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Judge Relied on Gay Stereotypes, Court Says

(CN) - The 10th Circuit chided an immigration judge for relying on his own views in denying a Moroccan man's request for asylum. After hearing evidence that the petitioner likely faced persecution based on his homosexuality, the immigration judge ruled that the petitioner probably wouldn't be harassed because he doesn't look gay.

Tarik Razkane allegedly hid his sexual orientation in his native country, which criminalizes homosexual conduct. He claimed he was once attacked by a neighbor, who held a knife to his throat and told him "[his] death is better than [his] life since [he is] gay." He said he was haunted by fears of more attacks, social ostracism, family rejection and imprisonment.

He entered the United States through the Fulbright program in 2003 and faced removal about 14 months later, after overstaying his visa. He applied for asylum, restriction on removal and protection under the United Nations Convention Against Torture.

After hearing from Razkane's expert, who testified that "it is common for the police to harm, beat or rape with impunity the people whom they see as vulnerable because of sexual orientation," the immigration judge rejected the petition.

Although the judge found Razkane to be "an essentially credible witness," he concluded that the petitioner failed to prove that "he would be identified as a homosexual in Morocco, or that he would be persecuted in that country because of his social group membership."

The judge said Razkane's "appearance does not have anything about it that would designate [him] as being gay. [He] does not dress in an effeminate manner or affect any effeminate mannerisms."

The federal appeals court in Denver overturned this ruling, saying the judge leaned too heavily on his own stereotypes.

"The [immigration judge's] reliance on his own views of the appearance, dress, and affect of a homosexual led to his conclusion that Razkane would not be identified as a homosexual," Judge Murphy wrote.

"This analysis elevated stereotypical assumptions to evidence upon which factual inferences were drawn and legal conclusions made. To condone this style of judging, unhinged from the prerequisite of substantial evidence, would inevitably lead to unpredictable, inconsistent, and unreviewable results."

The court issued a temporary stay of removal.

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