A recent decision from the Eleventh Circuit Court of Appeals does not bode well for LGBTQ people seeking asylum in the United States from persecution based on their sexual orientation in their home countries.
Che Eric Sama, a native of Cameroon, sought asylum under the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (OHCHR). His application for asylum was based on his having been the victim of state-sanctioned anti-LGBTQ discrimination in Cameroon, where being gay is illegal. His request for asylum was denied, as was his subsequent appeal.
It’s a case with big implications, since all appeals from denials of asylum ultimately end up in the federal appellate courts, as was the case here. Given that President Donald Trump has already placed 15 of his conservative judges on the federal appellate benches and has at least 15 in the pipeline, it is likely we will see many more of these sorts of denials.
Sama isn’t gay, but he is a strong proponent of LGBTQ rights. Back in 2015, he posted a message in a Cameroonian university publication supporting equal rights for “homosexuals.” He was protesting the fact that two of his friends, Fai David and David’s partner, had been expelled. Following the posting, the police issued a warrant for Sama’s arrest. That arrest charged him with posting on the message board and claimed that Sama was “carrying out homosexual activities.” In late November of 2015, Sama was attacked by an anti-gay group and the police visited him at the hospital to take his statement. They did not arrest him at that time despite having a warrant to do so. They also, however, didn’t arrest anyone for his attack. A few weeks later, while Sama was at his mother’s house, a brick was thrown through the window inscribed with an anti-gay message.
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Two days later, the police showed up to arrest Sama. When they couldn’t find him and his mother wouldn’t say where he was, they arrested her instead. The problems didn’t end there. News sources later reported that Fai David had been murdered and that the police weren’t making any effort to locate his killers.
The United States is a signatory to the OHCHR document under which Sama sought asylum, which means it agrees to certain things, including not returning someone to a country where there are “substantial grounds” for believing that person will be tortured. To determine whether those substantial grounds exist, the United States has to assess, among other things, whether the other country displays a “consistent pattern of gross, flagrant, or mass violations of human rights.”
The OHCHR defines “torture” broadly:
[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
After Sama arrived in the United States in late 2015, he submitted a number of statements from friends and family about the treatment of gay individuals and people who support them in his home country. One noted that being homosexual or supporting homosexuality is punishable by law enforcement. Another statement said Sama had been warned against returning to Cameroon because of a high probability he would be arrested and tortured to death.
By those metrics, it would seem easy to conclude that Sama faces the possibility of considerable state-sanctioned harm if he returns to Cameroon. He faced, and still faces, punishment for the mere act of posting a statement in support of LGBTQ people.
It is against this backdrop of criminalization and fear that Sama sought asylum.
The Board of Immigration Appeals—the lower court in this instance—denied Sama’s appeal, saying he failed to prove he had been persecuted or had a “well-founded fear” of future harm. It based that, in part, on the fact that the police didn’t try to arrest Sama during his hospital stay. That conveniently overlooks the fact that the police did try to arrest Sama just a few weeks after his release from the hospital. And against most of the current information, the immigration judge concluded that although homophobia is indeed rampant in Cameroon, fewer people are being arrested than in years past.
One of the things the immigration judge relied upon was the 2015 State Department Human Rights report on the treatment of gay people in Cameroon. The earlier 2013 State Department report said that the police actively arrested, tried, jailed, and beat LGBTQ people and cooperated with anti-gay vigilante groups, and that LGBTQ people faced mob violence and sometimes death. By the time of the 2015 report, the State Department said that the harassment of LGBTQ people continued, but had decreased in recent years, with fewer reports of arrests.
However, according to LGBTQ people that actually live in Cameroon, the State Department report doesn’t really reflect the conditions on the ground there. Activists in that country say that at least 50 people were convicted of the “crime” of homosexuality between 2010 and 2014, sometimes for acts as benign as one man texting “I love you” to another man. Activists also say that Cameroon punishes LGBTQ people more aggressively than nearly any other country. As recently as June 2017, Human Rights Watch found that the laws against homosexuality are regularly enforced, that men arrested under that law suffer forced anal examinations, and that there was an increase of arrests of LGBTQ individuals in 2016.
