Hernandez-Montiel v. INS

Page 1084

225 F.3d 1084 (9th Cir. 2000)

GEOVANNI HERNANDEZ-MONTIEL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70582

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted December 8, 1999--Pasadena, California

Filed August 24, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

COUNSEL: Robert S. Gerber, Sheppard, Mullin, Richter & Hampton LLP, San Diego, California, for the petitioner.

Alice E. Loughran, United States Department of Justice, Washington, D.C., for the respondent.

Taylor Flynn, Los Angeles, California, Suzanne Goldberg, New York, New York, Jon W. Davidson, Los Angeles, California, and Shannon Minter, San Francisco, California, for amici curiae American Civil Liberties Union of Southern California, Lambda Legal Defense & Education Fund, Inc., National Center for Lesbian Rights, and International Gay and Lesbian Human Rights Commission.

On Petition for Review of an Order of the Immigration and Naturalization Service

INS No.A72-994-275

Before: Melvin Brunetti and A. Wallace Tashima, Circuit Judges, and William W Schwarzer,^* District Judge.

OPINION

TASHIMA, Circuit Judge:

Geovanni Hernandez-Montiel ("Geovanni"),¹ a native and citizen of Mexico, seeks review of a decision of the Board of Immigration Appeals ("BIA"), denying his application for both asylum and withholding of deportation. The BIA dismissed Geovanni's appeal because it agreed with the immigration judge ("IJ") that Geovanni failed to show that he was persecuted, or that he had a well-founded fear of future persecution, on account of his membership in a particular social group.

The primary issue we must decide is whether gay men with female sexual identities in Mexico constitute a protected "particular social group" under the asylum statute. We conclude as a matter of law that gay men with female sexual identities in Mexico constitute a "particular social group " and that Geovanni is a member of that group. His female sexual identity is immutable because it is inherent in his identity; in any event, he should not be required to change it. Because the evidence compels the conclusion that Geovanni suffered past persecution and has a well-founded fear of future persecution if he were forced to return to Mexico, we conclude that the record compels a finding that he is entitled to asylum and withholding of deportation.

I. FACTUAL BACKGROUND

Geovanni testified that, at the age of eight, he "realized that [he] was attracted to people of [his] same sex." At the age of 12, Geovanni began dressing and behaving as a woman.

He faced numerous reprimands from family and school officials because of his sexual orientation. His mother registered him in a state-run Mexican school and informed the school authorities about what she deemed to be his "problem," referring to his sexual orientation. School authorities directed Geovanni to stop socializing with two gay friends. The father of a schoolmate grabbed Geovanni by the arm and threatened to kill him for "perverting" his son. He was even prevented from attending a school dance because of the way he was dressed. Shortly after the dance, the school asked Geovanni's mother to consent to his expulsion because he was not acting appropriately. He could not enroll in another school because the school refused to transfer his paperwork until he agreed to change his sexual orientation. Geovanni's parents threw him out of their home the day after his expulsion.

Beyond his school and family, Geovanni also suffered harassment and persecution at the hands of Mexican police officers. On numerous occasions, the Mexican police detained and even strip-searched Geovanni because he was walking down the street or socializing with other boys also perceived to be gay. In 1992, the Mexican police twice arrested Geovanni and a friend. The police told them that it was illegal for homosexuals to walk down the street and for men to dress like women. The police, however, never charged Geovanni with any crime.

Police officers sexually assaulted Geovanni on two separate occasions. In November 1992, when Geovanni was 14 years old, a police officer grabbed him as he was walking down the street, threw him into the police car, and drove to an uninhabited area. The officer demanded that Geovanni take off his clothes. Threatening him with imprisonment if he did not comply, the officer forced Geovanni to perform oral sex on him. The officer also threatened to beat and imprison Geovanni if he ever told anyone about the incident.

