BIA Holds That Determining Whether The Government Is Or Was Unable Or Unwilling To Protect A Respondent From Harm Is A Fact Specific Inquiry Based On Consideration Of All Evidence. A Respondent’s Failure To Report Harm Is Not Necessarily Fatal To A Claim Of Persecution If He Or She Can Demonstrate That Reporting Private Abuse To Governmental Authorities Would Have Been Futile Or Dangerous. When Considering Future Harm, Adjudicators Should Not Expect A Respondent To Hide His Or Her Sexual Orientation If Removed To His Or Her Native Country.
On September 8, 2023, the Board of Immigration Appeals (BIA or Board) remanded a case to the Immigration Judge (IJ); the matter had been appealed after the IJ denied Respondent’s applications for asylum and withholding of removal. Respondent did not appeal the IJ’s denial of CAT relief. Importantly, because the IJ presided by televideo from Richmond, Virginia over the merits hearing in the Boston Immigration Court, Respondent successfully argued that the law of the First Circuit should govern this appeal.
Respondent testified that he was abused by his father as a child because of his sexual orientation; his father treated him harshly and hit him almost every day. Supporting declarations from his uncle and brother confirmed this mistreatment. After Respondent entered the U.S., his mother told his father that he was gay and the father then abused the mother. Six years after his entry, Respondent was diagnosed as HIV-positive.
The IJ found Respondent credible and concluded that he is a member of two particular social groups (PSGs): gay Dominican males and HIV-positive Dominicans, but denied asylum based on the 1-year bar. The IJ held that Respondent did not establish that the harm he suffered from his father in the Dominican Republic was on account of a protected ground because his father did not know he was gay and concluded that he did not prove past persecution as he did not show that the Dominican government was unable or unwilling to protect him from harm. The court also found that Respondent “was not more likely than not to suffer future persecution because he did not show that anyone in the Dominican Republic, aside from his father, knew he was gay or HIV-positive and would harm him for that reason.”
Initially, in beginning its legal analysis, the BIA affirmed the IJ’s asylum denial based on the 1-year bar. While Respondent contended that his HIV-positive status should be considered changed circumstances excusing a late filing, the Board held it need not decided whether the HIV diagnosis constituted changed circumstances because even if it did, Respondent had not established that his late filing “was within a reasonable period of time after learning of the diagnosis” 13 months earlier.
Next, the IJ concluded that Respondent did not prove past persecution on account of his membership in the PSG of gay Dominican males as his father was not told he was gay until after he left the Dominican Republic (In a footnote, the BIA found that the IJ correctly found that Respondent did not suffer past persecution because of his HIV diagnosis because he was not diagnosed until after he left the Dominican Republic.) However, stated the BIA, the IJ’s holding failed to consider all relevant evidence as to the father’s motive for harm before Respondent left home. The IJ did not address the declarations from Respondent, his brother, and uncle nor did the court consider evidence that his father called Respondent a girl and expressed animus towards gay people. The record was therefore remanded to allow the IJ to consider all evidence of motive, to determine whether Respondent’s membership in the PSG of gay Dominican males was at least one central reason he suffered or may suffer harm.
Further, noted the Board, in finding that Respondent did not show that the government was unable or unwilling to protect him from persecution, the IJ cited Respondent’s failure to report the harm his father inflicted on him; Respondent testified it would have been futile to report the abuse as a child and that reporting may have cause him further abuse. Whether a government is unable or unwilling to protect an individual from persecution is a question of fact reviewed for clear error. In this inquiry, a government’s “timely response to a respondent reporting harm may be indicative of their ability or willingness to protect the respondent from harm.” Additionally, a failure to report mistreatment, even if based on a victim’s subjective belief that authorities are corrupt, is not, without more, sufficient to prove that a government is unwilling or unable to protect a respondent. However, cautioned the decision, a failure to report is not necessarily fatal to a claim of persecution if the applicant can show that reporting private abuse to governmental authorities would be futile or dangerous.
Here, Respondent testified that children in the Dominican Republic do not make reports to the authorities and do what they are told; he stated “his father would have killed him if he reported the abuse to the authorities, that he did not report to a teacher because everyone knew his father, and that he reported the abuse to his grandmother but she did not take any action.” Respondent also testified that his access to governmental assistance was further limited because he lived in a small town far from the nearest city. The BIA therefore held that determining whether it was reasonable for Respondent to fail to seek assistance from the Dominican government is a fact-base inquiry but that a mere “subjective belief” that reporting would be futile is insufficient to show that the authorities were unwilling or unable to provide protection; an applicant must establish, based on the record as a whole, that the government is unwilling or unable to protect him or her from persecution.
As to future persecution, the opinion explained that the IJ had found that the Respondent had not shown that it is more likely that not he would be persecuted if sent home, e.g., the court concluded the evidence did not provide that anyone in the Dominican Republic – other than Respondent’s father – knew he is gay. But to the extent this finding was based on the assumption that Respondent “could avoid future harm by not engaging in conduct that would identify himself as gay, it would be in error.” As a general matter, stated the Board, it will not base consideration of an applicant’s fear of future harm “on the ability or requirement to hide his or her sexual orientation.” Under the law, asylum and withholding are available to applicants who fear persecution on account of their membership in a PSG based on sexual orientation. Thus, held the BIA, when considering future harm, adjudicators should not expect a respondent to hide his or her sexual orientation if removed to his or her home country.
The case was thus remanded to the IJ for further consideration of Respondent’s withholding application, the IJ ordered to evaluate whether Respondent showed past persecution and whether the Dominican government was unable or unwilling to protect Respondent from any past persecution based on his claimed PSG of gay Dominican males. The IJ was also ordered to reevaluate whether Respondent had proven whether he is more likely than not to suffer persecution on account of his membership in either of his asserted PSGs, and consider whether the Dominican authorities would be unable or unwilling to protect him in the future. Finally, one of the decision’s last footnotes explained that the IJ had found that Respondent did not provide “any evidence that anyone in the Dominican Republic would know he is HIV-positive”; on remand, the IJ “may” further consider Respondent’s claim based on his HIV status. Matter of C-G-T-, 28 I&N Dec. 740 (BIA 2023.)