Geovanni Hernandez-Montiel v. Immigration and Naturalization Service

analysis one of the owner’s tive works because this case could recognized be as good. a derivative “goods”, legal albeit have been on firmer dismissed grounds originality allegedly of the Fame and Rock and Roll Hall Muse- —the of infringing photographs merger and the um, Prods., Inc. v. Gentile however, majority opinion, doctrine. The (6th Cir.1998) (Martin, C.J., dissent- error compounds district court’s with a analy- ing). analysis Martin’s mirrors the rejection works blanket derivative sis in this case and derivative works Thus, say, analysis in other circuits.3 Suffice to in this case. I would affirm cases analy- trigger order to a derivative works summary judgment the district court’s or- sis, aspect preexisting some of the work der, slightly grounds. albeit on different I protected, copyright must either be respectfully dissent.

by trademark and trade dress. majority opinion’s flaw in the deriv- analysis consistently

ative is that it works protected

understates elements of bottle,

Skyy’s beginning vodka with the

opinion’s attempt reproduce Skyy’s label opinion’s the statement of facts. The non-scale, rough, depiction black-and-white HERNANDEZ-MONTIEL, ignores way Skyy’s gold label contrasts Petitioner, with its electric blue bottle. Vodka bottles subject highly-competitive are often the print advertising campaigns. For exam- AND IMMIGRATION

ple, Absolut Vodka is famous for its clever SERVICE, NATURALIZATION majority featuring ads its bottle. The Respondent. opinion Skyy copy- overlooks the bottle’s No. 98-70582. rightable elements —its non-utilitarian fea- (such shape tures the color and Appeals, United States Court bottle) Furthermore, and its label. Ninth Circuit. subject bottle and label also are to trade- protection. mark and trade dress If deriv- Argued and Submitted Dec. 1999. analysis solely ative works is limited Aug. Filed 2000. (as copyrighted opposed to works works dress), protected by trademark and trade Circuit, up Congress,

it is not the Ninth stands, say currently so. As it deriva- analysis may

tive works be another means preventing obtaining Ets-Hokin from

monopoly product Skyy’s over shots bot-

tle.

The district court should not have dis- solely on a

missed this case based deriva- distinguish majority's attempt Judge Skyy bottle’s label and non-utilitarian features Exch., Posner’s decision in Gracen v. copyrightable. majority are Nor does Bradford (7th Cir.1983) 698 F.2d 300 Gracen opinion specifically Judge —because address Chief Mar- is a derivative case works based a "un- analogy tin’s bottle coke Rock Roll questionably” copyrighted unper- work—is Together, Fame and Hall Museum. Gracen Gracen, (finding suasive. 698 F.2d at 302 suggest analogy and the coke bottle that a painting copied photographs from still-life analysis may appropriate works derivative be Dorothy from movie "The Wizard of Oz” case, though grant- in this not as a means of work) appears to be derivative to be on ing summary judgment. case, point especially given with this that the TASHIMA,

Before: BRUNETTI and SCHWARZER,* Judges, Circuit Judge. District TASHIMA; Opinion by Judge by Judge Concurrence BRUNETTI. TASHIMA, Judge: Circuit (“Geovan- Geovanni Hernandez-Montiel ni”),1 Mexico, a native and citizen of seeks review of a decision of the Board of Immi- (“BIA”), gration Appeals denying appli- asylum cation for withholding both and deportation. The BIA dismissed Geovan- appeal agreed ni’s because it with im- (“IJ”) migration judge that Geovanni failed persecuted, to show that he was or that he a persecu- had well-founded fear of future tion, on account of membership his a group. social primary issue we must decide is gay whether with men female sexual iden- protected tities in Mexico a constitute “particular group” asylum under the a statute. We conclude as matter of law gay men female sexual identities Gerber, Mullin, Sheppard, Robert S. Mexico constitute a LLP, Hampton Diego, Richter & San Cali- group” and that is Geovanni a member fornia, petitioner. for the group. identity His female sexual immutable because it inherent his Loughran, Alice E. States De- United event, identity; any he should not be Justice, D.C., partment Washington, required change it. to Because the evi- the respondent. compels dence that Geovan- conclusion California, Taylor Flynn, Angeles, Los past persecution ni suffered and has a York, York, Goldberg, New Suzanne New of future if well-founded fear Davidson, California, Angeles, Jon W. Los Mexico, were return to we he forced to Minter, Francisco, and Shannon San Cali- compels finding conclude that the record a fornia, for amici curiae American Civil Lib- that he is entitled to and withhold- California, erties Union of Southern Lam- ing deportation. Fund, Inc., Legal da Defense & Education Rights, National Center for Lesbian and I. FACTUAL BACKGROUND Gay International Human Lesbian that, age at Geovanni testified Rights Commission. eight, attracted [he] he “realized age same sex.” At the people [his] began dressing behaving Geovanni

as a woman. * Schwarzer, briefs, petitioner own we The Honorable William W Senior 1. As does in his "Geovanni,” refer to Petitioner as because he Judge United States District for the Northern during California, the relevant events at was minor sitting by designation. District of issue. if he ever told imprison from Geovanni reprimands beat faced numerous

