C-G-T
28 I. & N. Dec. 740 (2023)
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Rule of Law:
An asylum or withholding of removal applicant's failure to report harm is not fatal to their claim if they can demonstrate that reporting would have been futile or dangerous. Furthermore, an applicant cannot be expected to hide a fundamental characteristic, such as sexual orientation, to avoid future persecution.
Facts:
- The respondent, C-G-T-, is a native and citizen of the Dominican Republic.
- As a child, C-G-T-'s father physically abused him almost daily because the father suspected he was gay, often calling him a 'girl'.
- C-G-T-'s brother and uncle provided declarations stating they believed the father's abuse was motivated by the perception that C-G-T- was gay.
- C-G-T- never reported the abuse to authorities, testifying that he believed it would be futile and that his father would kill him if he did.
- He reported the abuse to his grandmother, but she took no action.
- At age 17, C-G-T- left his hometown and came to the United States in 2007.
- After C-G-T- was in the United States, his mother informed his father that he was gay, which led the father to abuse the mother.
- In 2013, C-G-T- was diagnosed as HIV-positive in the United States.
Procedural Posture:
- The respondent, C-G-T-, filed an application for asylum and withholding of removal in July 2014.
- An Immigration Judge (IJ) held a merits hearing.
- The IJ found the respondent credible and that he was a member of cognizable particular social groups (homosexual Dominican males and HIV-positive Dominicans).
- The IJ denied the asylum application as untimely under the 1-year filing deadline.
- The IJ denied the application for withholding of removal, finding the respondent failed to establish past persecution because he did not show the government was unable or unwilling to protect him, and that he did not establish a likelihood of future persecution.
- The respondent appealed the IJ's denial of his applications to the Board of Immigration Appeals (BIA).
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Issue:
In a claim for withholding of removal, does an applicant's failure to report childhood abuse to authorities automatically mean they have failed to establish that the government was unable or unwilling to protect them from persecution?
Opinions:
Majority - Noferi, Temporary Appellate Immigration Judge
No. A failure to report harm is not necessarily fatal to a claim of persecution if the applicant can demonstrate that reporting private abuse to government authorities would have been futile or dangerous. The Board of Immigration Appeals (BIA) found that the Immigration Judge (IJ) erred by focusing too heavily on the respondent's failure to report his father's abuse as a child. The BIA reasoned that determining whether a government is unable or unwilling to protect someone is a fact-specific inquiry. For children, especially those abused by a parent, it may be unreasonable to expect them to contact authorities, as doing so could worsen their situation or be impossible. The BIA remanded the case for the IJ to reconsider the reasonableness of the respondent's failure to seek help, considering his age, testimony, and country conditions. The BIA also directed the IJ to reevaluate future persecution without assuming the respondent could avoid harm by hiding his sexual orientation, stating that such characteristics are fundamental to identity and should not be required to be changed.
Analysis:
This decision significantly clarifies the 'unable or unwilling to protect' standard for asylum and withholding claims involving familial abuse against minors. It establishes that an applicant's failure to report abuse is not a per se bar to relief, requiring adjudicators to conduct a contextual, fact-specific inquiry into the futility or danger of reporting. This lowers the evidentiary burden for vulnerable applicants who could not access state protection. Moreover, the decision creates a strong precedent that asylum seekers cannot be denied protection on the basis that they could avoid persecution by hiding fundamental aspects of their identity, such as sexual orientation, providing greater protection for LGBTQ+ applicants.
