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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