Interim Decision #3222

Interim Decision #3222

MATTER OF TOBOSO-ALFONSO

In :Exclusion Proceedings

A-23220644

Decided by Board March 12, 1990D 3

An applicant, who had the status of being a homosexual, both established his

membership in a particular social group in Cuba and demonstrated that his freedom was

threatened within the meaning of section 243(h)(1) of the Immigration and Nationality

Act, 8 U.S.C. § 1253(h)(1) (1990), on account of his membership in that group.

EXCLUDABLE: Act of 1952—Sec. 212(a)(9) [8 U.S.C. § 1182(a)(9)]--Crime involving

moral turpitude

Sec. 212(a)(20) [8 U.S.C. § 1182(a)(20)]—No valid

immigrant visa

Sec. 212(a)(23) [8 U.S.C. § 1182(a)(23)]—Convicted of

controlled substance violation

ON BEHALF OF APPLICANT:

Harry A. Loftus, Esquire

602 Sawyer, Suite 201

Houston, Texas 77007

ON BEHALF OF SERVICE:

Patricia A. Cole

General Attorney

BY: Milhollan, Chairman; Dunne and Heilman, Board Members. Dissenting Opinion:

Vacca, Board Member. Concurring in the Dissenting Opinion: Morris, Board

Member.

In a decision dated February 3, 1986, the immigration judge found

the applicant excludable under sections 212(a)(9), (20), and (23) of the

Immigration and Nationality, 8 U.S.C. §§ 1182(a)(9), (20), and (23),

denied his request for asylum, pursuant to section 208(a) of the Act, 8

U.S.C. § 1158(a), but granted his application for withholding of

deportation to Cuba under section 243(h) of the Act, 8 U.S.C.

As noted, this case was decided by the Board on March 12, 1990. By Attorney

General Order No. 1895-94, dated June 19, 1994, the Attorney General ordered:

hereby designate the decision of the Board of Immigration Appeals in In re- Fidel

Toboso-Alfonso (A23 220 644) (March 12, 1990) as precedent in all proceedings

Involving the same issue or issues."

Interim Decision #3222

§ 1253(h). The Immigration and Naturalization Service has appealed

this decision. The appeal will be dismissed.

The applicant is a 40-year-old native and citizen of Cuba who was

paroled into the United States in June of 1980, as part of the Mariel

boat lift. In 1985 his parole was terminated. He was placed in

exclusion proceedings and appeared before an immigration judge in

Houston, Texas. The applicant conceded his excludability and applied

for asylum and withholding of deportation to Cuba.

The immigration judge ultimately concluded that the applicant was

statutorily eligible for asylum and withholding of deportation as a

member of a particular social group who fears persecution by the

Cuban Government. He denied the applicant's request for asylum in

the exercise of discretion, but granted him withholding of deportation.

The Service contends that the applicant did not meet his burden of

proof, that the evidence presented was inadequate to prove the

existence of a particular social group or a clear probability of

persecution in Cuba, and that he was ineligible for withholding in view

of his conviction for possession of cocaine. As the applicant did not

appeal from the immigration judge's decision, the only issues now

before us pertain to the immigration judge's grant of withholding of

deportation to Cuba to this alien.

An alien who seeks withholding of deportation from any country

must show that his "life or freedom would be threatened in such a

country on account of race, religion, nationality, membership in a

particular social group, or political opinion." Section 243(h)(1) of the

Act. In order to make such a showing, the alien must establish a "clear

probability" of persecution on account of one of the enumerated

grounds. INS v. Stevie, 467 US. 407 (1984). This "clear probability"

standard requires a showing that it is more likely than not that an alien

would be subject to persecution. Unless an alien is barred from relief

under the provisions of section 243(h)(2), once he establishes that he

qualifies for withholding of deportation, it must be granted and he

cannot be returned to the country where he would face persecution. He

can, however, be sent to another country under certain circumstances.

In the instant case, the applicant asserts that he is a homosexual

who has been persecuted in Cuba and would be persecuted again on

account of that status should he return to his homeland. He submits

that homosexuals form a particular social group in Cuba and suffer

persecution by the government as a result of that status.

