ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

< Go back to Immigration Daily

-------------------------------------------------------------------------------
 Case Name:
HERNANDEZ-MONTIEL V INS 
Case Number: Date Filed: 
98-70582				08/24/00 
--------------------------------------------------------------------------------
FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

GEOVANNI HERNANDEZ-MONTIEL,
Petitioner, 						No. 98-70582

v. 							INS No. A72-994-275

IMMIGRATION AND NATURALIZATION
SERVICE, 						OPINION
Respondent.

On Petition for Review of an Order of the
Immigration and Naturalization Service

Argued and Submitted
December 8, 1999--Pasadena, California

Filed August 24, 2000

Before: Melvin Brunetti and A. Wallace Tashima,
Circuit Judges, and William W Schwarzer,* District Judge.

Opinion by Judge Tashima;
Concurrence by Judge Brunetti

_________________________________________________________________

*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.


COUNSEL

Robert S. Gerber, Sheppard, Mullin, Richter & Hampton LLP, San Diego, California, for the petitioner.

Alice E. Loughran, United States Department of Justice, Washington, D.C., for the respondent.

Taylor Flynn, Los Angeles, California, Suzanne Goldberg, New York, New York, Jon W. Davidson, Los Angeles, California, and Shannon Minter, San Francisco, California, for

                               10468


amici curiae American Civil Liberties Union of Southern Cal-
ifornia, Lambda Legal Defense & Education Fund, Inc.,
National Center for Lesbian Rights, and International Gay and
Lesbian Human Rights Commission.

_________________________________________________________________

OPINION

TASHIMA, Circuit Judge:

Geovanni Hernandez-Montiel ("Geovanni"),1 a native and
citizen of Mexico, seeks review of a decision of the Board of
Immigration Appeals ("BIA"), denying his application for
both asylum and withholding of deportation. The BIA dis-
missed Geovanni's appeal because it agreed with the immi-
gration judge ("IJ") that Geovanni failed to show that he was
persecuted, or that he had a well-founded fear of future perse-
cution, on account of his membership in a particular social
group.

The primary issue we must decide is whether gay men with
female sexual identities in Mexico constitute a protected "par-
ticular social group" under the asylum statute. We conclude
as a matter of law that gay men with female sexual identities
in Mexico constitute a "particular social group " and that
Geovanni is a member of that group. His female sexual iden-
tity is immutable because it is inherent in his identity; in any
event, he should not be required to change it. Because the evi-
dence compels the conclusion that Geovanni suffered past
persecution and has a well-founded fear of future persecution
if he were forced to return to Mexico, we conclude that the
record compels a finding that he is entitled to asylum and
withholding of deportation.
_________________________________________________________________
1 As does petitioner in his own briefs, we refer to Petitioner as "Geovan-
ni," because he was a minor during the relevant events at issue.

                               10469


I. FACTUAL BACKGROUND

Geovanni testified that, at the age of eight, he "realized that
[he] was attracted to people of [his] same sex." At the age of
12, Geovanni began dressing and behaving as a woman.

He faced numerous reprimands from family and school
officials because of his sexual orientation. His mother regis-
tered him in a state-run Mexican school and informed the
school authorities about what she deemed to be his "prob-
lem," referring to his sexual orientation. School authorities
directed Geovanni to stop socializing with two gay friends.
The father of a schoolmate grabbed Geovanni by the arm and
threatened to kill him for "perverting" his son. He was even
prevented from attending a school dance because of the way
he was dressed. Shortly after the dance, the school asked
Geovanni's mother to consent to his expulsion because he
was not acting appropriately. He could not enroll in another
school because the school refused to transfer his paperwork
until he agreed to change his sexual orientation. Geovanni's
parents threw him out of their home the day after his expul-
sion.

Beyond his school and family, Geovanni also suffered
harassment and persecution at the hands of Mexican police
officers. On numerous occasions, the Mexican police detained
and even strip-searched Geovanni because he was walking
down the street or socializing with other boys also perceived
to be gay. In 1992, the Mexican police twice arrested
Geovanni and a friend. The police told them that it was illegal
for homosexuals to walk down the street and for men to dress
like women. The police, however, never charged Geovanni
with any crime.

Police officers sexually assaulted Geovanni on two separate
occasions. In November 1992, when Geovanni was 14 years
old, a police officer grabbed him as he was walking down the
street, threw him into the police car, and drove to an uninhab-

                               10470


ited area. The officer demanded that Geovanni take off his
clothes. Threatening him with imprisonment if he did not
comply, the officer forced Geovanni to perform oral sex on
him. The officer also threatened to beat and imprison
Geovanni if he ever told anyone about the incident.

Approximately two weeks later, when Geovanni was at a
bus stop with a gay friend one evening, the same officer
pulled up in a car, accompanied by a second officer. The offi-
cers forced both boys into their car and drove them to a
remote area, where they forced the boys to strip naked and
then separated them. One of the officers grabbed Geovanni by
the hair and threatened to kill him. Holding a gun to his tem-
ple, the officer anally raped Geovanni. Geovanni believes that
his friend was also raped, although his friend refused to talk
about the incident. Even before the boys could get dressed,
the police officers threatened to shoot if they did not start run-
ning. The boys were left stranded in an abandoned area.

A few months after the second assault, in February 1993,
Geovanni was attacked with a knife by a group of young men
who called him names relating to his sexual orientation. He
was hospitalized for a week while recovering from the attack.

Geovanni fled to the United States in October 1993, when
he was 15 years old. He was arrested within a few days of his
October 1993 entry.2 When Geovanni returned to Mexico to
live with his sister, she enrolled him in a counseling program,
which ostensibly attempted to "cure" his sexual orientation by
altering his female appearance. The program staff cut his hair
and nails, and forced him to stop taking female hormones.
_________________________________________________________________
2 Geovanni testified that while he was walking down the street in San
Diego dressed in women's clothing, a man in a car pulled up and offered
money in exchange for sex. Geovanni said he would not have sex, but
asked the man for a ride. When the car turned the corner, police officers
were waiting to arrest him. Geovanni was held in jail in San Diego for a
week. There is no documentary evidence concerning the arrest in the
record.

