Adamu Sumaila v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-1342
_____________
ADAMU SUMAILA,
Petitioner,
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent.
______________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A209-390-025)
Immigration Judge: Leo Finston
______________
Argued: April 30, 2019
______________
Before: RESTREPO, ROTH and FISHER, Circuit Judges.
(Filed: March 31, 2020)
Adrian N. Roe
First Floor
428 Boulevard of the Allies
Pittsburgh, PA 15219
Paige Beddow [ARGUED]
Scott A. Cain [ARGUED]
(Admitted Pursuant to Third Circuit LAR 46.3)
West Virginia University College of Law
101 Law School Drive
Morgantown, WV 26506
Pro Bono Counsel for Petitioner
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
______________
OPINION OF THE COURT
______________
RESTREPO, Circuit Judge.
Adamu Sumaila fled his home country of Ghana and
entered the United States without authorization after his father
and neighbors assaulted him and threatened his life when they
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.
Sumaila now petitions this Court for review of the
BIA’s final decision. He argues that the BIA erred in finding,
among others, that he had not suffered past persecution and did
not have a well-founded fear of future persecution. For the
following reasons, we will vacate the BIA’s decision and
remand for further proceedings consistent with this opinion.1
I. BACKGROUND
A. Sumaila’s Experience in Ghana
Sumaila was born and raised in Ghana’s capital, Accra.
He first realized he was gay when he was fourteen years old.
He came to this realization after sharing an intimate encounter
with another boy, Inusah, whom he had met at Muslim school.
One afternoon, the two boys were spending time together in
Sumaila’s bedroom and, after sharing a toffee that Sumaila had
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.
When Sumaila was twenty-six years old, his anxieties
materialized into a harsh reality. One morning in January
2016, his father unexpectedly entered Sumaila’s bedroom at
the break of dawn and discovered Sumaila having sex with
Inusah. His father went into a rage and began shouting that
“his son was hav[ing] sex with another man,” JA215, and
called on others to “come, come and witness what my son is up
to[!]” JA99 (Tr. 37:20–21). He demanded answers from
Sumaila and condemned his actions: “Why do you engage in
homosexuality? You have brought shame to this family and I
will make sure you face the wrath of this evil deed.” JA166.
Upon hearing this uproar, a crowd of neighbors
gathered at Sumaila’s house, forming a violent mob. Together
with his father, the mob began to beat the two young men with
stones, wooden sticks, and iron rods, and dragged them into a
courtyard. Some in the mob wanted to report the young men
to the police, but others began to argue over how best to punish
them: death by burning or beheading.
Sumaila believed the death threats were real. He
remembers being doused with kerosene, and hearing calls to
set him on fire. He also saw someone in the mob brandish a
“cutlass,” JA215, a curved sword with a sharp edge like a
machete. Fearing that his life was in danger, he managed to
escape and ran naked, hurt and bleeding to a friend’s house
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.
Too frightened to call the police, seek medical care,
Sumaila asked his friend to drive him to neighboring Togo.
But Sumaila did not feel safe there either; he was concerned
that the Togolese government and people disliked gay men too.
Within about two weeks, Sumaila retrieved his passport from
his home with his friend’s help and arranged to fly from Ghana
to Ecuador. Sumaila has heard that his father has publicly
disowned him for being gay, that he is still looking for him,
and that he intends to kill him if he finds him.
Sumaila still worries about Inusah, his partner of more
than ten years. Despite numerous attempts, he has not been
able to reconnect with him since that horrific day.
B. Procedural History
Sumaila eventually found his way to safety in the
United States but entered the country without valid documents.
Soon after, the Department of Homeland Security began
proceedings to remove Sumaila and return him to Ghana. In
the course of removal proceedings, Sumaila applied for
asylum, among other forms of relief. Sumaila claimed that,
after having been violently outed, attacked and threatened by
his father and neighbors, he fears that he will be killed or
otherwise persecuted in Ghana because he is gay.
The IJ denied Sumaila’s application. Although he
found portions of Sumaila’s testimony to be less credible than
others, the IJ declined to make an adverse credibility
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.
The BIA affirmed the IJ’s decision and dismissed the
appeal. Though it credited Sumaila’s account as credible, the
BIA agreed that Sumaila had not established “past
persecution” or a “well-founded fear or clear probability of
future persecution.” JA14, 15. The BIA “distance[d]” itself
from the IJ’s observation that Sumaila could live a “full life” if
he kept “his homosexuality a secret.” JA15.
