Tuesday, 29 March 2011

US Court rejects asylum 'discretion' argument in Chilean case

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Source: Fahamu Refugee Legal Aid Newsletter

In an unpublished opinion, a US Court for the Ninth Circuit found that the Board of Immigration Appeals (BIA) was misplaced in relying on the repeal of the anti‐sodomy law in Chile. The status of the law is irrelevant to the petitioner’s fear of persecution, given that arresting officers only claimed the statute as a basis for the petitioner’s detention on one occasion and none of the incidents suffered were a result of violating the statute.

The fact that the petitioner had travelled to Chile did not negate his wellfounded fear (Boer‐Sedano v. Gonzales, 418 F.3d 1082, 1091 (9th Cir.2005), and the fact that he was not persecuted during this time was explained by the fact that he did nothing to expose his sexuality to his fellow citizens.

Similarly to the case of Karouni, 399 F.3d at 1173, the argument that a lack of persecution during a short trip to Chile undermines the petitioner’s well‐founded fear of future persecution, is tantamount to ‘saddling [the applicant] with the Hobson’s choice of returning to [Chile] and either:
  1. facing persecution for engaging in future homosexual acts or;
  2. living a life of celibacy’. 
The BIA’s suggestion that the petitioner could be safe in Chile if he behaved like he had during the short journey in essence meant that the INA [Immigration and Nationality Act] wanted the petitioner ‘to change a fundamental aspect of his human identity’.
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