The applicant testified that there is a municipal office within the

Cuban Government which registers and maintains files on all homosexuals. He stated that his file was opened in 1967, and every 2 or 3

months for 13 years he received a notice to appear for a hearing. The

notice, the applicant explained, was a sheet of paper, "it says Fidel

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Interim Decision #3222

Armando Toboso, homosexual and the date I have to appear." Each

hearing consisted of a physical examination followed by questions

concerning the applicant's sex life and sexual partners. While he

indicated the "examination" was "primarily a health examination," he

stated that on many occasions he would be detained in the police

station for 3 or 4 days without being charged, and for no apparent

reason. He testified that it was a criminal offense in Cuba simply to be

a homosexual. The government's actions against him were not in

response to specific conduct on his part (e.g., for engaging in

homosexual acts); rather, they resulted simply from his status as a

homosexual. He further testified that on one occasion when he had

missed work, he was sent to a forced labor camp for 60 days as

punishment because he was a homosexual (i.e., had he not been a

homosexual he would not have been so punished).

The applicant stated that at the time of the Mariel boat lift, the

Union of Communist Youth received permission to hold a demonstration against homosexuals at the factory where he worked. Several of

the members got on top of a table and screamed that all homosexuals

should leave—should go to the United States. He testified that on that

same day there was a sheet of paper tacked to the door of his home

which stated that he should report to "the public order." The applicant

presented himself at the police station in the town of "Guinea" where

he was informed by the chief of police that he could spend 4 years in

the penitentiary for being a homosexual, or leave Cuba for the United

States. He was given a week to decide and decided to leave rather than

be jailed.

The applicant further testified that the day he left his town, the

neighbors threw eggs and tomatoes at him. He claims that the situation

was so grave that the authorities were forced to reschedule his

departure time from the afternoon to 2:00 a.m., in order to quell the

protesting residents.

In addition to the applicant's testimony, he supplemented the

record with the following information: several articles describing

"Improper Conduct," a film which centers on the testimony of 28

Cuban refugees and recounts the human rights violations, including

incarceration in forced labor camps known as "Military Units to Aid

Production," suffered by Cubans whom the Government considers to

be dissidents or "antisocial," particularly male homosexuals; a newspaper article entitled, "Gay Cubans Survive Torture and Imprisonment," in which Cuban homosexuals in the United States, most of

whom were part of the Mariel boat lift, describe their treatment by the

Cuban Government, including repeated detentions, incarcerations,

and physical beatings; and, Amnesty International's Report for 1985

which describes the political situation in Cuba.

Interim Decision #3222

The immigration judge found the "applicant's testimony to be

credible and worthy of belief, and, if anything, perceive[d] that he was

restrained in his testimony as to the difficulty of his life during the

years that he lived in Cuba." The immigration judge further concluded

that the applicant had been persecuted in Cuba and that he has a wellfounded fear of continued persecution in that country. He found that

this persecution resulted from the applicant's membership in a

particular social group, namely homosexuals. The immigration judge

denied the applicant's asylum application in the exercise of discretion

because of the nature of the applicant's criminal record in the United

States. However, as the immigration judge found that the applicant's

crimes did not bring him within the scope of section 243(h)(2)(B), he

granted his application for withholding of deportation to Cuba.

The Immigration and Naturalization Service appeals from the grant

of withholding of deportation to Cuba to the applicant, arguing that

homosexuals were not a particular social group contemplated under

the Act, that the applicant has not presented adequate evidence to

show either a well founded fear or a clear probability of persecution,

-

and that the applicant is ineligible for relief under section 243(h) of the

Act because of his conviction for possession of cocaine.

We do not find that the Service has presented persuasive arguments

on which to reverse the immigration judge's finding that the applicant

established his membership in a particular social group in Cuba. The

Service argues that "socially deviated behavior, i.e. homosexual

activity is not a basis for finding a social group within the contemplation of the Act" and that such a conclusion "would be tantamount to

awarding discretionary relief to those involved in behavior that is not

only socially deviant in nature, but in violation of the laws or

regulations of the country as well." The applicant's testimony and

evidence, however, do not reflect that it was specific activity that

resulted in the governmental actions against him in Cuba, it was his

having the status of being a homosexual. Further, the immigration

judge's initial fmding that a particular social group existed in Cuba

was not "tantamount to awarding discretionary relief' to that group.

