The 9th US Circuit Court of Appeals has ordered a review of the case of a Russian gay asylum seeker and held the US Department of Justice’s Board of Immigration Appeals had erred in the matter. The court ruled that the immigration authorities had made a mistake while concluding that the asylum seeker had failed to prove Russian officials were unwilling or unable to restrain his attackers.
The Russian man had alleged that he had been attacked several times for being gay and he feared persecution if forced to return to Russia.
However, the federal officials decided not to grant asylum to him on their conclusion that the man had failed to prove possibility of persecution, or that Russian government officials were unable or unwilling to protect him from persecution.
In its opinion, the 9th Circuit mentioned, “The government failed to present any evidence to rebut Doe’s undisputed testimony that he suffered serious assaults at the hands of individuals on account of his homosexuality or to show that the Russian government was able and willing to control non-governmental actors who attack homosexuals.”
The court held that either immigration officials must prove that situations had changed in Russia sufficiently to make it safe for return of the “John Doe” asylum seeker, or that there was a safe area within Russia where he could be relocated.
This summer, Russian lawmakers issued a new law banning “propaganda” in favor of homosexuals, however, Russian President Vladimir Putin has said the law was not designed to infringe on the rights of gays, and activists would not be punished just for raising rainbow flags or having rainbow colored fingernails.
According to the asylum seeker’s complaint, the man was beaten while taking a walk with his partner in September 2002. He had joined a club for gays while in the first year of his college and most of his attackers were his classmates.
He was attacked a second time in 2003 while at a restaurant with his partner, and knocked unconscious. Law enforcement authorities in Russia rejected his complaint following the attack. During the first attack, the Russian police did not accept his complaint and asked him why he did not defend himself.
The asylum seeker moved to US in 2003 to study English, but two years later, federal officials held that he violated conditions of his stay and began removal proceedings.