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Unpub. (Pro Se) BIA CAT Victory: Gay Men Subject to Torture in Jamaica; Bromfield Cited

July 04, 2012 (3 min read)

Matter of X-, June 7, 2012, unpub. - "As urged by the applicant on appeal, the evidence in the record indicates that the situation in Jamaica involves more than isolated instances of discrimination or harassment based on homophobic societal attitudes in Jamaica. Specifically, we consider that the State Department's Bureau of Democracy, Human Rights, and Labor Report on Country Conditions in Jamaica for 2010 (Exh. 7), does not describe minor problems or isolated incidents of random violence, but rather, it makes clear that homosexuals in Jamaica are the victims of targeted violence by private and government officials on account of their sexual orientation.  The Immigration Judge's decision makes no mention of the pattern and practice of societal violence directed at homosexuals in Jamaica-a violence which is either directly or indirectly condoned by Jamaican government officials, either by their active participation in the torturous abuses, or by their wilful blindness or inaction to the activities of private individuals (IJ. at 3-4).  Furthermore, in considering the Country Report, the Immigration Judge makes no mention of the Jamaican law criminalizing homosexual conduct - this law, known as the Offenses Against the Person Act, prohibits" 'acts of gross indecency' (generally interpreted as any kind of physical intimacy) between men, in public or in private." In this regard, as the United States Court of Appeals for the Fifth Circuit, the jurisdiction wherein this case arises, has not had the opportunity to address the issue, we are persuaded by the analysis and findings of the Ninth Circuit in Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir. 2008). In that case, the court noted that the applicant ''was not required to show that the [Jamaican] government would torture him; [but rather that] he could satisfy his burden by showing that the [Jamaican] government acquiesces in torture of gay men." Id at 1079 (citing 8 C.F.R. § 1208.18(a)(1 )). "Acquiescence" requires only that public officials were aware of the torture but "remained willfully blind to it, or simply stood by because of their inability or unwillingness to oppose it. See Demiraj v. Holder, 631 F.3d 194, 200 (5th Cir. 2011) (A public official acquiesces to torture if, "prior to the activity constituting torture, [the official] ha[s] awareness of such activity and thereafter breach[es] his or her legal responsibility to intervene to prevent such activity.") and citing Hakim v. Holder, 628 F.3d 151, 154-57 (5th Cir. 2010) (holding that" 'acquiescence' is satisfied by a government's willful blindness of torturous activity"). See 8 C.F.R. § 1208.l8(a)(7). As was also found by the Bromfield court, "the record here compels the conclusion that the Jamaican government not only acquiesces in the torture of gay men, but is directly involved in such torture." See Bromfield v. Mukasey, supra, at 1079. The court's conclusion that as "[t]he Jamaican government criminalizes homosexual conduct, making it punishable by up to ten years in prison," and that "[t]his is an indicator of the Jamaican government's position toward gay men, as is the 'fact that the police generally do not investigate complaints of human rights abuses suffered by gay men," similarly applies to the record in the case before us. See id. Moreover, the Bromfield court cited to the Country Report which "further indicates that police officers and prison wardens are directly responsible for a portion of these abuses." Id.  Consequently, in view of the foregoing, we find the record supports finding that the applicant has met his burden that it is more likely than not that he will be tortured if removed to Jamaica, so as to warrant a grant of his request for deferral of removal under the Convention Against Torture. See 8 C.F.R. § 1208.17(a).  Accordingly, the applicant's appeal of the Immigration Judge's denial of his request for deferral of removal will be sustained."

[Thanks to Victoria Neilson at Immigration Equality and Steve Yale-Loehr for bringing this to my attention.  It is especially meaningful to me because I lost a similar case, also arising in the 5th Circuit.  Needless to say, I will be filing appropriate motions!]