Friday, 16 January 2009

3rd Circuit Finds No Jurisdiction to Shelter Gay Man From Senegal

Sometimes the juxtaposition of a news story and a judicial opinion makes for strange contrasts. News reports during the first week in January that nine men in Senegal had been tried on charges of "conspiracy" and "unnatural acts" and sentenced to eight years in jail as part of an apparent crackdown on homosexuals followed close on a decision by the U.S. Court of Appeals for the 3rd Circuit in Ndiaye v. Attorney General, 2008 WL 5397718 (Dec. 29, 2008) (not officially published), rejecting an attempt by a gay man from Senegal to stay in the United States despite his conviction here on drug charges. The court noted that the Immigration Judge had found lacking in the petitioner’s case evidence to contradict a State Department Country Report on Senegal indicating homosexuality was not illegal there.

According to the per curiam opinion, the petitioner, a native and citizen of Senegal, came to the U.S. in 1988 as a visitor with a 30-day tourist visa, which he apparently overstayed. According to his testimony, he had figured out that he was gay when he was 14, but did not tell anyone or act on it at that time. In 1973 he married and had seven children. However, at some point he decided he could not keep this secret any longer and told his family he was gay. They shunned him, he left his home and his country, and arrived in the U.S. in 1988. He testified that he never actually engaged in homosexual conduct in Senegal, but since coming to the U.S. he has had two homosexual relationships, and he fears he would be harmed if he returned to Senegal (where, after all, his family knows he is gay and the word would undoubtedly spread).

His problem is that he became involved in drug dealing in the U.S. In 2005, he was convicted in federal court of conspiracy to distribute heroin and possession with intent to distribute, earning him a 70-month prison sentence and bringing him to the attention of immigration authorities, who initiated removal proceedings against him. In response, he attempted to seek asylum, withholding of removal and relief under the Convention Against Torture, claiming fear of persecution on account of his sexual orientation.

Because he is a convicted felon, asylum is not available. Because drug dealing is denominated a "particularly serious crime" under immigration law, withholding of removal is also unavailable. That leaves only the possibility of CAT protection, for which a petitioner must meet the high burden of showing a clear probability that he would be tortured on account of his sexual orientation if deported back to Senegal. In this case, the IJ relied on a 2006 State Department Country Report documenting that there is discrimination against gays in Senegal, but no likelihood of torture. The petitioner argued that homosexuality was illegal in his home country, but the IJ concluded that the Country Report stated the contrary. The IJ noted that despite the sympathetic factors in this case – most importantly that petitioner had resided in the U.S. for 20 years and was 63 years old – there was nothing he could do for him under U.S. law, and the BIA affirmed without a written opinion.

The court agreed with the government’s argument that the court lacked jurisdiction to review the IJ’s determinations. Because petitioner was convicted of an "aggravated felony," the statute limits the court’s jurisdiction to constitutional claims or questions of law. The government argued that the points petitioner was raising on appeal all related to "issues of fact and questions regarding the consideration, interpretation, and weight of the record evidence," not legal or constitutional questions.

The irony in this, of course, is that the 2006 Country Report relied upon by the IJ is clearly out of date concerning conditions for gays in Senegal, if the press reports from early in January 2009 are accurately conveying the situation. The New York Times, for example, reports on the rise of anti-gay sentiment in Africa, especially Islamic Africa, commenting that "even in Senegal, one of the most liberal and tolerant countries in Islamic Africa, tensions over homosexuality have been on the rise." Supporting this point, the Times noted the arrest last year of a group of men "after a magazine printed photographs of what purported to be a gay wedding," and the recent flight of one of those arrested men, a popular singer, seeking asylum in the U.S. One of the men whose arrests were the subject of the January 9 Times story was a prominent gay activist who was working with AIDS organizations to counter the spread of HIV in the "largely clandestine gay community in Senegal." The article also specifically commented that Senegal "has become increasingly intolerant of homosexuality in recent years despite its reputation for liberalism and openness."

Thus, the irony that due to the nature of administrative process and judicial review as constricted by federal immigration statutes, the petitioner in this case cannot present evidence of current conditions to bolster his claim for refugee in the U.S., even though it is current conditions, not those prevailing back in 2006, that he would face upon his return. Something is basically wrong with a system that by its nature relies on outdated information when the individuals subject to the system will be confronted by the current situation. A.S.L.


LGBT asylum news note: "The Country Report stated the contrary" is often the case in the UK


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