Sumaila now seeks review of the BIA’s decision.2
II. STANDARD OF REVIEW
“[P]ersecution” and “well-founded fear of persecution”
are “findings of fact that we review under the deferential
substantial evidence standard[.]” Abdille v. Ashcroft, 242 F.3d
477, 483 (3d Cir. 2001). “Substantial evidence is more than a
mere scintilla and is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id.(citation omitted). Under this evidentiary standard, we defer
to factual findings “unless any reasonable adjudicator would
be compelled to conclude to the contrary.” Espinosa-Cortez v.
Att’y Gen. U.S., 607 F.3d 101, 106-07 (3d Cir. 2010) (quoting
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).
If factual findings are based on a misunderstanding of
the law, we will review the abstract legal determination de
novo, subject to Chevron deference when applicable, to ensure
uniformity in the application of the law. Huang v. Att’y Gen.
U.S., 620 F.3d 372, 379 (3d Cir. 2010) (citing Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)); see
Ramirez-Peyro v. Holder, 574 F.3d 893, 899 (8th Cir. 2009)
(exercising de novo review where the BIA “misunderstood and
misapplied the parameters” of the relevant legal standard,
“leading [the BIA] to conduct improper factual findings when
applying that standard”); Foroglou v. I.N.S., 170 F.3d 68, 70
(1st Cir. 1999) (“The [BIA’s] application of the legal standards
to specific facts is also entitled to deference,” but “[a]bstract
rulings of law are subject to de novo review.”).
When the BIA affirms the IJ’s determinations without
expressly rejecting any of its findings and only adds its own
gloss to the analysis, we may review both the BIA’s and the
IJ’s decisions. Sandie v. Att’y Gen. U.S., 562 F.3d 246, 250
7
(3d Cir. 2009).
III. DISCUSSION
Under the INA, any person who is physically present in
the United States, irrespective of his immigration status, may
be granted asylum if he is a refugee within the meaning of the
statute. 8 U.S.C. § 1158(a)(1), (b)(1). A refugee is anyone
who is unable or unwilling to return to their country of origin
“because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a
particular social group, or political opinion.” Id.§ 1101(a)(42)(A). An applicant can meet this definition by
showing either (i) that he suffered past persecution or (ii) that
he has a well-founded fear of being persecuted if returned to
his home country. In either case, the alleged persecution must
be on account of a statutorily protected ground. Chavarria,
446 F.3d at 516.
Although past persecution and future persecution are
independent, “doctrinally distinct” grounds for asylum, they
“intersect” in one significant respect: a showing of past
persecution entitles the applicant to a rebuttable presumption
of a well-founded fear of future persecution, which, if rebutted,
could remove the basis for granting asylum.3 Camara v. Att’y
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
To establish past persecution, an applicant must show
(i) that he was targeted for mistreatment “on account of one of
the statutorily-protected grounds,” (ii) that the “incident, or
incidents” of mistreatment “rise to the level of persecution,”
and (iii) that the persecution was “committed by the
government or forces the government is either unable or
unwilling to control.” Abdulrahman v. Ashcroft, 330 F.3d 587,
592 (3d Cir. 2003) (internal quotation marks and citation
omitted).
As to the first requirement, the Government has not
contested that Sumaila fits within one of the INA’s protected
categories. Nor could it. Sumaila’s sexual orientation and
identity as a gay man is enough to establish his membership in
the lesbian, gay, bisexual, transgender and intersex (LGBTI)
community in Ghana, a “particular social group” within the
1991) (explaining that, in some situations, the “experience of
persecution may so sear a person with distressing associations
with his native country that it would be inhumane to force him
to return there, even though he is in no danger of further
persecution”). Sumaila has not made that argument here, so
we will not address it any further.
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).
In rejecting Sumaila’s claim, however, the IJ found that
Sumaila had “not established that he suffered mistreatment on
account of his sexual orientation that rises to the level of
persecution.” JA24 (emphasis added). The BIA affirmed that
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.
Our focus now turns to the second requirement: whether
the attack and death threats Sumaila suffered were serious
enough to rise to the level of persecution. “While this Court
has not yet drawn a precise line concerning where a simple
beating ends and persecution begins, our cases suggest that
isolated incidents that do not result in serious injury do not rise
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.
