Seventh Circuit Says No Asylum for Bisexual Man; Posner Dissents

The following blog post is written by Armeen Mistry, an Associate in Minneapolis

Last week, the Seventh Circuit declined to review the asylum application of a bisexual individual who applied for fear of persecution. Ray Fuller, 51, told an immigration judge and the Board of Immigration Appeals that he could not return to Jamaica for fear of harassment or torment over his bisexuality. Both the judge and the appellate board denied his application. The Seventh Circuit upheld the denial, but U.S. Circuit Judge Richard Posner issued a critical dissent opinion.

Fuller came to the United States in 1999 on a fiancé visa and received conditional permanent resident status under 8 U.S.C. §1186a(a). When he failed to attend a required interview, the U.S. Citizenship and Immigration Services terminated his status. Fuller then pled guilty to attempted criminal assault and was imprisoned. When he was released from state custody, the U.S. Department of Homeland Security detained Fuller.

Fuller then applied for asylum and asserted that he is bisexual. He testified to the prosecution he had experiences as a bisexual man in Jamaica. The immigration judge found Fuller’s credibility “seriously lacking.” The Board of Immigration Appeals upheld the immigration judge’s decision.

The Seventh Circuit panel agreed there was sufficient concern about Fuller’s inability to provide concrete evidence. “We conclude that substantial evidence supports the IJ’s conclusion that Fuller did not credibly establish that he is bisexual,” the Seventh Circuit said.

Judge Posner dissented. He noted that the merit of Fuller’s claim turns on (1) whether Fuller is bisexual and (2) whether bisexuals are persecuted in Jamaica. With respect to the first point, Posner asked “how exactly does one prove that he (or she) is bisexual?” To the second point, Posner said “given the vicious Jamaican discrimination” against LGBT persons, it was impossible for Fuller to ask all his male sex partners to testify on his behalf.

Posner also criticized the immigration judge’s conclusion that Fuller is not bisexual because he has had sexual relations with women, including a marriage. “Apparently the immigration judge does not know the meaning of bisexual,” Posner said. “The fact that he refused even to believe there is hostility to bisexuals in Jamaica suggests a closed mind and gravely undermines his critical finding that Fuller is not bisexual.”

U.S. Chief Circuit Judge Diane Wood and U.S. Circuit Judges Ilana Rovner and Richard Posner were on the panel. Judge Wood wrote the majority opinion.

The case is Ray Fuller v. Loretta Lynch, No. 15-3487, in the U.S. Court of Appeals for the Seventh Circuit. The full text of the opinion is available here.

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The global economy has become increasingly transactional and transcontinental. Since 9/11, there have been many amendments to immigration laws in the United States that have largely affected both individuals and businesses. Cozen O'Connor's immigration law blog, ABC's of Immigration Law, focuses on the interests and the challenges faced by those individuals and business impacted by immigration laws.
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