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Adamu Sumaila v. Attorney General United States
Adamu Sumaila v. Attorney General United States
3-31-2020
Recommended Citation
"Adamu Sumaila v. Attorney General United States" (2020). 2020 Decisions. 318.
https://digitalcommons.law.villanova.edu/thirdcircuit_2020/318
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PRECEDENTIAL
No. 18-1342
_____________
ADAMU SUMAILA,
Petitioner,
v.
Jeffrey R. Meyer
Jonathan K. Ross [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
______________
2
discovered that he was in a same-sex relationship. Sumaila
seeks asylum and withholding of removal under the
Immigration and Nationality Act (INA) and protection from
removal under the Convention Against Torture (CAT),
because he fears being persecuted or tortured on account of his
sexual orientation and identity as a gay man if returned to
Ghana – a country that criminalizes same-sex male
relationships and has no proven track record of combatting
widespread anti-gay violence, harassment and discrimination.
The Immigration Judge (IJ) denied Sumaila’s application and
ordered his removal, and the Board of Immigration Appeals
(BIA) affirmed.
I. BACKGROUND
1
Because we believe this case can be disposed of on the merits
of Sumaila’s asylum claim, we will not resolve his withholding
of removal or CAT claims at this time.
3
bought for Inusah, they had sex for the first time. Over the next
twelve years, Sumaila continued to see Inusah but kept their
sexual relationship hidden. Being gay in Ghana, Sumaila
believed, was simply “not acceptable.” JA101. He could not
speak to his family about his feelings because he worried that,
as Muslims, they would disapprove of his sexual orientation
or, even worse, that his father would kill him.
4
about ten minutes away. Sumaila told his friend about the
attack and about his sexual relationship with Inusah. His
friend, too, became afraid. He worried that they could both be
killed if people found out that Sumaila was hiding there.
B. Procedural History
5
determination. Still, the IJ concluded that Sumaila had not
established “past persecution” or a “well-founded fear of future
persecution.” JA24-25. Notably, the IJ observed that “there
[was] no reason to believe that [Sumaila] would not be able to
live a full life, especially if he were to continue to keep his
homosexuality a secret.” JA25. Sumaila appealed to the BIA.
2
The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b) and
1240.15. We have jurisdiction under 8 U.S.C. § 1252(a).
Sumaila timely petitioned for review. See 8 U.S.C.
§ 1252(b)(1).
6
8 U.S.C. § 1252(b)(4)(B)); Balasubramanrim v. I.N.S., 143
F.3d 157, 161 (3d Cir. 1998) (“We will uphold the agency’s
findings of fact to the extent they are ‘supported by reasonable,
substantial, and probative evidence on the record considered as
a whole.’”) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478,
481 (1992)). We accord no deference to factual findings that
“are based on inferences or presumptions that are not
reasonably grounded in the record.” Dia v. Ashcroft, 353 F.3d
228, 249 (3d Cir. 2003) (en banc) (quoting El Moraghy v.
Ashcroft, 331 F.3d 195, 202 (1st Cir. 2003)). If the BIA
“mischaracterized and understated the nature of the evidence
supporting [an applicant]’s claims,” its findings are not
supported by substantial evidence. Chavarria v. Gonzales, 446
F.3d 508, 517 (3d Cir. 2006).
7
(3d Cir. 2009).
III. DISCUSSION
3
Regardless of this rebuttable presumption, past persecution
remains an independent basis for asylum because, in some
cases, “the favorable exercise of discretion is warranted for
humanitarian reasons even if there is little likelihood of future
persecution.” Al-Fara v. Gonzales, 404 F.3d 733, 740 (3d Cir.
2005) (quoting Matter of Chen, 20 I. & N. Dec. 16, 18-19 (BIA
1989)); accord Vongsakdy v. I.N.S., 171 F.3d 1203, 1206-07
(9th Cir. 1999); Skalak v. I.N.S., 944 F.2d 364, 365 (7th Cir.
8
Gen. U.S., 580 F.3d 196, 202 (3d Cir. 2009) (citing 8 C.F.R.
