Birdsong provides herein analysis of two recent asylum cases, one involving gender
violence and, the other based on sexual orientation. Birdsong reminds students and practitioners alike that asylum cases are strongly “fact driven” and they must present a good story. Further, good lawyers must read the footnotes. Please read the footnotes included herein!
The United States continues to be a country which will accept and give asylum to those who flee persecution in their homelands even if that persecution is as a result of sexual orientation or gender based violence against women. It is apparent that not all GLBT persons or abused women obtain asylum status, but from a human rights point of view we remain a safe haven where people of all sexual orientations can seek justice if they believe they have been persecuted. Yet, the lack of precedent and the discretionary power of IJ’s in asylum cases and the other aforementioned problems with adjudication make it difficult to readily predict how such cases may be decided before filing. Practitioners who file claims for affirmative asylum or who represent claimants already in removal proceedings are best advised to work with the claimant to prepare an affidavit which recounts the claimant’s background and recounts in detail each instance of persecution encountered in the country of origin. Attached to the affidavit should be as much documentary evidence as possible relevant to the claim of asylum and that will support the claimant’s position, such as newspaper articles, photographs, hospital reports and any evidence one can discover on the country of origin conditions and how that country treats GLBT persons and women.
Now we examine two recent cases concerning gender based violence and sexual orientation, respectively, and may be helpful to practitioners and scholars interested in asylum law.
A. Deqa Ahmad Haji Ali
Deqa Ahmad Haji Ali was a Somali woman who was granted asylum in the U.S. in 2005. Her story is filled with instances of cruelty, anguish, and redemption. After two merit hearings the IJ issued an oral decision denying the asylum request. The IJ found her ineligible for asylum on the ground that she failed to establish past persecution on account of a protected basis in the statute. Instead, the IJ ruled that the sole motivation for the murder, detention, and robbery “was shown to clearly be simply to steal and in the case of the rape to take gratification from the helpless condition of the respondent.” The BIA affirmed the IJ without a written opinion.
It is not completely clear whether Ali had sought asylum at the hearing level on the ground of her nationality – as a member of the Muuse Diriiye clan – or on account of her being in a particular social group, Midgan women raped by USC militia members or upon an imputed political opinion, or upon all of these grounds. In a noteworthy opinion, the Ninth Circuit disagreed with the IJ opinion that she was not persecuted on account of one of the statutory grounds. The court reversed the BIA and ruled that she had in fact suffered past persecution on account of two protected grounds: 1) political opinion; and 2) her membership in a particular social group.
The court ruled that although the USC militia was not the ruling government in Somalia, its actions were appropriately considered persecution because groups seeking to overthrow a government can be non-state agents of persecution for asylum purposes. The USC had been involved in the overthrow of Siad Barre. The court saw that her persecution had been on account of the political opinion they believed she held as a member of a particular social group – her clan. Here the court seems to be mixing the protected classes in an unusual way.
In other cases we have seen claimants attempting to delineate themselves as a particular social group such as: young women who are members of the Tchamba-Kunsutu tribe of Northern Togo who have not been subject to FGM and who oppose the practice, or Guatemalan women who have been abused by male companions who believe women are to live under male domination, or women who have been battered and raped by Salvadoran guerillas in the past and who fear such future persecution.
In the instant case the court rolls it all into one concept expressing the notion that Ali’s particular cognizable social group would be all members of the Muuse Diriiye who were helped by Siad Barre and would have political opinions different from that of the USC and other clans that believe that the Muuse Diriiye should not rise in society. This is a novel approach to finding persecution on both political opinion and particular social group grounds.
The court relied heavily on the words said to Ali by her persecutors during her rape to determine that there was a political motivation to their actions, words such as: she was a “Midgans traitor” and that she was “getting what she deserved” because she and her family were not supposed to advance in society since they were Muuse Diriiye; and finally “[L]et Siad Barre save you now…We came back to our country, you Midgans you have everything, but now we are in power and Siad Barre is gone.”
The Ninth Circuit court also found that the IJ was incorrect when he held that the rape was for sexual gratification. The court held that serious physical harm consistently has been held to constitute persecution. Rape and other forms of severe sexual violence clearly fall into this rule. This particular rule was from a 1995 Memorandum to all INS and Asylum officers adjudicating claims from women. Either the IJ had not read this important memorandum or he ignored it.
Among the implications that we may draw from this case on asylum claims for women who are victims of gender based violence is that IJ’s may not have read the literature, regulations, and memoranda that would help them to justly and properly adjudicate cases that come before them. Thus the attorney bringing such claims must be up to date on such literature, regulations, and memoranda concerning adjudicating claims by women and take them to the hearing and make them known to the IJ during the hearing or at sidebar.