                               10471


Geovanni remained in the program from late January to late
March 1994. Because his sister saw no changes in him, she
brought Geovanni home to live with her. Soon thereafter,
however, she forced Geovanni out of her house because he
was not "cured" of his gay sexual orientation, despite his
change in appearance. He again sought refuge in the United
States.

II. PROCEDURAL BACKGROUND

After a number of attempts to re-enter the United States,
Geovanni last entered on or around October 12, 1994, without
inspection. He filed an application for asylum and withhold-
ing of deportation on February 22, 1995.

At his asylum hearing, Geovanni presented the testimony
of Thomas M. Davies, Jr., a professor at San Diego State Uni-
versity and an expert in Latin American history and culture.
Professor Davies, who has lived for extended periods of time
in Mexico and elsewhere in Latin America, testified that cer-
tain homosexuals in Latin America are subjected to greater
abuse than others. Professor Davies testified that it is "accept-
ed" that "in most of Latin America a male before he marries
may engage in homosexual acts as long as he performs the
role of the male." A male, however, who is perceived to
assume the stereotypical "female," i.e. , passive, role in these
sexual relationships is "ostracized from the very beginning
and is subject to persecution, gay bashing as we would call it,
and certainly police abuse." Professor Davies testified that
these gay men with "female" sexual identities in Mexico are
"heavily persecuted by the police and other groups within the
society. . . . [They are] a separate social entity within Latin
American society and in this case within the nation of Mexi-
co." According to Professor Davies, it is commonplace for
police to "hit the gay street . . . and not only brutalize but
actually rape with batons . . . homosexual males that are
dressed or acting out the feminine role."

                               10472


Professor Davies testified that gay men with female sexual
identities are likely to become scapegoats for Mexico's pres-
ent economic and political problems, especially since the
recent collapse of the Mexican economy. Professor Davies
specifically noted that Geovanni is "a homosexual who has
taken on a primarily `female' sexual role." Based on his
expert knowledge, review of Geovanni's case, and interaction
with Geovanni, Professor Davies opined that Geovanni would
face persecution if he were forced to return to Mexico.

The IJ denied Geovanni asylum on both statutory and dis-
cretionary grounds. The IJ determined that Geovanni's testi-
mony was "credible," "sincere," "forthright," "rational," and
"coherent." The IJ found, however, that Geovanni had failed
to demonstrate persecution "on account of a particular social
group," classifying his social group as "homosexual males
who wish to dress as a woman [sic.]." The IJ noted that
Geovannni "has altered certain outward physical attributes
and his manner of dress to resemble a woman." The IJ found
Geovanni's female gender identity not to be immutable,
explaining:

      If he wears typical female clothing sometimes, and
      typical male clothing other times, he cannot charac-
      terize his assumed female persona as immutable or
      fundamental to his identity. The record reflects that
      respondent's decision to dress as a women [sic ] is
      volitional, not immutable, and the fact that he some-
      times dresses like a typical man reflects that respon-
      dent himself may not view his dress as being so
      fundamental to his identity that he should not have
      to change it.

The IJ further found that Geovanni was not entitled to discre-
tionary eligibility and denied voluntary departure in the exer-
cise of discretion.

The BIA dismissed Geovanni's appeal from the IJ's deci-
sion. The BIA agreed that Geovanni gave credible testimony,

                               10473


but found that he failed to establish his statutory eligibility for
asylum. The BIA found that Geovanni did not meet his bur-
den of "establishing that the abuse he suffered was because of
his membership in a particular social group," which the BIA
classified as "homosexual males who dress as females." Con-
cluding that the "tenor of the respondent's claim is that he
was mistreated because of the way he dressed (as a male pros-
titute) and not because he is a homosexual," the BIA found
that Geovanni failed to show that "his decision to dress as a
female was an immutable characteristic." The BIA did not
reach the alternative decision of whether Geovanni estab-
lished his eligibility for asylum in the exercise of discretion,
and it denied Geovanni's request for voluntary departure in
the exercise of discretion.

III. JURISDICTION

The BIA had jurisdiction over this matter pursuant to 8
C.F.R. SS 3.1(b)(2) & 3.38. We have jurisdiction over the
timely petition for review under S 106(a) of the Immigration
and Nationality Act ("INA"), 8 U.S.C. S 1105a(a), as modi-
fied by the transitional rules for judicial review in S 309(c)(4)
of the Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (Sept.
30, 1996) ("IIRIRA").3

The Immigration and Naturalization Service ("INS") argues
that we do not have jurisdiction because Geovanni allegedly
admitted that he was convicted of prostitution in the United
States and because he refused to answer questions about his
involvement in the juvenile court system. This argument is
_________________________________________________________________
3 IIRIRA's transitional rules govern our review because Geovanni's pro-
ceedings began on January 2, 1996, and the BIA dismissed his appeal on
April 27, 1998. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997)
(holding that IIRIRA's transitional rules govern in cases in which deporta-
tion proceedings began before April 1, 1997, and final orders of deporta-
tion entered after October 30, 1996).

                               10474


wholly without merit. Under IIRIRA S 309(c)(4)(G), "there
shall be no appeal permitted in the case of an alien who is
inadmissible or deportable by reason of having committed a
criminal offense covered in section 212(a)(2) . . . ." INA
S 212(a)(2)(A)(i)(I) makes an alien ineligible for admission
who has been "convicted of, or who admits having commit-
ted, or who admits committing acts which constitute the
essential elements of . . . a crime involving moral turpitude
. . . ." 8 U.S.C. S 1181(a)(2)(A)(i)(I).

