Gay El Salvadoran May Get Relief Under Convention Against Torture

QueerDay.com reports on a 9th Circuit Court of Appeals decision which determined that an immigration judge and the Board of Immigration Appeals erred in ruling that Luis Reyes-Reyes could not have relief from deportation under the Convention Against Torture (CAT) because he had not alleged that he had been tortured by an El Salvadoran government official, but instead claimed his abuse had been at the hand of private individuals. At the age of 13 he had been kidnapped, beaten and raped because he is gay, and he was threatened with reprisal if he reported the incident. He left the country at age 17 (in 1979), and has been living illegally in the United States since that time, living as a woman for many of the intervening years.



While the court determined that it lacked jurisdiction on the asylum question under 8 U.S.C. Section 1158(a)(1) because Reyes-Reyes had to have filed such a claim within one year of arrival in the country, it did have jurisdiction to review the lower courts' decisions on the CAT claim. The court determined that the lower decision had been based on the wrong legal standard, and that the petitioner did not have to show that he had suffered at the hands of a government official, but that if he had been tortured by private individuals, he needed to show that the action had been taken with the government's "consent or acquiescence," and that "willful acceptance or willful blindness" on the part of the government would suffice.



The case is remanded to the Board of Immigration Appeals.



The 18-page opinion, written by Judge M. Margaret McKeown, can be found here. The Metropolitan News-Enterprise has this summary of the decision. The audio file of the arguments can be downloaded here.