Hernandez-Montiel v. INS: 9th Circuit Rules That Mexican Gay Men with Female Sexual Identities Constitute a "Particular Social Group"

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

HERNANDEZ-MONTIEL V. INS: 9TH CIRCUIT RULES THAT MEXICAN GAY MEN WITH FEMALE SEXUAL IDENTITIES CONSTITUTE A "PARTICULAR SOCIAL GROUP"
Immigrants' Rights Update, Vol. 14, No. 5, August 31, 2000

The United States Court of Appeals for the Ninth Circuit has ruled that gay men in Mexico with female sexual identities constitute a "particular social group" for purposes of establishing eligibility for asylum and withholding of deportation. The ruling comes on a petition for review of a decision of the Board of Immigration Appeals. In reaching this decision, the court modified its interpretation of the term "particular social group" as a basis for meeting the definition of "refugee" under the Immigration and Nationality Act.

The petitioner in this case, Geovanni Hernandez-Montiel, realized as a child that he was attracted to men and began dressing and behaving as a woman. As a result, he suffered repeated harassment and persecution, including twice being raped, by Mexican police officers. In 1994 he fled to the United States and applied in the following year for asylum and withholding of deportation.

At his deportation hearing, Hernandez-Montiel testified regarding the abuses he suffered in Mexico. He also presented testimony from a San Diego State University professor with expertise in Latin American history and culture who has lived for extended periods in Mexico. He testified that in Mexico gay men with female sexual identities are a "separate social entity" and suffer brutalization and persecution.

The immigration judge found the petitioner's testimony to be credible. However, characterizing the petitioner's social group as "homosexual males who wish to dress as a woman," the IJ concluded that the group fails to constitute a "particular social group" within the meaning of the INA's definition of "refugee." The IJ found that the fact that the petitioner sometimes dressed as a man "reflects that [he] may not view his dress as being so fundamental to his identity that he should not have to change it."

On appeal, the BIA agreed that the petitioner was credible but also held that he failed to establish eligibility for asylum. Categorizing the proposed social group as simply "homosexual males who dress as females," the BIA found that the petitioner failed to establish that the decision to dress as a female was "an immutable characteristic."

On petition for review, the Immigration and Naturalization Service argued that the court did not have jurisdiction over the appeal because the petitioner had been convicted of prostitution in the United States. The Ninth Circuit rejected this argument because the INS had not charged the petitioner with deportability based on this conviction, and the BIA had not found him deportable on this basis.

On the merits, the court found that the appropriate social group in this case is "gay men with female sexual identities" in Mexico. The court found that such individuals constitute a "particular social group" and that the petitioner established his membership in this group as well as his persecution on account of it.

In issuing its ruling, the Ninth Circuit revisited its decision in Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986), where it held that the class of working class, urban males of military age who maintained political neutrality in El Salvador did not constitute a "particular social group" in part because it was not a group that people voluntarily chose to join. The court noted that this "voluntary associational relationship" requirement has not been adopted by other circuits and in fact conflicts with the BIA's requirement that membership in a social group be based on an "immutable" characteristic. See Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985). The court decided that voluntary association cannot be an essential requirement for a particular social group and therefore modified its interpretation of the statute to extend beyond that element. Under the Ninth Circuit's changed interpretation, a "particular social group" is one "united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it."

The court found that sexual orientation and sexual identity are immutable and "so fundamental to one's identity that a person should not be required to abandon them." The court also found that the group in this case clearly meets the "particular social group" definition and that the petitioner was persecuted on account of his membership in that group. Emphatically rejecting the BIA's implication that the respondent's mistreatment resulted from his effeminate dress or sexual orientation, the Ninth Circuit commented that the "'you asked for it' excuse for rape is offensive to this court and has been discounted by courts and commentators alike."

Because the petitioner established past persecution, there is a presumption that he would be persecuted in the future, and the court found that the INS presented no evidence to rebut this presumption. The court also found that Hernandez-Montiel established a "clear probability" of future persecution so as to be entitled to withholding of deportation. Accordingly, the court granted the petition and remanded the case with instructions to the BIA to grant withholding and to determine whether to grant asylum in the exercise of discretion.

Hernandez-Montiel v. INS, __ F.3d __, No. 98-70582 (9th Cir. Aug. 24, 2000).