The Eleventh Circuit upheld the immigration judge’s ruling in an opinion authored by Judge William Pryor, a Trump appointee. (The two other justices on the panel signed on to Pryor’s opinion.) Pryor has anti-LGBTQ views, such as believing that states should be free to criminalize “homosexual sodomy.”
In upholding the immigration judge’s opinion, the Eleventh Circuit found that Sama had not suffered enough persecution and didn’t have a reasonable fear of future persecution.
That conclusion is tough to square with the fact that a warrant for Sama’s arrest was drawn up simply because he posted a message showing he supported the LGBTQ community and that the police arrested Sama’s mother when they failed to find him. Pryor, in the opinion, wrote that these were simply isolated incidents and didn’t arise to the level of persecution. The court, perversely, relied on the fact that Sama had not yet been arrested or questioned. In other words, Sama was penalized by our court system for being able to successfully evade harm, to a point, from the police in his own country.
The appellate court also leaned heavily on the State Department’s 2015 report that showed a decrease in arrests, ignoring the fact that no longer seems to be the case, per LGBTQ people living in Africa and advocating on their own behalf. It seemed entirely uninterested in grappling with the fact that one of the individuals Sama wrote in support of was murdered not long after. Finally, the appellate court also didn’t think that the past reports that Cameroonian police collude with anti-gay groups was particularly problematic, even though Sama had twice been attacked by these groups and the police failed to arrest anyone.
None of this bodes well for future LGBTQ asylum seekers. Even under Democratic President Barack Obama, it was tough for LGBTQ people to seek asylum. The United States has recognized being LGBTQ as grounds for asylum since 1994, but keeps no records of how many LGBTQ people have obtained it on these grounds. The Obama administration eventually expanded the refugee program to be more inclusive of LGBTQ people. It even appointed a special envoy for the human rights of LGBTQ persons at the State Department. The position was tasked with “defending and promoting the human rights of LGBT persons” because doing so was “at the core of our commitment to advancing human rights globally.
It won’t surprise anyone to learn that under Trump, the special envoy position is now vacant. Activists in Africa are also worried, and rightly so, that the election of Donald Trump lessens the United States’ commitment to ensuring LGBTQ rights across the world.
And then there’s Trump’s Muslim travel ban. The most recent iteration of the ban bars nationals of Chad, Iran, Libya, Syria, Venezuela, Yemen, Somalia, and North Korea from immigrating to the United States. The ban has been litigated since its inception, two versions of the ban ago. Last week, the United States Supreme Court heard arguments in the case. The Court is tasked with determining both whether President Trump has the authority to enact the ban and whether or not the ban itself is constitutional.
Although Cameroon is not named in the ban, the ban does create problems for LGBTQ people in countries affected by it. If people can’t travel here at all, obviously they can’t apply for asylum, and many of the countries in the ban are viciously anti-gay. For example, Iran makes homosexuality punishable by death and Libya criminalizes all same-sex relationships. If LGBTQ individuals from those countries are already here, they face the possibility of having asylum put on “permanent hold” because of the ban: They won’t be deported back home, but they’ll also never be granted asylum.
Witness, also, Trump’s comment that African nations are “shithole” countries, which can be read as a general desire not to admit individuals from certain African countries, period.
This should all be considered in tandem with Trump’s all-out assault on domestic LGBTQ rights. Nearly one-third of all the judges Trump has appointed have anti-LGBTQ records. Then there’s the trans military ban, of course. He’s eliminated protections for trans students and has stopped collecting federal data on sexual orientation and gender identity. He’s proposed huge cuts in HIV and AIDS program funding. And the administration is going to back health-care workers who engage in “religious refusals” where they refuse to treat someone based on their religious beliefs.
As we face increasing discrimination against LGBTQ people in the United States that’s sure to have an effect on how we view asylum-seekers who are persecuted for their beliefs. If the country is now comfortable with persecuting its own LGBTQ citizens, why would we work to help people flee countries that also engage in persecution?
As Trump reshapes the judiciary, so too does he create a culture that will not recognize LGBTQ persecution here or abroad. It’s a terrifying future for us and it’s a terrifying future for the immigrants that seek to escape torture and discrimination, and there doesn’t really seem to be an end in sight.