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Saturday, June 22, 2024 | Back issues
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Gay Bias in Russia May Justify U.S. Asylum

(CN) - Immigration officials must review the asylum claims of a gay man who was beaten by his college classmates in East Siberia, the 9th Circuit ruled Wednesday.

The man, referred to in court papers as John Doe, is from the Republic of Buryatia, a federal subject of Russia in East Siberia. He says that, after his classmates at East Siberian Technological University in Ulan-Ude discovered he was gay, they teased, harassed and finally beat him so badly that he had to spend three weeks in the hospital. The police did nothing about it, and his attackers "were just walking free" when he was released from the hospital, the man claims.

Doe moved to Moscow in 2003 to escape the homophobia, but soon found himself the target of ethnic discrimination, he claims. Muscovites would mock his Buryat, as opposed to ethnic Russian, features, and police would harass him for the same reason, he says.

He came to the United States later that same year to attend the American Language Communications Center in New York on a nonimmigrant student visa. After he stopped attending the school and violated his nonimmigrant status, the government moved to deport him.

Doe then applied for asylum, withholding of removal and relief under the Convention Against Torture, claiming he would be persecuted for being gay if returned home. An immigration judge in the case found, and the Board of Immigration Appeals (BIA) agreed, however, that Doe had failed to show that the "Russian government was unable or unwilling to control his nongovernmental persecutors," according to the ruling.

A unanimous three-judge panel of the 9th Circuit nevertheless agreed Wednesday to grant a review of Doe's petition.

The ruling says Doe "was not required to demonstrate that the Russian government sponsored or condoned the persecution of homosexuals or was unwilling for that reason to control persecution of Doe."

"Because the evidence demonstrated that Doe was subjected to past persecution on account of his homosexuality and that the Russian government was unable or unwilling to control his persecutors, the BIA should have presumed that Doe has a well-founded fear of future persecution," Judge Arthur Alarcon wrote for the panel. "It should then have required the government to meet its burden to show by a preponderance of the evidence that 'there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution' or 'the applicant could avoid future persecution by relocating to another part of the applicant's country.'"

The San Francisco-based panel remanded the case and ordered the BIA to look into whether the government can show that conditions in Russia have changed enough to "overcome the presumption that Doe has a well-founded fear of future persecution based on the past persecution he was subjected to because he is a homosexual or that Doe reasonably can relocate to an area of safety within Russia."

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