§ 208.13(b)(1)). “Ultimately, therefore, a well-founded fear of
future persecution is the touchstone of asylum.” Id. Thus, we
first examine Sumaila’s claim of past persecution before
considering whether he has a well-founded fear of future
persecution.
A. Past Persecution
9
meaning of the INA, 8 U.S.C. § 1101(a)(42)(A).4 Amanfi v.
Ashcroft, 328 F.3d 719, 730 (3d Cir. 2003) (holding that sexual
orientation is a cognizable basis for “membership in a social
group”); accord Bringas-Rodriguez v. Sessions, 850 F.3d
1051, 1073 (9th Cir. 2017) (en banc) (affirming that “sexual
orientation and sexual identity can be the basis for establishing
a particular social group”); Ayala v. Att’y Gen. U.S., 605 F.3d
941, 949 (11th Cir. 2010); Kadri v. Mukasey, 543 F.3d 16, 21
(1st Cir. 2008); Moab v. Gonzales, 500 F.3d 656, 661 n.2 (7th
Cir. 2007); Nabulwala v. Gonzales, 481 F.3d 1115, 1117 (8th
Cir. 2007) (recognizing that lesbians are members of a
“particular social group” based on sexual orientation);
Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1094 (9th Cir.
2000) (holding that transgender individuals may be classified
into a “particular social group” based on their “sexual
orientation and sexual identity”), overruled on other grounds
by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005); Matter
of Toboso-Alfonso, 20 I. & N. Dec. 819, 822 (BIA 1990).
4
We have adopted the term LGBTI in this opinion because we
found it to be the more common formulation used across the
relevant guidelines and reports issued by the U.S. Citizenship
and Immigrations Services (USCIS), the U.S. State
Department, and the United Nations High Commissioner for
Refugees (UNHCR). We note that the IJ used the term
LGBTQ (lesbian, gay, bisexual, transgender and queer or
questioning). We see no meaningful distinction between these
two formulations for purposes of our analysis.
10
finding without expressly reviewing the alleged motive of
Sumaila’s tormentors. We construe the IJ’s and the BIA’s
truncated decisions as rejecting both Sumaila’s claim that he
was targeted “on account of” his sexual orientation and that he
suffered persecution. See Gomez-Zuluaga v. Att’y Gen. U.S.,
527 F.3d 330, 346-47 (3d Cir. 2008). To satisfy the “on
account of” or nexus requirement, Sumaila’s sexual orientation
must have been a motivating factor or “at least
one central reason” for the alleged persecution. Id. at 340
(quoting 8 U.S.C. § 1158(b)(1)(B)(i)); Lukwago v.
Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003) (“A persecutor may
have multiple motivations for his or her conduct, but the
persecutor must be motivated, at least in part, by one of the
enumerated grounds.”). Here, there can be no serious dispute
that the attack and threats Sumaila suffered were motivated by
his sexual orientation. Sumaila credibly testified that the
mob’s violent and menacing behavior was instigated by his
father’s outrage at discovering him having sex with another
man and offered evidence that his father explicitly connected
this violent response to his disapproval of Sumaila’s
“homosexuality,” JA166. Others in the mob wanted to report
Sumaila to the police, further indicating that they were reacting
to his same-sex relationship since that is the only conduct that
could have conceivably incriminated Sumaila under Ghanaian
law. Sumaila thus has demonstrated that he was targeted on
account of his membership in a statutorily protected group.
11
to the level of persecution.” Voci v. Att’y Gen. U.S., 409 F.3d
607, 615 (3d Cir. 2005). In addition, it is “well settled that
persecution does not encompass all forms of unfair, unjust, or
even unlawful treatment.” Chavarria, 446 F.3d at 518 (citing
Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993)). However,
it is equally settled that persecution includes “death threats,
involuntary confinement, torture, and other severe affronts to
the life or freedom of the applicant.” Gomez-Zuluaga, 527
F.3d at 341 (citing Lin v. I.N.S., 238 F.3d 239, 244 (3d Cir.
2001)); Chavarria, 446 F.3d at 518.
12
with a “gun to his face,” id. at 520. We reversed the BIA and
held that these violent acts of intimidation constituted
persecution. Id.