Another implication that comes from Ali is the obvious one: the claimant may have more than one statutory ground upon which persecution can be founded. In Ali there were both political opinion and particular social group grounds. It should become a mantra to often be repeated by those who do political asylum work that the five grounds are: race, religion, nationality, political opinion, or a member of a particular social group. One should attempt to help the claimant determine as many grounds as possible for which the claimant may have been or will be persecuted.
An example might be an Ethiopian citizen of Oromo nationality who has been persecuted by the Ethiopian government for seeking better political rights for the Oromo people may claim persecution on account of the fact that she was persecuted 1) because of her nationality, that is her Oromo nationality; also persecuted 2) because of her religion in that she is a Muslim in a majority Christian country; and persecuted 3) on account of her political opinion, the fact she opposes the Ethiopian government because for years most Ethiopians viewed the Oromo as the “slave” caste of Ethiopia, much like the Muuse Diriiye are viewed in Somalia.
The final implication that may be drawn from Ali is that this same result might not have obtained if the case had been brought in a circuit other than the Ninth Circuit. Although the facts of Ali are compelling and it is natural to believe that such a case warranted a grant of asylum, this may not have been the case if this had been heard by the Fifth Circuit where the persecution must be performed with a “punitive intent.”
Were the six USC militia men who broke into Ali’s home who raped her, shot her brother in law, and stole their belongings acting to punish her? The words of the milita men could be so construed to understand that they were punishing her for trying to rise in society. However, the “punitive intent” requirement of the Fifth circuit could well allow an argument by the DHS attorney in the Fifth Circuit that this was nothing more than a rape and burglary done for sexual gratification and pecuniary gain and not a punitive act of persecution because of political opinion or social group since the words of the militia men were nothing more than harassment of a helpless victim.
B. Nasser Mustapha Karouni
The Karouni case is also a Ninth Circuit case from 2005, and involved an “outed” gay, Shi’ite Muslim man from Lebanon afflicted with HIV who was able to show that his fear of future persecution was well founded. The IJ denied his claim for asylum on the ground that Karouni had not established past persecution on account of his homosexuality and held with respect to future persecution that “Karouni’s testimony was full of supposition and devoid of supporting facts.” The IJ also found that Karouni failed to provide evidence to corroborate that Hizzballah militants had shot Karouni’s cousin, Khaleil, in the anus and later had murdered him. Karouni appealed to the BIA which summarily affirmed the IJ.
The Ninth Circuit held that the IJ’s findings concerning the facts of Karouni’s case were not supported by substantial evidence. The court disputed the notion that Karouni should have corroborated the evidence of the shooting in the anus and later the murder of Khaleil by reminding us that: “The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”  The court found that through his own testimony Karouni had presented substantial testimonial evidence that Hizzballah had a military presence in his region of the country that homosexuality was punishable by death, and that state officials have arrested, beaten and in some cases killed known or suspected homosexuals. In particular, at his hearing Karouni submitted as evidence a BIA opinion from a similar immigration case involving a Lebanese homosexual, in which Muslim militia men repeatedly forced the barrel of a rifle into the homosexual asylum seeker’s anus.
This last point underscores the need for those who represent asylum seekers to file with the application for asylum or submit as evidence prior to the hearing to the immigration court all relevant authority, such as BIA opinions, circuit decisions, regulations and other documentary evidence that will help strengthen the claimant’s case. An advocate should not presume that the IJ will be aware of all aspects of asylum law.
The IJ faulted Karouni for failing to provide evidence to corroborate that he had been identified as a homosexual to authorities by either his former homosexual partner, Mahmoud, or the friends with whom he attended dinner parties in 1992. The court disagreed, finding that Karouni did not speculate that he had been identified to the authorities; rather, Karouni testified that his friend and Mahmoud’s cousin told him that his name had been submitted to the authorities as a homosexual. The IJ had ruled that Karouni should have obtained affidavits from the cousin or other friends. Again, the court reminds us that when an applicant presents credible testimony, no further corroboration is required.
In another finding the IJ found that Karouni’s return to Lebanon in 1992 to attend to his dying father and in 1996 to attend to his dying mother “cut against” his claim of fear of future persecution since such actions did not appear to be the actions of one who feared persecution because he was gay. The Ninth Circuit dispatched with this finding stating that Karouni’s stays in Lebanon on both occasions were short and that the court found no fault with Karouni going to see his parents one last time.
The IJ found that such trips constituted substantial evidence that Karouni’s fear of persecution was not well founded. Concerning the IJ’s conclusion that Karouni’s fear was not well founded, the Ninth Circuit well held this to be “personal conjecture” about what someone in Karouni’s unfortunate position would have done. An IJ’s personal conjecture cannot be substituted for objective and substantial evidence. In sum, the Court reversed the IJ and the BIA finding that Karouni had both a subjectively and objectively well founded fear of future persecution if removed to Lebanon.
