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9th Cir. Sets Aside BIA Ruling; Gay Filipino Can Stay in U.S.

By William Peacock, Esq. on July 26, 2013 | Last updated on March 21, 2019

Rape. Repeated beatings. Unemployment. Verbal harassment.

These are the conditions Dennis Vitug, a HIV-positive, gay Filipino faced growing up in the Philippines. And after returning from a student visa-enabled trip to the U.S., he spent three years searching for a job, only to be denied because of his effeminate nature and the rampant discrimination against homosexuals in the Philippines.

However, during his time in the United States, including after he overstayed a tourist visa, he developed a drug habit and was arrested multiple times on drug possession offenses. A relapse, brought on by depression after his HIV diagnosis, led to a lengthy prison sentence and deportation proceedings.

Though the immigration judge granted withholding of removal pursuant to the Convention Against Torture, finding it more likely than not that Vitug would face persecution, the Bureau of Immigration Appeals reversed, based on a number of factual findings. Among those findings were that Vitug never reported the rape or the beatings and that the government had not denied him protection.

The key word (or mistake) in the BIA's holding was factual. The BIA is not allowed to make factual determinations. Instead, if further factual determinations are needed, the BIA is required to remand to the immigration judge for further development of the record. De novo BIA review is limited to questions of law.

The Ninth Circuit not only reversed the BIA, but they held that the record was so clear, that no further consideration by the BIA was necessary. Vitug "convincingly established" that reporting the crimes would have either been futile or would have subjected him to further abuse.

"Vitug showed that he was beaten multiple times over a period of years. Vitug demonstrated that two of these beatings were severe. Vitug also demonstrated that he is gay and perceived to be effeminate and that his attackers called him names and beat him because he was gay. While Vitug did not report these attacks, he credibly testified that it is well known in the Philippines that police harass gay men and turn a blind eye to hate crimes committed against gay men. Vitug bolstered this testimony with documentary evidence of a police raid on a gay theater during which police beat and robbed the patrons."

Deprivation of employment may also qualify as another form of prosecution.

Based on the record, the Ninth Circuit presumed that Vitug was eligible for withholding of removal relief. The government did little to nothing to counter that presumption, presenting no evidence that Vitug could relocate within the Philippines to avoid persecution, or that there was a change in country conditions.

Interestingly enough, the Ninth Circuit, while holding that Vitug was eligible for withholding, also upheld the BIA's findings that Vitug was ineligible for CAT relief. Though the Ninth's holding was on different grounds than the immigration judge's decision, the outcome was the same. The case was remanded to the BIA with instructions to enter an order granting withholding of removal.

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