13
doused with kerosene and exposed to a cutlass. In combination
with these violent acts of intimidation and his injuries, the
death threats were sufficiently “concrete and menacing,” id., to
transform this incident from a “simple beating,” Voci, 409 F.3d
at 615, into outright persecution. Accord Gashi v. Holder, 702
F.3d 130, 138 (2d Cir. 2012) (“Given the unrebutted evidence
that Gashi was repeatedly warned, threatened with death, and
attacked with deadly weapons including a knife and a metal
knob while one attacker urged another to ‘[k]ill this dog here,’
we do not see why such abuse does not constitute persecution.”
(alteration in original) (internal citation omitted)).
14
unfulfilled in concluding that they were not sufficiently
concrete and menacing. 400 F.3d at 159, 165. We find it odd
for the Government to make this argument here considering
that Sumaila was threatened with death by fire or decapitation
while being assaulted, doused with fuel and exposed to a
cutlass. All that was left for the mob to do was to cut off his
head or set him on fire. See Chavarria, 446 F.3d at 520 (“This
threat is unlike the threats we encountered in Li, which were
merely verbal and not concrete because here, the attackers
actually robbed Chavarria, pointed a gun to his face, and
threatened him with death if he told his story.”). Had Sumaila
not managed to escape, he might very well be dead. To expect
Sumaila to remain idle in that situation – waiting to see if his
would-be executioners would go through with their threats –
before he could qualify as a refugee would upend the
“fundamental humanitarian concerns of asylum law.” Matter
of S-P-, 21 I. & N. Dec. 486, 492 (BIA 1996) (“In enacting the
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102
[amending the INA], Congress sought to bring the Act’s
definition of ‘refugee’ into conformity with the United Nations
Convention and Protocol Relating to the Status of
Refugees and, in so doing, give ‘statutory meaning to our
national commitment to human rights and humanitarian
concerns.’”) (footnote omitted) (citing S. Rep. No. 256, 96th
Cong., 2d Sess. 1, 4, reprinted in 1980 U.S.C.C.A.N. 141,
144).
15
he “did not require medical treatment.” JA24 (relying on
Kibinda v. Att’y Gen. U.S., 477 F.3d 113, 119-20 (3d Cir.
2007); Voci, 409 F.3d at 615; and Chen v. Ashcroft, 381 F.3d
221, 235 (3d Cir. 2004)). The BIA agreed that this “isolated”
incident did not rise to the level of persecution because Sumaila
“was not so injured that he required medical attention and he
was able to run to his friend’s house, which was some distance
away[.]” JA14 (relying on Chen, 381 F.3d at 234-35). That
analysis was based on a misunderstanding of the law and must
be reversed.
16
threats crossed the threshold into persecution, even though
there was no indication that the applicant required medical
care, was unable to run away, or was otherwise physically
harmed. 446 F.3d at 515, 520; see also Herrera-Reyes, 2020
WL 962071, at *8 (holding that, in context, a single death
threat was persecution even without physical harm to the
applicant).5
5
Neither Chen nor Kibinda foreclosed the possibility that
outrageous conduct, even if limited to a single event without
physical harm, could rise to the level of persecution, as was the
case in Chavarria. Indeed, we have since made clear that
physical harm is not required for a threat to be “concrete and
menacing,” so long as it “placed [the applicant’s] life in peril
or created an atmosphere of fear so oppressive that it severely
curtailed [his] liberty.” Herrera-Reyes, 2020 WL 962071, at
*5.
17
more.
18
to his claim. Resp’t Br. 18. We disagree.
19
applicant] to further abuse.
20
The text of this law – equating same-sex male relationships to
sex with an animal – is already a clear indication of the
government’s official position on gay men. Although the law
classifies consensual sex between men as a “misdemeanor,”
Ghana Criminal Code § 104(1)(b), the offense is punishable by
up to three years in prison, Ghana Criminal Procedure Code
§ 296(4).6 Prosecution and disproportionate punishment based
on any of the INA’s protected grounds, including sexual
orientation, are cognizable forms of persecution, “even if the
law is ‘generally’ applicable.” Chang v. I.N.S., 119 F.3d 1055,
1061, 1067 (3d Cir. 1997) (holding that prosecution and
“punishment of up to one year of imprisonment [on account of
political opinion], and perhaps significantly more, are
sufficiently severe to constitute ‘persecution’ under this
Circuit’s standard in Fatin”) (citing Rodriguez-Roman v.