He of his officials because family anyone and school about the incident. registered mother His sexual orientation. later, weeks when Approximately two school and him in a state-run Mexican stop gay at a with a Geovanni was bus what the school authorities about informed evening, pulled same officer friend one referring “problem,” she his deemed be car, up accompanied by in a second to his sexual School authori- orientation. boys into officer. The officers forced both stop socializing ties directed Geovanni area, to a remote their car and drove them The father of

with two friends. boys to naked they strip where forced the arm by the grabbed schoolmate Geovanni separated and then them. One “perverting” to kill him for and threatened from prevented his son. He was even the hair and grabbed officers because of the attending a school dance Holding gun to kill threatened him. . Shortly after the way he was dressed. anally temple, raped his Geo- officer dance, the mother school asked Geovanni’s vanni. that his friend Geovanni believes expulsion because he was to consent although friend refused raped, was also He could not acting appropriately. to talk about the incident. Even before school enroll in another school because the dressed, boys offi- get could until he paperwork refused to transfer his cers to shoot if did not threatened sexual orientation. agreed change to his running. boys left strand- start The were him out of then- parents Geovanni’s threw in an abandoned area. ed day expulsion. home the after his assault, A few months after the second family, Geovanni Beyond his school and 1993, February in was attacked Geovanni persecution also suffered harassment young knife a men who with a police at the hands of Mexican officers. relating called him names to his sexual occasions, police the Mexican numerous On a hospitalized orientation. He was for strip-searched and even Geovanni detained down the street or walking because he was the attack. recovering week while from socializing boys perceived also other in Geovanni fled to the United States police gay.' to be the Mexican years when he was 15 old. October arrested and friend. The twice Geovanni days of He was arrested within a few his police illegal told them it was for re- entry.2 October 1993 When Geovanni down the street and homosexuals to walk sister, to with his she turned Mexico to live police, men to like women. The for dress in counseling program, enrolled him however, any never Geovanni with charged ostensibly attempted to “cure” his crime. by altering sexual orientation his female sexually assaulted Geo- Police officers program his appearance. The staff cut In No- separate vanni on two occasions. nails, stop him hair and and forced years when was vember Geovanni re- taking female hormones. Geovanni old, him as he was police grabbed officer January program mained in the from late street, threw him into walking down the March 1994. Because his sister late car, and to an uninhabited police drove him, brought in changes saw no she Geo- The officer demanded Geovanni area. vanni home to live with her. Soon thereaf- Threatening him with take off his clothes. ter, however, out of she forced Geovanni comply, if he did not imprisonment her house because was not “cured” of he perform oral sex officer forced Geovanni orientation, despite his him. threatened to sexual on also officer man for a ride. the car turned the 2. Geovanni testified that while he was walk- When corner, waiting Diego ing dressed in were to arrest down the street in San officers Diego jail San clothing, pulled up him. Geovanni was in in women's a man in a car held documentary evi- exchange week. There no money for sex. Geo- for a is and offered sex, concerning dence arrest the record. vanni he would not have but asked said Geovanni, sought with appearance. again opined He Professor Davies change refuge in the States. persecution United would face if Geovanni he were to return to forced Mexico. II. PROCEDÜRAL BACKGROUND asylum The IJ denied Geovanni both on attempts After a to re-enter number statutory and discretionary grounds. The States, Geovanni last entered the United testimony IJ determined that Geovanni’s without on or around October “credible,” “sincere,” “ra- “forthright,” application He an inspection. filed tional,” found, and “coherent.” The IJ withholding deportation however, that had failed to dem- Geovanni February par- onstrate “on account of a asylum hearing, pre- At his group,” classifying ticular social Thomas M. Da- testimony sented the group as “homosexual males who wish to vies, Jr., at professor Diego San State dress as a woman [sic.].” IJ noted in Latin Ameri- University expert and an Geovannni “has altered certain outward Davies, history can and culture. .Professor physical attributes and his manner of , periods who has lived for time extended dress to resemble a woman.” The IJ America, in Latin Mexico and elsewhere gender identity found Geovanni’s female in Latin testified that certain homosexuals immutable, not to be explaining: subjected greater America are abuse If typical clothing he wears female Davies than others. Professor testified sometimes, typical clothing male “accepted” it that “in most of Latin times, he other cannot characterize his may America he a male before marries persona assumed female as immutable long in homosexual acts as as he engage identity. or fundamental to his The rec- male, performs the role of the male.” A ord reflects that respondent’s decision to however, perceived who is assume volitional, as a women [sic] dress i.e., “female,” stereotypical passive, role immutable, and the fact that he some- relationships these sexual /‘ostracized typical times dresses like a man reflects very beginning subject from the and is to respondent may himself not view persecution, gay bashing as we would .call it, certainly police being and as abuse.” Professor his dress so fundamental to his gay testified that men Davies these with identity that he should not to have “female” sexual in Mexico are identities change it. “heavily persecuted by police and oth- The IJ further found Geovanni was groups society.... [They er within the discretionary eligibility and entitled within separate entity are] Latin voluntary departure denied in the exercise society American in this case within of discretion. According the nation of Mexico.” to Pro- appeal The BIA dismissed Geovanni’s Davies, it is for commonplace fessor agreed from the decision. The BIA IJ’s ... gay only to “hit the street and not testimony, gave that Geovanni credible but actually rape brutalize but with ... batons that he to establish his statu- found failed homosexual males that are dressed or act- tory eligibility asylum. The BIA for found ,. ing out the feminine role.” not meet Geovanni did his burden Professor Davies testified that men “establishing that the abuse he suffered likely

