A gay Mexican immigrant who sought asylum in the United States, but was deported over the recent Christmas holiday despite a court order in his favor, was retrieved Tuesday after a nearly one-month ordeal in which the Trump administration ignored rulings on his behalf.
Carlos Bringas-Rodriguez, who’s gay and HIV positive, is an asylum seeker from Mexico, who was deported Dec. 22 at 3 a.m. and literally dumped at the border with a limited supply of his HIV medications.
U.S. Immigration & Customs Enforcement deported Bringas-Rodriguez even though the U.S. Ninth Circuit Court of Appeals in March determined the persecution he faced in Mexico because of his sexual orientation made him eligible for asylum in the United States.
The Department of Homeland Security removed Bringas-Rodriguez on the basis that he missed a court appearance for asylum — an appearance for which he never received notification — taking him away from his spouse in Kansas City, Michael Young, a U.S. citizen. The couple cares for Bringas-Rodriguez’s 12-year-old cousin as a daughter.
The U.S. government only agreed to allow Bringas-Rodriguez, who also goes by Patricio Iron-Rodriguez, to return to the United States after a subsequent order from the Ninth Circuit on Thursday instructing DHS “to return petitioner to the United States through the Port of Entry at San Ysidro, California, no later than January 16, 2018.”
Bringas-Rodriguez said in a statement to the Blade prior to his retrieval he was relieved the nightmare of being separated from his family over the holidays would end soon.
“I have mixed emotions right now,” Bringas-Rodriguez said. “I am still very traumatized and shaken up from being deported and separated from my family. But I am of course relieved that this nightmare will soon be over and cannot wait to be reunited with my husband and our niece who is like my daughter.”
Young, a physician, expressed his frustration in a statement that his spouse “was taken away from me three days before Christmas, in the dead of night without my knowledge.”
“My husband has been fighting his case for over six years and has cooperated with immigration authorities throughout,” Young said. “As his husband, I am suffering because I do not know when we will be reunited; as a physician, I am terrified that his unlawful deportation will have irreparable consequences to his health. I am just relieved that the Ninth Circuit recognized the wrong done here and has ordered the government to return my husband to me.”
Representing Bringas-Rodriguez is Munmeeth Soni, co-legal director for the Los Angeles-based Immigrant Defenders Law Center, who confirmed he was paroled Tuesday and said his treatment was “not just cruel, but inhumane and outrageous.”
Bringas-Rodriguez first came to the United States in 2010 after suffering persecution in Mexico over his sexual orientation and has been fighting his asylum case ever since. In his hometown of Veracruz, Bringas-Rodriguez was repeatedly raped and sexually abused by his relatives and neighbor.
If Bringas-Rodriguez were forced to remain in Mexico, Soni said he’d face the same anti-gay persecution he endured years ago, only worse.
“There’s even more of a likelihood that it would be at the hand of strangers,” Soni said. “It could be at the hands of the police, or the military, and I think…because of his HIV condition, he definitely faces significant risk of being killed.”
Even without his recent deportation to Mexico, Bringas-Rodriguez’s case for asylum has been a trial. Bringas-Rodriguez first applied for asylum when he initially came to the United States when immigration officials detained him.
The San Diego immigration court where he first made his case denied him asylum because he couldn’t show the Mexican government would have been unwilling or unable to protect him. Part of the reason the case was denied was because of a Ninth Circuit precedent in the 2011 ruling of Castro-Martinez v. Holder against a gay, HIV-positive asylum seeker from Mexico.
On appeals to the Board of Immigrations Appeals, Bringas-Rodriguez again lost his case. When he tested positive for HIV, Bringas-Rodriguez sought a second chance before the board on the basis he was now in a higher category of persecution, but the outcome was no different. (The HIV infection happened not in Mexico, but the United States. He tested positive for the first time at age 23.)
In 2013, Bringas-Rodriguez took another chance before the Ninth Circuit. Up until that time, Bringas-Rodriguez was representing himself, but now was appointed pro bono counsel at the University of California, Irvine. That was when Soni, an adjunct professor at the school, became involved in the case.