Under IIRIRA S 309(c)(4)(G), however, the INS' mere
allegation that a crime was committed is insufficient to bar
appellate jurisdiction. In the Order to Show Cause ("OSC"),
the INS must charge the crimes for which an alien is subject
to deportation under IIRIRA S 309(c)(4)(G). See Briseno v.
INS, 192 F.3d 1320, 1323 (9th Cir. 1999) (explaining that this
court does "not read `deportable by reason of having commit-
ted' [a crime], IIRIRA S 309(c)(4)(G), as referring to felonies
not charged at all in the Order to Show Cause"). The OSC
alleged only that Geovanni was subject to deportation because
he entered the United States without inspection by an immi-
gration officer, in violation of INA S 241(a)(1)(B). Because
the INS did not charge Geovanni with any crime of moral tur-
pitude in the OSC, IIRIRA S 309(c)(4)(G) does not divest this
court of jurisdiction.

IV. DISCUSSION

A. Standard of Review

Because the BIA conducted an independent review of the
record, our review is limited to the BIA's decision. See Gon-
zalez v. INS, 82 F.3d 903, 907 (9th Cir. 1996); Yepes-Prado
v. INS, 10 F.3d 1363, 1367 (9th Cir. 1993) (holding that the
BIA conducts de novo review when it makes an independent
judgment of the record).

We review de novo determinations by the BIA of purely
legal questions concerning requirements of the INA. See Vang

                               10475


v. INS, 146 F.3d 1114, 1116 (9th Cir. 1998). We examine the
BIA's factual findings under the substantial evidence stan-
dard. See Marcu v. INS, 147 F.3d 1078, 1082 (9th Cir. 1998)
("Our task is to determine whether there is substantial evi-
dence to support the BIA's finding, not to substitute an analy-
sis of which side in the factual dispute we find more
persuasive."), cert. denied, 119 S. Ct. 1496 (1999). Under the
substantial evidence standard, "[w]e will uphold the BIA's
determination unless the evidence compels a contrary conclu-
sion." Prasad v. INS, 101 F.3d 614, 616-17 (9th Cir. 1996)
(citation omitted).

B. General Framework

[1] The Attorney General may, in her discretion, grant asy-
lum to an applicant determined to be a refugee, within the
meaning of S 101(a)(42)(A) of the INA, 8 U.S.C.
S 1101(a)(42)(A). An alien establishes refugee status if he is
unable or unwilling to return to his country of nationality
either because: (1) he was persecuted in the past; or (2) he has
a well-founded fear of future persecution "on account of race,
religion, nationality, membership in a particular social group,
or political opinion." INA S 101(a)(42)(A), 8 U.S.C.
S 1101(a)(42)(A) (emphasis added); see also INS v. Cardoza-
Fonseca, 480 U.S. 421, 423 (1987); Korablina v. INS, 158
F.3d 1038, 1043 (9th Cir. 1998). The Attorney General must
withhold deportation of any asylum applicant who establishes
a "clear probability of persecution," which is a stricter stan-
dard than the "well-founded fear" standard for asylum. INS v.
Stevic, 467 U.S. 407, 430 (1984).

[2] The applicant has the burden of proving his eligibility
with "credible, direct, and specific evidence. " Prasad, 47 F.3d
at 338 (citation omitted). We have held that where "the IJ
expressly finds certain testimony to be credible, and where the
BIA makes no contrary finding, we accept as indisputed the
testimony given at the hearing before the IJ." Velarde v. INS,
140 F.3d 1305, 1309 (9th Cir. 1998) (internal quotation marks

                               10476


and citations omitted). Here, the IJ found Geovanni's testi-
mony to be "credible," "sincere," "forthright," "rational," and
"coherent." The BIA agreed that "the respondent testified
credibly regarding the events that occurred in his life." Thus,
we also accept Geovanni's testimony.

C. Membership in a "Particular Social Group"

[3] This case turns on the legal question of whether
Geovanni was persecuted on account of his membership in a
"particular social group." See Fatin v. INS, 12 F.3d 1233,
1239-42 (3d Cir. 1993) (reviewing de novo legal question of
what constitutes a "particular social group"). Whether
Geovanni is a member of a particular group is a question of
fact, to which we apply the substantial evidence test. See Pra-
sad, 101 F.3d at 616-17. We first conclude that, as a matter
of law, the appropriate "particular social group " is that group
in Mexico made up of gay men with female sexual identities.
Second, we conclude that the evidence compels the conclu-
sion that Geovanni is a member of that group and was perse-
cuted on account of his membership in that "particular social
group."

      1. Defining "Particular Social Group"

There is no definition of "particular social group" in the
INA. The BIA, however, has recognized that the language
comes directly from the United Nations Protocol Relating to
the Status of Refugees ("Protocol"). See Matter of Acosta, 19
I. & N. Dec. 211, 232 (BIA 1985). When Congress ratified
the Protocol on October 4, 1968, it did not shed any further
light on the definition of "particular social group." See
Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986).

The case law regarding the definition of "particular social
group" is not wholly consistent. In Acosta , 19 I. & N. Dec. at
233, the BIA interpreted "persecution on account of member-
ship in a particular social group" to mean "persecution that is

                               10477


directed toward an individual who is a member of a group of
persons all of whom share a common, immutable characteris-
tic." The BIA explained that:

      The shared characteristic might be an innate one
      such as sex, color, or kinship ties, or in some circum-
      stances it might be a shared past experience such as
      former military leadership or land ownership. The
      particular kind of group characteristic that will qual-
      ify under this construction remains to be determined
      on a case-by-case basis. However, whatever the
      common characteristic that defines the group, it must
      be one that the members of the group either cannot
      change, or should not be required to change because
      it is fundamental to their individual identities or con-
      sciences.