The implications of Karouni for those who seek justice in immigration court for LGBT persons are not as varied as those set out after Ali. As a result of Toboso-Alfonso there is no need to prove that homosexuals are a particular social group under the statute. There are no circuit splits and the concept of “punitive intent” normally does not have to be proved. If the case had been brought in the First Circuit, Karouni’s petition for review may have been denied because of the fact he had never been arrested or jailed for being a homosexual and that he had only been accosted by the Amal militia men on one occasion and for only a brief amount of time. In other words, there may not have been much evidence of persecution on account of his homosexuality. At least one scholar would, perhaps, describe Karouni as not being “gay enough” for the government because he could cover his homosexuality and should not fear future persecution in Lebanon.
The greater implication that we may draw from Karouni is that there is often much insensitivity in immigration court and too often asylum claimants encounter IJ’s who are hostile to many of the cases they hear. Such hostility may be the result of managing an overly burdensome daily docket, or it may result from racism, sexism, homophobia or a belief that the testimony and facts are contrived or fabricated. Those who represent claimants in asylum cases must understand that such hostility may not be overcome at the IJ level, but the representative must walk into the hearing with as strong a case as possible and armed with as much corroborative evidence as possible, if available. The representative needs to be aware of relevant prior decisions, and current regulations and rules.
The greatest implication that may be drawn from Karouni is the rule concerning credibility. If the testimony of the claimant is credible, corroboration is not required to prove a well founded fear of persecution. Thus, the claimant must know her case, must be truthful about her case, and testify in such a way to make the record show that the claimant believes her own case. There must be extensive preparation.
There have been great advances in our immigration laws that protect LGBT persons and women who may have been victims of gender based violence. Earlier immigration law legally excluded lesbian and gay men because the medical and psychiatric communities believed homosexuality was a disease. We, as a country, are to be commended for now extending grants of political asylum to those who may have experienced past persecution or who fear future persecution in their country of origin because of their sexual orientation or victimization on account of gender violence. Grants of political asylum on account of such persecution recognize the basic human rights that all human beings deserve. Recent statistics reveal that grants of asylum are increasing, including such grants for persecution on account of sexual orientation or gender based violence.
Asylum is a legal remedy available to legal and illegal aliens who seek protection from persecution in their country of origin on account of race, religion, nationality, political opinion, or being a member of a particular social group. Thus, not all immigrants are protected from persecution. Yet, as is often the case, the devil is in the details.
We have no definition of “persecution” or “particular social group” in the statute. Many of the definitions come from BIA or circuit court opinions. The circuits are sometimes split on their definitions of these words “persecution” and “particular social group.” The definitions are specific to those particular circuits. Some circuits like the Fifth Circuit Court of Appeals requires that there be a “punitive intent” motivating the persecutor before asylum be granted. What is needed is for the Supreme Court of the United States to set some kind of standard that would reconcile and harmonize these definitions and make them uniform for all immigration courts and the BIA. It is unlikely that this will happen.
Immigration cases seldom reach the Supreme Court because so few immigration cases dealing with asylum are appealed at all. The Attorney General could well designate more cases as precedent for certain grants of asylum. A review of the Ali and Karouni cases reveal that IJ’s need better knowledge, training, and sensitivity in order to justly adjudicate the asylum cases that they hear.
The foregoing is an excerpt of Birdsong’s article: “Give Me Your Gays, Your Lesbians, And Your Victims of Gender Violence, Yearning to breathe Free of Sexual Persecution…”: the New Grounds for Asylum. Nova Law Review Volume 32, issue 3 (Spring 2008)
 See, Ali v Ashcroft, 394 F.3d 780, supra at note 28.
 Id at 782-83: Ms. Ali was born in Berbera, a northern Somali city. Somalia society is made up of a number of clans and subclans. There is no functioning central civil government in the country. She is a member of the Muuse Diriiye clan, which is referred perjoratively as the Midgan clan. Muuse Diriiye clan member are bound in servitude to noble Somali families and are considered low cast and subhuman by other Somali clans. Traditionally, the Muuse Diriiye had no rights to engage in political activities or undertake political work, but under the presidency of Mohammed Siad Barre they were allowed to assume political positions for the first time. The opening of civil service positions to a non-noble clan angered higher-status clans, including members of the United Somali Congress (USC) militia that ousted Siad Barre in a civil war in 1991. Siad Barre fled Somalia and clan warfare has continued to rage there. Ali’s husband Omar Osman also a member of the Muuse Diriiye clan, worked for the Ministry of Education under the administration of Mohammed Siad Barre. In early January of 1991, six armed members of the USC broke into Ali’s home around sunrise. Ali recognized one of the intruders as a neighbor who knew that Ali’s husband worked for Siad Barre. Ali was brutally gang raped by three of the armed men while her husband and brother in law were bound and forced to watch. While they were raping Ali, the persecutors called Ali and her family “Midgans [sic] traitor” and told her she was getting what she deserved because her family were Muuse Diriiye, who were not supposed to advance in society, while the militia, members of higher-class clans “were supposed to have everything.” When Ali’s brother in law cursed and spit on the militia for raping her, he was shot dead in front of her.
