Jennie Taer at the Daily Wire broke the news this week that Rony Alexander Gomez-Alberto, a Honduran national who purportedly claimed to have a bomb and attempted to break into the cockpit of United Airlines (UA) Flight 2174 while en route from Newark (N.J.) to New Orleans, was apprehended and removed after he attempted to enter the United States illegally in 2011 and 2014. Even though he had been stopped a third time, at the San Ysidro (Calif.) port of entry in 2019, Taer reported, he was eventually released in 2020 after he was granted asylum based upon his purported fear of persecution based upon his transgender status. Here’s an analysis of this case based upon the few facts that have been reported.
“Credible Fear” and “Reasonable Fear”
Let’s start with what we definitely know — the law and how it applies in illegal entry cases.
Under section 235(b)(1) of the Immigration and Nationality Act (INA), CBP may subject an alien stopped (“encountered”) by immigration officers in the agency’s Office of Field Operations at a port of entry or by Border Patrol agents between the ports to “expedited removal”, provided that alien lacks proper admission documents (like a passport or visa) or attempted to enter by fraud.
That includes migrants who enter illegally, and expedited removal authorizes those officers and agents to order such aliens removed on their own, without placing those aliens into removal proceedings before an immigration judge (IJ) under section 240 of the INA.
If, however, an alien subject to expedited removal claims a fear of persecution or torture, the removal process stops and CBP must then refer the alien for a “credible fear” interview before a USCIS asylum officer (AO).
The purpose of that credible fear interview is to determine whether there is a “significant possibility” an IJ would grant the alien asylum (under section 208 of the INA) or protection under Article III of the Convention Against Torture (CAT).
In other words, “credible fear” is a screening standard with a lower burden of proof than either asylum or CAT, and the AO is simply attempting to determine whether an IJ may grant the alien subject to expedited removal either or both of those protections.
If, however, an alien has already been deported under a final removal order — either a CBP expedited removal order or an IJ order at the end of section 240 removal proceedings — and the alien returns illegally and is encountered by CBP at the border or at a port of entry or by ICE in the interior, DHS may “reinstate” that prior removal order and deport the alien again, under section 241(a)(5) of the INA.
Here comes another “if”: If, however, that alien facing reinstatement of his prior removal order claims a fear of persecution or torture, CBP or ICE must, under regulations at 8 C.F.R. § 208.31, refer the alien to a USCIS AO for a “reasonable fear” interview.
At that point, if the AO finds the alien has a reasonable fear of persecution or torture, the alien will be placed into “withholding only” proceedings before an IJ to apply for withholding of removal under section 241(b)(3) of the INA (“statutory withholding”, which is similar to asylum only with a higher burden of proof and fewer benefits) or CAT protection.
Just as the “credible fear” screening standard in expedited removal proceedings is lower than the burden an alien must meet to be granted asylum, “reasonable fear” is a lower burden than the “clear probability” (i.e., “more likely than not”) of persecution or torture standard the alien must meet to be granted statutory withholding and CAT (respectively).
In fact, “reasonable fear” requires the same proof that an alien must show to be granted asylum, that is a “well-founded fear of persecution”.
Here’s a “simple” calculus: “clear probability” (to be granted statutory withholding or CAT) > “well-founded fear” (to be granted asylum) which = “reasonable fear” (to escape reinstatement and be placed into IJ withholding of removal proceedings) > “credible fear” (to be taken out of expedited removal and allowed to apply for asylum from an IJ in 240 removal proceedings).
The only forms of relief an alien in withholding-only proceedings can seek are statutory withholding and CAT. Asylum is off the table, as are other discretionary forms of relief that may lead to a green card.
“Persecution” Based on “Membership in a Particular Social Group”
With the procedural analysis out of the way, here’s how an alien who later allegedly attempts to threaten an airliner could have made a protection claim based upon his purported transgender status.
To be granted asylum, an alien must establish he is a “refugee” as defined in section 101(a)(42)(A) of the INA, that is a person who is unable or unwilling to return home due to past persecution or a well-founded fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion”.
Poverty, war, common criminality, conditions of generalized violence, and corruption do not count. Only significant harm rising to the level of “persecution” based upon one of those five factors satisfies the refugee definition and thus makes an applicant eligible for asylum.
Note that persecution based on those five factors is also required for statutory withholding, but little thought went into the term “particular social group” when it was first proposed at the 1951 UN Refugee Convention, and not much enlightenment can be found in the convention’s finished product.
As then-Judge (now Justice) Sam Alito noted in his 1993 Third Circuit opinion in Fatin v. INS: “Read in its broadest literal sense, the phrase is almost completely open-ended. Virtually any set including more than one person could be described as a ‘particular social group.’ Thus, the statutory language standing alone is not very instructive.”
