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Sunday, 18 January 2009

U.S. Asylum Law Requires Same-Sex Partners to Split Up

A panel of the U.S. Court of Appeals for the 9th Circuit dumped an unwelcome post-Christmas message on a gay Indonesian man, Parulian Hasibuan on December 26, when it rejected his attempt to win the right to stay united in America with his same-sex partner. The unanimous panel ruled in Hasibuan v. Mukasey, 2008 Westlaw 5396467, that Mr. Hasibuan, who had missed the one-year deadline for filing an asylum petition, and who was found not eligible for withholding of removal or protection under the Convention Against Torture, could not argue that his same-sex partner was a "qualifying relative" to attempt to benefit from the protection accorded spouses of U.S. citizens.

The court’s brief memorandum opinion provides few facts, although it is noted in passing that Hasibuan relied on evidence that he had been beaten by his father and suffered two attacks at the hands of others, but the court found that "substantial evidence" (which it did not feel obliged to describe) "supports the BIA’s determination that the beatings by Hasibuan’s father and the two attacks Hasibuan suffered did not rise to the level of past persecution." (The significance of this ruling is that a finding of past persecution would raise a presumption that the petitioner would encounter future persecution if returned to his home county. The lack of such a finding leaves the petitioner with the burden of proving that such persecution would occur.) The court also found that "Hasibuan has not demonstrated a clear probability of future persecution if he returns to Indonesia," or that he would be tortured there, a prerequisite to protection under the CAT.

As to Hasibuan’s attempt to put forth his same-sex relationship as a reason to let him stay in the U.S., the court cited still-prevailing 9th Circuit precedent, Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), which held that only parties to heterosexual marriages were "spouses" within the meaning of federal immigration law. The enactment of the Defense of Marriage Act, not mentioned by the court directly, subsequent to Adams, would seem to make that ruling a concrete part of American law.

"Because Hasibuan has not asserted that he and his partner are married under state law," wrote the court, "Hasibuan lacks standing to bring a constitutional challenge to the federal definition of spouse. . . In addition, because Hasibuan does not assert that he attempted to marry his partner, he also lacks standing to challenge California’s marriage laws." Thus, the court rejected Hasibuan’s claim that the refusal to accord him the same rights as a person married to a U.S. citizen was a violation of his own constitutional rights. The clear implication is that if Hasibuan and his partner had married in a jurisdiction affording such a right (such as California between mid-June and November 5), he would at least have standing to challenge DOMA and its effect on immigration law.

There is no indication on the court’s opinion whether Hasibuan was represented by counsel on his appeal.

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