UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE IMMIGRATION JUDGE CHICAGO, ILLINOIS

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1 Keren Zwick, Attorney National Immigrant Justice Center 208 S. LaSalle Street, Suite 1818 Chicago, IL NOT DETAINED UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE IMMIGRATION JUDGE CHICAGO, ILLINOIS In the Matter of CLIENT In removal proceedings Hon. IMMIGRATION JUDGE No. A Individual Hearing: DATE and TIME RESPONDENT S PRE-HEARING STATEMENT AND INDEX OF SUPPLEMENTAL DOCUMENTS

2 TABLE OF CONTENTS PRELIMINARY MATTERS... 1 STATEMENT OF FACTS... 2 A. CLIENT has identified as gay for as long as he remembers, but growing up he struggled with his sexual orientation B. As a young adult, CLIENT was beaten and otherwise attacked on numerous occasions because of his sexual orientation C. Since coming to the United States, CLIENT has been able to live as an openly gay man, even marrying another man STATEMENT OF COUNTRY CONDITIONS... 6 A. The Russian government has a long history of persecuting members of the LGBT community and tolerating the same behavior by private citizens B. In addition to participating in the violence against the LGBT community, Russia s government has tolerated decades of societal violence against this community C. The situation for LGBT individuals in Russia has deteriorated further in recent months following the passage of regional and national anti-gay legislation ARGUMENT I. CLIENT meets the definition of a refugee and should be granted asylum A. CLIENT belongs to the particular social group of Russian gay men B. CLIENT suffered past persecution on account of his sexual orientation C. The government cannot or will not protect CLIENT or other members of the LGBT community from persecution D. CLIENT has a well-founded fear of future persecution E. CLIENT s marriage and the recent deterioration of country conditions in Russia constitute changes in circumstances that should excuse his failure to apply for asylum within one year of arriving in the United States CLIENT s recent marriage constitutes a changed circumstance Notwithstanding CLIENT s recent marriage, the recent wave of anti-gay legislation also constitutes a change in circumstances CLIENT applied for asylum within a reasonable period given these changes in circumstances F. CLIENT merits asylum in the exercise of discretion

3 II. In the alternative CLIENT should be granted withholding of removal or relief under the Convention Against Torture III. In the Alternative CLIENT asks the court to administratively close his case pending resolution of the constitutionality of DOMA CONCLUSION... 28

4 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE IMMIGRATION JUDGE CHICAGO, ILLINOIS In the Matter of CLIENT In removal proceedings Hon. IMMIGRATION JUDGE No. A Individual Hearing: DATE and TIME PRE-HEARING STATEMENT IN SUPPORT OF RESPONDENT S APPLICATION FOR ASYLUM, WITHHOLDING OF REMOVAL, AND PROTECTION UNDER THE CONVENTION AGAINST TORTURE Respondent CLIENT, through counsel, submits this brief in support of his application for asylum, see INA 208, or in the alternative withholding of removal, see INA 241(b)(3), or protection under the Convention Against Torture (CAT), see 8 C.F.R (c)(3); If the court finds CLIENT ineligible for any of these forms of relief, he asks that it administratively close his case for resolution of pending litigation concerning the constitutionality of the Defense of Marriage Act (DOMA), 1 U.S.C. 7. PRELIMINARY MATTERS Respondent is scheduled for a merits hearing on DATE, at TIME. The following individuals will be called as witnesses: (1) CLIENT, respondent. See Ex. A. (2) CLIENT s PARTNER, respondent s husband. See Ex. KK. Pre-Hearing Statement CLIENT A

5 (3) Kevin Moss, expert on the treatment of gay and lesbian individuals in Russia. See Ex. JJ. Counsel has submitted a separate motion requesting that Mr. Moss be permitted to testify telephonically. All three witnesses will testify in English. Counsel estimates that direct examination of these witnesses will last approximately two hours. STATEMENT OF FACTS CLIENT has identified as a gay man for as long as he remembers, yet in Russia having such an identity has meant resigning himself to a life of choosing between hiding his identity and facing abuse by the police and the community. 1 He tried both of these options unsuccessfully before fleeing to the United States. Since arriving in this country, he has been able to experience for the first time what it is like to live as an openly gay man without facing a constant fear of violence. He has even found the love of his life, CLIENT S PARTNER, and last summer the two traveled to New York (a state that recognizes samesex marriage) to say their vows. A. CLIENT has identified as gay for as long as he remembers, but growing up he struggled with his sexual orientation. CLIENT has known that he is attracted to men his whole adult life, but growing up he struggled to tell his family about his true identity. (See Ex. A, 5.) Out of fear of her reaction, CLIENT never had a discussion with his mother regarding his sexual orientation until very recently, when he moved in with CLIENT S PARTNER. (See Id. 9.) Even 1 Rather than repeating all the facts in CLIENT s affidavit, counsel has provided a summary of the most pertinent details. CLIENT, however, asks that this court incorporate by reference his entire affidavit into this pre-hearing statement. Pre-Hearing Statement CLIENT A

