Opening up a gulf in reasoning with the 9th Circuit, which has insisted on a distinction between the official policies of a government and the facts on the ground in evaluating whether gay people would suffer persecution or worse in a particular country, a panel of the U.S. Court of Appeals for the 2nd Circuit affirmed a ruling by an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) that a gay man from Brazil could not win refugee status in the United States, despite the documented high rate of murders of gay men in that country and the asserted inability of the government to do anything about it. Dias v. Sessions, 2017 WL 1437117, 2017 U.S. App. LEXIS 7088 (2nd Cir., April 24, 2017) (not published in F.3d).
Because the appeal was decided under the 2nd Circuit’s special summary proceeding method to deal with the huge caseload of refugee appeals generated in the New York metropolitan region, the per curiam opinion emanating from a panel consisting of Circuit Judges Reena Raggi, Peter W. Hall, and Denny Chin is light on facts. The Petitioner, a native and citizen of Brazil, apparently came to the attention of the Department of Homeland Security as a result of a criminal conviction, but the court does not state any details about that, or the circumstances under which he came to be in the United States and subject to removal. Petitioner applied for asylum, withholding of removal, and/or protection under the Convention against Torture (CAT), all of which were denied by an Immigration Judge on May 7, 2014, in a decision that was affirmed by the Board of Immigration Appeals (BIA) on September 9, 2015. In addition to finding that the Petitioner failed to meet the burden of showing he would likely be subjected to persecution or torture if removed to Brazil, the IJ found that he could relocate within Brazil to a safer place than that from which he came. The BIA did not affirm on the relocation finding, which was unnecessary in light of the finding on the merits.