The parties’ disagreement centers around the reach of
our decision in Chavarria. There, we held that death threats
that are “highly imminent, concrete and menacing,” and that
“cause significant actual suffering or harm,” are cognizable
forms of persecution. 446 F.3d at 518, 520 (internal citations
and quotation marks omitted). The petitioner, Chavarria,
witnessed paramilitary forces assault two women who were
local human rights activists. After the assailants left, Chavarria
returned to help the women. He later noticed that he was being
surveilled outside his home by men that looked like the
assailants, which he understood to be an act of intimidation by
government forces because of his actions in helping these two
political activists. Id. at 513 & nn.2-4. While he was driving
near his home one night, several men ran him off the road,
forced him into the backseat of his car, and robbed him at gun
point. The men held a gun to his head and told him, “We are
going to leave you alone today, but if we ever catch you again
you won’t live to talk about it.” Id. at 513, 519. We understood
that event to be “about as clear a death threat as we might
expect attackers to make.” Id. at 520. And even though there
was no evidence of “physical harm,” id. at 515, we concluded
that Chavarria suffered harm because he was “actually robbed”
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.In a recent decision, issued after close of argument in
this case, we elaborated on the test for when death threats
amount to persecution. See Herrera-Reyes v. Att’y Gen. U.S.,
__ F.3d __, No. 19-2255, 2020 WL 962071 (3d Cir. Feb. 28,
2020). In Herrera-Reyes, we reviewed our threat cases,
including Chavarria, and concluded that a threat is persecutory
when “the cumulative effect of the threat and its corroboration
presents a real threat to a petitioner’s life or freedom.” Id. at
*5. We clarified that “imminence” is not a distinct
requirement, but rather “a concept subsumed in the inquiry as
to whether the threat is ‘concrete.’” Id. at *4. “We therefore
refer to the standard going forward simply as ‘concrete and
menacing.’” Id. (citation omitted). A threat is “concrete”
when it is “corroborated by credible evidence,” and it is
“menacing” when it reveals an “intention to inflict harm.” Id.
at *5 (internal quotation marks and citations omitted).
Physical harm to the applicant is one factor in the cumulative
analysis, it is not required to render a threat “concrete and
menacing.” Id. at *6-*7. The ultimate question, therefore, is
whether “the aggregate effect” of the applicant’s experience,
“including or culminating in the threat,” put the applicant’s
“life in peril or created an atmosphere of fear so oppressive that
it severely curtailed [his] liberty.” Id. at *5.
Crediting Sumaila’s testimony as the BIA did, we know
that a violent mob beat Sumaila with makeshift weapons and
dragged him across the floor from his room to a courtyard,
causing him to bleed from his mouth and suffer injuries to his
head and back. Sumaila was then threatened with death by
burning or beheading, at the same time that he was being
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)).
On appeal, the Government argues, rather insistently,
that the threats to Sumaila’s life were not “imminent or
menacing” enough because they remained “unfulfilled,”
relying on Li v. Att’y Gen. U.S., 400 F.3d 157 (3d Cir. 2005).
Resp’t Br. 18 n.4. While we appreciate that the Government
did not have the benefit of our decision in Herrera-Reyes, that
case squarely foreclosed this argument. We held that whether
a threat is sufficiently “concrete and menacing,” which
includes the notion of “imminence,” does not turn on whether
the threat was ultimately fulfilled, but on whether – in the
context of the applicant’s cumulative experience – it was a
“severe affront” to his “life or freedom.” Herrera-Reyes, 2020
WL 962071, at *5 (internal quotation marks and citation
omitted). The threats in Li were not persecutory because of
“the lack of any corroborating harm” to the applicant or his
close associates, not merely because they were unfulfilled. Id.at *4 (citing Li, 400 F.3d at 165).
Moreover, in Li, the applicant was threatened with
forced sterilization, detention and physical abuse for violating
China’s population control policy, not death, so it made sense
that we would consider whether any of those threats remained
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).
Neither the IJ nor the BIA addressed the significance of
these threats under the dispositive case law available at that
time, namely Chavarria, and that omission derailed their
analysis. The IJ focused exclusively on the “beating,” finding
that this incident was not extreme enough to constitute
persecution because Sumaila had only been attacked once and
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.
We have never held that persecution requires more than
one incident. Rather, we have left open the possibility that a
single incident, if sufficiently egregious, may constitute
persecution. Voci, 409 F.3d at 615 (explaining that “the
existence of multiple incidents is not a requirement”). In Voci,
we cited two decisions from the Seventh Circuit to stress that
the number of past incidents is “merely one variable” for
finding past persecution, id. at 615 (quoting Dandan v.
Ashcroft, 339 F.3d 567, 573 (7th Cir. 2003)), and that “even a
single beating can constitute persecution,” id. (citing Asani v.
I.N.S., 154 F.3d 719, 722-23 (7th Cir. 1998)).
