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April 23, 2009

Tenth Circuit reverses immigration judge's gay stereotyping

Tarik Razkane remained in the United States beyond the period authorized by his non-immigrant visa.  After the government sought to remove him, Razkane argued before an immigration judge that if he were returned to his native Morocco, he would be persecuted because of his homosexuality. 

That's when things got interesting.  According to an opinion issued Tuesday by the 10th Circuit US Court of Appeals, at Razkane's hearing,

[t]he government asked multiple questions involving the assumption that certain individuals appear “gay.” Specifically, at one point, the government’s lawyer asked Razkane if Moroccan people would identify him as gay by the way he talked, dressed, and moved. Razkane answered in the affirmative. The government lawyer went on to ask Razkane’s country conditions expert his opinion as to what would happen to someone who “looked . . . gay” while walking the streets in Morocco, to which the expert responded “Ma’am, I’m sorry, I can’t help you with that. I just don’t know what it means to look like a gay.” In his oral ruling, the IJ found 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.”

In its decision reversing the Board of Immigration Appeals, the 10th Circuit chastised the IJ's reasoning.

The IJ’s homosexual stereotyping ... precludes meaningful review in this case. The IJ’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. From that conclusion, the IJ determined Razkane had not made a showing it was more likely than not that he would face persecution in Morocco. 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 fair adjudication of a claim for restriction on removal is dependent on a system grounded in the requirement of substantial evidence and free from vagaries flowing from notions of the assigned IJ. Such stereotyping would not be tolerated in other contexts, such as race or religion.

The full opinion can be found here.

-SS

April 23, 2009 | Permalink

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