Individuals in a particular social group are not eligible for relief based

on that fact alone, among other showings they must establish facts

demonstrating that members of the group are persecuted, have a wellfounded fear of persecution, or that their life or freedom would be

threatened because of that status.

We principally note regarding this issue, however, that the Service

has not challenged the immigration judge's finding that homosexuality

is an "immutable" characteristic. Nor is there any evidence or

argument that, once registered by the Cuban government as a

homosexual, that characterization is subject to change. This being the

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case, we do not find the Service's challenge to the immigration judge's

finding that this applicant was a member of a particular social group in

Cuba adequately supported by the arguments set forth on appeaL

The next issue is whether the immigration judge erred in finding

that the applicant had established that his life or freedom would be

threatened in Cuba. The immigration judge not only found the

applicant's testimony regarding the events in Cuba credible, but

concluded that, if anything, he was "restrained in his testimony as to

the difficulty of his life during the years that he lived in Cuba." In this

regard, he noted that the applicant simply took as a matter of course

that he "would be frequently detained for days [by government

officials] while being subjected to verbal and physical abusive treatment." The applicant's testimony that simply because of his status as a

homosexual he was advised by his government to leave the country or

face incarceration for a period of 4 years is not contested. There is no

evidence or allegation that this "choice" he was given resulted from

any specific acts on his part or that the government did not intend to

jail him if he failed to leave. The record indicates that rather than a

penalty for misconduct, this action resulted from the government's

desire that all homosexuals be forced to leave their homeland. This is

not simply a case involving the enforcement of laws against particular

homosexual acts, nor is this simply a case of assertion of "gay rights."

Particularly in view of the final governmental threat that precipitated

the applicant's departure from Cuba, we agree with the immigration

judge's finding that the applicant's freedom was and is threatened

within the contemplation of section 243(h)(1).

The final issue regarding his application for withholding of deportation to Cuba is whether he is ineligible for this relief under the

provisions of section 243(h)(2)(B). Although we do not minimize the

seriousness of the offenses for which this applicant was convicted, they

are not "particularly serious crimes" as contemplated by section

243(h)(2)(B) of the Act, and the applicant is not barred from

withholding of deportation. See Matter of Garcia-Garrocho, 19 I&N

Dec. 423 (BIA 1986); Matter of Frentescu, 18 I&N Dec. 244 (BIA

1984). The applicant's drug conviction was for simple possession of

cocaine and the Service agrees with the immigration judge's conclusion that the burglary offense was not a particularly serious crime

within the scope of section 243(h)(2)(B).

In view of the mandatory nature of section 243(h), the immigration

judge's grant of withholding of deportation to Cuba to the applicant

will stand and the following order will be entered.

The Service's appeal is dismissed.

ORDER:

Interim Decision #3222

DISSENTING OPINION: Fred W. Vacca, Board Member

I respectfully dissent.

As the majority correctly states, the sole matter before us on appeal

is whether the applicant has demonstrated his eligibility for withholding of deportation to Cuba under the provisions of section 243(h) of

the Immigration and Nationality Act, 8 U.S.C. § 1253(h). To be

eligible for withholding of deportation, the applicant must show that

his "life or freedom would be threatened in such a country on account

of race, religion, nationality, membership in a particular social group,

or political opinion." Section 243(h)(1) of the Act. In order to make

such a showing, he must establish a "clear probability" of persecution

on account of one of these enumerated grounds. INS v. Stevic, 467 U.S.

407 (1984). This "clear probability" standard requires a showing that

it is more likely than not that an alien would be subject to persecution.

On this record, I do not find that the applicant has shown a "clear

probability" that his life or freedom would be threatened on account of

one or more of the aforementioned grounds if he returns to Cuba.

Accordingly, I would dismiss the appeal for this reason and order his

exclusion and deportation to his country of nationality.

There are two principal factual aspects of the applicant's claim that

he will likely be subject to persecution if returned to Cuba. The first

relates to his treatment by the Cuban authorities from the time he was

registered by the Government as a practicing homosexual in 1967 until

1980. The second relates specifically to the threat that was made to

him in 1980—at the time of the "Marielito" exodus—to leave Cuba or

be jailed for 4 years.