Approximately two weeks later, when Geovanni was at a bus stop with a gay friend one evening, the same officer pulled up in a car, accompanied by a second officer. The officers forced both boys into their car and drove them to a remote area, where they forced the boys to strip naked and then separated them. One of the officers grabbed Geovanni by the hair and threatened to kill him. Holding a gun to his temple, the officer anally raped Geovanni. Geovanni believes that his friend was also raped, although his friend refused to talk about the incident. Even before the boys could get dressed, the police officers threatened to shoot if they did not start running. The boys were left stranded in an abandoned area.

A few months after the second assault, in February 1993, Geovanni was attacked with a knife by a group of young men who called him names relating to his sexual orientation. He was hospitalized for a week while recovering from the attack.

Geovanni fled to the United States in October 1993, when he was 15 years old. He was arrested within a few days of his October 1993 entry.² When Geovanni returned to Mexico to live with his sister, she enrolled him in a counseling program, which ostensibly attempted to "cure" his sexual orientation by altering his female appearance. The program staff cut his hair and nails, and forced him to stop taking female hormones. Geovanni remained in the program from late January to late March 1994. Because his sister saw no changes in him, she brought Geovanni home to live with her. Soon thereafter, however, she forced Geovanni out of her house because he was not "cured" of his gay sexual orientation, despite his change in appearance. He again sought refuge in the United States.

II. PROCEDURAL BACKGROUND

After a number of attempts to re-enter the United States, Geovanni last entered on or around October 12, 1994, without inspection. He filed an application for asylum and withholding of deportation on February 22, 1995.

At his asylum hearing, Geovanni presented the testimony of Thomas M. Davies, Jr., a professor at San Diego State University and an expert in Latin American history and culture. Professor Davies, who has lived for extended periods of time in Mexico and elsewhere in Latin America, testified that certain homosexuals in Latin America are subjected to greater abuse than others. Professor Davies testified that it is "accepted" that "in most of Latin America a male before he marries may engage in homosexual acts as long as he performs the role of the male." A male, however, who is perceived to assume the stereotypical "female," i.e. , passive, role in these sexual relationships is "ostracized from the very beginning and is subject to persecution, gay bashing as we would call it, and certainly police abuse." Professor Davies testified that these gay men with "female" sexual identities in Mexico are "heavily persecuted by the police and other groups within the society. . . . [They are] a separate social entity within Latin American society and in this case within the nation of Mexico." According to Professor Davies, it is commonplace for police to "hit the gay street . . . and not only brutalize but actually rape with batons . . . homosexual males that are dressed or acting out the feminine role."

Professor Davies testified that gay men with female sexual identities are likely to become scapegoats for Mexico's present economic and political problems, especially since the recent collapse of the Mexican economy. Professor Davies specifically noted that Geovanni is "a homosexual who has taken on a primarily `female' sexual role." Based on his expert knowledge, review of Geovanni's case, and interaction with Geovanni, Professor Davies opined that Geovanni would face persecution if he were forced to return to Mexico.

The IJ denied Geovanni asylum on both statutory and discretionary grounds. The IJ determined that Geovanni's testimony was "credible," "sincere," "forthright," "rational," and "coherent." The IJ found, however, that Geovanni had failed to demonstrate persecution "on account of a particular social group," classifying his social group as "homosexual males who wish to dress as a woman [sic.]." The IJ noted that Geovannni "has altered certain outward physical attributes and his manner of dress to resemble a woman." The IJ found Geovanni's female gender identity not to be immutable, explaining:

If he wears typical female clothing sometimes, and typical male clothing other times, he cannot characterize his assumed female persona as immutable or fundamental to his identity. The record reflects that respondent's decision to dress as a women [sic ] is volitional, not immutable, and the fact that he sometimes dresses like a typical man reflects that respondent himself may not view his dress as being so fundamental to his identity that he should not have to change it.

The IJ further found that Geovanni was not entitled to discretionary eligibility and denied voluntary departure in the exercise of discretion.

The BIA dismissed Geovanni's appeal from the IJ's decision. The BIA agreed that Geovanni gave credible testimony, but found that he failed to establish his statutory eligibility for asylum. The BIA found that Geovanni did not meet his burden of "establishing that the abuse he suffered was because of his membership in a particular social group," which the BIA classified as "homosexual males...