I.N.S., 98 F.3d 416, 431 (9th Cir. 1996), and Matter of Janus
& Janek, 12 I. & N. Dec. 866, 875 (BIA 1968)); accord
Bromfield v. Mukasey, 543 F.3d 1071, 1077 (9th Cir. 2008)
(“Because the prohibition [of homosexual conduct] is directly
6
When a foreign law is raised, federal courts have
discretionary authority to investigate the content of that law
pursuant to Federal Rule of Civil Procedure 44.1, which states
that “the court may consider any relevant material or source
. . . whether or not submitted by a party,” and “the court’s
determination must be treated as a ruling on a question of law.”
See Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092 (9th Cir.
2013) (en banc); Abdille, 242 F.3d at 489-90 n.10 (recognizing
this discretionary authority in the context of reviewing asylum
appeals but declining to exercise it in the circumstances of that
case) (citing Sidali v. I.N.S., 107 F.3d 191, 197 n.9 (3d Cir.
1997)); Sidali, 107 F.3d at 197 (“The determination of foreign
law in the federal courts is a question of law.”).
21
related to a protected ground—membership in the particular
social group of homosexual men—prosecution under the law
will always constitute persecution.”); Perkovic v. I.N.S., 33
F.3d 615, 622 (6th Cir. 1994) (holding that prosecution and
incarceration under a law prohibiting “peaceful expression of
dissenting political opinion” would amount to persecution).
22
LGBTI persons were factors in
preventing victims from reporting
incidents of abuse.
23
individuals” rises to the level of a “human rights problem,”
JA173, and discrimination against LGBTI individuals in
education and employment is “widespread,” JA183. The
report cites data from Ghana’s Commission on Human Rights
and Administrative Justice, showing that “men who have sex
with men” are among the groups of people who have reported
incidents of “stigma and discrimination,” including breaches
of protected health information, blackmail/extortion,
harassment/threats, and violence or physical abuse. JA184.
Amnesty International’s country report confirms that LGBTI
individuals face “discrimination, violence and instances of
blackmail in the wider community.” JA195. Sumaila
submitted other evidence echoing these accounts, including a
letter from his friend stating that “authorities in Ghana ha[ve]
minimal concern[] for gay rights and politicians are always
promising electorates of eradicating gays,” JA162 ¶ 11, as well
as a news report evincing anti-gay political rhetoric ahead of
the 2016 general elections.
24
persons.” JA25. In affirming the IJ’s decision, the BIA
emphasized that, even though sex between men is
criminalized, “the offense is only a misdemeanor.” JA15, 25.
The IJ and the BIA also ignored the fact that “stigma,
intimidation, and the attitude of the police toward LGBTI
persons” are “factors in preventing victims from reporting
incidents of abuse.” JA184. Considering that homophobic
violence goes largely unreported because LGBTI persons fear
harassment and extortion at the hands of police officers, one
case in which anti-gay violence was supposedly prosecuted is
hardly probative of the government’s ability or willingness to
protect gay men. Because the IJ and the BIA disregarded,
mischaracterized and understated evidence favorable to
Sumaila, including relevant portions of his testimony and the
country reports, “the BIA succeeded in reaching a conclusion
not supported by substantial evidence such that we are
compelled to reach a conclusion to the contrary.” Chavarria,
25
446 F.3d at 517-18.
7
In any event, at oral argument, the Government took
seemingly conflicting positions, conceding at one point that
Matter of A-B- does not apply to this case. Given the
Government’s own hesitation in relying on Matter of A-B- in
this case, the relevance of that decision is doubtful at best, so
we see no benefit in remanding to the BIA with instructions to
revisit this issue. We take no position as to whether Matter of
A-B- has materially changed the relevant standard or whether
the Government could properly move to relitigate this issue on
remand. See Grace v. Whitaker, 344 F. Supp. 3d 96, 130, 146
(D.D.C. 2018) (permanently enjoining the Government from
26
In sum, the record before us compels finding that
Sumaila suffered past persecution.
