An asylum applicant from the west African nation of Benin who received death threats after neighbors and family in his home country discovered he was bisexual is now in the custody of Immigration and Customs Enforcement, despite a ruling by the 4th U.S. Circuit Court of Appeals reversing a U.S. immigration board’s finding that the man had failed to prove he’d suffered persecution.

Moktar Tairou, who was married and a father, says that he developed a romantic relationship with another man. His wife did not care about the relationship, but when Tairou’s father and others in his village found out that he was bisexual, they allegedly kept him hostage for five hours while they beat him. Tairou says he became the target of death threats and intimidation, and he fled to the United States in 2014.

Tairou’s application for asylum was denied, so he appealed to the Board of Immigration Appeals, which found that he did not prove that he would face persecution if he returned to Benin.

Tairou contends that the BIA erred by failing to appropriately consider the cumulative effects of the harm inflicted on him, his wife, and his child. He argued that targeted death threats and threatening phone calls would establish a finding of past persecution.

The U.S. Department of Justice did not dispute the credibility of Tairou’s testimony about the abuse, but argued the BIA’s decision should be upheld because the harm suffered cumulatively by Tairou did not constitute past persecution.
The 4th Circuit disagreed. Chief Judge Roger Gregory, writing for a unanimous panel in a Nov. 30 opinion, found that the BIA erred by finding that Tairou had not established past persecution, noting that the record indicated that Tairou received multiple death threats in his home country that the BIA failed to address.

“Because Tairou received multiple, explicit threats of death both during and after the village gathering, the BIA’s conclusion as to past harm contravenes our express and repeated holding that the ‘threat of death’ qualifies as persecution,” Gregory wrote. “Contrary to the BIA’s reasoning, the threat of death alone constitutes persecution, and Tairou was not required to additionally prove long-term physical or mental harm to establish past persecution.”

Rebekah Grafton, an immigration attorney with Fay & Grafton in Raleigh, North Carolina, who was not directly involved in the case but reviewed the ruling, said that it is well established in the 4th Circuit that death threats constitute persecution.

“One of the things we have to prove in asylum law is that the applicant has either suffered persecution in the past or has a well-founded fear of future persecution,” Grafton said. “If we prove that the applicant has suffered past persecution, there is a presumption that he would suffer future persecution that the government has the burden of rebutting. What constitutes ‘persecution’ has been routinely litigated, and we have to establish that the harm sufferedor that will be sufferedrises to the level of persecution.”

Tairou’s attorney, John Hester of McCoppin & Associates in Cary, North Carolina, said Dec. 18 that his client was in ICE custody in Lumberton, Georgia, and would appear for a bond hearing on Dec. 20, after Lawyers Weekly went to press.
“He was taken into custody 10 days ago, although the Department of Justice told the Fourth Circuit it did not intend to remove him,” Hester said. “Mr. Tairou has a new wife and a child with a medical condition in North Carolina. He has never committed any crime.”

Steve Stafford, a spokesman for the Department of Justice, told Lawyers Weekly only that “I don’t have a comment for you on this matter.”

The 11-page decision is Tairou v. Whitaker (Lawyers Weekly No. 001-168-18).

Follow Bill Cresenzo on Twitter @bcresenzosclw

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