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Third Circuit Court rules single attack on gay man sufficient for asylum claim
Third Circuit Court rules single attack on gay man sufficient for asylum claim

The US Court of Appeals for the Third Circuit ruled Tuesday that a petitioner who fled Ghana to the US after he was assaulted and threatened by his father and neighbors for his sexuality is eligible for asylum.

Petitioner had been in a same-sex relationship with a friend, and when his father and neighbors found out, they beat him, doused him in kerosene and threatened to decapitate him. He fled, naked and bleeding, and eventually made it to the US. An immigration judge denied the petitioner’s initial application and claimed the petitioner did not have a well-founded fear of future persecution or that he had suffered past persecution.

In Ghana, gay sex is a misdemeanor. The law calls same-sex male relationships “unnatural carnal knowledge.” The immigration judge who heard the petitioner’s case found that he had not sufficiently demonstrated that the mistreatment he suffered occurred based on sexual orientation at a level that would constitute persecution. However, the circuit court rejected this finding, instead stating that petitioner had convincingly established that the threats to his life and threats to have him arrested established a clear connection between his mistreatment and his sexual orientation. The circuit court ruled that he did suffer persecution with clear imminent threats to his well-being.

The immigration judge also rejected the asylum claim based on the fact that petitioner did not require medical attention and he was able to flee. The Third Circuit rejected this claim as well, stating that it has never “conditioned a finding of past persecution on whether the victim required medical attention or on whether he was too hurt to escape his aggressors, or even on whether the victim was physically harmed at all.” The court stated that the immigration judge mischaracterized petitioner’s testimony, as the petitioner had not stated that he did not need medical attention, but that he was too afraid to seek it.

The Third Circuit reaffirmed that it also “never held that persecution requires more than one incident. Rather, [it has] left open the possibility that a single incident, if sufficiently egregious, may constitute persecution.” The court finally rejected the government’s final argument that petitioner could not seek asylum because he had not reported his assault to law enforcement. This, too, was rejected as a requirement, and instead the Third Circuit ruled that the “record is replete with evidence that Ghanaian law deprives gay men […] of any meaningful recourse to government protection and that reporting his incident would have been futile and potentially dangerous.”

Ultimately, based on his well-founded fear of future persecution and a clear establishment of past persecution based on the single incident he endured, the petitioner in this case was deemed to qualify as a refugee by the Third Circuit. It vacated and remanded for further proceedings the decision of the Board of Immigration Appeals.