Razkane v. Holder, No. 08-9519 (10th Cir. April 21, 2009)

MURPHY, Briscoe, Holloway

Razkane entered on a J-1 in 2003, and stayed beyond the authorized period. After being placed in removal proceedings, he applied for Withholding of Removal pursuant to INA § 241(b)(3) (the 10th Circuit stated in its opinion that it would use the statutory term “Restriction on removal” rather than the term “withholding of removal” which remains in the regulations). 

Razkane claimed to fear persecution if forced to return to Morocco based on his sexual orientation.  He testified that he had always kept his homosexuality a secret in Morocco, where it was considered “deviant” behavior.  Razkane introduced expert and country condition evidence that homosexuality is severely punished in Morocco, an overwhelmingly Islamic country that does not tolerate homosexuality.  At one point, he was threatened at gunpoint by a neighbor, and although the neighbor was persuaded against harming Razkane and the neighbor’s family apologized, Razkane remained fearful of remaining in Morocco.  He sought a way out of the country and eventually left for the US under the Fulbright Program.

The IJ found Razkane credible, and also, acknowledged that the BIA has found homosexuals to be a particular social group for protection purposes, but he denied Razkane’s application for restriction on removal for various reasons.  First the IJ found that Morocco was a country that simply punished homosexuals, versus actively persecuting them as in other countries.  Although the IJ did accept this would not make Razkane ineligible, however, Razkane still could not demonstrate it was more likely than not that he would be persecuted for being gay. For one, the IJ opined, he did not look gay, stating, “[h]e does not dress in an effeminate manner or affect any effeminate mannerisms.”  Also, the IJ stated that Razkane had no serious boyfriends and did not show it would be more likely than not that he would be engaged in homosexuality activity, further, that it would be the type of “overt homosexuality that would bring him to the attention of the authorities or society in general.”  The BIA affirmed the IJ’s ruling.

On appeal, the 10th Circuit noted that the IJ’s conclusions that Razkane would not be targeted as gay in Morocco were based on his own stereotypical views, rather than on the objective evidence presented, citing to Second and Eighth Circuit cases addressing similar circumstances, in which IJs opinions reliance on stereotypes, rather than objective evidence in the record, Ali v. Mukasey, 529 F.3d 478, 485, 491-92 (2d Cir. 2008); Shahinaj v. Gonzales, 481 F.3d 1027, 1029 (8th Cir. 2007).  The Court went on to state that the IJ’s

            “analysis elevated stereotypical assumptions to evidence upon which factual inferences were drawn and legal conclusions made. To condone this style of judging unhinged from the prerequisite of substantial evidence, would inevitably lead to unpredictable, inconsistent, and unreviewable results.  The fair adjudication of a claim for restriction on removal is dependent on a system grounded in the requirements of substantial evidence and free from vagaries flowing from notions of the assigned IJ. Such stereotyping would not be tolerated in other contexts, such as race or religion.”

Reversed and remanded.

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