Nor have we conditioned a finding of past persecution
on whether the victim required medical attention or on whether
he was too hurt to escape his aggressors, or even on whether
the victim was physically harmed at all. See Herrera-Reyes,
2020 WL 962071, at *6 (“We have never reduced our
persecution analysis to a checklist or suggested that physical
violence—or any other single type of mistreatment—is a
required element of the past persecution determination.”);
Kibinda, 477 F.3d at 120 (“[W]e do not mean to suggest that
the severity of an injury should be measured in stitches[.]”).
Quite the opposite. In Chavarria, we held that violent death
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
Sumaila’s claim is more obvious than Chavarria’s (or
Herrera-Reyes’). In addition to having his life credibly
threatened by accompanying acts of violent intimidation,
Sumaila suffered actual physical harm from the beating, not to
mention the emotional suffering he has endured. See Mashiri
v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004) (“Persecution
may be emotional or psychological, as well as physical.”). The
Government admits that the assault caused “physically
painful” injuries but insists that that record does not compel
finding that this “unfortunate” beating was serious enough to
be persecution. Oral Ar. at 14:40-53. It is debatable whether
the record contains enough evidence to ascertain the full extent
of Sumaila’s injuries, but our decision need not hinge on the
severity of those injuries because this case involves so much
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.
Although Sumaila would succeed even in the absence
of any physical injury under Chavarria (and now also under
Herrera-Reyes), we note that the IJ and the BIA
mischaracterized or misunderstood Sumaila’s testimony with
respect to his injuries. Sumaila never testified that he “did not
require medical treatment.” JA24. He testified: “I was so
afraid, I was so, so afraid that I couldn’t even go to a hospital.
I was just afraid.” JA115 (Tr. 53:20–21) (emphasis added). It
may be that Sumaila should have sought medical care or that
medical treatment was otherwise required. All we know from
his testimony is that he did not seek medical care because he
feared for his well-being. Nor does the fact that Sumaila had
the strength to escape execution diminish the risk he faced or
the severity of his injuries. To the contrary, it is a testament to
the extreme fear he felt and to the sheer human will to survive
the most dangerous of situations.
In short, because the IJ and the BIA accepted Sumaila’s
testimony as true “but then proceeded to misstate and ignore
certain relevant aspects of that testimony,” Chavarria, 446
F.3d at 522, and because they committed legal error by finding
that a single beating without severe physical injury to Sumaila
was dispositive, their determination that his experience did not
rise to the level of past persecution must be overturned.
This brings us to the third requirement. Because
Sumaila contends that he was attacked by private rather than
government actors, he must demonstrate that Ghanaian
authorities are unable or unwilling to control this sort of anti-
gay violence. The Government argues that Sumaila cannot
meet this requirement because he did not report the assault to
the police – an omission that the Government believes is “fatal”
18
to his claim. Resp’t Br. 18. We disagree.
“The absence of a report to police does not reveal
anything about a government’s ability or willingness to control
private attackers; instead, it leaves a gap in proof about how
the government would respond if asked, which the petitioner
may attempt to fill by other methods.” Bringas-Rodriguez, 850
F.3d at 1066 (quoting Rahimzadeh v. Holder, 613 F.3d 916,
922 (9th Cir. 2010)). An applicant may “fill the evidentiary
gap” in various ways:
1) demonstrating that a country’s
laws or customs effectively
deprive the petitioner of any
meaningful recourse to
governmental protection,
2) describing [p]rior interactions
with the authorities,
3) showing that others have made
reports of similar incidents to no
avail,
4) establishing that private
persecution of a particular sort is
widespread and well-known but
not controlled by the government,
or
5) convincingly establish[ing] that
[reporting] would have been futile
or [would] have subjected [the
19
applicant] to further abuse.
Id. at 1066–67 (alterations in original) (internal quotation
marks and citations omitted).
In Bringas-Rodriguez, the Ninth Circuit held that a gay
applicant was not required to report abusers to Mexican
authorities because “ample evidence,” including the
applicant’s testimony, affidavits, country reports, and news
clippings, “demonstrate[d] that reporting would have been
futile and dangerous.” Id. at 1073-74; see Hernandez-Avalos
v. Lynch, 784 F.3d 944, 952 (4th Cir. 2015) (excusing the
applicant’s failure to report death threats to the police, because
credible testimony and country conditions provided “abundant
evidence” to conclude that reporting would have been
counterproductive); Matter of S-A-, 22 I. & N. Dec. 1328,
1330, 1333, 1335 (BIA 2000) (concluding that a Muslim
woman with liberal religious beliefs did not need to report her
abusive orthodox father to police to establish the Moroccan
government’s inability or unwillingness to protect her, because
it was clear from country conditions and credible testimony
that it would have been “unproductive” and “potentially
dangerous” to do so under Moroccan law and “societal
religious mores”).
