Ninth Circuit Determines Mexican with Aids Is Eligible for Asylum
By James E. Root
Los Angeles, CA

A native and citizen of Mexico, Mr. Jose Boer-Sedano, last entered the United States in 1990 on a visitor visa. In 1997, he was placed in removal proceedings for overstaying the visa. During his removal proceedings, he sought asylum, withholding of removal, and protection under the Convention Against Torture.
Mr. Boer-Sedano was born in Tampico, a small city in Mexico. He testified that he was gay since he was seven years old and that he could not live a “gay life openly in Mexico” because of the way he would be treated. Although he tried to hide his sexuality, others noticed it. Accordingly, he was shunned by his family, friends, and co-workers because of his sexuality. Furthermore, Mr. Boer-Sedano testified that he was forced to perform sex acts numerous times on a high-ranking police officer in his hometown. To get Mr. Boer-Sedano to comply, the officer told him that he knew where he lived and worked and would tell others that he was a homosexual if he resisted. The officer also threatened to kill him. In order to seek safety, Mr. Boer-Sedano fled to Monterrey, Mexico where he worked at an underground gay discotheque and began to apply for a visa to the United States. When the police raided the discotheque, he denied his homosexuality to avoid arrest. In September of 1990, Mr. Boer-Sedano fled to San Francisco. Thereafter, he was diagnosed with Human Immunodeficiency Virus (HIV) and later with AIDS.
On November 20, 2001, the Immigration Judge found Mr. Boer-Sedano ineligible for asylum because he failed to establish past persecution on one of the five protected grounds. The Immigration Judge concluded that the sex acts which Mr. Boer-Sedano was forced to perform on the police officer were a “personal problem.” The Immigration Judge denied asylum, withholding of removal, and relief under the Convention Against Torture. Mr. Boer-Sedano appealed his case to the Board of Immigration Appeals, but the Board affirmed the Immigration Judge’s decision without opinion.
Mr. Boer-Sedano then filed a Petition for Review with the Ninth Circuit. On review, the Ninth Circuit held that the Immigration Judge erred in finding that Mr. Boer-Sedano was not a member of a particular social group. The Ninth Circuit also found that the sex acts that Mr. Boer-Sedano was forced to perform on the police officer amounted to persecution, and that the Immigration Judge erred as a matter of law in finding that Mr. Boer-Sedano had not suffered past persecution. Furthermore, the Ninth Circuit found that the police officer was a state actor and that the harm he inflicted on Mr. Boer-Sedano was on account of his homosexuality. Country reports of record show that persecution of homosexuals in Mexico currently exists, and the Court found that it was unreasonable for Mr. Boer-Sedano to relocate within Mexico because he is a homosexual and has AIDS.
Therefore, the Ninth Circuit determined that Mr. Boer-Sedano was eligible for asylum and remanded the case to the Board of Immigration Appeals for an exercise of discretion. It also remanded the case for a further consideration of Mr. Boer-Sedano’s withholding of removal claim. However, the Ninth Circuit agreed with the Immigration Judge that Mr. Boer-Sedano was not eligible for relief under the Convention Against Torture.
Mr. James E. Root practices exclusively immigration law. He has offices in the Los Angeles and Orange Counties. For a free initial consultation please contact 1(888) ROOT-LAW or visit www.RootLaw.com.



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