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Velasquez-Banegas v. Lynch

United States Court of Appeals, Seventh Circuit

January 19, 2017

Loretta E. Lynch, Attorney General of the United States, Respondent.

          Argued December 1, 2016

         Petition for Review of an Order of the Board of Immigration Appeals. No. A206-157-231.

          Before Posner, Ripple, and Rovner, Circuit Judges.

          POSNER, Circuit Judge.

         The petitioner, a citizen of Honduras, entered the United States in 2005-without being authorized to do so-when he was 38 years old. He is now 49, still living in this country, still not authorized to live here. In 2014 the Department of Homeland Security began proceedings in the Immigration Court to have him removed from this country (i.e., deported) to Honduras. He applied for withholding of removal and also for protection under the Convention Against Torture, on the ground that he is highly likely to be persecuted if returned to Honduras. The immigration judge denied both applications and ordered him removed. The Board of Immigration Appeals affirmed summarily, and he appeals to us.

         In 2007 he discovered that he was HIV positive. HIV, short for human immunodeficiency virus, is treatable, but often progresses to AIDS-acquired immunodeficiency syndrome-a very serious, and though treatable often fatal, condition. In the Immigration Court the petitioner argued (and in our court continues to argue) that he is entitled to remain in the United States because of acute danger that he faces if returned to Honduras, danger resulting from the fact that a great many Hondurans believe that AIDS is an affliction of homosexuals (often it is, but not always, as so many Hondurans believe), and also that any man with HIV is also a homosexual. Most important, a great many Hondurans are hostile-often violently so-to persons they believe to be homosexual. And for cultural reasons related to Hondurans' belief about these two diseases, the medical treatment of both HIV and AIDS in Honduras is often deficient and often invasive of privacy, though poor medical service is not itself a form of persecution.

         The petitioner testified without contradiction that "straight" Hondurans tend not only to despise homosexuals but also to perceive them as weaklings, and on both accounts to attack them physically. He presented evidence that many suspected homosexuals have been killed in Honduras out of sheer hatred and that the police often are complicit in, or refuse to investigate, these crimes. He testified that he's not himself a homosexual but he reminds us (as we noted in the previous paragraph) that most Hondurans believe that any man who has either AIDS or HIV is homosexual. He fears that if returned to Honduras, as soon as he goes to a hospital for treatment of his HIV he will be "outed" as a presumed homosexual. And this is true, so far as appears, whether it is a private or a government-funded hospital-if the latter, the "outing" of him by the hospital might well be deemed explicit governmental persecution of presumed homosexuals.

         He points out that persecution that does not result in death or serious bodily harm is still grounds for withholding of removal. E.g., Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011); Koval v. Gonzales, 418 F.3d 798, 805-06 (7th Cir. 2005). As we explained in Stanojkova,

Persecution involves ... the use of significant physical force against a person's body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity-that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person's head and pulling the trigger but unbeknownst to the victim the gun is not loaded. The line between harassment and persecution is the line between the nasty and the barbaric, or alternatively between wishing you were living in another country and being so desperate that you flee without any assurance of being given refuge in any other country.

         Suspicion of the petitioner's being homosexual will be enhanced because, though now in his late forties, he has never married. There has always been suspicion, even in the United States, that a man who never marries may be homosexual or at least bisexual, meaning he's sexually or romantically attracted to both men and women. The suspicion does not extend to heterosexual men who have such huge sexual appetites that they are unwilling to tie themselves to one woman, in marriage, but that is not our petitioner.

         There is no suggestion that as a resident of the United States all these years, albeit an unauthorized resident, the petitioner has engaged in serious criminal conduct-his entire criminal record appears to be limited to a couple of minor offenses that resulted in his being jailed for 15 days-or has posed or poses any kind of threat to the nation's health or welfare. He is, in short, harmless, and we can't understand the immigration judge's failure to take that into account in deciding whether to grant withholding of removal-also her failure to take into account the alarming and pertinent fact that Honduras has the highest crime rate in the western hemisphere. In fact, according to the U.N. Office on Drugs and Crime, Honduras has the highest homicide rate in the world-90.4 homicides per 100, 000 people; the international average is 6.2 homicides per 100, 000 people. U.N. Office on Drugs and Crime, Global Study on Homicide 2013, pp. 12, 24 fig. 1.5, GLOBAL_HOMICIDE_BOOK_web.pdf. This is a fact the immigration judge and Board of Immigration Appeals should have noted; neither did.

         In fact the immigration judge made a hash of the record. A highly qualified American Ph.D. professor of Latin Amer- ican studies, Suyapa Portillo, who specializes in the LGBTQ community (lesbian, gay, bisexual, transgender, and queer - an acronym that covers the entire spectrum of homosexual and related sexual orientations) in Honduras, testified as an expert witness for the petitioner. In the last 12 years she's visited Honduras three to four times a year to conduct research. The immigration judge qualified Dr. Portillo to testify as an expert witness regarding "the experience of LGBTQ people in Honduras" and also of "HIV-positive people" in that country-overlapping groups, obviously-and having been thus qualified Dr. Portillo testified that it's very difficult for people with HIV to find employment-employers often require proof that an applicant does not have HIV. She testified that since Honduras's 2009 coup d'etat (when the Honduran Army, following orders from the Honduran Supreme Court to oust President Manuel Zelaya, sent him into exile), more than 200 LGBTQ people have been murdered according to a pattern she thought indicated an "LGBT cleansing, " in which transgendered women were murdered with a single shot to the head and homosexual men tied up and mutilated. Dr. Portillo believes that the police are com-plicit in the murders and that laws purporting to protect LGBTQ people from assaults and murders are rarely enforced.