with female are sexual identities membership in a partic- was because of his scapegoats present for Mexico’s become ular BIA classified group,” which the political problems, especially economic and fe- as “homosexual who dress as males collapse since the recent of the Mexican Concluding males.” that the “tenor of the economy. specifically Professor Davies claim he was respondent’s is that mistreat- noted that is “a homosexual who Geovanni (as way ed of the he dressed because primarily has taken on a ‘female’ sexual prostitute) male and not because he is knowledge, Based on expert role.” case, homosexual,” review the BIA found that Geovanni of Geovanni’s and interaction subject an decision to dress as crimes for which alien is failed to show that “his 309(c)(4)(G). § characteristic.” deportation a female was an immutable under IIRIRA INS, the alternative The BIA did not reach v. 192 F.3d See Briseno established (9th Cir.1999) decision of whether Geovanni (explaining that this court in the eligibility for exercise of by reason ‘deportable does “not read discretion, it denied Geovanni’s re- crime], IIRIRA having committed’ [a quest voluntary departure the exer- 309(c)(4)(G), § referring to felonies not cise of discretion. charged at all in the Order to Show Cause”). alleged only The that Geo- OSC III. JURISDICTION subject deportation vanni was because jurisdiction BIA had this mat- over in- he entered the United States without 3.1(b)(2) §§ ter to 8 & pursuant C.F.R. officer, by spection immigration an vio- jurisdiction timely 3.38. We have over the 241(a)(1)(B). § lation INA Because the 106(a) § petition for review under of the charge any INS did not (“INA”), Immigration Nationality Act OSC, turpitude crime of moral IIRI- 1105a(a), by § 8 U.S.C. as modified 309(c)(4)(G) §RA not divest does this judicial transitional rules for review jurisdiction. court of 309(c)(4) Illegal Immigration § Re- Act Immigrant Responsibility form and IV. DISCUSSION 104-208, No. 110 Stat. 3009 Pub.L. A. of Review Standard (“IIRIRA”).3 30,1996) (Sept. the BIA an in conducted Because Immigration and Naturaliza record, dependent review of the our review (“INS”) argues tion that we do not Service is limited the BIA’s decision. See Gon jurisdiction alleg have because Geovanni INS, zalez v. 82 F.3d Cir. edly admitted that he convicted of 1996); Yepes-Prado v. U.S. prostitution the United States and be (9th Cir.1993) (holding that the questions cause he refused to answer BIA conducts de review when it novo juvenile in the court about his involvement independent judgment makes an system. argument wholly This without record). 309(c)(4)(G),

merit. Under IIRIRA appeal permitted “there be no in the shall We review de novo determinations of an case alien who is inadmissible purely legal questions the BIA of concern having deportable reason committed ing requirements Vang of the INA. See a criminal offense covered section (9th INS, Cir.1998). 1114, 146 F.3d 1116 212(a)(2)....” 212(a)(2)(A)(i)(I) § INA findings examine BIA’s factual un We the ineligible makes an alien for admission der the substantial evidence standard. of, who has been “convicted or who admits INS, 1078, v. 147 See Marcu F.3d 1082 committed, having or who admits commit (9th Cir.1998) (“Our task is to determine ting constitute the essential acts which ele whether there is evidence to substantial involving turpi ments of ... a crime moral support finding, the BIA’s not to substi 1182(a)(2)(A)(i)(I). § 8 tude....” U.S.C. analysis tute an of which side in the factual cert. dispute persuasive.”), we find more 309(c)(4)(G), § IIRIRA Under how 1496, denied, 1087, 119 143 526 U.S. S.Ct. ever, allegation the INS’ mere that a crime (1999). L.Ed.2d 650 Under the substantial appel was committed is insufficient bar standard, will uphold “[w]e In evidence the jurisdiction. late the Order to Show (“OSC”), charge the determination unless the evidence Cause INS must the BIA’s gov- govern (holding re- that IIRIRA's transitional rales 3. IIRIRA’s transitional rules our proceedings began view because Geovanni's deportation proceedings ern in cases in which 2, 1996, January 1, 1997, on and the BIA dismissed began April before and final orders of 27, appeal April See Kalaw his on 1998. v. 30, 1996). deportation entered after October INS, 1147, (9th Cir.1997) 133 F.3d 1150 1091 Membership in Prasad C. a “Particular So- contrary conclusion.” v. compels a Group” Cir.1996) cial INS, 616-17 101 F.3d omitted). (citation legal ques case turns on This the persecuted

tion of whether Geovanni was membership “partic on account of his Framework B. General INS, group.” ular social See Fatin v. 12 may, (3d Cir.1993) (review in her Attorney The General F.3d 1239-42 discretion, applicant to an grant asylum ing legal question de novo of what consti “particular group”). social tutes Wheth within the refugee, to be a determined particular er is a of a member 101(a)(42)(A) INA, meaning § 8 of fact, group we question which 1101(a)(42)(A). An alien § estab U.S.C. apply the evidence test. See substantial if or refugee status he is unable lishes Prasad, 101 at F.3d 616-17. We first country of na unwilling to return that, law, conclude as a matter of (1) perse he was tionality either because: appropriate group” is “particular social (2) or he has a well- past; cuted group up Mexico made men “on ac founded fear of future Second, with female sexual identities. we race, mem religion, nationality, count compels conclude the evidence bership group, in a social conclusion Geovanni is member of 101(a)(42)(A), § opinion.” INA 8 political persecuted and was on account 1101(a)(42)(A) added); (emphasis U.S.C. membership “particular of his in that so Cardoza-Fonseca, 480 U.S. see also INS v. group.” cial 421, 423, 1207, 94 L.Ed.2d 434 S.Ct. INS, (1987); v. 158 F.3d Korablina Deñning Group” “Particular Social (9th Cir.1998). Attorney The Gener “particular There is no definition of so deportation any asy al must withhold BIA, however, INA. group” cial a “clear applicant lum who establishes recognized language has comes is a probability persecution,” directly from the United Nations Protocol than the “well-founded stricter standard (“Pro Refugees Relating the Status Stevic, v. asylum. fear” standard for INS tocol”). Acosta, Matter 19 I. & N. See 407, 430, 104 S.Ct. 467 U.S. (BIA 1985). 211, 232, Dec. 1985 WL 56042 (1984). L.Ed.2d 321 on Congress When ratified Protocol 4,1968, any it did not shed further