The applicant testified that he has been a practicing homosexual

since he was 9 years old. The government apparently became aware of

this fact in 1967 as he was put on a government register that year. He

stated that he was never actually incarcerated because of his homosexuality. As a homosexual, however, he was called in and questioned by

the authorities with some regularity. He testified that he was detained

for several days "a whole bunch of times" as a result of "many

investigations - because the authorities "said we knew everything ...

homosexuals knew ... who was stealing and the assaults and

everything." When asked whether the government examinations were

primarily health examinations, the applicant responded: "Yes, and

mostly ... so there wouldn't be any kind of disease or sickness." One

specific incident the applicant referred to as occurring during this

period was the subject of contradictory testimony. On one hand, he

testified that he worked at a textile factory and that "no homosexuals

could work there." Yet, when he violated a regulation about missing

work for 3 days without a doctor's certificate, he stated that he was

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sent to a work camp for 60 days because he was a homosexual. He

testified that "if a woman missed out three days of work, and they

didn't have anything like that against her, nothing would happen to

her."'

The applicant testified in a general manner that some homosexuals

were imprisoned or sent to work camps in Cuba and that a friend "got

five years for what is called being a dangerous person." He noted that

homosexuality was a criminal offense in Cuba.

I do not find this testimony regarding the circumstances of the

applicant's previous experiences in Cuba as a known practicing

homosexual to be such as to indicate a "clear probability" that his life

or freedom would be threatened if he were to return to that country.

There are apparently Cuban criminal laws regarding homosexuality?

The applicant himself characterized his experiences with the authorities as part of either investigations or health examinations. He did not

describe these incidents as his being "incarcerated" because he was a

homosexual. The United States Supreme Court has in fact found that

state criminal sodomy laws do not violate the fundamental rights of

homosexuals. Bowers v. Hardwick, 478 U.S. 186 (1986). Considering

the applicant's own characterization of the events, these experiences

appear related to the investigation of criminal activities and the

control of health matters rather than persecution of the applicant. The

applicant presented some general background materials regarding the

treatment of homosexuals (much of which relates to a documentary

film describing "events of the middle and late sixties and early

seventies"). The 1985 Amnesty International Report introduced by the

applicant makes no reference to the treatment of homosexuals

whatsoever. Particularly under such circumstances, I find the applicant's situation best evaluated in light of his own experiences over his

13 years as a known homosexual in Cuba.

The second aspect of the applicant's case, which I consider within

the total factual context he has presented, is his testimony that in 1980

he was told by the authorities he would be jailed for 4 years if he did

not leave the country. In my view, this threat must be evaluated in the

context of the time and situation in which it was made. During the

massive exodus of Cubans from Mariel in the spring of 1980, some

departures were entirely voluntary, some coerced. Fidel Castro used

He further testified in this regard that when he missed work "one would always try to

justify with the doctor or something, but in that case, ... I wasn't able to justify." The

date of this incident was never made entirely clear. In his testimony, he statcd that it

occurred "around 1975." However, this was apparently the incident he referred to on his

asylum application as occurring in 1977 and involving 90 days imprisonment.

2No evidence was presented as to the specifics of Cuban criminal law in this regard.

Interim Decision #3222

the plight of the "Marielitos" as an opportunity to rid Cuba of many

who were deemed undesirable by his government, including criminals

and homosexuals. In view of his prior experiences, it is clear that the

purpose of the particular threat to the applicant was to get him to leave

the country. If he were to return to Cuba today with the permission of

the Cuban authorities, has he demonstrated a "clear probability" that

the threat made in 1980 has relevance? For reasons discussed in

Matter of Barrera, 19 I&N Dec. 837 (BIA 1989), I would find that such

is not the case. The Cuban government has agreed to the return of

those who departed (many with "encouragement" or coercion) in 1980

and has given diplomatic assurances of "no reprisal" to those who are

returned. As I view the threat to the applicant in 1980 as principally

motivated to coerce his departure, I do not find that he has

demonstrated a "clear probability" that has meaning today, particularly when viewed in the context of his experiences over the years from

1967 to 1980.

As I do not find that the applicant has adequately established that

his "life or freedom would be threatened on account of race, religion,

nationality, membership in a particular social group, or political

opinion," I would sustain the Service appeal in this regard and order

the applicant excluded and deported from the United States_

CONCURRING IN THE DISSENTING OPINION:

Morris, Board Member

I concur in the foregoing dissenting opinion.

R'76

James P.