Reyes-Reyes v. Ashcroft
384 F.3d 782 (9th Cir. 2004)
In Reyes-Reyes v. Ashcroft, the Ninth Circuit again recognized that “gay men with female sexual identities” formed a particular social group, this time in the applicant’s native El Salvador.
Reyes-Reyes had dressed like a woman for 16 years prior to his application for immigration relief. He wore make-up, a woman’s hairstyle, and female clothing. As a teenager, Reyes-Reyes was kidnapped by a gang, beaten, and raped on account of his homosexuality. Because Reyes-Reyes had missed the one-year filing deadline, he was not eligible for asylum.
However, the Ninth Circuit remanded the case for further review of his withholding and CAT claims. Importantly, the court determined that even though there was no allegation that members of the Salvadoran government had themselves tortured Reyes-Reyes, the court found that if the government was willfully blind to the type of harm Reyes-Reyes suffered, this could be sufficient to meet the CAT standard. The court further remanded to determine whether the harm Reyes-Reyes had suffered qualified as past persecution, or, in the alternative, whether he had demonstrated a likelihood of future persecution.
In Reyes-Reyes, the court again grappled with an applicant’s gender identity and its connection to sexual orientation. In a footnote, the court wrote:
It is not clear from the record whether Reyes’s female sexual appearance was fully manifest at this age [16]. We note, however, that Reyes’s sexual orientation, for which he was targeted, and his transsexual behavior, are intimately connected. As we have recognized, it is well-accepted among social scientists that ‘sexual identity is inherent to one’s very identity as a person …. Sexual identity goes beyond sexual conduct and manifests itself outwardly, often through dress and appearance.
Reyes-Reyes had dressed like a woman for 16 years prior to his application for immigration relief. He wore make-up, a woman’s hairstyle, and female clothing. As a teenager, Reyes-Reyes was kidnapped by a gang, beaten, and raped on account of his homosexuality. Because Reyes-Reyes had missed the one-year filing deadline, he was not eligible for asylum.
However, the Ninth Circuit remanded the case for further review of his withholding and CAT claims. Importantly, the court determined that even though there was no allegation that members of the Salvadoran government had themselves tortured Reyes-Reyes, the court found that if the government was willfully blind to the type of harm Reyes-Reyes suffered, this could be sufficient to meet the CAT standard. The court further remanded to determine whether the harm Reyes-Reyes had suffered qualified as past persecution, or, in the alternative, whether he had demonstrated a likelihood of future persecution.
In Reyes-Reyes, the court again grappled with an applicant’s gender identity and its connection to sexual orientation. In a footnote, the court wrote:
It is not clear from the record whether Reyes’s female sexual appearance was fully manifest at this age [16]. We note, however, that Reyes’s sexual orientation, for which he was targeted, and his transsexual behavior, are intimately connected. As we have recognized, it is well-accepted among social scientists that ‘sexual identity is inherent to one’s very identity as a person …. Sexual identity goes beyond sexual conduct and manifests itself outwardly, often through dress and appearance.