Persecuted Gay Filipino Can Stay in United States
(CN) - U.S. immigration authorities ignored evidence in ordering the removal of a HIV-positive, gay Filipino who endured rape and other persecution in his native land, the 9th Circuit ruled.
The federal appeals court in Pasadena granted Dennis Vitug's petition for withholding of removal, finding that he likely faces persecution and abuse from police, the government and even family members if forced to return to the Phillipines.
Vitug had been ordered to appear in immigration court after he served eight months in jail for drug possession.
The Department of Homeland Security sought to deport Vitug for his criminal conviction and for overstaying his visa, but he applied for asylum, withholding of removal and relief from torture based on his sexual orientation and HIV-positive status.
Vitug told the court that his latest drug relapse stemmed from depression he suffered after being diagnosed with HIV in 2005.
The years before had not been kind to the Philippines native who always knew he was "different." Effeminate from a young age, Vitug's family allegedly resented him for playing with Barbie dolls and other such toys.
In addition to relentless teasing and bullying from classmates, he suffered years of sexual abuse at a young age. Vitug's family lost their home to a volcano in 1991, and the 15-year-old was left to fend for himself when extended family refused to take in the gay teen. Alone in Manila, Vitung was allegedly beaten and robbed five times, drugged and raped, harassed by police and his fellow citizens, and unable to find work. He said the government and police refuse to protect gay men from persecution.
Vitug came to the United States in 1999 and overstayed his six-month tourist visa, finding work as an assistant designer and auditor. Though he struggled with a drug addiction that led to several arrests and stints in rehab, Vitung studied fashion design and continued working.
An immigration judge denied Vitug's request for asylum in 2007, but granted withholding of removal and protection under the Convention Against Torture, finding it more than likely that Vitug would be persecuted and tortured if returned to the Philippines.
The Bureau of Immigration Appeals reversed, however, based on various findings including that his rape had been a "crime of opportunity." It also found no evidence that the beatings and robberies "rose to the level of persecution," or that the government in the Philippians had denied Vitug protection.
The 9th Circuit unanimously reversed on Wednesday and directed the appellate immigration panel to grant 37-year-old Vitug withholding of removal.
It slammed the agency for improperly disregarded the immigration judge's findings and conducting its own fact finding.
"The evidence compels the conclusion that Vitug will more likely than not be persecuted if he is removed to the Philippines," Judge Harry Pregerson wrote for the panel.
"Vitug showed that he was beaten multiple times over a period of years," Pregerson added. "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 beathim 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."