Here, the record is replete with evidence that Ghanaian
law deprives gay men such as Sumaila of any meaningful
recourse to government protection and that reporting his
incident would have been futile and potentially dangerous.
Ghana criminalizes same-sex male relationships under
the guise of “unnatural carnal knowledge,” defined to include
“sexual intercourse with a person in an unnatural manner or
with an animal.” Ghana Criminal Code § 104(2); see JA183.
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).
Had Sumaila reported the beating or threats, he would
have outed himself and his partner to the police and, on that
basis, he could have been arrested, prosecuted and
incarcerated, compounding the persecution he had already
suffered. This fact alone is compelling, if not dispositive,
evidence that Sumaila had no meaningful recourse against his
father’s and the mob’s homophobic violence. At best, seeking
help from the police would have been counterproductive.
Furthermore, the State Department’s 2016 country
report indicates that LGBTI persons in Ghana are generally
afraid to report homophobic abuse because they fear further
harassment and intimidation at the hands of police officers.
The report states:
[LGBTI persons] faced police
harassment and extortion attempts.
There were reports police were
reluctant to investigate claims of
assault or violence against LGBTI
persons. . . .
While there were no reported cases
of police or government violence
against LGBTI persons during the
year, stigma, intimidation, and the
attitude of the police toward
22
LGBTI persons were factors in
preventing victims from reporting
incidents of abuse.
JA183-84 (emphasis added). The Amnesty International
2016/17 country report provides additional support for that
assessment, stating that “[l]ocal organizations reported that
LGBTI people continued to face police harassment.” JA195.
In fact, Sumaila credibly testified that he did not report
the assault and death threats because he feared negative
repercussions for being gay: “I know that [homosexuality] is
not something that is acceptable in my country, I know that the
police would not like it as well, so my heart was racing, I was
afraid. I was very afraid.” JA102 (Tr. 40:10-12). Sumaila was
not alone in his fear. His friend was also afraid to call the
police out of concern that his own life would be threatened for
sheltering a gay man. There is also evidence that Sumaila’s
tormentors felt empowered by law to respond violently to his
same-sex relationship. Sumaila testified that certain people in
the mob wanted to report him to police, not because they
wanted to rescue him, but because they wanted to punish him,
apparently fearing no consequences for their own homicidal
and criminal conduct. In those circumstances, it is
unreasonable to expect Sumaila to turn to the police for
protection.
The record also shows that the Ghanaian government is
unable or unwilling to protect LGBTI persons from other forms
of mistreatment. For instance, Ghanaian law does not prohibit
anti-gay discrimination even though there is a well-
documented hostility towards the LGBTI community
throughout the country. According to the State Department
country report, “societal discrimination against [LGBTI]
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.
Notwithstanding all of this evidence, the IJ concluded
that “country conditions do not indicate” that the Ghanaian
government is unable or unwilling to protect Sumaila as a gay
man. JA25. The IJ found that, even though same-sex male
relationships are criminalized and “discrimination against
LGBTQ individuals is not illegal,” Ghanaian authorities could
be expected to “prosecute individuals who commit assault
against LGBTQ persons because of their sexual orientation.”
JA25. He noted that the State Department country report
referenced “a case that was underway in which an individual
was being prosecuted for assaulting a gay man in Accra in
2015.” JA25 n.2. The IJ also discounted reports of “stigma
[and] intimidation by the police,” because “there were no
reports of police or government violence against LGBTQ
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.
Given the totality of the record, these findings cannot
withstand even our most deferential review. Although
technically correct that sex between men is classified as a
“misdemeanor,” the IJ and the BIA failed to appreciate the
serious risks of revealing a same-sex relationship to the police,
not the least of which is the affront to the victim’s freedom
from being prosecuted and punished like a common criminal,
or how those risks effectively prevent victims of anti-gay
violence from seeking government protection. See Lawrence
v. Texas, 539 U.S. 558, 575 (2003) (“The offense [consensual
sex between men], to be sure, is but a class C misdemeanor, a
minor offense in the Texas legal system. Still, it remains a
criminal offense with all that imports for the dignity of the
persons charged.”).
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.
Lastly, days before oral argument, the Government filed
a letter styled under Federal Rule of Appellate Procedure 28(j),
suggesting for the first time that, if this case were remanded,
we should instruct the BIA to reconsider the issue of whether
the Ghanaian government is unable or unwilling to control the
alleged persecution under the Attorney General’s guidance in
Matter of A-B-,27 I. & N. Dec. 316 (A.G. 2018).