October applicant has the burden of light “particular definition of “credible, eligibility di proving group.” Sanchez-Trujillo (9th Cir.1986). 1571, 1576 rect, specific evidence.” Prasad v. F.2d (9th Cir.1995) (ci I.N.S., regarding law the defini The case omitted). have held that where tation We is not group” tion of testimony expressly “the IJ finds certain Acosta, 19 I. wholly & N. consistent. credible, and where the BIA makes to be the BIA inter Dec. at 1985WL 56042 contrary finding, accept indisput no we as of member preted “persecution account testimony hearing at the given ed the be iñ to mean ship particular group” a social INS, 140 F.3d fore the IJ.” Velarde toward an “persecution that is directed (9th Cir.1998) (internal quota 1309 group of a individual who is a member omitted). Here, tion marks and citations common, im share a persons all of whom testimony found Geovanni’s to be IJ BIA mutable characteristic.” The ex “sincere,” “credible,” “forthright,” “ration that: plained al,” agreed The BIA and “coherent.” might characteristic be an The shared respondent credibly regard sex, color, “the testified kinship or innate one such as ties,, might in his life.” it ing the events that occurred circumstances or in some Thus, as testimony. past experience a shared such accept we also Geovanni’s be 1092 race, nationality, religion, politi- ríes or military leadership or land own-

former cal stated that: group opinion.” The kind of We ership. particular qualify that will under this characteristic a “particular group” implies social collec- to be determined construction remains people closely tion of affiliated with each However, case-by-case on a basis. other, who are actuated some com- whatever the common characteristic that mon central impulse interest. Of it one that group, defines the must be voluntary concern is the existence of a group either cannot the members relationship among associational change, required or should not be members, purported imparts change it is fundamental because that is fun- some common characteristic identities or consciences. their individual identity damental to their as a member group. of that discrete social group a of taxi Id. The BIA held that meet the immutable char- (footnote omitted). drivers did not Id. occupa- an requirement acteristic because Sanchez-Trujillo held that court thus, change; driving tion can a taxi is not class, working the class of urban males of identity. person’s fundamental to a The military age political who maintained neu- entitled to some interpretation BIA’s trality in El a Salvador did not constitute INS, deference. Arrieta v. 117 F.3d “particular group” social for which the im- Cir.1997) Chevron, (citing migration provide protection laws from U.S.A., Inc. v. Natural Resources Defense persecution. (indicating at See id. 1576-77 Council, Inc., 837, 843-44, 467 U.S. cognizable groups “encompass cannot (1984)). S.Ct. 81 L.Ed.2d 694 every broadly segment popu- defined Third, First, and Seventh Circuits “small, readily lation” but should be analy- adopted immutability have Acosta’s (citations omitted). group”) identifiable INS, Ananeh-Firempong v. sis. See only suggest We are the circuit to (1st Cir.1985) (recognizing F.2d “voluntary relationship” associational re- determining family

Acosta in relations quirement. Id. at 1576. The Seventh Cir- “particular can be the basis of social requirement cuit has noted that this “read Fatin, group”); (noting at 1239-41 F.3d literally, conflicts with Acosta’s immutabil- subgroup that the of Iranian feminists who Lwin, ity requirement.” 144 F.3d at 512. government’s to the refuse to conform Moreover, in Sanchez-Trujillo, recog- we gender-specific laws and social norms group family nized a members as a satisfy statutory concept “par- could “prototypical example” “particular of a so- (internal quotation ticular group”) social Yet, cial group.”4 801 F.2d at 1576. bio- omitted); marks Lwin v. logical family relationships are far from (7th Cir.1998) 505, 511-12 (recognizing therefore, cannot, “voluntary.” inter- We parents of Burmese student dissidents as pret Sanchez-Trujillo’s concern” “central part group of a because share a social voluntary relationship of a associational characteristic”). “common, immutable strictly every applying qualifying For, Sanchez-Trujillo, group.” 801 F.2d at social as San- acknowledged group chez-Trujillo recognizes, we that the social cat- itself some egory particular groups, “is a one which extends members of the flexible broadly encompass many groups group voluntarily who do are not associated catego- not otherwise fall within the other choice.5 members,” family purported 4. We have since held that a cannot 801 F.2d at constitute a under 8 holding of the case that not essential 1101(a)(42)(A). U.S.C. See Estrada-Posa group non-political, young, urban — das v. United States simply "all-encompassing” males—was too 1991). Cir. cohesive, type homogeneous group be "the of ‘particular to which ... the term social Further, Sanchez-Trujillo the statement group, group' apply.” Id. A intended that central of "[o]f concern is the existence family, can be and homo- such as cohesive voluntary relationship among associational totality intangible they so of that call “particular hold that a