The militia also looted Ali’s home taking everything of value and destroying her household decorations. After raping Ali, the militia took her husband with them and said “let Siad Barre save you now….We came back to our country, You Midgan you have everything, but now we are in power and Siad Barre is gone. Ali’s two sons, age eight and nine at the time were in another room during the rape and the murder.
Osman was released from detention by the militia after two weeks, and came home with broken ribs and wrists. Upon his release, Ali, Osman, and her sons fled to Ethiopia. Upon arriving in Ethiopia Osman divorced Ali because she had been raped.
 Id citing the Memorandum from Phyllis Cover, Office of Int’l Affairs, to ALL INS Asylum Officers and HQASM Coordinators, Considerations for Asylum Officers Adjudicating Asylum Claims from Women 804 (May 26, 1995). A reprint of this document may also be found in 7 Int’l J. Refugee L. 700 (1995).
 This example derives from an actual case in which the author represented an asylum claimant from Ethiopia who was awarded asylum on the ground that she was persecuted on account of her nationality, religion and political opinion. The opinion was unpublished in the case of Roman H. Abadir, A 29 015 236 (1995).
 See, Karouni v. Gonzalez, 339 F.3d 1163, supra at note 29.
 Id at 1166-67, 1168: Karouni is a native and citizen of Lebanon who legally entered the U.S. in 1987, and was placed in removal proceedings. At his hearing he sought asylum on grounds he feared persecution if removed to Lebanon because he was a homosexual, suffering from AIDS, and Shi’ite. Karouni had grown up in the Southern Lebanese province of Tyre, a region that is controlled by an Islamic paramilitary organization named “Hizzballah.” Hizzballah applies Islamic law in the areas it controls. Under Islamic law homosexuality, according to Karouni, is a crime punishable by death.
Karouni stated in his asylum application that he had “always been gay.” As a youth in the late 190’s, he and his cousin Khaleil spent time together secretly meeting other gay men. Sometime between the late 1970’s and 1984 Khaleil’s family learned Khaleil was gay and ostracized him. In 1984, Khaleil was shot in the anus at his apartment apparently by the Hizzballah because he was gay. Khaleil survived the injuries but, in 1986, was shot to death at his apartment, again, apparently by Hizzballah.
Karouni had also been the subject of anti-gay animus. In Fall 1984 two men armed with machine guns, “dressed in military garb,” and identifying themselves as members of the Amal militia, interrogated and attempted to arrest Karouni at his apartment after they learned that Karouni had been involved in a homosexual relationship with a man name Mahmoud. He was told to confess to the crime of homosexuality and was asked to name other homosexuals. He feigned ignorance. An armed neighbor and friend of Karouni interrupted the encounter and prevented the militia men from arresting Karouni. Mahmoud was not as fortunate as Karouni: he was arrested and beaten by Amal militia men and Karouni never saw him again. Karouni believed that Mahmoud told authorities that Karouni is gay. After Karouni’s encounter with the militia men he avoided his apartment for two months and started “playing a straight life” by dating women. In 1987, shortly after Khaleil’s murder, Karouni finally fled Lebanon for the United States. He was compelled to return twice to see his dying father in 1992, and in 1996, to visit his mother who was ill.
In his 1992, visit to Lebanon he attended a handful of dinner parties with other homosexuals. After his return to the U.S. he learned that at least three of the friends which he had dined were arrested, beaten and/or killed because they were gay. One of these friends Baladi was arrested by police because he was gay. He was jailed, beaten, and interrogated for names of other homosexuals. Karouni learned that during the interrogation Baladi “outed” Karouni as a gay man. Karouni fears he would identified and persecuted for having associated with these homosexual friends if removed to Lebanon.
 Id at 1173.
Id at 1174, citing Garrovillas v. INS, 156 F.3d 1010 (9th Cir. 1998), and 8 C.F.R. § 1208.13(a). See also INS § 208 (b)(1)(B)(ii) which provides, in relevant part: The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.
 Id, citing Paramasamy v. Ashcroft, 295 F.3d 1047, 1052 (9th Cir. 2002).
 But cf. Pitcherskaia v. INS, 118 F.3d 641 supra at note 102.
 See, Garrovillas v. INS, 156 F.3d 1010, supra at note 194 at 1016.