The Government did not raise remand or Matter of A-B-
in its brief, even though that case was issued months after the
BIA’s ruling and months before the Government filed its brief
in this Court. Therefore, that argument is waived. See United
States v. Hoffecker, 530 F.3d 137, 163 (3d Cir. 2008) (holding
that appellant had waived argument raised for the first time in
a Rule 28(j) letter); United States v. Leeson, 453 F.3d 631, 638
n.4 (4th Cir. 2006) (holding that appellant had waived
argument based on a case raised for the first time in a Rule 28(j)
letter when that case was readily available at the time appellant
filed its brief).7
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.
B. Well-Founded Fear of Future Persecution
Next, we review the IJ’s and the BIA’s determination
that Sumaila does not have a well-founded fear of future
persecution. Given that Sumaila has demonstrated past
persecution on account of his sexual orientation and identity as
a gay man, he is entitled to a rebuttable presumption of a “well-
founded fear of future persecution” on the same basis. 8 C.F.R.
§ 208.13(b)(1).
To rebut that presumption, the Government would need
to prove by a preponderance of the evidence either that Sumaila
could escape persecution by relocating to another part of
Ghana and that “relocation would be reasonable,” or that
conditions in Ghana have so fundamentally changed, i.e.,
improved for gay men specifically since Sumaila was
persecuted in 2016, that his past persecution is no longer
indicative of the risk he faces if returned to Ghana. Leia v.
Ashcroft, 393 F.3d 427, 437 (3d Cir. 2005); Konan v. Att’y
Gen. U.S., 432 F.3d 497, 501 (3d Cir. 2005); see Berishaj v.
Ashcroft, 378 F.3d 314, 327 (3d Cir. 2004) (“[G]eneralized
improvements in country conditions will not suffice as
applying certain aspects of Matter of A-B- as arbitrary,
capricious, and unlawful, and holding that the “‘unwilling or
unable’ persecution standard was settled at the time the
Refugee Act was codified, and therefore the Attorney
General’s ‘condoned’ or ‘complete helplessness’ standard is
not a permissible construction of the persecution
requirement”), appeal pending, No. 19-5013 (D.C. Cir.).
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.
Ordinarily, we would vacate this portion of the BIA’s
decision and remand with instructions to reconsider the issue
of future persecution from the correct vantage point. See
Konan, 432 F.3d at 501 (explaining that our review of the
BIA’s decision “is limited to the rationale that the agency
provides,” and that we are “powerless to decide in the first
instance issues that an agency does not reach”); Lusingo v.
Gonzales, 420 F.3d 193, 201 (3d Cir. 2005) (“When
deficiencies in the BIA’s decision make it impossible for us to
meaningfully review its decision, we must vacate that decision
and remand so that the BIA can further explain its reasoning.”
(quoting Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir.
2003))). But remand for this purpose is not necessary here,
because even without applying the presumption and
corresponding burden-shifting framework, the IJ’s and the
BIA’s finding that Sumaila does not have a well-founded fear
of future persecution cannot stand on this record. See
Chavarria, 446 F.3d at 520-22 (reversing BIA on past
persecution and future persecution without applying the
presumption).
Furthermore, considering that the Government did not
introduce evidence of changed country conditions or even
attempt to make the case that conditions have changed, it
would be unfair to give the Government a second bite at the
apple. See Toure v. Att’y Gen. U.S., 443 F.3d 310, 321-23 (3d
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.
An applicant that has not suffered past persecution may
still qualify for asylum if he can demonstrate that he has a well-
founded fear of future persecution either (i) “because he would
be individually singled out for persecution” on account of a
statutorily protected ground, or (ii) “because there is a pattern
or practice in his home country of persecution against a group
of which he is a member.” Khan v. Att’y Gen. U.S., 691 F.3d
488, 496 (3d Cir. 2012) (quoting Huang, 620 F.3d at 381).
“The source of the persecution must be the government or
forces that the government is unwilling or unable to control.”
Id. (quoting Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir.
2007)). The applicant’s fear of persecution must be “genuine”
and “reasonable in light of all of the record evidence.”
Lusingo, 420 F.3d at 199 (characterizing “well-founded fear of
future persecution” as having both a subjective and objective
component). The IJ found that, although Sumaila “ha[d]
credibly testified that he subjectively fears persecution if
returned to Ghana,” he failed to show that “a reasonable person
would fear the same.” JA25. There is no dispute that
Sumaila’s subjective fear is genuine. Thus, we focus on
whether Sumaila’s fear of future persecution is objectively
reasonable.