Id. The BIA held that a group of taxi drivers did not meet the
immutable characteristic requirement because an occupation
can change; thus, driving a taxi is not fundamental to a per-
son's identity. The BIA's interpretation is entitled to some
deference. See Arrieta v. INS, 117 F.3d 4289, 430 (9th Cir.
1996) (citing Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843-44 (1984)).

The First, Third, and Seventh Circuits have adopted
Acosta's immutability analysis. See Ananeh-Firempong v.
INS, 766 F.2d 621, 626 (1st Cir. 1985) (recognizing Acosta in
determining that family relations can be the basis of a "partic-
ular social group"); Fatin, 12 F.3d at 1239-41 (noting that the
subgroup of Iranian feminists who refuse to conform to the
government's gender-specific laws and social norms could
satisfy the statutory concept of "particular social group")
(internal quotation marks omitted); Lwin v. INS , 144 F.3d
505, 511-12 (7th Cir. 1998) (recognizing parents of Burmese
student dissidents as part of a social group because they share
a "common, immutable characteristic").

                               10478


In Sanchez-Trujillo, 801 F.2d at 1576, we acknowledged
that the social group category "is a flexible one which extends
broadly to encompass many groups who do not otherwise fall
within the other categories of race, nationality, religion, or
political opinion." We stated that:

      "particular social group" implies a collection of peo-
      ple closely affiliated with each other, who are actu-
      ated by some common impulse or interest. Of central
      concern is the existence of a voluntary associational
      relationship among the purported members, which
      imparts some common characteristic that is funda-
      mental to their identity as a member of that discrete
      social group.

Id. (footnote omitted).

The Sanchez-Trujillo court held that the class of working
class, urban males of military age who maintained political
neutrality in El Salvador did not constitute a "particular social
group" for which the immigration laws provide protection
from persecution. See id. at 1576-77 (indicating that cogniza-
ble groups cannot "encompass every broadly defined segment
of a population" but should be a "small, readily identifiable
group") (citations omitted).

We are the only circuit to suggest a "voluntary associa-
tional relationship" requirement. Id. at 1576. The Seventh Cir-
cuit has noted that this requirement "read literally, conflicts
with Acosta's immutability requirement." Lwin, 144 F.3d at
512. Moreover, in Sanchez-Trujillo, we recognized a group of
family members as a "prototypical example" of a "particular
social group."4 801 F.2d at 1576. Yet, biological family rela-
tionships are far from "voluntary." We cannot, therefore,
_________________________________________________________________
4 We have since held that a family cannot constitute a particular social
group under 8 U.S.C. S 1101(a)(42)(A). See Estrada-Posadas v. United
States INS, 924 F.2d 916, 919 (9th Cir. 1991).

                               10479


interpret Sanchez-Trujillo's "central concern" of a voluntary
associational relationship strictly as applying to every qualify-
ing "particular social group." For, as Sanchez-Trujillo itself
recognizes, in some particular social groups, members of the
group are not voluntarily associated by choice. 5

[4] We thus hold that a "particular social group" is one
united by a voluntary association, including a former associa-
tion, or by an innate characteristic that is so fundamental to
the identities or consciences of its members that members
either cannot or should not be required to change it.6

      2. Sexual Identity as Basis for "Particular Social
      Group"

[5] Sexual orientation and sexual identity are immutable;
they are so fundamental to one's identity that a person should
not be required to abandon them. Many social and behavioral
scientists "generally believe that sexual orientation is set in
place at an early age." Susan B. Goldberg, Give Me Liberty
_________________________________________________________________
5 Further, the statement inSanchez-Trujillo that "[o]f centralconcern is
the existence of a voluntary associational relationship among the pur-
ported members," 801 F.2d at 1576, is not essential to the holding of the
case that the group -- non-political, young, urban males -- was simply
too "all-encompassing" to be "the type of cohesive, homogeneous group
to which . . . the term `particular social group' was intended to apply." Id.
A group, such as a family, can be cohesive and homogeneous, without the
existence of a voluntary associational relationship.
6 This formulation recognizes the holding of Sanchez-Truijillo and har-
monizes it with Acosta's immutability requirement. It is similar to the
Supreme Court of Canada's definition of the term:

      A "particular social group "includes (1) groups defined by an
      innate or unchangeable characteristic; (2) groups whose members
      voluntarily associate for reasons so fundamental to their human
      dignity that they should not be forced to forsake that association;
      and (3) groups associated by a former voluntary status, unalter-
      able due to its historical importance.

Canada (Attorney General) v. Ward [1993] S.C.R. 689.

                               10480


or Give Me Death: Political Asylum and the Global Persecu-
tion of Lesbians and Gay Men, 26 Cornell Int'l L.J. 605, 614
n.56 (1993). The American Psychological Association has
condemned as unethical the attempted "conversion " of gays
and lesbians. See id. Further, the American Psychiatric Asso-
ciation and the American Psychological Association have
removed "homosexuality" from their lists of mental disorders.
See Boy Scouts of America v. Dale, 120 S. Ct. 2446, 2478
(2000) (Stevens, J. dissenting).

[6] Sexual identity is inherent to one's very identity as a
person. See Alfred Kinsey, et al., "Sexual Behavior in the
Human Male," in Cases and Materials on Sexual Orientation
and the Law 1, 7 (William B. Rubenstein ed., 2d ed., 1997)
("Even psychiatrists discuss `the homosexual personality' and
many of them believe that preferences for sexual partners of
a particular sex are merely secondary manifestations of some-
thing that lies much deeper in the totality of that intangible
which they call the personality."); cf. Gay Rights Coalition of
Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d
1, 35 (D.C. 1987) (observing that "homosexuality encom-
passes far more than people's sexual proclivities. Too often
homosexuals have been viewed simply with reference to their
sexual interests and activity. Usually the social context and
psychological correlates of homosexual experience are largely
ignored . . . ") (internal quotation marks and citations omit-
ted). Sexual identity goes beyond sexual conduct and mani-
fests itself outwardly, often through dress and appearance. See
Kenji Yoshino, Suspect Symbols: The Literary Argument for
Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753, 1775
n.3 (1996) (defining gay identity as "the shared experience of
having a sexual attachment to persons of the same sex and the
oppression experienced because of that attachment"); Naomi
Mezey, Dismantling the Wall: Bisexuality and the Possibili-
ties of Sexual Identity Classification Based on Acts , 10 Berke-
ley Women's L.J. 98, 100-03 (1995) (discussing the
relationship of identity and conduct in arguing that
"[s]eparating the way we speak of sexual acts and sexual

                               10481


identities is crucial" and arguing that the traditional binary
system of heterosexuals and homosexuals is too restrictive);
see also Gilbert Herdt, Same Sex, Different Cultures: Explor-
ing Gay and Lesbian Lives 20 (1997).

