Fear of Persecution as a Basis for Asylum

Today, in Tairou v. Whitaker, the U.S. Court of Appeals for the Fourth Circuit (per Gregory, C.J.) held that for purposes of granting asylum:

1. An individual who is gay is a member of a valid particular social group (citing Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) and Nabulwala v. Gonzales, 481 F.3d 1115, 1117 (8th Cir. 2007);
2. A threat of death constitutes a threat of persecution;
3. If an individual receives multiple death threats, the death threats establish that the individual was subjected to past persecution;
4. If an individual proves that he or she was subjected to past prosecution, the individual is entitled to a rebuttable presumption that he or she has a well-founded fear of future prosecution.

In this case, Tairou was a citizen of Benin.  He was either gay or bi-sexual (the opinion is unclear on this) and his wife is a lesbian.  He and his family were the subject of physical attacks and threats both from his family and his neighbors.  The immigration judge had determined that the Tairou “had established membership in a particular social group defined [by the Immigration Judge] as ‘homosexuals in Benin.'”   The Fourth Circuit held that:

Tairou proved that he was subjected to past persecution in Benin, he is entitled to the presumption of a well-founded fear of future persecution.  We do not decide whether the Government can rebut this presumption. Instead, we remand to the BIA to reconsider the question under the proper presumption.

Slip op. at 11.  (Citations omitted.)

One point that is of some interest is that “country conditions” in Benin concerning the danger to gay individuals was based in part on a Canadian governmental travel advisory that painted a more dangerous picture for gay individuals than the U.S. State Department Benin Country Report (“A Canadian governmental travel advisory for Benin stated that although homosexuality was not illegal, it could lead to arrest under laws such as indecent exposure.  . . . However, a United States State Department Benin Country Report indicated that homosexual behavior was discouraged but ‘neither prosecuted nor persecuted.’”)