thusWe voluntary by personality.”); Gay Rights united the group” is one Coali cial cf. association, association, including a former Georgetown Law tion Univ. Ctr. of that is so (D.C. innate characteristic Univ., an or Georgetown 536 A.2d or con to the identities 1987) fundamental (observing “homosexuality en members ei its members that sciences of compasses people’s far more than sexual required to or not be ther cannot should Too proclivities. often homosexuals have change it.6 simply been viewed with reference to their activity. Usually the sexual interests and Identity as Basis for 2. Sexual psychological social context and correlates Group” “Particular Social experience largely ig are homosexual identity orientation and sexual Sexual ”) (internal quotation nored ... marks and immutable; fundamental to they are are so omitted). identity goes citations Sexual identity person that a should be one’s beyond sexual conduct and manifests itself Many to abandon them. required outwardly, ap often dress and through “generally scientists believe and behavioral Kenji Yoshino, pearance. Suspect See at an place that sexual orientation is set Symbols: Literary Argument for early Goldberg, B. Give age.” Suzanne Heightened Scrutiny Gays, 96 Colum. for Me Death: Political Liberty Me or Give (1996) (defining gay L.Rev. 1775 n. 3 Persecution Asylum and the Global identity experience “the hav as shared Men, Gay 26 Cornell Int’l Lesbians and ing persons sexual attachment (1993). The American L.J. 614 n. 56 experienced oppression same sex and the has condemned Psychological Association attachment”); because of that Naomi Mez- attempted “conversion” of as unethical ey, Dismantling Bisexuality the Wall: Further, id. gays and lesbians. See Identity and Possibilities Sexual and the Psychiatric American Association Acts, Berkeley Based Classification have Psychological American Association (1995) (discussing 100-03 Women’s L.J. from their lists “homosexuality” removed relationship identity and conduct Boy Scouts of mental disorders. See way we arguing “[s]eparating — U.S.-, Dale, 120 S.Ct. America v. speak of acts and sexual identities is sexual (2000) (Ste 2446, 2478, 147 L.Ed.2d 554 arguing crucial” and the traditional vens, dissenting). J. binary system of heterosexuals and homo very identity is inherent to one’s Sexual restrictive); too see also Gilbert sexuals is Kinsey, Alfred identity person. as a Sex, Herdt, Ex Cultures: Same Different al., in the Human et “Sexual Behavior (1997). and Lives 20 ploring Gay Lesbian Male,” in on Sexual Gases Materials Rights Gay Georgetown Coalition of (William B. Orientation and Law Ctr., the District of Univ. Law Columbia 1997) (“Even ed., ed., psy- 2d Rubenstein Appeals Court of noted that: person- chiatrists discuss ‘the homosexual deeply [H]omosexuality ingrained is as ality’ many pref- of them believe ho- heterosexuality.... [Exclusive partners of a erences for sexual in- mosexuality probably deeply so merely secondary are manifestations of sex attempt that one should not something deeper grained lies much in the 6. This formulation geneous, Sanchez-Trujillo to the ta 's of the term: associational A groups immutability requirement. Supreme without the existence defined relationship. Court of Canada’s definition and harmonizes with recognizes an innate or group”includes of a it It is similar unchangea- holding voluntary Acos- (1) Canada S.C.R. 689. ble bers fundamental its historical former association; characteristic; should not be forced voluntarily (Attorney voluntary importance. to their human General) (3) groups associate status, (2) groups whose mem- unalterable v. Ward to forsake that associated dignity that reasons due to ^[1993] by a so 1094 Rather, Group Gay it. it would 3. Particular Social