In Gay Rights Coalition of Georgetown Univ. Law Ctr., the
District of Columbia Court of Appeals noted that:

      [H]omosexuality is as deeply ingrained as heterosex-
      uality. . . . [E]xclusive homosexuality probably is so
      deeply ingrained that one should not attempt or
      expect to change it. Rather, it would probably make
      far more sense simply to recognize it as a basic com-
      ponent of a person's core identity.

Gay Rights Coalition of Georgetown Univ. Law Ctr., 536
A.2d at 34-35 (quoting A. Bell, M. Weinberg & S. Hammer-
smith, Sexual Preference--Its Development in Men and
Women 190, 211 (1981)).

[7] Under the BIA's decision in Toboso-Alfonso, 20 I. & N.
Dec. 819, 820-23 (BIA 1990), sexual orientation can be the
basis for establishing a "particular social group " for asylum
purposes. In Toboso-Alfonso, the Cuban government had reg-
istered and tracked homosexual men for investigation over
many years. See id. at 820-21. The INS did not contest that
homosexuality is an immutable characteristic, and the BIA
held that sexual orientation establishes membership in a "par-
ticular social group." See id. at 822-23. The Attorney General
has designated the decision in Toboso-Alfonso  to be "prece-
dent in all proceedings involving the same issue or issues."
Attorney General Order No. 1895 (June 19, 1994).

In determining that sexual orientation and sexual identity
can be the basis for establishing a "particular social group,"
we also find persuasive the reasoning in Matter of Tenorio,
No. A72-093-558 (IJ July 26, 1993). In Tenorio , the IJ
granted asylum to a Brazilian gay man who had been beaten

                               10482


and stabbed by a group of people in Rio de Janeiro, who
repeatedly used anti-gay epithets. The IJ found that Tenorio
had a well-founded fear of future persecution due to his mem-
bership in a "particular social group" based on his sexual ori-
entation. See id. at 11. The BIA adopted the IJ's reasoning
and dismissed the INS' appeal. See Matter of Tenorio, No.
A72-093-558 (BIA 1999) (per curiam). The BIA held that the
IJ's decision "correctly concludes that the respondent has
established persecution or a well-founded fear of future perse-
cution on account of one of the five grounds enumerated" in
the INA. Id.

      3. Particular Social Group of Gay Men with Female
      Sexual Identities in Mexico

[8] Based on the reasoning of the authorities discussed
above, we conclude that the appropriate "particular social
group" in this case is composed of gay men with female sex-
ual identities in Mexico. Although not necessary to establish
the "particular social group," the testimony of Professor
Davies is helpful to our analysis. Professor Davies testified
that gay men with female sexual identities in Mexico are
"heavily persecuted by the police and other groups within the
society. . . . [T]hey are a separate social entity within Latin
American society and in this case within the nation of Mexi-
co." Professor Davies expressly noted that as a subset of the
gay male population, men with female sexual identities, are
"ostracized from the beginning and [ ] subject to persecution,
gay bashing as we would call it, and certainly police abuse."

[9] We thus conclude that the BIA erred in defining the
"particular social group" as "homosexual males who dress as
females." Professor Davies did not testify that homosexual
males are persecuted simply because they may dress as
females or because they engage in homosexual acts. Rather,
gay men with female sexual identities are singled out for per-
secution because they are perceived to assume the stereotypi-
cal "female," i.e., passive, role in gay relationships. Gay men

                               10483


with female sexual identities outwardly manifest their identi-
ties through characteristics traditionally associated with
women, such as feminine dress, long hair and fingernails.

Gay men with female sexual identities in Mexico are a
"small, readily identifiable group." Sanchez-Trujillo, 801 F.2d
at 1576 (citation omitted). Their female sexual identities unite
this group of gay men, and their sexual identities are so funda-
mental to their human identities that they should not be
required to change them. We therefore conclude as a matter
of law that the "particular social group" in this case is com-
prised of gay men with female sexual identities in Mexico.

      4. Geovanni's Membership

[10] We find that the evidence compels the conclusion that
Geovanni is a member of the "particular social group" of gay
men in Mexico with female sexual identities. Professor
Davies specifically classified Geovanni as "a homosexual
who has taken on a primarily `female' sexual role."7 Geovanni
has known that he was gay from the age of eight and began
dressing as a woman when he was 12. He socialized with
other gay boys in school, which led to his eventual expulsion.
The BIA found that the police "temporarily detained [him] for
_________________________________________________________________
7 In addition to being a gay man with a female sexual identity, Geovan-
ni's brief states that he "may be considered a transsexual." A transsexual
is "a person who is genetically and physically a member of one sex but
has a deep-seated psychological conviction that he or she belongs, or
ought to belong, to the opposite sex, a conviction which may in some
cases result in the individual's decision to undergo surgery in order to
physically modify his or her sex organs to resemble those of the opposite
sex." Deborah Tussey, Transvestism or Transsexualism of Spouse as Justi-
fying Divorce, 82 A.L.R. 3d n. 2 (2000); see Farmer v. Haas, 990 F.2d
319, 320 (7th Cir. 1993) (Posner, J.) ("The disjunction between sexual
identity and sexual organs is a source of acute psychological suffering that
can, in some cases anyway, be cured or at least alleviated by sex reassign-
ment -- the complex of procedures loosely referred to as `a sex-change
operation.' "). We need not consider in this case whether transsexuals con-
stitute a particular social group.

