. In support of respondent's claims that homosexuals in Brazil have been targeted for persecution, the testimony of Dr. Luiz Mott and substantial background documentation were submitted. Both the testimony and the exhibits support respondent's assertions that homosexuals in Brazil are subjected to persecution by anti-gay "commando" groups.

As the founder and President of Gay Group of Bahia, Dr. Luiz Mott has been compiling statistics and documenting numerous cases of anti-gay violence perpetrated against homosexuals throughout Brazil. Dr. Mott testified that in his opinion respondent was attacked because he is gay and was in area known to be frequented by gays. He also believes that respondent would be in serious physical danger should he return to Brazil. Gay Group of Bahia claims that it has documented the existence of 12 paramilitary groups that commit violence and murder against homosexuals.

The background documentation submitted as exhibits all support respondent's claims that homosexuals are subjected to human rights abuses in Brazil. See Exhibits 1 through 12. Anti-gay groups appear to be prevalent in Brazilian society and continue to commit violence against homosexuals, with little official investigation and few criminal charges being brought against the perpetrators. Thus it appears that homosexuals as a social group have been targeted for persecution in Brazil based upon the characteristics of the group members.

The final question is whether "special circumstances" are present which permit a finding that mere membership in that social group constitutes per se eligibility for asylum or prohibition of deportation and which do not require findings of individual persecution of members of the group. However, the court need not reach this question due to its analysis of respondent's individual claim of persecution.

All of the testimony and documentation submitted support respondent's assertions that homosexual individuals in Brazil are frequently beaten, tortured or killed. Moreover, these events support respondent's assertion that the government of Brazil does little to prevent violence against homosexuals by organized anti-gay groups. Even the police allegedly condone the violence perpetrated by such groups. For example, a politician who had publicly declared himself homosexual, and then requested police protection due to threats against his life, was denied such protection and later found tortured and killed. Dr. Luiz Mott himself was subjected to a brutal assault due to his homosexuality. However, the single incident in which respondent was attacked is insufficient to warrant a finding of past persecution. Respondent was no thereafter attacked and continued living in the general area. He suffered only one incidence of assault based upon his homosexuality and was not again sought out by his attackers. However, he was threatened by them if he was seen again in that area. Respondent believed that they would carry out their threats if they were able to do so. The remaining consideration in whether respondent has a well-founded fear of future persecution.

Based upon the testimony and the documentation submitted, the court finds that respondent's fear of persecution on account of his membership in a particular social group is objectively reasonable, and thus, a reasonable person in circumstances similar to Respondent would fear future persecution by organized anti-gay groups and individuals in Brazil.

Violence against homosexuals appears to be investigated infrequently and criminal charges are rarely brought against the perpetrators of these crimes. Respondent is openly homosexual, a characteristic the court considers immutable, and one which an asylum applicant should not be compelled to change. Thus, a reasonable person in respondent's circumstances would not stop fearing persecution.

Respondent has therefore established statutory eligibility for asylum on the basis of a well-founded fear of persecution on account of membership in a particular social group.

There are no adverse factors in the record and thus, this court finds that a favorable exercise of discretion on respondent's behalf is warranted. Accordingly, this court shall grant his application for asylum on the basis of a well-founded fear of persecution on account of membership in a particular social group.

Having reached this result, the court need not address Respondent's additional requests for relief in the form of withholding of deportation or voluntary departure.

Based on the foregoing, the following is the order of this court:

ORDER

IT IS HEREBY ORDERED THAT Respondent's request for asylum under section 208 of the INA be GRANTED.

PHILIP P. LEADBETTER

IMMIGRATION JUDGE

1 The "special circumstances" requirement derives from the Handbook on Procedures and Criteria for Determining Refugee Status (1979), published by the United Nations High Commissioner for Refugee.