expect change simply to Men with Female Sexual probably make far more sense of a Identities in Mexico recognize component it as a basic identity. person’s core reasoning Based on the of the au Georgetown Gay Rights Coalition Univ. above, that thorities discussed we conclude Ctr., (quoting 536 A.2d at 34-35 A. Law in appropriate “particular group” the social Bell, Hammersmith, Weinberg M. & S. composed gay case is men this in Development Preference —Its Sexual in Al female sexual identities Mexico. (1981)). Men Women necessary though “par not to establish the group,” testimony ticular the of Pro social in Under the BIA’s decision Toboso- helpful analysis. fessor Davies is to our 820-23, Alfonso, I. & N. Dec. gay Professor testified men Davies that (BIA 1990), WL 547189 sexual orientation in Mexico are with female sexual identities establishing “partic- can be the basis for “heavily persecuted by and oth asylum purposes. ular group” social for society.... within groups [T]hey er Toboso-Alfonso, government In the Cuban entity are a Latin separate social within registered had and tracked homosexual society American and in within this case many years. investigation men for over the nation of Mexico.” Professor Davies id. at did not con- See 820-21. INS expressly gay noted that as a subset of the homosexuality test is an immutable population, male men with female sexual characteristic, BIA held and the that sexu- identities, begin are “ostracized from the membership al orientation establishes subject ning persecution, gay [ ] at “particular group.” social See id. 822- it, bashing certainly as we would call Attorney designated 23. The General has police abuse.” “pre- the decision to be Toboso-Alfonso in all proceedings involving cedent BIA We thus conclude erred Attorney same issue or issues.” General defining “particular group” social (June 19,1994). Order No. 1895 “homosexual males who dress as females.” Professor Davies did not testify homo- In determining sexual orien persecuted simply sexual males are be- identity tation and sexual can be the basis they may cause dress as females or be- establishing “particular group,” social they engage cause in homosexual acts. persuasive reasoning we also find Rather, gay men with female identi- sexual (IJ Tenorio, No. Matter A72-093-558 singled persecution ties are out for be- 26, 1993). Tenorio, July granted the IJ they perceived cause are to assume the gay to a Brazilian man who had “female,” i.e., stereotypical passive, role in group beaten and been stabbed gay relationships. Gay men with female Janeiro, people repeatedly Rio de who outwardly sexual identities manifest their anti-gay epithets. used The IJ found that through identities characteristics tradition- Tenorio had a well-founded of future fear women, ally associated with such as femi- membership due to in a persecution dress, long fingernails. nine hair and “particular group” based on his sex ual Gay orientation. See id. at 11. The BIA men with female sexual identities in “small, adopted reasoning readily the IJ’s and dismissed Mexico are a identifiable Tenorio, appeal. group.” Sanchez-Trujillo, the INS’ Matter F.2d at (citation (BIA 1999) curiam). omitted). No. (per A72-093-558 Their female sex- men, The BIA held that the decision “cor ual identities unite this IJ’s rectly respondent concludes that the has and their sexual identities are so funda- persecution established or a well-founded mental to their human identities that fear of future on account of required change should be them. grounds one of the five enumerated” in the therefore conclude as a matter of law We in this group” INA. Id. required female should not be gay men with Geovanni comprised case is change identity. his sexual orientation or in Mexico. sexual identities Acosta, I. 19 & N. Dec. at Membership 4. Geovanni’s 56042; Tenorio, (IJ) WL No. A72-093-558 (“Sexual arguably at 14 orientation is an compels that the evidence We find characteristic, immutable and one which an a member that Geovanni is the conclusion asylum applicant compelled should not be gay men group” to change.”). Because we conclude that in with female sexual identities. Mexico required change Geovanni should not be specifically classified Professor Davies identity, his sexual orientation or we need “a homosexual who has taken as Geovanni not address whether Geovanni could ‘female’sexual role.”7 Geo- primarily on a change them. Geovanni’s credible and un- gay has known that he was from vanni testimony contradicted the inherent about began dressing as a wom age eight and and immutable nature of his sexual identi- with was 12. He socialized an when he ty compels conclusion Geovanni school, boys which led to his gay other in was a member The BIA found that expulsion. eventual in gay men Mexico with female police “temporarily [him] detained sexual identities. .socializing oth walking the street with erroneously BIA concluded that men.” He was sexu young er homosexual by police. After “tenor of claim is that he was ally [Geovanni’s] twice assaulted way mistreated because of the he dressed in to “con placing therapy program him a (as prostitute) a male and not he eventually because sexuality, his vert” his sister is is a homosexual.” This statement not only that I the same and the “realized was .evidence; fact, in supported substantial changed was the fact that thing that had wholly by any it evidence unsupported is my nails.” my cut hair and cut had There no evidence that the record. identity must be Geovanni’s female sexual prostitute, a male and we Geovanni was do fundamental, would not have suf or he guess not venture to the non-record basis and would have fered this male assumption of the BIA’s of how a Fatin, changed years ago. See 12 F.3d at prostitute dresses.8 opposition that “if a woman’s (noting question pro Iranian is so to the laws BIA could stressed Geovanni choose to suffer the found that she would remember how he was dressed on one consequences noncompliance, her severe crossing he arrested occasion when ‘so may well be characterized as beliefs the border between the United States BIA, therefore, identity fundamental to or conscience agreed [her] Mexico. The a [they] ought required not be that “the decision to dress as the IJ ”) Acosta, act, not an immuta- change it’ 19 I. & N. female was a volitional (quoting 56042). testify did that he ble trait.” Geovanni Dec. at 1985WL ner, J.) ("The disjunction sexual being with a between In addition to man identity organs acute identity, and sexual source of sexual Geovanni’s brief states female can, suffering psychological in some “may A be considered a transsexual.” he anyway, be cured or at least alleviated person genetically cases is "a who is transsexual proce- reassignment complex sex physically a member of one sex but has —the loosely sex-change to as 'a dures referred psychological deep-seated conviction that he ”). We need not consider this operation.’ belongs, ought belong, to the or she partic- sex, case whether transsexuals constitute may opposite in some a conviction group. ular social result the individual’s decision to cases modify undergo surgery physically in order to prostitution only explicit reference to organs to those of the 8. The his or her sex resemble attorney's question to opposite Tussey, the record is the INS sex.” Deborah Transvestism had ever worked Spouse Justifying about whether he Di- or Transsexualism of vorce, (2000); prostitute in the United as "a homosexual 82 A.L.R.3d n. 2 see Farmer Haas, Cir.1993) (Pos- had not. Geovanni answered that he States.” solely a Mexican authorities was on account going a man when he is dresses as style of an effeminate dress place where of his homosexual status.” Geovanni is not That Geovanni appropriate. would not be required prove persecutors that his how he dressed could not remember was motivated his sexual orientation to were years does several before on one occasion possible the exclusion of all other motiva- that, conclusion be- support not the BIA’s INS, 727, tions. Briones v. 175 F.3d clothes, change he cause Geovanni can (9th Cir.1999) (en banc); INS, Borja 729 v. identity quickly as the change can (9th Cir.1999) (en banc). 732, 175 F.3d 735 jobs. change in Acosta can taxi drivers con- recognized “persecutory We have not identity, case is about sexual This motive, may more than duct have one simply not a trans- fashion. Geovanni long as one motive is of one of the so clothing in of the vestite “who dresses statutorily grounds, the re- enumerated opposite psychological sex for reasons.” asylum] have satis- quirements [for been (2d Dictionary Heritage American 1289 Ilchert, 1501, Singh fied.” v. 63 F.3d Ed.) (1985). Rather, mani- Coll. Geovanni (9th Cir.1995); INS, 1509-10 see Osorio v. by adopting orientation fests his sexual (“The (2d Cir.1994) 1017, 1028 18 F.3d characteristically traits associat- gendered plain meaning phrase ‘persecution ed with women. political opinion,’ on account the victim’s persecution solely does not mean on ac- D. “On Account Of’ political opinion.”) count the victim’s must show he was Geovanni (emphasis original). persecuted “on account of’ his “member testimony and the Professor Davies’ ac- group.” in the INA ship companying highlight evidence 1101(a)(42)(A). 101(a)(42)(A); § § 8 U.S.C. “on persecution Geovanni suffered was ac- satisfying require In the'“on account of’ membership “particu- count of’ his in the ment, compels finding the evidence group” lar social of men with female sexual identity significant Geovanni’s sexual was a he motivation for the violence and abuse identities Mexico. Ramirez Rivas v. Cf. INS, (9th INS, Cir.1990) (re- v. 99 Lopez-Galarza 864, endured. See 899 F.2d 873 (9th Cir.1996) 954, (holding 959 F.3d lying “highly persuasive” expert testi- petitioner present must “some evi mony probability to find a clear of future circumstantial, dence, per direct or withholding deporta- for motive, 8 U.S.C. 1101 secutor’s since tion), grounds, other vacated on 502 U.S. requires ‘persecution on account of vari 1025, 112 S.Ct. 116 L.Ed.2d 766 characteristics”); v. Eli ous see also INS (1992). gay Professor Davies testified that as-Zacarias, 112 U.S. S.Ct. with are men female sexual identities rec- (1992); 812, 117 L.Ed.2d 38 Pitcherskaia ognized readily in Mexico as a distinct and Cir.1997). INS, v. F.3d persecuted identifiable and are for explicitly The BIA noted that Geovanni in that membership group. their He testi- ... “stopped was on numerous occasions police rape fied that the attack and even walking for temporarily detained men with female sexual identities. socializing young street and other with Attached Professor Davies’s declara- police homosexual men.” The were not reports tion are numerous articles and nails, going people long after hair and documenting against gay the violence men everyone clothing. or dressed in female sexually throughout in Mexico and Latin America. Geovanni was assaulted because of his outward manifestations of his sexual general A coordinator of a co-founder orientation. rights organization human stated: Mexican government pro- “The has it said will un- government’s legal reasoning they tect transvestites unless are dressed persuasive argues it that “the evi- when men, okay that it is to kill insinuating like compel dence does not the conclusion that if are Anti- the mistreatment suffered homosexuals visible.” [Geovanni] Mexico, government S.F. nizations which the is unable Queer Continues Violence Times, There was also unwilling Sangha to control.” Bay Feb. article, documenting (9th Cir.1997). Times New York man from granting misguided BIA was when it concluded that Abuse Gay Man Who Cited Mexico. See persecuted was not “even.if the Asylum, N.Y. Mexico is Granted give low priority Mexican authorities Times, 26, 1994 at A5. The man had March case, it protection gays.” this going to cer been arrested Mexico actually perpetrated who attending par certain neighborhoods, tain attack, -During violence. the first sexual The certain bars. patronizing ties and abducted, Geovanni was ordered to remove crimes, him of ex police falsely accused clothes, perform and forced to oral sex occasion, him, raped and on one torted on the officer. The officer then told Geo- him. id. See jail if go vanni that he would he told advisory opinion in evidence was an Also anyone rape. During about the , the second d of by case the Office about Geovanni’s a Geovanni and friend were ab assault the De- Asylum Affairs of United States officers, to a by ucted two driven seclud State, claiming that: “[o]ur of partment area, ed and ordered to remove their cloth it Embassy in Mexico advises us that has ing. One officer sodomized Geovanni as systematic persecution of the no evidence gun temple. he held to his these a. Given vi- although homosexuals there random of assaults, past perse Geovanni “is at risk of against homosexuals has occurred.” olence very the agency cution at hand of the added). along evidence (emphasis This purports protect by which him law....” testimony compels the with Geovanni’s Inaudi, (Immigration In re No. T91-04459 d persecuted conclusion that Geovanni was Refugee Apr. Boar of Canada in the membership account of’ his “on 1992). The evidence group.” is Geovanni suffered at sexual assaults of no other conclusion. susceptible undoubtedly police the hands of officers held persecution. constitute We have E. Persecution may ... constitute “rape or assault sexual finding BIA erred in legally 99 F.3d at persecution.” Lopez-Galarza, past both that Geovanni failed to establish INS, 959; Lazo-Majano v. 813 F.2d see fu and a well-founded fear of persecution (9th Cir.1987) (finding persecu 1434 persecution upon ture return to Mexico. raped by who was a tion of woman 101(a)(42)(A), § INA U.S.C. was military sergeant clothing whose she Pitcherskaia, 1101(a)(42)(A); see also wash), grounds, overruled on other paid to (reviewing at 646 de novo the 118 F.3d INS, v. 79 F.3d Cir. Fisher meaning persecu of the legal question 1996) (en banc). Lopez-Galarza, In we tion). in have held that We took note of: suffering or harm volves “the infliction of ... in a upon way regard revealing those who differ numerous studies the the Ilchert, 840 F.2d ed as offensive.” Desir v. rape harms physical psychological (9th Cir.1988) (internal quota 726-27 in the causes. A recent article Journal omitted); citation see Her tion mark and American Medical Association the 777 F.2d nandez-Ortiz of the ef- summarized several studies (9th Cir.1985) persecution is (stating that rape, and concluded: fects ... or “oppression groups inflicted on indi commonly results in severe and Rape of a difference that viduals because sequelae long-lasting psychological tolerate”). will not persecutor shaped by the complex that are and cultural context particular social per that the Geovanni must show rape occurs.... Com- “inflicted either secution he suffered was monly reported feelings at time by persons orga- or by government or shock, inju- any past in the record of convictions. rape include fear fact, that, can be ry paralyzing, explicitly despite or death that noted the IJ profound loss of control Mexico, and sense harassment in Geovanni had police Longer-term effects over one’s life. formally charged “never or convicted been fears, persistent avoidance can include any offense.” trigger memories of of situations that then, “conduct,” Perhaps, the BIA violation, profound feelings of referring to Geovanni’s effeminate events, shame, difficulty remembering sexual orientation as a dress abuse, de- thoughts intrusive man, justification offi respond gen- to life ability creased raping “you cers’ him. The asked for it” difficulty reestablishing in- erally, and excuse for is offensive to this court rape relationships. timate and has been discounted courts and (citation at 962 Lopez-Galarza, e.g., commentators alike. See Timm v. omitted). reason to believe There no (D.Neb. Delong, F.Supp.2d 959-60 rape that the trauma for male victims of 1998) (stating Congress found that female victims.9 any less severe than for quarter judges one of errone almost state convoluted, gave inappo- BIA the The ously rape precipitate believe that victims site, reasoning “[w]hile and irrelevant their sexual because of what assaults Toboso-Alfonso, supra, provides basis preceding wear or their actions the inci homosexuality is a basis finding for dents); Baker, Katharine K. Once a Ra asylum, anti-sodomy per- laws are not for pist? Motivational Evidence and Rele Hardwick, v. 478 U.S. secution. Bowers Law, vancy Rape 110 Harv. L.Rev. 92 L.Ed.2d 140 106 S.Ct. (1997) (constructing ways to new eval (1986).” however, argue, did not uate cases that will blame rape not the of being persecuted that he was because victim); Billing Judith M. & Brenda Mur any anti-sodomy prohibition the of laws. ray, Introduction to the Ninth Circuit Instead, raped by police offi- he was twice Report: Gender Bias Task Force The Ef engage sodomy. him to cers who forced Gender, 67 S. Cal. L.Rev. fects of case, has to this and Bowers no relevance (1994) (stating blaming women for the BIA’s reliance on that case is com- bringing domestic violence on themselves pletely misplaced. example is a common gender bias the Further, erroneously BIA reasoned the courts). respondent’s that “the mistreatment arose Further, the BIA had no basis for by ... rape from his conduct thus the the concluding that Geovanni’s failure to re by a policemen, gay and the attack mob of spond questions regarding to his arrests in necessarily are persecu- bashers not ” by tion .... are uncertain whether the United States “casts further We doubt referring BIA “conduct” the some claim persecution.” It is true that alleged criminal conduct or to Geovanni’s prohibits no rule of “[t]here is law appearance style of dress. Either and charged officers with the administration of way, compels substantial evidence a con- immigration drawing the law from an in Prasad, trary result. See 101 F.3d at 616- ference from the silence of one who is v. upon speak.” Lopez- called INS Mendoza, 1032, 1043, 104 468 U.S. S.Ct. absolutely

