Gay Guyanese man was discriminated against

Jun 25, 2008 News

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— U.S. judge rules

New York (New York Law Journal) – An immigration judge has been pulled from a case for showing apparent bias and making unfounded assumptions about homosexuals.

The 2nd U.S. Circuit Court of Appeals ordered that Immigration Judge Alan Vomacka be removed from the case of Peter Conrad Ali, a 42-year-old career criminal, who claimed he was raped by immigration police at a jail in his native Guyana, and would be persecuted if he was forced to return.

“We believe I.J. Vomacka clearly abrogated his ‘responsibility to function as a neutral, impartial arbiter’ … when, without reference to any support in the record, he voiced stereotypes about homosexual orientation and the way in which homosexuals are perceived, both in the United States and Guyana,” Judges Amalya Kearse, Guido Calabresi and Robert Katzmann said in Ali v. Mukasey, 06-1469-ag. Judge Calabresi wrote the decision.

The decision will be published Tuesday.
After Ali became a permanent resident of the United States at age 19, he spent 10 years amassing a long arrest record, including convictions on nine theft-related crimes. He was deported to Guyana in 1997, re-entered the United States, was deported for a second time in 1999, re-entered the United States once again, and was arrested and placed in removal proceedings for a third time in 2000.

He filed for asylum, withholding of removal, and relief under the Convention Against Torture in 2004, claiming he had been tortured in the past because of his East Indian ancestry and because he was a criminal deportee.

He claimed that he was raped, beaten and sodomized by Guyanese police or immigration officers when he was first returned to Guyana in 1997. He also claimed he escaped custody to return to the United States, and escaped a second time after his second deportation to avoid being tortured.

In 2002, Immigration Judge Wayne Iskra, in Arlington, Va., found that Ali’s claim of physical and sexual abuse was credible and corroborated by “inhumane and degrading” prison conditions in Guyana and “numerous instances” of murder and torture by Guyanese police, including the abuse of criminal suspects.

Finding Ali had shown a likelihood he would be subjected to torture if deported, but wary that Ali was a danger to the community if released in the United States, the judge deferred removal and left the decision up to immigration officials.

In 2004, prosecutors in the Eastern District of New York charged Ali with criminal re-entry. The Department of Homeland Security’s motion to terminate Ali’s deferral of removal was heard by Vomacka.

Ali amended his claim for relief to add that he now feared persecution in Guyana on the new grounds that he was a homosexual.

On November 14, 2004, Vomacka found Ali was no longer entitled to deferral because he had failed to establish the likelihood he would be tortured if he was returned to Guyana.

In addition to finding that Ali’s accounts were implausible and he was “capable” of imagining or “exaggerating harm,” Vomacka said it was “not easy for the court to understand why a respondent would be willing to disclose forcible rape by jail guards, but not willing to discuss his own sexual orientation.”

The judge also suggested Ali announced his homosexuality to delay the proceedings.
The Board of Immigration Appeals sent the case back to Vomacka because he failed to consider the decision of Iskra. The immigration court in Virginia continues to have administrative control over Government motions to terminate deferral of removal.

Vomakca reaffirmed his prior decision, first finding that Ali’s claims that he would be tortured for his sexual orientation, and tortured because of his criminal deportee status, to be incompatible.

He said, “Violent dangerous criminals and feminine contemptible homosexuals are not usually considered to be the same people,” so Ali was less likely to be viewed as a member of either group.

Vomacka said people in Guyana would not know Ali was a homosexual, and he “would need a partner or a cooperating person” to be recognized as such. He also said Ali had “professed mental problems” and the “picture” of Ali “as a proud, professed homosexual in Guyana seems to be more an expression of wishful thinking than something that’s particularly likely to come true.”

The judge also found that there was no evidence that homosexuals were persecuted or tortured in Guyana, and that Ali was “fluent in the language of lying” as demonstrated by less than credible accounts of his sexual assault and his trips back to the United States.

The Board of Immigration Appeals, although “troubled” by several of the judge’s “gratuitous remarks,” upheld the ruling, and Ali moved to the Second Circuit.

‘PRECONCEIVED ASSUMPTIONS’
Judge Calabresi was critical of the judge’s formulation “that violent dangerous criminals and feminine contemptible homosexuals are not usually considered the same people.”

“By treating aspects of Mr. Ali’s identity as incompatible, I.J. Vomacka essentially dismissed, without consideration, a crucial component of Ali’s application for relief,” he said.

On Vomacka’s statement about “a partner or cooperating person,” Calabresi said, “This comment appears to derive from stereotypes about homosexuality and how it is made identifiable to others.”

He also faulted the Immigration Judge for saying he doubted Ali would “make his homosexuality obvious in public or draw the attention of the authorities or the police” because he is “a person who mostly tries to avoid conflict.”

“These comments reflect an impermissible reliance on preconceived assumptions about homosexuality and homosexuals, as well as disrespect for the petitioner,” Calabresi said.
Calabresi closed by saying the court did not reach its decision “lightly” and recognized that Ali may face the same result on remand.

But, he said, “Ali is entitled to a hearing that is conducted ‘in an unbiased way'” and an opinion that allows meaningful review by the court.

Leon Fresco of Holland & Knight and Olivia Cassin of The Legal Aid Society represented Ali.
Thomas H. Dupree of the Department of Justice represented the Government.

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