The initial decision from the three-judge panel at the Ninth Circuit was against Bringas-Rodriguez on the basis of the 2011 decision. But when the full court agreed to rehear the case, the outcome overturned precedent and was in his favor, remanding the case to immigration court for reconsideration.
“We granted rehearing en banc and now hold that the evidence Bringas adduced before the agency — credible written and oral testimony that reporting was futile and potentially dangerous, that other young gay men had reported their abuse to the Mexican police to no avail, and country reports and news articles documenting official and private persecution of individuals on account of their sexual orientation — satisfies our longstanding evidentiary standards for establishing past persecution and compels the conclusion that Bringas suffered past persecution that the Mexican government was unable or unwilling to control,” the court determined.
Soni said the decision was “beyond positive” because it didn’t just favor Bringas-Rodriguez, but has far-reaching implications.
“It really has been an extraordinary decision for anybody, any person who’s experienced anything that Bringas has experienced,” Soni said.
In summer 2014, Bringas-Rodriguez had moved from San Diego to Kansas City to be with his now husband Young. Prior to that, he had been put on a rigorous supervised system similar to prison probation where DHS monitors his movement and must be informed if he ever leaves the. Soni said Bringas-Rodriguez fastidiously kept up with the requirements.
But his asylum process technically wasn’t over because the immigration court had ruled as a result of the Ninth Circuit order. The U.S. government was given another chance to present evidence against his case, but in the event that didn’t happen, Bringas-Rodriguez would be allowed to stay.
Bringas-Rodriguez checked in with ICE in June and was told the next time he’d need to do so was Dec. 20. But in the meantime, unbeknownst to him, his case was scheduled for a new hearing on Aug. 20 in immigration court in San Diego. DHS showed up for the hearing, but Bringas-Rodriguez didn’t.
As a result, the immigration court issued a deportation order against Bringas-Rodriguez on the basis that his failure to appear demonstrates he’s abandoned his asylum application.
The immigration court is required to send a notice to the person’s address to notify them to appear. Although Soni said they supposedly did that, it may have been sent to a different address in San Diego because Bringas-Rodriguez never received it, nor did he obtain a copy of the deportation order. There’s no certification of service for either document, Soni said.
There’s some dispute as to whether any notice went out. In subsequent communications, Soni said ICE confirmed with the law firm there’s no evidence Bringas-Rodriguez was properly served even at the wrong address in San Diego.
The U.S. government, Soni said, never bothered to inform the immigration court at the hearing DHS is aware of Bringas-Rodriguez’s location and that he wasn’t trying to abscond after putting seven years into his asylum case. DHS also knew the immigration court didn’t send the notice to the right address, but didn’t bring that up, Soni said.
Bringas-Rodriguez’s absence from the hearing about which he was unaware had major consequences when he showed up for his next check-in on Dec. 20.
“He’s immediately detained, and they tell him he’s getting deported,” Soni said. “He has no idea what they’re talking about, and they’re like, ‘Oh yeah, you missed your court hearing, and so obviously you’re getting deported because you didn’t show up.'”
Bringas-Rodriguez called his husband, who in turn called Soni, who’s able to piece together what happened and was able to obtain new local counsel, Rekha Sharma-Crawford of the Sharma-Crawford law firm in Kansas City.
Finalizing the motion to reopen his case, Sharma-Crawford law firm sent the document on Dec. 22. But it’s too late for the holiday season. The San Diego immigration court, without notification to the public, decides to close at 1 p.m. and so the courier couldn’t file the motion at the time. The motion isn’t filed until after Christmas on Dec. 26.
Despite the initial notification at the ICE office, deportation proceedings against Bringas-Rodriguez were underway while he was in detention. He was shackled and taken by plane to Mexico. Officials left him little more than his cell phone and the limited supply of HIV meds given to him by his spouse.
“He was getting deported as were we trying to file this motion to reopen,” Soni said. “By the time we had filed, he had been physically removed from the country.”
That deportation process wasn’t known to either Bringas-Rodriguez’s attorneys or his husband. Soni said on Dec. 22 she received a phone call from Young, who told her he had just heard from Bringas-Rodriguez in Mexico and wouldn’t let him call anyone before that happened.
Soni said Bringas-Rodriguez was stranded in Mexico with a couple weeks supply of his HIV medication that he obtained from his spouse while in immigration detention.