There is no in the evidence (1984) (citing 82 L.Ed.2d 778 United record that Geovanni’s “mistreatment Tod, conduct,” Bilokumsky ex rel. arose if States 263 U.S. from his conduct refers 149, 153-54, activity. to criminal There is no evidence 44 S.Ct. 68 L.Ed. 221 school, stops by police, 9. Because we find that two random and sexual assaults from accompanying police harassment consti- per- the knife assault secution, constitute persecution, tute we need examine Geo- individually cumulatively. expulsion vanni's additional claims that his J.)). (1923) (Brandéis, Any Through rape, inference be harassment Geo- drawn, however, must reasonable. past persecution be vanni suffered Mexico connection simply logical is no be- There on account of his sexual orientation for ques- failure to answer tween Geovanni’s being gay man a female sexual arrests in the United regarding tions identity. showing Because that is unre- rapes by police and the officers States butted, presume we must that he has Mexico. if well-founded fear he re- asylum turns. He is entitled and with- Because Geovanni has established deportation. holding We therefore presumption there is a past persecution, grant petition for review and remand that he has a fear future well-founded BIA the case to the with instructions to must persecution, which the INS overcome grant application withholding for preponderance the evidence deportation present and to this case to the country changed. conditions have See 8 Attorney for the General exercise of her 208.13(b)(1)(i); Singh, 63 F.3d at C.F.R. grant asylum., discretion to no evidence presented 1510-11. INS steps taken that Mexico has' effective FOR PETITION REVIEW GRANT- violence, in curb sexual orientation-based ED and REMANDED with instructions. cluding perpetrated by police. To contrary, Professor Davies testified BRUNETTI, Judge, specially Circuit that the men in Mexico situation concurring: of the has worsened because decline majority’s conclusion that Geovanni Thus, economy. must be presumption Hernandez-Montiel is entitled to given full force. its withholding of deportation is correct. however, agree, I do not with the broad Withholding Deportation F. by major- and rationale reasoning used analysis past persecution Our ity reaching in its I conclusion. therefore that triggers presumption also Geovanni only by must concur in the result reached probability” has shown a “clear of future majority. persecution respect withholding to his presented by The evidence Professor presumption may claim—a that the INS legal supports conclusion that Davies by showing an individualized also rebut Mexico, gay men who have female sexu- changed country conditions. See 8 C.F.R. a particular al identities constitute 208.16(b)(1); INS, Vallecillo-Castillo v. group asylum purposes. Hernandez- (9th Cir.1996). Again, 121 F.3d testimony re- Montiel’s uncontradicted nothing record there is to rebut mental garding physical state is presumption. Accordingly, we conclude sufficient to establish he is member entitled to withhold Geovanni also Professor group. this deportation.10 ing that gay