To satisfy the objective component, an applicant must
produce evidence showing that future persecution is a
“reasonable possibility.” Lukwago, 329 F.3d at 175. Under
this standard, the applicant is not required to prove that future
persecution is “more likely than not” to occur. Id. at 177 (citing
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987)). Even a
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.Here, the IJ found that, even though Sumaila “fears his
father will try to kill him if he returns to Ghana,” he had not
proven “by a preponderance of credible and probative
evidence” that “he faces a ‘reasonable possibility’ of being
singled out for persecution in Ghana.” JA25. The IJ noted that
“country conditions do not indicate” that Sumaila would be
subject to any mistreatment that rises to the level of
persecution. JA25. The IJ also found that, while there may be
a risk of “stigma or intimidation by the police,” the risk was
not significant enough because “there were no reports of police
or government violence against LGBTQ persons.” JA25. And
although “discrimination against LGBTQ individuals is not
illegal,” the IJ found that Ghanaian authorities could be
expected to protect gay men from homophobic abuse based on
a single case in which anti-gay violence was supposedly
prosecuted. JA25. In affirming the IJ’s decision, the BIA
emphasized that sex between men is “only a misdemeanor” and
that any “discrimination” Sumaila “may face in Ghana does not
rise to the level of persecution.” JA15. These findings are not
supported by substantial evidence, because they are based on
mischaracterizations, unreasonable inferences, and an
incomplete assessment of the record.
Sumaila has produced ample evidence to conclude that
there is a reasonable possibility that he would be singled out
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.
Sumaila has also demonstrated that his experience was
not a random or isolated act of private violence, but rather part
of a pattern or practice of persecution against the LGBTI
community in Ghana more generally. Sumaila credibly
testified that anti-gay attitudes are not unique to his family or
neighbors; they are common among the country’s Muslim and
Christian populations at large. The State Department’s and
Amnesty International’s country reports concur that anti-gay
discrimination, harassment, and violence are a country-wide
human rights problem, due in large part to the fact that same-
sex male relationships are criminalized and discrimination
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.
Up until the attack, Sumaila’s ability to avoid this sort
of homophobic abuse hinged on his ability to dissemble his
sexual orientation and keep his sexual relationship with his
partner hidden. No major leap is required to conclude that
other gay men like Sumaila are escaping persecution by hiding
or suppressing their sexuality as well. Indeed, anti-gay laws
such as Ghana’s criminalization of sex between men are
intended to stigmatize and punish, in effect, to suppress the
expression of gay identity and sexuality in society. Cf.
Lawrence, 539 U.S. at 581 (O’Connor, J., concurring) (“[T]he
effect of Texas’ sodomy law is not just limited to the threat of
prosecution or consequence of conviction. Texas’ sodomy law
brands all homosexuals as criminals, thereby making it more
difficult for homosexuals to be treated in the same manner as
everyone else.”). Secreting his gay identity is not a workable
solution for Sumaila. Now that he has been publicly outed by
his father, the risk of future persecution at the hands of
uncontrolled private actors has increased, as evidenced by his
father’s success at enlisting neighbors willing to assault and
kill Sumaila because he is gay.
Sumaila is also at a higher risk of being prosecuted and
punished, i.e., persecuted by the state, after being outed as a
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).
The Government further argues that any
“discrimination” Sumaila faces in Ghana is “insufficient to rise
to the level of persecution.” Resp’t Br. 19 (citing Gonzalez-
Posadas v. Att’y Gen. U.S., 781 F.3d 677 (3d Cir. 2015)). To
be clear, “discrimination” is a gross mischaracterization of the
risk Sumaila faces if returned to Ghana. Moreover, Gonzalez-
Posadas is inapposite. That case did not deal with asylum but
with withholding of removal, which requires a higher threshold
than the more forgiving “reasonable possibility” standard
required for asylum. See id. at 688. There, the court upheld
the BIA’s finding that a Honduran gay man had not established
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.
In short, we hold that Sumaila’s objective experience
with anti-gay violence, the ongoing threats to his life, Ghana’s
criminalization of same-sex male relationships and the
widespread unchecked discrimination against LGBTI persons,
“combine to satisfy the requirement that [his] fear of
persecution be objectively reasonable.” Gomez-Zuluaga, 527
F.3d at 348 (holding that an applicant’s fear was objectively
reasonable based on her “objective experience” of past
violence against her family, “the threats she herself ha[d]
received,” and the country reports corroborating the
widespread risk of further persecution); accord Chavarria, 446
F.3d at 521-22.