                               10484


walking the street and socializing with other young homosex-
ual men." He was sexually assaulted twice by the police.
After placing him in a therapy program to "convert" his sexu-
ality, his sister eventually "realized that I was the same and
the only thing that had changed was the fact that they had cut
my hair and cut my nails." Geovanni's female sexual identity
must be fundamental, or he would not have suffered this per-
secution and would have changed years ago. See Fatin, 12
F.3d at 1241 (noting that "if a woman's opposition to the Ira-
nian laws in question is so profound that she would choose to
suffer the severe consequences of noncompliance, her beliefs
may well be characterized as `so fundamental to[her] identity
or conscience that [they] ought not be required to change it")
(quoting Acosta, 19 I. & N. Dec. at 234).

[11] Geovanni should not be required to change his sexual
orientation or identity. See Acosta, 19 I. & N. Dec. at 234;
Tenorio, No. A72-093-558 (IJ) at 14 ("Sexual orientation is
arguably an immutable characteristic, and one which an asy-
lum applicant should not be compelled to change."). Because
we conclude that Geovanni should not be required to change
his sexual orientation or identity, we need not address whether
Geovanni could change them. Geovanni's credible and uncon-
tradicted testimony about the inherent and immutable nature
of his sexual identity compels the conclusion that Geovanni
was a member of the particular social group of gay men in
Mexico with female sexual identities.

[12] The BIA erroneously concluded that "tenor of
[Geovanni's] claim is that he was mistreated because of the
way he dressed (as a male prostitute) and not because he is a
homosexual." This statement is not supported by substantial
evidence; in fact, it is wholly unsupported by any evidence in
the record. There is no evidence that Geovanni was a male
prostitute, and we do not venture to guess the non-record
basis of the BIA's assumption of how a male prostitute dresses.8
_________________________________________________________________
8 The only explicit reference to prostitution in the record is the INS attor-
ney's question to Geovanni about whether he had ever worked as "a
homosexual prostitute in the United States." Geovanni answered that he
had not.

                               10485


The BIA stressed that Geovanni could not remember how
he was dressed on one occasion when he was arrested cross-
ing the border between the United States and Mexico. The
BIA, therefore, agreed with the IJ that "the decision to dress
as a female was a volitional act, not an immutable trait."
Geovanni did testify that he dresses as a man when he is
going to a place where an effeminate style of dress would not
be appropriate. That Geovanni could not remember how he
was dressed on one occasion several years before does not
support the BIA's conclusion that, because Geovanni can
change his clothes, he can change his identity as quickly as
the taxi drivers in Acosta can change jobs.

This case is about sexual identity, not fashion. Geovanni is
not simply a transvestite "who dresses in clothing of the oppo-
site sex for psychological reasons." American Heritage Dic-
tionary 1289 (2d Coll. Ed.) (1985). Rather, Geovanni
manifests his sexual orientation by adopting gendered traits
characteristically associated with women.

D. "On Account Of "

[13] Geovanni must show that he was persecuted "on
account of" his "membership in the particular social group."
INA S 101(a)(42)(A); 8 U.S.C. S 1101(a)(42)(A). In satisfy-
ing the "on account of" requirement, the evidence compels a
finding that Geovanni's sexual identity was a significant moti-
vation for the violence and abuse he endured. See Lopez-
Galarza v. INS, 99 F.3d 954, 959 (9th Cir. 1996) (holding that
the petitioner must present "some evidence, direct or circum-
stantial, of the persecutor's motive, since 8 U.S.C.S 1101
requires `persecution on account of' various characteristics");
see also INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992); Pit-
cherskaia v. INS, 118 F.3d 641, 647 (9th Cir. 1997). The BIA
explicitly noted that Geovanni was "stopped on numerous
occasions . . . and temporarily detained for walking the street
and socializing with other young homosexual men. " The
police were not going after people with long hair and nails, or

                               10486


everyone dressed in female clothing. Geovanni was sexually
assaulted because of his outward manifestations of his sexual
orientation.

[14] The government's legal reasoning is unpersuasive
when it argues that "the evidence does not compel the conclu-
sion that the mistreatment [Geovanni] suffered by Mexican
authorities was solely on account of his homosexual status."
Geovanni is not required to prove that his persecutors were
motivated by his sexual orientation to the exclusion of all
other possible motivations. See Briones v. INS , 175 F.3d 727,
729 (9th Cir. 1999) (en banc); Borja v. INS, 175 F.3d 732,
735 (9th Cir. 1999) (en banc). We have recognized that "per-
secutory conduct may have more than one motive, and so
long as one motive is of one of the statutorily enumerated
grounds, the requirements [for asylum] have been satisfied."
Singh v. Ilchert, 63 F.3d 1501, 1509-10 (9th Cir. 1995); see
Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir. 1994) ("The plain
meaning of the phrase `persecution on account of the victim's
political opinion,' does not mean persecution solely on
account of the victim's political opinion.") (emphasis in origi-
nal).

Professor Davies' testimony and the accompanying evi-
dence highlight that the persecution Geovanni suffered was
"on account of" his membership in the "particular social
group" of men with female sexual identities in Mexico. Cf.
Ramirez Rivas v. INS, 899 F.2d 864, 873 (9th Cir. 1990) (rely-
ing on "highly persuasive" expert testimony to find a clear
probability of future persecution for withholding of deporta-
tion), vacated on other grounds, 502 U.S. 1025 (1992). Pro-
fessor Davies testified that gay men with female sexual
identities are recognized in Mexico as a distinct and readily
identifiable group and are persecuted for their membership in
that group. He testified that the police attack and even rape
men with female sexual identities.

