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Razkane v. Holder, United States Court of Appeal for the 10th Circuit (21 April 2009)

Procedural Posture

The petitioner applied for restriction on removal pursuant to the Immigration and Nationality Act. An Immigration Judge denied application. The Board of Immigration Appeals upheld the Immigration Judge’s decision. The petitioner appealed to the Tenth Circuit Court of Appeals.


The petitioner was a Moroccan citizen who entered the United States in 2003. Because he had remained in the country after his visa expired, the Department of Homeland Security served upon him a Notice to Appear, charging him as removable under United States immigration laws. The petitioner applied for asylum, restriction on removal, and voluntary departure under the Immigration and Nationality Act. He also sought protection under the Convention against Torture.


Whether the Immigration Judge erred in his analysis of “whether it was more likely than not [the petitioner] would be persecuted on account of his membership in this social group [gay men] upon return to Morocco”.

Domestic Law

Ali v. Mukasey, United States Court of Appeals for the 2nd Circuit, 2008, and Shahinaj v. Gonzales, United States Court of Appeals for the 8th Circuit, 2007 (assumptions about homosexuality prevented judges from performing their role fairly).

Chaib v. Ashcroft, United States Court of Appeals for the 10th Circuit, 2005 (what a petitioner must show to obtain a restriction on removal: a non-citizen “must establish a clear probability of persecution in that country on the basis of race, religion, nationality, membership in particular social group, or political opinion”).

INS v. Stevic, United States Supreme Court, 1984 (defining the clear-probability standard: “whether it is more likely than not that the non-citizen would be subject to persecution”).

International Law

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Reasoning of the Court

Razkane had presented evidence before the Immigration Judge that in Morocco a neighbour had attacked him with a knife. The neighbour told him that death was better than being gay. Through expert testimony, Razkane had presented evidence that homosexuality was seen as a violation of Islam and that gay men in Morocco had been harassed, beaten, raped and even killed. Police protection was non-existent.

The Immigration Judge first determined that Razkane had not been subjected to past persecution because the attack had not resulted in injury and the family of the assailant had apologised. The Immigration Judge distinguished Morocco from countries that persecuted homosexuals because of their status as homosexuals. He found Razkane could not show that his status as a homosexual would be likely to lead to persecution in Morocco.

The Immigration Judge found that Razkane’s appearance would not “designate him as being gay” because he did not dress in an effeminate manner. The Immigration Judge concluded that Razkane had not shown that he would engage in the type of “overt homosexuality” that would attract the attention of authorities in Morocco.

The Court rejected the findings of the Immigration Judge.

The [Immigration Judge]’s reliance on his own views of the appearance, dress, and affect of a homosexual led to his conclusion that Razkane would not be identified as a homosexual … This analysis elevated stereotypical assumptions to evidence upon which factual inferences were drawn and legal conclusions made. To condone this style of judging, unhinged from the prerequisite of substantial evidence, would inevitably lead to unpredictable, inconsistent, and unreviewable results. The fair adjudication of a claim for restriction on removal is dependent on a system grounded in the requirement of substantial evidence and free from vagaries flowing from notions of the assigned [Immigration Judge]. Such stereotyping would not be tolerated in other contexts, such as race or religion.

The Court cited recent rulings by the 2nd and 8th Circuit Courts on this stereotype-based approach to sexual orientation asylum cases. Both Circuits held that preconceived assumptions about homosexuality prevented judges from performing their role fairly.

The Court reversed the decision of the Board and remanded the case for proceedings consistent with its opinion. The Court noted that if the Board determined that consideration by an Immigration Judge was necessary, a different Immigration Judge should be assigned to the case. The Court also extended the temporary stay of removal until the mandate had been issued.

Razkane v. Holder, United States Court of Appeal for the 10th Circuit (full text of judgment, PDF)