Lastly, Sumaila must show that he cannot avoid
persecution by relocating to another part of the country or that
relocation is unreasonable. 8 C.F.R. § 208.13(b)(2)(ii). The IJ
found that there was no indication that Sumaila “would not be
safe from his family if he relocated to another part of Ghana.”
JA25. That finding is based on unreasonable presumptions and
a misunderstanding or mischaracterization of relevant
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.
Nor is it a reasonable solution. Relocation is not
reasonable if it requires a person to “liv[e] in hiding.” Agbor
v. Gonzales, 487 F.3d 499, 505 (7th Cir. 2007); accord Singh
v. Sessions, 898 F.3d 518, 522 (5th Cir. 2018) (“The case law
is clear that an alien cannot be forced to live in hiding in order
to avoid persecution.”). To avoid persecution now that he has
been outed, Sumaila would have to return to hiding and
suppressing his identity and sexuality as a gay man. Tellingly,
the IJ’s observation, no matter how ill-advised, that Sumaila
could avoid persecution and live a “full life” if he kept “his
homosexuality a secret,” JA25, was a tacit admission that
suppressing his identity and sexuality as a gay man is the only
option Sumaila has to stay safe in Ghana. The notion that one
can live a “full life” while being forced to hide or suppress a
core component of one’s identity is an oxymoron. See Qiu v.
Holder, 611 F.3d 403, 409 (7th Cir. 2010) (“[T]he only way
Qiu can avoid persecution is to cease the practice of [his
religion] or hope to evade discovery. Putting Qiu to such a
choice runs contrary to the language and purpose of
our asylum laws.”); UNHCR, Guidelines on International
Protection No. 9: Claims to Refugee Status based on Sexual
Orientation and/or Gender Identity within the context of
Article 1A(2) of the 1951 Convention and/or its 1967 Protocol
Relating to the Status of Refugees at ¶ 27 (2012) [hereinafter
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.
In summary, the record compels finding that there is, at
least, a “reasonable possibility” that Sumaila will be persecuted
in Ghana because he is gay, and therefore, he has demonstrated
a well-founded fear of future persecution.
* * *
We conclude with a final observation about Sumaila’s
claim for withholding of removal. Unlike asylum, withholding
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.
In the absence of evidence that the Ghanaian
government is looking to prosecute Sumaila or that other gay
men have been prosecuted in Ghana, or other evidence that
government officials are directly responsible for persecutory
violence against LGBTI persons, the current record does not
compel – nor preclude – finding that Sumaila is “more likely
than not” to be persecuted by government actors if returned to
Ghana. See Bromfield, 543 F.3d at 1079 (remanding on the
issue of “clear probability” with instructions to consider
whether “the Jamaican law criminalizing homosexual
conduct,” “combined with evidence of widespread violence
targeted at homosexuals, makes it more likely than not that [the
applicant] will be persecuted on account of his sexual
orientation”).
By contrast, Sumaila has made a stronger showing that,
now that he has been outed as a gay man, he is more likely than
not to be singled out for persecution by uncontrolled private
actors. That finding may even be compelled by the record
when viewed through the lens of the favorable presumption to
which he is entitled. See Gonzalez-Posadas, 781 F.3d at 684
(noting that this presumption applies to withholding of
removal). Because we believe our decision today is enough to
qualify Sumaila for a discretionary grant of asylum, we will not
undertake to apply this presumption in the first instance, even
though it would be appropriate to do so since the Government
has not attempted to make the case that country conditions have
changed. See Toure, 443 F.3d at 322 (applying the
presumption in the first instance). Therefore, we leave it to the
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
Because Sumaila suffered past persecution and has a
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
Guidelines ¶ 63.vii (“Detailed questions about the applicant’s
sex life should be avoided.”); see also Kimberly Topel, “So,
What Should I Ask Him to Prove that He’s Gay?”: How
Sincerity, and Not Stereotype, Should Dictate the Outcome of
an LGB Asylum Claim in the United States, 102 IOWA L.
REV. 2357, 2374 (2017) (“IJs who use stereotypes as a basis
for their decisions and subject respondents to demeaning and
irrelevant questioning about their sexuality do more than just
risk excluding those who truly are refugees—the negative
psychological effects on respondents in these situations have
been well-documented.”).
11
We acknowledge and thank the instructors and students from
the Immigration Law Clinic at West Virginia University
College of Law for their skillful pro bono representation of the
petitioner in this appeal.
39