Attached to Professor Davies's declaration are numerous
articles and reports documenting the violence against gay men

                               10487


in Mexico and throughout Latin America. A co-founder and
general coordinator of a Mexican human rights organization
stated: "The government has said it will not protect transves-
tites unless they are dressed like men, insinuating that it is
okay to kill homosexuals if they are visible." Anti-Queer Vio-
lence Continues in Mexico, S.F. Bay Times, Feb. 25, 1993.
There was also a New York Times article, documenting the
granting of asylum to a gay man from Mexico. See Gay Man
Who Cited Abuse in Mexico is Granted Asylum, N.Y. Times,
March 26, 1994 at A5. The man had been arrested in Mexico
for going to certain neighborhoods, attending certain parties
and patronizing certain bars. The police falsely accused him
of crimes, extorted him, and on one occasion, raped him. See
id.

Also in evidence was an advisory opinion about Geovan-
ni's case by the Office of Asylum Affairs of the United States
Department of State, claiming that: "[o]ur Embassy in Mexico
advises us that it has no evidence of the systematic persecu-
tion of homosexuals there although random violence against
homosexuals has occurred." (emphasis added). This evidence
along with Geovanni's testimony compels the conclusion that
Geovanni was persecuted "on account of" his membership in
the "particular social group." The evidence is susceptible of
no other conclusion.

E. Persecution

[15] The BIA legally erred in finding that Geovanni failed
to establish both past persecution and a well-founded fear of
future persecution upon return to Mexico. See INA
S 101(a)(42)(A), 8 U.S.C. S 1101(a)(42)(A); see also Pitcher-
skaia, 118 F.3d at 646 (reviewing de novo the legal question
of the meaning of persecution). We have held that persecution
involves "the infliction of suffering or harm upon those who
differ . . . in a way regarded as offensive." Desir v. Ilchert,
840 F.2d 723, 726-27 (9th Cir. 1988) (internal quotation mark
and citation omitted); see Hernandez-Ortiz v. INS, 777 F.2d

                               10488


509, 516 (9th Cir. 1985) (stating that persecution is "oppres-
sion . . . inflicted on groups or individuals because of a differ-
ence that the persecutor will not tolerate").

[16] Geovanni must show that the persecution he suffered
was "inflicted either by the government or by persons or orga-
nizations which the government is unable or unwilling to con-
trol." Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997).
The BIA was misguided when it concluded that Geovanni
was not persecuted "even if the Mexican authorities give low
priority to protection of gays." In this case, it was the police
who actually perpetrated the violence. During the first sexual
attack, Geovanni was abducted, ordered to remove his
clothes, and forced to perform oral sex on the officer. The
officer then told Geovanni that he would go to jail if he told
anyone about the rape. During the second assault, Geovanni
and a friend were abducted by two officers, driven to a
secluded area, and ordered to remove their clothing. One offi-
cer sodomized Geovanni as he held a gun to his temple. Given
these past assaults, Geovanni "is at risk of persecution at the
hand of the very agency which purports to protect him by law
. . . ." In re Inaudi, No. T91-04459 (Immigration and Refugee
Board of Canada Apr. 9, 1992).

[17] The sexual assaults Geovanni suffered at the hands of
police officers undoubtedly constitute persecution. We have
held that "rape or sexual assault . . . may constitute persecu-
tion." Lopez-Galarza, 99 F.3d at 959; see Lazo-Majano v.
INS, 813 F.2d 1432, 1434 (9th Cir. 1987) (finding persecution
of a woman who was raped by a military sergeant whose
clothing she was paid to wash), overruled on other grounds,
Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc). In
Lopez-Galarza, we took note of:

      the numerous studies revealing the physical and psy-
      chological harms rape causes. A recent article in the
      Journal of the American Medical Association sum-

                               10489


      marized several studies of the effects of rape, and
      concluded:

      Rape commonly results in severe and long-
      lasting psychological sequelae that are
      complex and shaped by the particular social
      and cultural context in which the rape
      occurs. . . . Commonly reported feelings at
      the time of the rape include shock, a fear of
      injury or death that can be paralyzing, and
      a sense of profound loss of control over
      one's life. Longer-term effects can include
      persistent fears, avoidance of situations that
      trigger memories of the violation, profound
      feelings of shame, difficulty remembering
      events, intrusive thoughts of the abuse,
      decreased ability to respond to life gener-
      ally, and difficulty reestablishing intimate
      relationships.

Lopez-Galarza, 99 F.3d at 962 (citation omitted). There is no
reason to believe that the trauma for male victims of rape is
any less severe than for female victims.9 

The BIA gave the convoluted, inapposite, and irrelevant
reasoning that "[w]hile Toboso-Alfonso , supra, provides a
basis for finding that homosexuality is a basis for asylum,
anti-sodomy laws are not persecution. Bowers v. Hardwick,
478 U.S. 186 (1986)." Geovanni did not argue, however, that
he was being persecuted because of the prohibition of any
anti-sodomy laws. Instead, he was raped twice by police offi-
cers who forced him to engage in sodomy. Bowers  has no rel-
_________________________________________________________________
9 Because we find that the two sexual assaults and accompanying police
harassment constitute persecution, we need not examine Geovanni's addi-
tional claims that his expulsion from school, random stops by the police,
and the knife assault by the group constitute persecution, individually and
cumulatively.

                               10490


evance to this case, and the BIA's reliance on that case is
completely misplaced.

Further, the BIA erroneously reasoned that "the respon-
dent's mistreatment arose from his conduct . . . thus the rape
by the policemen, and the attack by a mob of gay bashers are
not necessarily persecution . . . ." We are uncertain whether
by "conduct" the BIA was referring to some alleged criminal
conduct or to Geovanni's appearance and style of dress.
Either way, substantial evidence compels a contrary result.
See Prasad, 101 F.3d at 616-17.