27
rebuttals to credible testimony and other evidence establishing
past persecution.”), abrogated on other grounds by Nbaye v.
Att’y Gen. U.S., 665 F.3d 57 (3d Cir. 2011). The Government
was not held to this burden, nor was Sumaila afforded the
benefit of this favorable presumption, because both the IJ and
the BIA incorrectly concluded that he had not suffered past
persecution.
28
Cir. 2006); Baballah v. Ashcroft, 367 F.3d 1067, 1078 & n.11
(9th Cir. 2004). Thus, we review the IJ’s and the BIA’s future
persecution determination as they made it: putting the burden
on Sumaila.
29
ten percent chance will do. Cardoza-Fonseca, 480 U.S. at 431.
The applicant’s credible testimony alone may be enough to
satisfy this requirement. Dong v. Att’y Gen. U.S., 638 F.3d
223, 228 (3d Cir. 2011) (citing 8 C.F.R. § 208.13(a) (“The
testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration.”)). He may
also rely on the testimony of corroborating witnesses and
evidence of country conditions to bolster his claim. Id.
30
for persecution in Ghana because he is gay. Sumaila credibly
testified that his father is still looking for him and continues to
tell people that he will kill Sumaila when he finds him because
he is ashamed of his sexual orientation. These are not empty
threats. Recall that Sumaila’s father and his cohort beat
Sumaila with iron rods and wooden sticks and dragged him
across the floor from his bedroom into a courtyard, where they
doused him with fuel and brandished a cutlass, all while
threatening to decapitate him or set him on fire. That incident
is indicative of the type of anti-gay violence awaiting Sumaila
if he returns home. See Chavarria, 446 F.3d at 520 (noting
that, even if past threats are not treated as persecution, “they
are often quite indicative of a danger of future persecution”).
Based on Sumaila’s experience, we hold that the ongoing
threats to his life are “menacing and credible” enough to
“imply a risk of future persecution.” R.R.D. v. Holder, 746
F.3d 807, 810 (7th Cir. 2014) (accepting the applicant’s
testimony that his persecutors were still looking for him and
threatening him). The IJ’s and the BIA’s failure to consider
the risk presented by these threats in light of Sumaila’s
experience doomed their future persecution analysis.
31
against LGBTI persons is not illegal. As explained more fully
above, Sumaila cannot count on Ghanaian authorities to protect
him as an outed gay man. When “stigma, intimidation, and the
attitude of the police toward LGBTI persons” are significant
“factors in preventing victims from reporting” anti-gay
violence, JA184, the absence of reported incidents cannot be
dispositive of the degree of risk of future persecution.
32
gay man.8 The Government responds that any future risk of
arrest is not persecution because it would be “arbitrary.” Oral
Arg. at 21:25. That argument misses the mark. The issue is
not arbitrary arrest but state-sanctioned prosecution and
punishment on account of a statutorily protected status. In no
other context would prosecution and disproportionate
punishment based on any of the INA’s protected grounds be
anything other than persecution. If Sumaila were facing these
risks because of his religious beliefs or political opinion, we
would not hesitate to find an objectively reasonable fear of
future persecution in these circumstances. See, e.g., Chang,
119 F.3d at 1067 (finding reasonable fear of future persecution
based on the risk of being prosecuted and incarcerated for up
to a year or more on account of political opinion).
8
Incarceration is not the only risk. According to the State
Department country report, “[g]ay men in prison were often
subjected to sexual and other physical abuse.” JA183-84.
Nothing in the record suggests that Ghanaian authorities are
making any efforts to combat that sort of homophobic
violence.