“Our client from there went to this shelter that night, stayed at that shelter until his husband could buy him a ticket to move on there because he was in a border town, and border towns are really dangerous,” Soni said.
The first destination for Bringas-Rodriguez was Veracruz because his grandmother lives there, but that was the place he suffered abuse for being gay and he didn’t want to stay. He left for Oaxaca City, another town that’s a tourist destination where he could be relatively safe, then left for Tijuana.
Soni said attorneys tried to work with DHS officials in San Diego, but after a week of radio silence, decided to take the issue back up with the Ninth Circuit with a writ of mandamus on the basis the lower court had totally ignored the judge’s order.
“In Mexico, petitioner is currently terrified and holed-up in a hotel and quickly running out of his HIV medications; he has no way to get these medications when they run out in the next 9 days,” the writ says. “Since petitioner was not allowed to contact anyone immediately prior to his removal and DHS calculatingly kept that information from his attorneys and his family, no one was able to make medical arrangements for petitioner.”
The Ninth Circuit allowed 24 hours for a response from the U.S. government, which — for the first time — started negotiating with the attorneys and asked to drop the writ because the San Diego immigration court had rescinded its order on the same day.
“We felt very strongly that we weren’t going to give them the benefit of the doubt because, up until this point, they had not been acting with us in good faith, and just also given the fact that our client’s life was on the line,” Soni said. “I’m glad we did that because ultimately, I think, we’ve gotten a faster resolution through the Ninth Circuit.”
The response to the writ of mandamus filed by Acting Assistant Attorney General for Civil Division Chad Readler made no reference to Bringas-Rodriguez’s dwindling supply of HIV meds even though that was the basis of argument presented to the Ninth Circuit.
“[A]ny alleged error in the Immigration Judge’s in absentia ruling has now been remedied, as the immigration judge has reopened proceedings and Mr. Bringas-Rodriguez will be provided further hearings on the merits of his claim,” the brief says. “As Mr. Bringas-Rodriguez has an available remedy, mandamus is not warranted.”
Soni said the U.S. government attorney didn’t think the dwindling supply of HIV meds was a big deal and said the family could ship them to him to Mexico — demonstrating a lack of knowledge of laws against sending medication outside the United States as well as difficulty of obtaining HIV treatment across the border.
“That’s exactly what all our arguments and our briefs were about and it’s as though this man didn’t even bother reading it,” Soni said.
Within hours of the government filing its brief at 4 p.m., the Ninth Circuit issued the order demanding DHS reclaim Bringas-Rodriguez, give him his medications, and take him back to Kansas City.
“We’re very, very, very lucky, but I also think that the court here was not pleased at all with how the government has treated Patricio, and how they just sort of ignored the order in the first place,” Soni said.
The order came in the nick of time. Soni said Bringas-Rodriguez took his last HIV pill two days before he was ultimately retrieved.
Lauren Mack, an ICE spokesperson, responded with a statement on the facts of the case in response to the Washington Blade’s request for a comment on why ICE allowed the deportation.
“According to DHS database records, officers with ICE’s Enforcement & Removal Operations San Diego removed Carlos Alberto Bringas-Rodriguez to Mexico Dec. 22,” Mack said. “An immigration judge with the Department of Justice’s Executive Office for Immigration Review issued Mr. Bringas-Rodriguez a final order of removal Aug. 22, which served as the basis for his removal. A motion to reopen his case was filed Dec. 26, and proceedings in his case are ongoing.”
The Department of Justice didn’t respond to the Blade’s request for comment.
As a result of the U.S. Supreme Court’s 2013 decision against the anti-gay Defense of Marriage Act, U.S. citizens in same-sex marriages, like Americans in opposite-sex marriages, can sponsor their immigrant spouses for Green Cards with an I-130 application. Soni, however, said Bringas-Rodriguez wasn’t eligible because he’s subject to the permanent bar and would have to wait 10 years outside of the country before that would be an option.
Soni said the next steps in the case aren’t settled. Although Soni said suing for damages is a “good conversation that we might have,” the main task at hand as of Tuesday was retrieving Bringas-Rodriguez from Mexico.
