Rigoberto Velasquez-Banegas v. Loretta Lynch
846 F.3d 258
7th Cir.2017Background
- Petitioner Velasquez-Banegas, a Honduran national who entered the U.S. unlawfully in 2005, is HIV-positive (diagnosed 2007) and faces removal proceedings initiated in 2014. He applied for withholding of removal and protection under the Convention Against Torture (CAT).
- He argues that in Honduras HIV is commonly equated with homosexuality and that suspected homosexuals face violent persecution, with police often complicit or indifferent; medical confidentiality is poor, so seeking treatment would "out" him.
- An expert (Dr. Suyapa Portillo) testified on country conditions: stigma linking HIV to LGBTQ identity, employment discrimination, deficient medical care, police complicity in violence, and numerous murders of LGBTQ people since 2009.
- The Immigration Judge (IJ) found the petitioner credible and accepted Dr. Portillo’s testimony but denied relief, characterizing much evidence as too general, concluding petitioner could avoid imputation of homosexuality and that inadequate medical care and economic harms did not constitute persecution or torture.
- The Board summarily affirmed the IJ. The Seventh Circuit majority vacated and remanded, finding the agency overlooked key aspects of the claim and misapplied standards for group-based risk; Judge Ripple dissented, arguing the IJ’s factual findings were supported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner faces persecution as an imputed member of LGBTQ due to HIV status | HIV is widely (and inaccurately) seen as evidence of homosexuality in Honduras; poor confidentiality in hospitals means petitioner would be outed and likely persecuted | IJ/Board: evidence is general; petitioner could avoid exposure (seek care far away, return to hometown where people know him); no sufficient individualized showing he would be perceived as gay | Majority: Remand — agency erred by demanding undue particularized proof and discounting accepted expert evidence; agency should reconsider in light of group risk framework. Dissent: IJ’s finding not compelled to the contrary. |
| Standard of proof for withholding of removal (group-based risk) | Substantial/unquantifiable risk is sufficient; need not demand individualized proof that he will be singled out | Government applied more stringent individualized likelihood standard | Majority: Agency misapplied the standard; evidence of a pattern/practice and petitioner’s inclusion should suffice to assess substantial risk; remand ordered. |
| Whether inability to obtain adequate medical care or economic discrimination constitutes persecution or torture/CAT relief | Denial or degradation of medical care and compelled concealment constitute persecution; forced outing could lead to violence/torture | IJ: poor medical care is general country condition, not persecution; economic harms insufficient; CAT requires more than lack of services | Majority: Agency failed to analyze properly; remand appropriate for reassessment including whether nonlethal harms qualify as persecution or CAT-level harm. Dissent: Medical/economic harms here do not rise to persecution; CAT not shown. |
| Whether IJ improperly discounted expert and corroborating evidence as too "general" | Expert testimony about group conditions directly applies because petitioner fits the at-risk profile (HIV-positive, middle-aged, never married) and cannot be expected to produce individualized evidence from Honduras | IJ: general country evidence and affadavits lack objective data and specific examples tied to petitioner; IJ rationally weighed evidence | Majority: Error to ignore or minimize uncontradicted expert testimony and to require petitioner to produce individualized proof he cannot reasonably get from abroad; remand required. Dissent: Weight given to evidence was a permissible factual determination. |
Key Cases Cited
- Stanojkova v. Holder, 645 F.3d 943 (7th Cir.) (persecution includes severe nonphysical harms; harassment vs. persecution distinction)
- Muhur v. Ashcroft, 355 F.3d 958 (7th Cir.) (applicant need not avoid persecution by concealing protected characteristics)
- INS v. Stevic, 467 U.S. 407 (U.S.) (discusses "more likely than not" standard for withholding of removal)
- Rodriguez-Molinero v. Lynch, 808 F.3d 1134 (7th Cir.) (substantial risk standard: reasonably responsible conclusion is existence of substantial, albeit unquantifiable, risk)
- Chen v. Holder, 604 F.3d 324 (7th Cir.) (remand warranted when agency overlooks key aspects of claim)
- I.N.S. v. Elias-Zacarias, 502 U.S. 478 (U.S.) (scope of appellate review of agency factual findings)
- Ciorba v. Ashcroft, 323 F.3d 539 (7th Cir.) (persecution must rise above mere harassment)
- Darinchuluun v. Lynch, 804 F.3d 1208 (7th Cir.) (appellate review under substantial-evidence standard; reverse only if reasonable factfinder compelled to reach contrary conclusion)