Matter of Toboso-Alfonso
| Decision Date | 12 March 1990 |
| Docket Number | A-23220644,Interim Decision Number 3222 |
| Citation | 20 I&N Dec. 819 |
| Parties | MATTER OF TOBOSO-ALFONSO In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
BY: Milhollan, Chairman; Dunne and Heilman, Board Members. Dissenting Opinion: Vacca, Board Member. Concurring in the Dissenting Opinion: Morris, Board Member.
In a decision dated February 3, 1986, the immigration judge found the applicant excludable under sections 212(a)(9), (20), and (23) of the Immigration and Nationality, 8 U.S.C. §§ 1182(a)(9), (20), and (23), denied his request for asylum, pursuant to section 208(a) of the Act, 8 U.S.C. § 1158(a), but granted his application for withholding of deportation to Cuba under section 243(h) of the Act, 8 U.S.C § 1253(h). The Immigration and Naturalization Service has appealed this decision. The appeal will be dismissed.
The applicant is a 40-year-old native and citizen of Cuba who was paroled into the United States in June of 1980, as part of the Mariel boat lift. In 1985 his parole was terminated. He was placed in exclusion proceedings and appeared before an immigration judge in Houston, Texas. The applicant conceded his excludability and applied for asylum and withholding of deportation to Cuba.
The immigration judge ultimately concluded that the applicant was statutorily eligible for asylum and withholding of deportation as a member of a particular social group who fears persecution by the Cuban Government. He denied the applicant's request for asylum in the exercise of discretion, but granted him withholding of deportation.
The Service contends that the applicant did not meet his burden of proof, that the evidence presented was inadequate to prove the existence of a particular social group or a clear probability of persecution in Cuba, and that he was ineligible for withholding in view of his conviction for possession of cocaine. As the applicant did not appeal from the immigration judge's decision, the only issues now before us pertain to the immigration judge's grant of withholding of deportation to Cuba to this alien.
An alien who seeks withholding of deportation from any country must show that his "life or freedom would be threatened in such a country on account of race, religion, nationality, membership in a particular social group, or political opinion." Section 243(h)(1) of the Act. In order to make such a showing, the alien must establish a "clear probability" of persecution on account of one of the enumerated grounds. INS v. Stevic, 467 U.S. 407 (1984). This "clear probability" standard requires a showing that it is more likely than not that an alien would be subject to persecution. Unless an alien is barred from relief under the provisions of section 243(h)(2), once he establishes that he qualifies for withholding of deportation, it must be granted and he cannot be returned to the country where he would face persecution. He can, however, be sent to another country under certain circumstances.
In the instant case, the applicant asserts that he is a homosexual who has been persecuted in Cuba and would be persecuted again on account of that status should he return to his homeland. He submits that homosexuals form a particular social group in Cuba and suffer persecution by the government as a result of that status.
The applicant testified that there is a municipal office within the Cuban Government which registers and maintains files on all homosexuals. He stated that his file was opened in 1967, and every 2 or 3 months for 13 years he received a notice to appear for a hearing. The notice, the applicant explained, was a sheet of paper, "it says Fidel Armando Toboso, homosexual and the date I have to appear." Each hearing consisted of a physical examination followed by questions concerning the applicant's sex life and sexual partners. While he indicated the "examination" was "primarily a health examination," he stated that on many occasions he would be detained in the police station for 3 or 4 days without being charged, and for no apparent reason. He testified that it was a criminal offense in Cuba simply to be a homosexual. The government's actions against him were not in response to specific conduct on his part (e.g., for engaging in homosexual acts); rather, they resulted simply from his status as a homosexual. He further testified that on one occasion when he had missed work, he was sent to a forced labor camp for 60 days as punishment because he was a homosexual (i.e., had he not been a homosexual he would not have been so punished).
The applicant stated that at the time of the Mariel boat lift, the Union of Communist Youth received permission to hold a demonstration against homosexuals at the factory where he worked. Several of the members got on top of a table and screamed that all homosexuals should leave—should go to the United States. He testified that on that same day there was a sheet of paper tacked to the door of his home which stated that he should report to "the public order." The applicant presented himself at the police station in the town of "Guines" where he was informed by the chief of police that he could spend 4 years in the penitentiary for being a homosexual, or leave Cuba for the United States. He was given a week to decide and decided to leave rather than be jailed.
The applicant further testified that the day he left his town, the neighbors threw eggs and tomatoes at him. He claims that the situation was so grave that the authorities were forced to reschedule his departure time from the afternoon to 2:00 a.m., in order to quell the protesting residents.
In addition to the applicant's testimony, he supplemented the record with the following information: several articles describing "Improper Conduct," a film which centers on the testimony of 28 Cuban refugees and recounts the human rights violations, including incarceration in forced labor camps known as "Military Units to Aid Production," suffered by Cubans whom the Government considers to be dissidents or "antisocial," particularly male homosexuals; a newspaper article entitled, "Gay Cubans Survive Torture and Imprisonment," in which Cuban homosexuals in the United States, most of whom were part of the Mariel boat lift, describe their treatment by the Cuban Government, including repeated detentions, incarcerations, and physical beatings; and, Amnesty International's Report for 1985 which describes the political situation in Cuba.
The immigration judge found the "applicant's testimony to be credible and worthy of belief, and, if anything, perceive[d] that he was restrained in his testimony as to the difficulty of his life during the years that he lived in Cuba." The immigration judge further concluded that the applicant had been persecuted in Cuba and that he has a well-founded fear of continued persecution in that country. He found that this persecution resulted from the applicant's membership in a particular social group, namely homosexuals. The immigration judge denied the applicant's asylum application in the exercise of discretion because of the nature of the applicant's criminal record in the United States. However, as the immigration judge found that the applicant's crimes did not bring him within the scope of section 243(h)(2)(B), he granted his application for withholding of deportation to Cuba.
The Immigration and Naturalization Service appeals from the grant of withholding of deportation to Cuba to the applicant, arguing that homosexuals were not a particular social group contemplated under the Act, that the applicant has not presented adequate evidence to show either a well-founded fear or a clear probability of persecution, and that the applicant is ineligible for relief under section 243(h) of the Act because of his conviction for possession of cocaine.
We do not find that the Service has presented persuasive arguments on which to reverse the immigration judge's finding that the applicant established his membership in a particular social group in Cuba. The Service argues that "socially deviated behavior, i.e. homosexual activity is not a basis for finding a social group within the contemplation of the Act" and that such a conclusion "would be tantamount to awarding discretionary relief to those involved in behavior that is not only socially deviant in nature, but in violation of the laws or regulations of the country as well." The applicant's testimony and evidence, however, do not reflect that it was specific activity that resulted in the governmental actions against him in Cuba, it was his having the status of being a homosexual. Further, the immigration judge's initial finding that a particular social group existed in Cuba was not "tantamount to awarding discretionary relief" to that group. Individuals in a particular social group are not eligible for relief based on that fact alone, among other showings they must establish facts demonstrating that members of the group are persecuted, have a well-founded fear of persecution, or that their life or freedom would be threatened because of that status.
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...at 365-66 (young women of a tribe that practices female genital mutilation but who have not been subjected to it); In re Toboso-Alfonso, 20 I. & N. Dec. 819, 822-23 (BIA 1990) (homosexuals); In re Fuentes, supra, 19 & N. Dec. at 662 (former members of the national police); cf. In re Acosta,......