LGBT Asylum: UN Convention Against Torture

The United Nations Convention Against Torture ("CAT") provides another mechanism for seeking asylum in the United States. This may be a particularly effective method of becoming a lawful U.S. resident for those in the LGBT community since these groups are often subject to abuse, persecution, and outright torture in foreign nations.

Two cases are instructive. The first is Avendano-Hernandez v. Lynch, 800 F.3d 1072 (U.S. 9th Cir. Court of Appeals, 2015). The case involved a male-to-female transgendered person who was born in rural Mexico. The U.S. 9th Circuit Court of Appeals -- sitting in San Francisco -- held that Avendan-Hernadez was entitled to asylum under the CAT. Because of Avendano-Hernandez's gender identity and perceived sexual orientation, there were years of what the court called "relentless abuse" as a child that included beatings, sexual assaults, and rape. When Avendano-Hernadez became an adult, the assaults and rapes continued, and now members of the Mexican police and military. Avendano-Hernandez came to the U.S., was arrested in California in 2006 for driving under the influence, and was deported back to Mexico in 2007. After suffering more mistreatment in Mexico, in 2008, Avendano-Hernandez returned to the U.S. and appealed for asylum under the CAT. When Avendano-Hernandez was arrested and deportation proceedings were initiated in 2011, she applied for withholding of removal and relief under the CAT. The original immigration judge denied her request on the basis that Avendan-Hernandez failed to show that the Mexican government would "more likely than not" consent to or acquiesce in her torture. To be eligible under the CAT, a person must demonstrate that the person would be subject to torture -- either by the foreign government or by others with the approval or acquiescence of the foreign government. According to the original immigration judge, Avendano-Hernandez failed to make that showing. This was confirmed by the Board of Immigration Appeals.

However, the U.S. 9th Circuit reversed. The court noted that Avendano-Hernandez had shown that she experienced repeated torture at the hands of Mexican government officials. Rape and assault are forms of torture as defined by the CAT. Under the facts of the case, the 9th Circuit held that asylum should have been granted under the CAT.

The second case is also from the 9th Circuit Court of Appeals called Bringas-Rodriguez v.Sessions, 850 F.3d 1051(U.S. 9th Cir. Court of Appeals, 2017). This case involved a gay man named Carlos Bringas-Rodriguez who was born in Mexico. As a child, Bringas-Rodriguez was abused by his father, an uncle, cousins, and others. He was called a “f*g, f***ing fa**ot, qu**r” and other names. He was also assaulted and physically abused. Bringas-Rodriguez left Mexico in 2004 to escape his abusers entering the U.S. illegally and living in Kansas and Colorado at various times.

In August 2010, the Department of Homeland Security issued a Notice to Appear with the intent of having Bringas-Rodriguez deported. In response, Bringas-Rodriguez applied for asylum and withholding of removal under the CAT. The argument was that Bringas-Rodriguez had a legitimate fear of persecution and torture if returned and that Mexican government officials and police would not provide protection. Bringas-Rodriguez testified about gay friends who went to Mexican police to report that they had been raped. When that happened, the Mexican police officers ignored the reports and, according to Bringas-Rodriguez's testimony, the police laughed about the gay rapes and abuse.

Bringas-Rodriguez's original immigration judge denied the request for asylum under the CAT. According to the judge, Bringas-Rodriguez did not sufficiently demonstrate that Mexican government officials were responsible or failed to protect against the abuse suffered as a child. The immigration judge also said that Bringas-Rodriguez failed to show a pattern of widespread abuse and torture of gays in Mexico. This was confirmed by the Board of Immigration Appeals.

However, the 9th Circuit reversed and returned the case to the immigration judge for additional proceedings. The 9th Circuit chastised the immigration judge for failing to credit Brignas-Rodriguez's “plausible, unrefuted testimony that the Mexican police laughed at his gay friends who had attempted to report rape and other abuse.” In other words, Bringas-Rodriguez had presented plausible evidence that there was a legitimate fear of persecution and torture if returned to Mexico. The court also noted that recent efforts of the Mexican government to reduce discrimination against LGBT groups did not prevent Brignas-Rodriguez from showing that he was eligible for protection under the CAT. Persecution and/or torture at a regional or local level could still support the claim that the government was unable or unwilling to protect persons from persecution/torture.

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