Judicial misunderstanding of bisexuality leads to dangerous ruling on protection claim for Jamaican man seeking asylum

Ray Fuller v Loretta E Lynch, Attorney General of the United States, 833 F.3d 866 (7th Cir, 2016)

Summary
The United States Court of Appeals for the Seventh Circuit has refused to review the case of a person seeking asylum, despite the man's fear of persecution should he be returned to Jamaica. Ray Fuller testified that he identified as bisexual and there was evidence he was at risk of harassment and torture.

United States Circuit Judge Richard Posner, in dissent, was critical of the majority decision.

Facts
Ray Fuller is a Jamaican citizen. He had been living in the United States since 1999 and was married to an American woman. He had been granted conditional permanent resident status but this was terminated in 2004 when Mr Fuller and his wife failed to attend a required interview and the couple subsequently divorced.

Around the same time, Mr Fuller pleaded guilty to attempted criminal sexual assault and was sentenced to probation. He later violated the conditions of his probation and was resentenced to a period of imprisonment. Upon his release, Mr Fuller was detained. He applied for asylum but an immigration judge found he was 'removable' from the United States on three separate grounds. The Board of Immigration Appeals confirmed he was 'removable' (but only addressed one of the three grounds).

Mr Fuller then petitioned the Seventh Circuit for judicial review of his case.

Mr Fuller's evidence of bisexuality

The evidence that Mr Fuller submitted included US State Department Human Rights Reports from 2012 and 2013, which documented the severe abuse and discrimination suffered by lesbian, gay, bisexual and transgender people in Jamaica. He also detailed the harm and harassment he had endured in Jamaica as a bisexual man, including being:

• attacked and stoned at college;
• taunted over his sexuality and having his face sliced by a knife on his way home from work;
• robbed at gunpoint and described as a 'batty man' (a Jamaican slur for a gay man);
• shot in the back and buttock by someone in an 'anti-gay mob' at Ocho Rios; and
• rejected by his family.

The immigration judge found, inter alia, Mr Fuller's credibility to be 'seriously lacking' based on his 'substantially inconsistent testimony and documentary evidence about many matters which go to the heart of his claims'. Ultimately the judge did not believe his assertion that he was bisexual. The reasons for this included that Mr Fuller had been married to a woman; fathered children to two different women; and had been convicted of a sexual crime against a woman. The immigration judge also found 'glaring discrepancies' in Fuller's written statement and testimony about the shooting incident at Ocho Rios and other inconsistencies with his evidence regarding his family.

The Board of Immigration Appeals upheld the immigration judge's decision.

Decision
The majority found they had 'no reason to doubt' the 'general account of conditions' in Jamaica in regards to bisexuality and that a number of reasons provided by the immigration judge in rejecting Mr Fuller's evidence were 'questionable'. However, they found she relied on 'much more than a mistaken assumption' about a bisexual man's behaviour. In a 2:1 decision, the Seventh Circuit panel found the various 'discrepancies, and Fuller's unconvincing efforts to explain them, were all fair matters for the [immigration judge's] credibility determination'.

The majority found the central question in Mr Fuller’s petition for judicial review was whether the immigration judge (and the Board of Immigration Appeals) 'permissibly determined that Fuller is not bisexual' and that, as this was a factual question, the petition could only be granted if it was concluded that 'substantial evidence' did not support the adverse credibility determination.

The Dissenting Judgement

Judge Posner dissented. He found the merit of Fuller's claim rested on two issues:

(1) whether Fuller was bisexual; and

(2) whether bisexuals are persecuted in Jamaica.

Justice Posner found the immigration judge's opinion was 'oblivious' to the facts surrounding LGBT people in Jamaica and that the immigration judge had 'fastened on what are unquestionable, but trivial and indeed irrelevant, mistakes or falsehoods in Fuller's testimony'. Justice Posner found:

.. an obvious thing for the judge to have done in an attempt to sort truth from falsity in Fuller's testimony and the other evidence would have been to ask a psychologist to testify about the credibility of Fuller's claim to be bisexual.

Justice Posner also found no reason was given either by the immigration judge or the majority as to why Fuller would claim to be bisexual (if he was not) when being returned to Jamaica in those circumstances would place him in danger of persecution.

Ultimately, he found the weakest part of the immigration judge's opinion was the 'conclusion that Fuller is not bisexual', which was 'premised on the fact that he's had sexual relations with women', stating that:

Apparently the immigration judge does not know the meaning of bisexual. The fact that she refused to even believe there is hostility to bisexuals in Jamaica suggests a closed mind and gravely undermines her critical finding that Fuller is not bisexual.

Commentary
The decision has been described as 'offensive' and betraying 'a profound scepticism toward the legitimacy of bisexuality' by the LGBTIQ+ community. Questions have also been raised as to how a person can prove their sexuality – particularly in the absence of testimony from former sexual partners. In a separate asylum seeker case in the United Kingdom, a bisexual man, who was also at risk of being deported to Jamaica, resorted to providing photographic evidence of his same-sex relationship, in an attempt to establish his sexuality.

There are also naturally concerns for Mr Fuller's safety. The majority noted that while it was thin comfort, should Mr Fuller be 'able to gather new evidence showing that the [immigration judge] was mistaken about his sexual orientation' there was a possibility for his case to be reopened.

 The full text of the decision can be found here.

Rebecca Nardi is a Lawyer at Allens.