But was the mess of immigration laws in the United States to blame for the nightmare scenario, or something else? Soni said the Trump administration’s anti-immigration policies bear the responsibility for the scenario.
“I’d like to think that they wouldn’t have done that under the prior administration, but that under this administration, given the tenor of both Trump as well as [U.S. Attorney General Jeff] Sessions against immigrants, irrespective of whether they’re here lawfully or not, or who they are, or what they’ve done for the communities, the bottom line is to deport them,” Soni said.
Deportations are rising under the Trump administration. According to the Associated Press, nearly 54,000 immigrants were deported from the interior last year between Jan. 22 and Sept. 9 — a 34 percent increase over the same period in 2016.
Soni added, “there’s truth to the fact” that low-level immigration officials feel empowered deport immigrants with Trump at the helm.
“To a certain degree, DHS and DOJ thought they could get away with this, that they would not be held to task,” Soni said.
Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead
No political willpower to force vote or reach a compromise
Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.
Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.
In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.
If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.
“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”
The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.
Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”
“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process. We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”
Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.
“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”
A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.
Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”
Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.
The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.
Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.
“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”
Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.
For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.
Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”
“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”
But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.
No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.
Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.
“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”
Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.
Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.
Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.
To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.
A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.
“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”
But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.
D.C. bill to ban LGBTQ panic defense delayed by Capitol security
Delivery of bill to Congress was held up due to protocols related to Jan. 6 riots
A bill approved unanimously last December by the D.C. Council to ban the so-called LGBTQ panic defense has been delayed from taking effect as a city law because the fence installed around the U.S. Capitol following the Jan. 6 insurrection prevented the law from being delivered to Congress.
According to Eric Salmi, communications director for D.C. Council member Charles Allen (D-Ward 6), who guided the bill through the Council’s legislative process, all bills approved by the Council and signed by the D.C. mayor must be hand-delivered to Congress for a required congressional review.
“What happened was when the Capitol fence went up after the January insurrection, it created an issue where we physically could not deliver laws to Congress per the congressional review period,” Salmi told the Washington Blade.
Among the bills that could not immediately be delivered to Congress was the Bella Evangelista and Tony Hunter Panic Defense Prohibition and Hate Crimes Response Amendment Act of 2020, which was approved by the Council on a second and final vote on Dec. 15.
Between the time the bill was signed by Mayor Muriel Bowser and published in the D.C. Register under procedural requirements for all bills, it was not ready to be transmitted to Congress until Feb. 16, the Council’s legislative record for the bill shows.
Salmi said the impasse in delivering the bill to Congress due to the security fence prevented the bill from reaching Congress on that date and prevented the mandatory 60-day congressional review period for this bill from beginning at that time. He noted that most bills require a 30 legislative day review by Congress.
But the Evangelista-Hunter bill, named after a transgender woman and a gay man who died in violent attacks by perpetrators who attempted to use the trans and gay panic defense, includes a law enforcement related provision that under the city’s Home Rule Charter passed by Congress in the early 1970s requires a 60-day congressional review.
“There is a chance it goes into effect any day now, just given the timeline is close to being up,” Salmi said on Tuesday. “I don’t know the exact date it was delivered, but I do know the countdown is on,” said Salmi, who added, “I would expect any day now it should go into effect and there’s nothing stopping it other than an insurrection in January.”
If the delivery to Congress had not been delayed, the D.C. Council’s legislative office estimated the congressional review would have been completed by May 12.
A congressional source who spoke on condition of being identified only as a senior Democratic aide, said the holdup of D.C. bills because of the Capitol fence has been corrected.
“The House found an immediate workaround, when this issue first arose after the Jan. 6 insurrection,” the aide said.
“This is yet another reason why D.C. Council bills should not be subject to a congressional review period and why we need to grant D.C. statehood,” the aide said.
The aide added that while no disapproval resolution had been introduced in Congress to overturn the D.C. Evangelista-Hunter bill, House Democrats would have defeated such a resolution.
“House Democrats support D.C. home rule, statehood, and LGBTQ rights,” said the aide.
LGBTQ rights advocates have argued that a ban on using a gay or transgender panic defense in criminal trials is needed to prevent defense attorneys from inappropriately asking juries to find that a victim’s sexual orientation or gender identity or expression is to blame for a defendant’s criminal act, including murder.