There is absolutely no evidence in the record that Geovan-
ni's "mistreatment arose from his conduct," if conduct refers
to criminal activity. There is no evidence in the record of any
past convictions. In fact, the IJ explicitly noted that, despite
police harassment in Mexico, Geovanni had "never been for-
mally charged or convicted of any offense."

Perhaps, then, by "conduct," the BIA was referring to
Geovanni's effeminate dress or his sexual orientation as a gay
man, as a justification for the police officers' raping him. The
"you asked for it" excuse for rape is offensive to this court
and has been discounted by courts and commentators alike.
See e.g., Timm v. Delong, 59 F. Supp. 2d 944, 959-60 (D.
Neb. 1998) (stating that Congress found that almost one quar-
ter of state judges erroneously believe that rape victims pre-
cipitate their sexual assaults because of what they wear or
their actions preceding the incidents); Katharine K. Baker,
Once a Rapist? Motivational Evidence and Relevancy in Rape
Law, 110 Harv. L. Rev. 563, 622 (1997) (constructing new
ways to evaluate rape cases that will not blame the victim);
Judith M. Billing & Brenda Murray, Introduction to the Ninth
Circuit Gender Bias Task Force Report: The Effects of Gen-
der, 67 S. Cal. L. Rev. 739, 741 (1994) (stating that blaming
women for bringing domestic violence on themselves is a
common example of gender bias in the courts).

                               10491


Further, the BIA had no basis for concluding that Geovan-
ni's failure to respond to questions regarding his arrests in the
United States "casts further doubt on his claim of persecu-
tion." It is true that "[t]here is no rule of law which prohibits
officers charged with the administration of the immigration
law from drawing an inference from the silence of one who
is called upon to speak." INS v. Lopez-Mendoza, 468 U.S.
1032, 1043 (1984) (citing United States ex rel. Bilokumsky v.
Tod, 263 U.S. 149, 153-54 (1923) (Brandeis, J.)). Any infer-
ence to be drawn, however, must be reasonable. There simply
is no logical connection between Geovanni's failure to answer
questions regarding arrests in the United States and the rapes
by police officers in Mexico.

[18] Because Geovanni has established past persecution,
there is a presumption that he has a well-founded fear of
future persecution, which the INS must overcome by a pre-
ponderance of the evidence that country conditions have
changed. See 8 C.F.R. S 208.13(b)(1)(i); Singh, 63 F.3d at
1510-11. The INS presented no evidence that Mexico has
taken effective steps to curb sexual orientation-based vio-
lence, including that perpetrated by the police. To the con-
trary, Professor Davies testified that the situation for gay men
in Mexico has worsened because of the decline of the econ-
omy. Thus, the presumption must be given its full force.

F. Withholding of Deportation

[19] Our analysis of past persecution also triggers a pre-
sumption that Geovanni has shown a "clear probability" of
future persecution with respect to his withholding claim -- a
presumption that the INS may also rebut by an individualized
showing of changed country conditions. See 8 C.F.R.
S 208.16(b)(1); Vallecillo-Castillo v. INS , 121 F.3d 1237,
1240 (9th Cir. 1996). Again, there is nothing in the record to

                               10492


rebut that presumption. Accordingly, we conclude that
Geovanni is also entitled to withholding of deportation.10

V. CONCLUSION

We hold that the BIA's decision denying Geovanni asylum
on statutory grounds is fatally flawed as a matter of law and
is not supported by substantial evidence. Through police
harassment and rape, Geovanni suffered past persecution in
Mexico on account of his sexual orientation for being a gay
man with a female sexual identity. Because that showing is
unrebutted, we must presume that he has a well-founded fear
of persecution if he returns. He is entitled to asylum and with-
holding of deportation. We therefore grant the petition for
review and remand the case to the BIA with instructions to
grant his application for withholding of deportation and to
present this case to the Attorney General for the exercise of
her discretion to grant asylum.

PETITION FOR REVIEW GRANTED and
REMANDED with instructions.

_________________________________________________________________

BRUNETTI, Circuit Judge, specially concurring:

The majority's conclusion that Geovanni Hernandez-
Montiel is entitled to asylum and withholding of deportation
_________________________________________________________________
10 Geovanni argues further that the IJ erred in denying asylum on discre-
tionary grounds based on Geovanni's refusal to answer certain questions
regarding his alleged criminal conduct in the United States. Geovanni
argues that the BIA adopted this finding when it "conclude[d], as did the
Immigration Judge, that the respondent is not entitled to a favorable exer-
cise of discretion." The BIA's comment, however, was made in the con-
text of its discussion of voluntary departure. The BIA did not address the
IJ's denial of asylum on discretionary grounds; thus, we cannot review it.
See Gonzalez, 82 F.3d at 907; Ghaly v. INS , 58 F.3d 1425, 1430 (9th Cir.
1996).

                               10493


is correct. I do not agree, however, with the broad reasoning
and rationale used by the majority in reaching its conclusion.
I therefore must concur only in the result reached by the
majority.

The evidence presented by Professor Davies supports the
legal conclusion that in Mexico, gay men who have female
sexual identities constitute a particular social group for asy-
lum purposes. Hernandez-Montiel's uncontradicted testimony
regarding his physical and mental state is sufficient to estab-
lish that he is a member of this particular social group. Profes-
sor Davies testified that gay men with female sexual identities
are persecuted in Mexico. Hernandez-Montiel's testimony
before the Immigration Judge that he suffered persecution on
account of his membership in this social group was found
credible by both the Immigration Judge and the Board of
Immigration Appeals. Hernandez-Montiel is therefore entitled
to asylum and withholding of deportation based on his well-
founded fear of persecution should he be returned to Mexico.


Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: