A federal appeals court this week denied asylum for a Jamaican national — who was once convicted of attempted sexual assault in the United States — even though he asserted he’s bisexual and would face persecution if forced to return to his home country.
In a 2-1 decision, a three-judge panel on the U.S. Seventh Circuit Court of Appeals upheld a decision from an immigration judge denying the petition from Ray Fuller, a 51-year-old Jamaican citizen, on the basis his testimony wasn’t credible.
Writing for the majority, U.S. Circuit Judge Diane Wood, a Clinton appointee, said the determination by the immigration judge Fuller isn’t bisexual is “entirely reasonable” due to discrepancies in his testimony.
“Because we cannot say that any reasonable adjudicator would be compelled to conclude to the contrary (i.e. compelled to conclude that he is indeed bisexual), the agency properly denied Fuller’s application for deferral of removal under the CAT,” the decision says.
Fuller sought withholding from removal under the Immigration & Nationality Act and the United Nations Convention Against Torture. After the immigration judge denied all relief under those laws, the Board of Immigration Appeals upheld the decision.
According to the decision, Fuller came into the United States in 1999 with a fiance visa sponsored by a U.S. citizen, whom he later married and with whom he had a daughter, but they later divorced. His immigration status was terminated in 2004.
Also in 2004, Fuller pled guilty to attempted criminal sexual assault. According to the decision, the victim informed police he threatened to kill her and that she told him several times during the encounter to stop.
He was sentenced to 30 months’ probation. After violating the terms of his probation, Fuller was sentenced in 2012 to four years’ imprisonment. Upon his release, the U.S. Department of Homeland Security detained him and charged him as removable.
Fuller sought withholding of removal on the basis he’s bisexual and pointed to evidence, including human rights reports from the U.S. State Department, documenting anti-LGBT persecution in Jamaica, a country that criminalizes same-sex relations.
In Jamaica, Fuller said he had relationships with both men and women, was attacked and sometimes stoned by other students at college in Kingston and held up at gunpoint for being a “batty man,” which is a Jamaican slur for a gay man.
On another occasion, Fuller said he was shot in the back and buttocks by someone from an “anti-gay mob” while partying with his boyfriend in the resort town of Ocho Rios. Afterwards, he said his sisters learned about his sexual orientation as a result of the shooting and disowned him.
Fuller later became romantically involved with a woman in Jamaica, then travelled to the United States, but said he continued to have multiple affairs with both men and women.
The immigration judge denied all relief to Fuller, first on the basis attempted sexual assault is a “particularly serious crime,” and second because she didn’t believe he’s bisexual or the Jamaican government would consider him such.
Disputing Fuller’s assertion he’s bisexual, the immigration judge pointed to his marriage to a woman and two children. She also noted a discrepancy in his stated history, pointing out he said during his written statement he was shot between 1983 and 1988 with a boyfriend named Henry, but during testimony the incident happened in 1997 with a boyfriend named Stephen.
The immigration judge pointed out Fuller lied on an application to return to Jamaica in 2001, confused his sisters’ names, mixed up a sister with his mother and gave different figures of his number of sisters.
Although Fuller produced seven letters from sisters and friend asserting he’s bisexual, the immigration judge discounted them on the basis the authors wouldn’t testify in court and because the signatures on the letters were stylistically suspicious. In some instances, they consisted of a series of dots.
Echoing the immigration judge, Wood on behalf of the 7th Circuit affirms Fuller’s testimony presented discrepancies.
“People may not remember what they had for lunch 20 or 30 years ago, but some experiences leave a greater imprint on the memory than others,” Wood writes. “It was entirely reasonable for the IJ to think that the experience of being shot falls in the latter category, and that someone for whom that is not an everyday event would remember whether he was shot while in college in the late 1980s or with a boyfriend in the late 1990s.”
Joining Wood in the decision was U.S. Circuit Judge Ilana Rovner, an appointee of George H.W. Bush whose recent decision denying anti-gay workplace discrimination is covered under current federal civil rights law inspired consternation among LGBT advocates.
Dissenting from the majority opinion was U.S. Circuit Judge Richard Posner, a Reagan appointee who wrote a scathing rebuke to the immigration judge, saying she apparently “does not know the meaning of bisexual.”
“And how exactly does one prove that he (or she) is bisexual?” Posner writes. “Persuade all oneʹs male sex partners to testify, to write letters, etc.? No, because most Jamaican homosexuals are not going to go public with their homosexuality given the vicious Jamaican discrimination against lesbian, gay, bisexual, and transgender persons, which is undeniable, as I’ll show.”
Posner criticizes the immigration judge for basing her denial of relief on “unquestionable, but trivial and indeed irrelevant” mistakes in Fuller’s testimony as opposed to focusing on the anti-LGBT atmosphere in Jamaica.
“The fact that an applicant for asylum makes mistakes or even lies is material to his asylum claim only if the mistakes or lies are germane — which the mistakes (or lies) about his sisters and mothers were not,” Posner writes. “He testified without contradiction that his family has rejected him because of his bisexuality; it would be no surprise if, having been rejected by his mother and sisters, he lashed back at them, as by “mixing up” one of his sisters with his mother.”
Posner faults the immigration judge for rejecting the seven letters Fuller presented asserting his bisexuality. As for the differing recollections for the timing on being shot, Posner writes Fuller may have misremembered. Posner also criticizes the immigration judge for not seeking a psychologist to verify Fuller is bisexual.
“Nor has any reason been given, either by the immigration judge or by the majority opinion in this court, why if Fuller is not bisexual he would claim to be in an effort to remain in the United States, knowing that if he failed in his effort to remain he would be in grave danger of persecution when having lost his case he was shipped off to Jamaica,” Posner writes. “No doubt once back in Jamaica he could deny being bisexual — but no one who was either familiar with this litigation, or had been one of his persecutors before he left Jamaica for the United States, would believe (or at least admit to believing) his denial.”
Nowhere in Posner’s dissent does he address Fuller’s conviction for attempted sexual assault or what bearing that would have on his case for relief.
Posner, who wrote the majority opinion striking down bans on same-sex marriage in Indiana and Wisconsin, gained notoriety among LGBT advocates for his aggressive questioning of attorneys general seeking to defend their states’ ban on gay nuptials. Like many Americans, Posner, based on his writings, underwent an evolution to reach support for same-sex marriage, first denying courts could find a constitutional right for same-sex couples to marry, then embracing the idea.
According to the decision, if Fuller can gather new evidence demonstrating the immigration judge was mistaken about his sexual orientation, he can ask her to accept a motion to reopen, although the decision on such a request is entirely up to the judge and not subject to review.
Dorian Needham, a staff attorney with Immigration Equality’s pro bono program, said the ruling demonstrates the need for immigration judges to receive training on LGBT issues.
“Immigration Equality trains every incoming asylum officer — hundreds each year — on issues pertaining to sexual orientation and gender identity,” Needham said. “This case illustrates why we have long advocated for immigration judges to receive the same training.”
Pointing to the majority’s determination the immigration judge “could be criticized for betraying a lack of understanding about bisexuality,” Needham said the court should have remanded the case for further consideration.
“Rather than offering Fuller the admittedly ‘thin comfort’ that he may be able to prevail upon this same immigration judge’s discretion to reopen his case, however, the majority should have remanded Fuller’s case so that he could (as they suggest) ‘gather new evidence showing that the [immigration judge] was mistaken about his sexual orientation,’” Needham said.
The U.S. Justice Department, which defended the removal proceedings for Fuller, declined to comment on the Seventh Circuit decision.