         The immigration judge did not question the accuracy of Dr. Portillo's testimony in the slightest, yet deemed it irrelevant because it was "general"-it was about the LGBTQ community and about the typical experiences of Hondurans who have HIV rather than about the petitioner specifically. But realistically the evidence is specific to the petitioner because he fits the description of Hondurans who are at risk of persecution as a result of being believed (accurately or not) to be homosexual. The immigration judge demanded evidence that he would be persecuted if returned to Honduras, but failed to consider the feasibility of her demand. The petitioner left Honduras more than a decade ago; he's hardly in a position, living in the United States, to assess the particular risk to him if he's deported, as compared to the average HIV sufferer in Honduras or even the average HIV sufferer in Honduras who is middle-aged yet has never married. See 8 U.S.C. §§ 1231(b)(3); 1158(b)(1)(B)(ii).

         No matter; to be a member of a group that faces a high probability of persecution in a foreign country is enough to establish that he's at risk of persecution if deported to that country.

[I]n evaluating whether it is more likely than not that the applicant's life or freedom would be threatened in a particular country on account of race, religion, nationality, membership in a particular social group, or political opinion, the asylum officer or immigration judge shall not require the applicant to provide evidence that he or she would be singled out individually for such persecution if: (i) The applicant establishes that in that country there is a pattern or practice of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and (ii) The applicant establishes his or her own inclusion in and identification with such group of persons such that it is more likely than not that his or her life or freedom would be threatened upon return to that country.

         8 C.F.R. § 1208.16(b)(2). That is an accurate description of this case.

         It's often said that an immigrant seeking withholding of removal must prove that he or she is more likely than not to suffer persecution if deported, see, e.g., INS v. Stevic, 467 U.S. 407, 424 (1984), and that belief may have informed the immigration judge's insistence on proof that the petitioner will be persecuted if removed to Honduras. But in recent opinions we've explained that the "more likely than not test" should not be taken literally, for so taken it would mean that an applicant for withholding of removal who had a 50.1 percent probability of being persecuted (killed, let's say) if deported would be entitled to withholding of removal, but not one who had only a 50 percent probability of being killed if deported. Not only is this an absurd example of line drawing, but it assumes unrealistically that such statistics can be computed. In fact "all that can be said responsibly on the basis of actually obtainable information is that there is, or is not, a substantial risk that a given alien will be tortured if removed from the United States." Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1135-36 (7th Cir. 2015). And therefore it should be enough to entitle the applicant to withholding of removal if there is a substantial, albeit unquantifiable, probability that if deported he will be persecuted. And that is Ve-lasquez-Banegas's situation, given Dr. Portillo's testimony-testimony accepted in toto, we emphasize, by the immigration judge. In the appendix to this opinion, we reprint, with slight editing, pages 5 to 7 of the immigration judge's opinion, which is where she summarizes Dr. Portillo's testimony-which, to repeat, she accepted in its entirety.

         She accepted the petitioner's evidence as well as Dr. Portillo's, stating that "Having reviewed the [petitioner's] testimony and documentary submissions, I find the [petitioner] credible. His testimony is internally consistent and con- sistent with his written statement. His testimony is also consistent with the other corroborative evidence in the record, including medical records and affidavits in support of his application." What more could be required to justify granting withholding of removal?

         Dr. Portillo testified without contradiction that "people with HIV are generally considered to be LGBTQ" and that the petitioner would not "be able to hide his HIV status due to a lack of confidentiality in hospitals and the likelihood that [he] would run into someone he knew while seeking treatment." The immigration judge noted that other affidavits in the record (one by a native citizen of Honduras and another by a sociology professor who lived in Honduras for two years), stated that it is a "common belief in Honduras" that those with HIV are gay or lesbian, but this was not good enough for her because the affidavits had "cite[d] no data, reports, or examples." But Dr. Portillo's testimony that the immigration judge had accepted as truthful was uncontradicted evidence, from a qualified expert witness, that the petitioner will in all likelihood be unable to hide his HIV status and as such will be believed to be a homosexual and persecuted accordingly. Indeed he could hide it only by not seeking medical care for it, which would endanger his life.