33
that it was “more likely than not” that he would be persecuted
“on account of his sexual orientation,” and ruled that “the
record [did] not compel the conclusion that there [was] a
‘systematic, pervasive, or organized’ pattern or practice of
persecution of LGBT persons in Honduras,” to warrant
withholding of removal. Id. Notably, unlike here, there was
no indication that Honduras criminalizes same-sex male
relationships. And, unlike here, “the Honduran government
ha[d] established a special unit in the attorney general’s office
to investigate crimes against LGBT persons and other
vulnerable groups.” Id. Inversely, here, unlike in Gonzalez-
Posadas, there is no dispute that Sumaila was targeted because
of his sexual orientation.
34
evidence. Sumaila has reason to believe his father is still
looking for him. Nothing in the record suggests that Sumaila’s
father cannot travel freely around the country in search of
Sumaila. Considering that Ghana’s criminalization of same-
sex male relationships is country-wide, and that “widespread,”
JA183, homophobia and anti-gay abuse is a “human rights
problem,” JA173, relocation is not an effective option for
escaping persecution.
35
“UNHCR Sexual Orientation Guidelines”] (“Even if
irregularly, rarely or ever enforced, criminal laws prohibiting
same-sex relations could lead to an intolerable predicament for
an LGB person rising to the level of persecution.”).9 Thus, on
this record, Sumaila has made a compelling case that moving
to another part of the country is not an effective or reasonable
means of avoiding persecution.
* * *
9
The introduction to the UNHCR Sexual Orientation
Guidelines notes that they are intended to “complement the
UNHCR Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention
(Reissued, Geneva, 2011).” While these sources lack the
“force of law,” they provide “significant guidance” for
processing asylum claims in accordance with international
standards in the United States. Chang, 119 F.3d at 1061-62
(quoting Cardoza-Fonseca, 480 U.S. at 439 n.22); see, e.g.,
Bringas-Rodriguez, 850 F.3d at 1057 n.2 (referencing UNHCR
Sexual Orientation Guidelines); N-A-M v. Holder, 587 F.3d
1052, 1061 (10th Cir. 2009) (Henry, J., concurring) (noting
that “our Supreme Court has consistently turned for assistance
[to UNHCR] in interpreting our obligations under the Refugee
Convention”).
36
of removal is nondiscretionary if the applicant can show a
“clear probability” of future persecution, i.e., that the feared
persecution is “more likely than not” to occur. Gonzalez-
Posadas, 781 F.3d at 684, 687.
37
BIA, if necessary, to reconsider on remand the question of
whether Sumaila has satisfied the heightened standard for
withholding of removal consistent with our finding that he
suffered past persecution and has a well-founded fear of future
persecution.10
IV. CONCLUSION
10
In case the BIA decides to remand to the IJ for any reason,
we caution the IJ to exercise greater sensitivity when
processing Sumaila’s application, as we are troubled by some
of the IJ’s comments and questions. In addition to suggesting
that Sumaila would be better off hiding his identity as a gay
man, the IJ questioned Sumaila in explicit detail about his
sexual relations with Inusah, going so far as to ask about sexual
positions. It is unclear why that line of questioning would be
relevant to Sumaila’s claim, but to the extent those questions
were intended to establish or test his self-identification as a gay
man, they were off base and inappropriate. We urge IJs to heed
sensible questioning techniques for all applicants, including
LGBTI applicants. See Razkane v. Holder, 562 F.3d 1283,
1288 (10th Cir. 2009) (censuring an IJ for relying on his own
misguided stereotypes of gay men); Ali v. Mukasey, 529 F.3d
478, 492 (2d Cir. 2008) (cautioning against “impermissible
reliance on preconceived assumptions about homosexuality
and homosexuals”); USCIS, RAIO Directorate – Officer
Training: Guidance for Adjudicating Lesbian, Gay, Bisexual,
Transgender, and Intersex (LGBTI) Refugee and Asylum
Claims 34 (Dec. 28, 2011) (“The applicant’s specific sexual
practices are not relevant to the claim for asylum or refugee
status. Therefore, asking questions about ‘what he or she does
in bed’ is never appropriate.”); UNHCR Sexual Orientation
38
well-founded fear of future persecution on account of his
sexual orientation and identity as a gay man, he qualifies as a
refugee under the INA. Therefore, we will vacate the BIA’s
decision and remand for further proceedings consistent with
this opinion.11
39