Some attorneys have argued that their clients “panicked” after discovering the person against whom they committed a violent crime was gay or transgender, prompting them to act in a way they believed to be a form of self-defense.
In addition to its provision banning the LGBTQ panic defense, the Evangelista-Hunter bill includes a separate provision that strengthens the city’s existing hate crimes law by clarifying that hatred need not be the sole motivating factor for an underlying crime such as assault, murder, or threats to be prosecuted as a hate crime.
LGBTQ supportive prosecutors have said the clarification was needed because it is often difficult to prove to a jury that hatred is the only motive behind a violent crime. The prosecutors noted that juries have found defendants not guilty of committing a hate crime on grounds that they believed other motives were involved in a particular crime after defense lawyers argued that the law required “hate” to be the only motive in order to find someone guilty of a hate crime.
Salmi noted that while the hate crime clarification and panic defense prohibition provisions of the Evangelista-Hunter bill will become law as soon as the congressional review is completed, yet another provision in the bill will not become law after the congressional review because there are insufficient funds in the D.C. budget to cover the costs of implementing the provision.
The provision gives the D.C. Office of Human Rights and the Office of the D.C. Attorney General authority to investigate hate related discrimination at places of public accommodation. Salmi said the provision expands protections against discrimination to include web-based retailers or online delivery services that are not physically located in D.C.
“That is subject to appropriations,” Salmi said. “And until it is funded in the upcoming budget it cannot be legally enforced.”
He said that at Council member Allen’s request, the Council added language to the bill that ensures that all other provisions of the legislation that do not require additional funding – including the ban on use of the LGBTQ panic defense and the provision clarifying that hatred doesn’t have to be the sole motive for a hate crime – will take effect as soon as the congressional approval process is completed.
D.C. man charged with 2020 anti-gay death threat rearrested
Defendant implicated in three anti-LGBTQ incidents since 2011
A D.C. man arrested in August 2020 for allegedly threatening to kill a gay man outside the victim’s apartment in the city’s Adams Morgan neighborhood and who was released while awaiting trial was arrested again two weeks ago for allegedly threatening to kill another man in an unrelated incident.
D.C. Superior Court records show that Jalal Malki, who was 37 at the time of his 2020 arrest on a charge of bias-related attempts to do bodily harm against the gay man, was charged on May 4, 2021 with unlawful entry, simple assault, threats to kidnap and injure a person, and attempted possession of a prohibited weapon against the owner of a vacant house at 4412 Georgia Ave., N.W.
Court charging documents state that Malki was allegedly staying at the house without permission as a squatter. An arrest affidavit filed in court by D.C. police says Malki allegedly threatened to kill the man who owns the house shortly after the man arrived at the house while Malki was inside.
According to the affidavit, Malki walked up to the owner of the house while the owner was sitting in his car after having called police and told him, “If you come back here, I’m going to kill you.” While making that threat Malki displayed what appeared to be a gun in his waistband, but which was later found to be a toy gun, the affidavit says.
Malki then walked back inside the house minutes before police arrived and arrested him. Court records show that similar to the court proceedings following his 2020 arrest for threatening the gay man, a judge in the latest case ordered Malki released while awaiting trial. In both cases, the judge ordered him to stay away from the two men he allegedly threatened to kill.
An arrest affidavit filed by D.C. police in the 2020 case states that Malki allegedly made the threats inside an apartment building where the victim lived on the 2300 block of Champlain Street, N.W. It says Malki was living in a nearby building but often visited the building where the victim lived.
“Victim 1 continued to state during an interview that it was not the first time that Defendant 1 had made threats to him, but this time Defendant 1 stated that if he caught him outside, he would ‘fucking kill him.’” the affidavit says. It quotes the victim as saying during this time Malki repeatedly called the victim a “fucking faggot.”
The affidavit, prepared by the arresting officers, says that after the officers arrested Malki and were leading him to a police transport vehicle to be booked for the arrest, he expressed an “excited utterance” that he was “in disbelief that officers sided with the ‘fucking faggot.’”
