Rare BIA Victory for Gay Jamaican Man: UPDATE (Nov. 10, 2021)

Spring, Texas attorney Veronica Semino scored this unpublished BIA remand for her client, who was detained in Oakdale.

UPDATE: On Nov. 10th, the IJ granted AOS and the client was released from ICE detention!

In the single-member decision dated Aug. 5, 2021, Temporary Appellate Immigration Judge Gabriel Gonzalez wrote:

"[W]e agree with the respondent that the harm he suffered in Jamaica rises to the level of persecution. The Immigration Judge determined that the respondent was a credible witness who established he is a member of a cognizable particular social group defined by his sexual orientation. ... We conclude that the significant physical harm the respondent experienced, in addition to economic deprivation and multiple death threats, rises to the level of past persecution. In light of the foregoing, the respondent is entitled to a rebuttable presumption that his life or freedom would be threatened in the future upon return to Jamaica. See 8 C.F.R. § 1208.16(b)(l); Matter of D-1-M-, 24 I&N Dec. 448, 450 (BIA 2008). We therefore conclude that a remand is necessary for the Immigration Judge to further consider the respondent's eligibility for withholding of removal. ... Next, we address the Immigration Judge's denial of the respondent's applications for adjustment of status and a waiver under section 212(h) of the Act. We are persuaded by the respondent's argument that the Immigration Judge's decision did not sufficiently assess the hardship to the respondent's United States citizen husband. ... As we found above, the respondent established a rebuttable presumption that his life or freedom will be threatened upon return to Jamaica. Upon remand, the Immigration Judge should further assess all of the relevant hardship factors. ... Hardship to both the respondent and his husband resulting from removal are additional relevant factors to assess. In light of the foregoing, we will remand the record to the Immigration Judge for the entry of a new decision with respect to the respondent's applications for withholding of removal, adjustment of status, and a waiver under section 212(h) of the Act."