         In any event it was error for the immigration judge to suggest that the petitioner would be safe if he kept secret his HIV status. The law does not require people to hide characteristics like religion or sexual orientation, and medical conditions, such as being HIV positive. E.g., Muhur v. Ashcroft, 355 F.3d 958, 960-61 (7th Cir. 2004). The immigration judge implies that the petitioner would be thought to be homosexual and for that reason persecuted unless he evaded his po- tential tormentors by pretending to be a very different person from what he actually is-a middle-aged HIV positive bachelor in a culture in which, should those characteristics be revealed, he would be in serious danger. The immigration judge would have sized up the danger to Velasquez-Banegas differently had she assumed the petitioner would live openly. Suppose a person if removed to his country of origin would be sure to be persecuted unless, by living in a cave, he avoided all contact with other persons. The next step would be to rule that no one can have a real fear of persecution because if persecution looms he can avoid it by committing suicide.

         It's true, as emphasized by the immigration judge, that the petitioner if deported will be returning to the region (Comayagua, also the name of the major city in the region) where his parents and siblings live. The immigration judge thought this would protect him from the heavy crime activity in the region, because he would be associating mainly with people who had known him all his life and would know he was not a homosexual. But they and others would know that he was HIV positive, which Hondurans consider a badge of homosexuality; and they might conclude that he had become a homosexual after leaving Honduras for the United States, for Hondurans also tend to believe that homosexuality is a lifestyle choice rather than a person's genetic destiny.

         The immigration judge failed even to mention the petitioner's testimony that an imputation of homosexuality to him is made more likely by his being middle-aged yet never married. This omission takes on a special irony given the judge's criticism of petitioner's evidence as being too gen- eral. Now maybe he could conceal his bachelor status, along with his HIV status, but in Muhur v. Ashcroft, supra, 355 F.3d at 960-61, we rejected the related proposition that "one is not entitled to claim asylum on the basis of religious persecution if (a big if, by the way) one can escape the notice of the persecutors by concealing one's religion." We noted that "Christians living in the Roman Empire before Constantine made Christianity the empire's official religion faced little risk of being thrown to the lions if they practiced their religion in secret; it doesn't follow that Rome didn't persecute Christians, or that a Christian who failed to conceal his faith would be punished for acting 'unreasonably.'" Id. The law does not take a life of stealth as its starting point.

         The immigration judge thought the most severe harm that could befall Velasquez-Banegas in Honduras would be inability to receive adequate medical care. But that proposition was inconsistent with her crediting Dr. Portillo's testimony (as she did), as was the judge's further statement that Velasquez-Banegas "[had] not established that it [was] more likely than not that people [would] perceive him as LGBTQ"-though she had acknowledged that Dr. Portillo had "testified and stated in her affidavit that people with HIV are generally considered to be LGBTQ, which she attributes to a lack of information available to the public. She also testified that she does not believe that the petitioner would be able to hide his HIV status due to a lack of confidentiality in hospitals and the likelihood that the petitioner would run into someone he knew while seeking treatment. She also discussed a personal experience where she was extorted by police officers while on her way to a gay bar with friends who were members of the LGBTQ community. Three other affidavits in the record state generally that it is a common belief in Honduras that those with HIV are gay or lesbian, but cite no data, reports, or examples. ... However, this evidence is insufficient to establish that the petitioner will likely have homosexuality imputed to him in Honduras, as it [this evidence] is general in nature, lacks objective data, and is not specific to the [petitioner]." What can the immigration judge have meant by that last sentence? The evidence, which certainly supports the proposition that Velasquez-Banegas is likely to have homosexuality imputed to him in Honduras if he's deported, is "general" because there is more than one person in Honduras with HIV, and is specific to the petitioner because he fits the description of Hondurans at risk of persecution because believed (accurately or not) to be homosexual. The judge also said, contradicting her crediting Dr. Portillo's testimony (see Appendix below), that Portillo's testimony that people in Honduras are uninformed and therefore tend to link homosexuality to HIV was not based on any report or evidence. It was based on her testimony, which was evidence-uncontradicted evidence!

         We have noted repeatedly that remand may be warranted when the agency overlooks key aspects of an asylum-seeker's claim and might reach a different conclusion after fuller evaluation of the record. See Chen v. Holder, 604 F.3d 324, 330 (7th Cir. 2010); Gomes v. Gonzales, 473 F.3d 746, 752 (7th Cir. 2007); Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir. 1999). This is such a case. We therefore vacate the decisions of the Board and the immigration judge and remand the case for reconsideration in light of the analysis in this opinion.

         Appendix (Quoted from the Immigration Judge's Opinion)

         Dr. Portillo testified that people with HIV, like the petitioner, are particularly vulnerable in Honduras. It is very difficult for such people to gain employment, because employers, particularly in the factory industry, require potential employees to present proof of a negative HIV test before being hired. Although this is illegal in Honduras, many private companies continue the practice with impunity.

         Honduras has a socialized health care system, but those with money often use private doctors because of their superior quality and efficiency. She believes that private market care in Honduras is very expensive. She testified that hospitals often run out of medications, including HIV medication, which forces people to resort to self-medication or buying those medications in the private sector. She believes that the public health system's problems stem from a military coup in 2009, which led to increased debt and corruption for the country. She testified that there are major hospitals and non-profit organizations who give medical care in the big cities in Honduras, but those who live in rural areas have to take a bus trip, often four to five hours long, to the city, where they must wait hours at the clinic for care. Also, the ...

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