Davies testified men with female V. CONCLUSION persecuted sexual identities are Mexico. testimony Hernandez-Montiel’s before hold that denying We the BIA’s decision Judge perse- Immigration he suffered asylum statutory grounds Geovanni on membership on account of his fatally cution flawed as a matter of law and is not supported substantial evidence. this social was found credible argues 10. Geovanni further that the erred able exercise of discretion.” The BIA’s com- IJ ment, however, denying asylum discretionaiy grounds on of its was made in the context based on refusal to certain Geovanni’s answer voluntary departure. The BIA discussion questions regarding alleged criminal con- asylum did address the denial of IJ’s argues in the United States. duct thus, discretionary grounds; re- we cannot adopted finding the BIA this when it 907; Gonzalez, Ghaly view 82 F.3d at it. See "conclude[d], Immigration Judge, as did the (9th Cir.1995). v. respondent that the is not entitled to a favor- Immigration Judge and both the Immigration Appeals. Hernan-

Board of is therefore entitled

dez-Montiel deportation based on withholding fear of should

his well-founded

he be returned to Mexico. Singh BARAPIND,

Kulvir

Plaintiff-Appellant, RENO, Attorney General,

Janet

Defendant-Appellee.

No. 99-16668. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted June 2000. Aug.

Filed

Case Details

Case Name: Geovanni Hernandez-Montiel v. Immigration and Naturalization Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 24, 2000

Citation: 225 F.3d 1084

Docket Number: 98-70582

Court Abbreviation: 9th Cir.