Consequently, applicants for asylum and statutory withholding often attempt to transform harms related to such issues as common criminality, disorder, and generalized violence into “particular social group” claims, generally without success.
That said, in its 1990 opinion in Matter of Toboso-Alfonso, a split panel of the Board of Immigration Appeals (“BIA”, the DOJ tribunal that reviews immigration decisions) held a Cuban national who “had the status of being a homosexual” was a member of a particular social group.
Thereafter, in its 2000 opinion in Hernandez-Montiel v. INS, the Ninth Circuit concluded that “gay men with female sexual identities in Mexico” also constituted a protected “particular social group”.
Numerous similar opinions followed, and it’s now settled law that persecution based on sexual orientation or gender identity is valid for purposes of asylum and statutory withholding.
The Low Evidentiary Burden
Note that while the grounds of persecution upon which asylum and statutory withholding are limited, the evidentiary burdens on applicants for those protections are generous, liberal, and expansive.
Specifically, under section 208(b)(1)(B)(ii), an applicant’s testimony alone can be sufficient to satisfy the burden of proof for asylum even without corroboration provided the “testimony is credible, persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee”.
That said, some applicants are required to offer evidence that corroborates their testimony, provided an IJ finds the applicant has such corroborating evidence or can reasonably obtain it.
In many cases involving applications premised upon sexual orientation or gender identity, though, little or no corroborating evidence is available, and the IJ must then determine whether the applicant’s testimony is credible.
Given the sensitivities that attach to such claims, however, IJs must be careful when making adverse credibility determinations in such cases, or risk being reversed (or worse) on appeal.
In its 2010 opinion in Todorovic v. Attorney Gen., for example, the 11th Circuit held an IJ had “relied impermissibly on stereotypes about homosexuals” that “tainted the proceedings” where the immigration court had begun its adverse credibility determination as follows:
The Court would first note that the respondent says that he is singled out for persecution because he is gay in his home country. The Court studied the demeanor of this individual very carefully throughout his testimony in Court today, and this gentleman does not appear to be overtly gay. The Court does not know whether he is or not, his testimony is that he is overtly gay and has been since he was 17 years old. Be that as it may, it is not readily apparent to a person who would see this gentleman for the first time that, that is the case, since he bears no effeminate traits or any other trait that would mark him as a homosexual.
Similarly, in Avendano-Hernandez v. Lynch, a 2015 opinion involving a CAT application, the Ninth Circuit concluded that the IJ had:
failed to recognize the difference between gender identity and sexual orientation, refusing to allow the use of female pronouns because she considered Avendano-Hernandez to be “still male,” even though Avendano-Hernandez dresses as a woman, takes female hormones, and has identified as woman for over a decade.
That was in addition to taking both the IJ and the BIA to task for “ironically exhibiting some of the same misconceptions about the transgender community that Avendano-Hernandez faced in her home country” of Mexico.
That’s not to say reviewing courts have not sustained adverse credibility determinations by IJs in cases involving sexual orientation or gender identity, but the IJ’s reasoning in any such instance must be free of any improper bias or stereotyping.
“Honduran Rony Alexander Gomez-Alberto”
Given that Gomez-Alberto has not been convicted of any crime related to the airliner incident, he is entitled to a presumption of innocence.
Moreover, there are a lot of facts in his case that are still unclear, including how a twice-removed alien was thereafter granted “asylum”.
As explained above, if he had been deported on either of those occasions with a final removal order, he would have been ineligible for asylum and at best could only have sought statutory withholding and CAT after he reentered in 2019.
That said, if following his 2011 and 2014 border apprehensions, CBP gave Gomez-Alberto “voluntary return” back across the border to Mexico (a country that has accepted the return of Honduran nationals in the past) in lieu of formal expedited removal or section 240 removal, there’d be no removal order to “reinstate”, and he would have been eligible to seek asylum when he reentered illegally in 2019.
There is also the question of the validity of his underlying “claim of being transgender” as the Daily Wire described it. If Gomez-Alberto was granted asylum on that basis, the presumption is he was telling the truth, but DHS could move to reopen his case and terminate his status if it has new evidence to the contrary.
On November 12, DHS issued a press release that referenced his alleged transgender status before highlighting its May “crack down on fraudulent asylum claims”, and quotes DHS Secretary Markwayne Mullin as stating, “This twice-deported criminal illegal alien was allowed into our country because of a weak asylum system that allowed him to game the system.”
But the department never argues, let alone establishes, that Gomez-Alberto’s claims were fraudulent.
As noted, Gomez-Alberto is presumed innocent unless and until he is convicted in connection with the purported hijacking of UA 2174. DHS, however, should explain how an alien encountered twice at the border managed to be granted asylum on his third illicit trip in — and whether he was telling the truth when he received that protection.