MOSCOW, November 29 (RAPSI) - A US federal appeals court in San Francisco granted on Wednesday a petition for review of the Bureau of Immigration Affairs’ (BIA) decision that a gay Russian man is not entitled to asylum, and remanded the case for a review of whether there have been any changes in Russia in terms of the “persecution of homosexuals,” according to court documents obtained by RAPSI.
The case centers on an unnamed gay Russian man who had sought asylum under the Convention Against Torture (CAT), based on his contention of a “well-founded fear of future persecution if he is removed to Russia because he is a homosexual.”
The man is said to have been born in Ulan-Ude, the capital of the Russian Republic of Buryatia. He “identifies his sexual orientation as homosexual or bisexual.”
In school he joined a club for homosexuals, the decision explains, which led to a great deal of mockery. The man further claimed that he was violently attacked twice.
After the first attack, the decision notes that a police officer responded that the asylum claimant was a man, and asked why he hadn’t defended himself.
The second attack resulted in internal brain hemorrhaging, a concussion, and a three-week hospital stay.
The man moved to Moscow, but claims to have faced ethnic discrimination in the capital city, testifying that he encountered such comments as, “[Y]ou narrow slanted eye person.” He further claims to have endured trouble from the police because of his ethnicity and based on his assertion that he does not “look like the typical Russian person.”
He then went to the US on a student visa, and applied for asylum while there.
Initially, an immigration judge concluded that the man had been subjected to persecution in Russia in the past based on his sexual preference, but denied the application for asylum or withholding of removal after finding that the man had failed to demonstrate that the Russian government had been unwilling or unable to control the perpetrators.
The BIA dismissed the man’s appeal of the immigration judge’s decision on the same basis, as well as the man’s failure to prove the allegation that, “there is widespread persecution of homosexuals in Russia which is sponsored or condoned by the Russian government.”
The US Court of Appeals for the Ninth Circuit granted a petition for review Wednesday based on its conclusion that the man had, in fact, met his burden of proof in connection with the claim that the Russian government had been unable or unwilling to control his past persecutors.
In remanding the case, the Ninth Circuit Court instructed the BIA to consider whether the government can successfully prove that the situation in Russia has changed to the extent that the man can no longer claim a “well-founded fear of future persecution,” or that the man can relocate to a safe area within Russia.