Court records show that Malki is scheduled to appear in court on June 4 for a status hearing for both the 2020 arrest and the arrest two weeks ago for allegedly threatening to kill the owner of the house in which police say he was illegally squatting.
Superior Court records show that Malki had been arrested three times between 2011 and 2015 in cases unrelated to the 2021 and 2020 cases for allegedly also making threats of violence against people. Two of the cases appear to be LGBTQ related, but prosecutors with the U.S. Attorney’s Office did not list the cases as hate crimes.
In the first of the three cases, filed in July 2011, Malki allegedly shoved a man inside Dupont Circle and threatened to kill him after asking the man why he was wearing a purple shirt.
“Victim 1 believes the assault occurred because Suspect 1 believes Victim 1 is a homosexual,” the police arrest affidavit says.
Court records show prosecutors charged Malki with simple assault and threats to do bodily harm in the case. But the court records show that on Sept. 13, 2011, D.C. Superior Court Judge Stephen F. Eilperin found Malki not guilty on both charges following a non-jury trial.
The online court records do not state why the judge rendered a not guilty verdict. With the courthouse currently closed to the public and the press due to COVID-related restrictions, the Washington Blade couldn’t immediately obtain the records to determine the judge’s reason for the verdict.
In the second case, court records show Malki was arrested by D.C. police outside the Townhouse Tavern bar and restaurant at 1637 R St., N.W. on Nov. 7, 2012 for allegedly threatening one or more people with a knife after employees ordered Malki to leave the establishment for “disorderly behavior.”
At the time, the Townhouse Tavern was located next door to the gay nightclub Cobalt, which before going out of business two years ago, was located at the corner of 17th and R Streets, N.W.
The police arrest affidavit in the case says Malki allegedly pointed a knife in a threatening way at two of the tavern’s employees who blocked his path when he attempted to re-enter the tavern. The affidavit says he was initially charged by D.C. police with assault with a dangerous weapon – knife. Court records, however, show that prosecutors with the U.S. Attorney’s Office lowered the charges to two counts of simple assault. The records show that on Jan. 15, 2013, Malki pleaded guilty to the two charges as part of a plea bargain arrangement.
The records show that Judge Marissa Demeo on that same day issued a sentence of 30 days for each of the two charges but suspended all 30 days for both counts. She then sentenced Malki to one year of supervised probation for both charges and ordered that he undergo alcohol and drug testing and undergo treatment if appropriate.
In the third case prior to the 2020 and 2021 cases, court records show Malki was arrested outside the Cobalt gay nightclub on March 14, 2015 on multiple counts of simple assault, attempted assault with a dangerous weapon – knife, possession of a prohibited weapon – knife, and unlawful entry.
The arrest affidavit says an altercation started on the sidewalk outside the bar when for unknown reasons, Malki grabbed a female customer who was outside smoking and attempted to pull her toward him. When her female friend came to her aid, Malki allegedly got “aggressive” by threatening the woman and “removed what appeared to be a knife from an unknown location” and pointed it at the woman’s friend in a threatening way, the affidavit says.
It says a Cobalt employee minutes later ordered Malki to leave the area and he appeared to do so. But others noticed that he walked toward another entrance door to Cobalt and attempted to enter the establishment knowing he had been ordered not to return because of previous problems with his behavior, the affidavit says. When he attempted to push away another employee to force his way into Cobalt, Malki fell to the ground during a scuffle and other employees held him on the ground while someone else called D.C. police.
Court records show that similar to all of Malki’s arrests, a judge released him while awaiting trial and ordered him to stay away from Cobalt and all of those he was charged with threatening and assaulting.
The records show that on Sept. 18, 2015, Malki agreed to a plea bargain offer by prosecutors in which all except two of the charges – attempted possession of a prohibited weapon and simple assault – were dropped. Judge Alfred S. Irving Jr. on Oct. 2, 2015 sentenced Malki to 60 days of incarnation for each of the two charges but suspended all but five days, which he allowed Malki to serve on weekends, the court records show.
The judge ordered that the two five-day jail terms could be served concurrently, meaning just five days total would be served, according to court records. The records also show that Judge Irving sentenced Malki to one year of supervised probation for each of the two counts and ordered that he enter an alcohol treatment program and stay away from Cobalt.
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