6 though CLIENT was unable to come out to his mother, he did acknowledge being gay to his sister when he was about 19; she was supportive but afraid for his safety. (See Id. 7; Ex. II.) CLIENT has not enjoyed similar support from his other siblings though. He has been unable to tell his remaining two sisters out of fear that they will be ashamed of him, and his brother completely severed ties when he learned the news. (See Ex. A, 8-12.) Even though CLIENT knew he was gay, he tried to conceal his identity growing up. (See Ex. A, 13.) These efforts to conceal his identity were both futile and detrimental to his mental health. From a mental health perspective, hiding his sexuality caused CLIENT to feel lonely, afraid, and sometimes suicidal. (Id. 14.) The efforts were also futile because, by the time he was a teenager, people in the neighborhood and at school started to suspect that he was gay, and they abused him because of it. CLIENT had his first sexual experience when he was about 16, and when other boys in the neighborhood found out about it, they beat him up, bullied him, and threatened to kill him. (See Ex. A ) Three or four of them came to CLIENT s house, pinned him to the ground, and punched and kicked him, all while referring to the fact that he had had sex with another teenage boy from the neighborhood. (Id. 18.) CLIENT was so frightened by the reaction of these boys that he transferred to a different school. (Id. 20.) But transferring to a different school did not alleviate his problems. Kids at the new school suspected that he was gay based on his dress, appearance, and mannerisms, and they beat him up because of it. (Id. 21.) Some of the same boys from the neighborhood who had beaten up CLIENT when he was 16 did so again a couple years later, but this time they Pre-Hearing Statement CLIENT A

7 outnumbered him by about ten to one. (Id. 22.) In an effort to overcome this abuse, CLIENT brought a girlfriend a female friend who knew that he was gay but posed as his girlfriend to the neighborhood. B. As a young adult, CLIENT was beaten and otherwise attacked on numerous occasions because of his sexual orientation. When he was in his late teens and early twenties, CLIENT began to open up about his sexual orientation, going to gay bars and having occasional relationships with men (see Ex. A 24-28), but these changes in behavior came with various consequences. When he was about 20 years old, he went to a secret gay club in St. Petersburg, and the club was raided by the police. (Id. 30.) The officers forced the patrons of the club into the courtyard attached to the building and asked every single person if they were a faggot. (Id.) After concluding that everyone was gay, the police started punching the patrons, including CLIENT. (Id ) They also forced them to watch as one person who had spoken out against the police conduct was singled out for particularly harsh treatment. A police officer beat that man s head against a dumpster until he was bleeding profusely. (Id. 31.) CLIENT was beaten up about five years later, again because his assailants realized that he is gay. (Ex. A 33.) CLIENT had left a gay club with a friend when they were attacked by a group of hooligans. The group pushed him to the ground, punched him, and kicked him with their boots. (Id. 34.) One of the hooligans kicked CLIENT in the head with sufficient force that his nose was broken and had to be surgically repaired. (Id. 34, 36.) Pre-Hearing Statement CLIENT A

8 The first time that CLIENT tried to voice his support for the gay community in an open fashion, by attending a gay pride parade, he was again attacked. In 2006 he went to Moscow to attend that city s first ever gay pride parade. (Ex. A 37.) He and his friends wanted to come out of the shadows and show the government and the people that a gay community did exist in Russia. (Id.) When CLIENT and his friends started to march down the street, police and hooligans chased after them, throwing sticks, rocks, and beer bottles at them. CLIENT was hit in the head with a sharp object and left bleeding. And once again he was kicked in the head, this time leaving a cut above his eye. (Id. 39.) CLIENT did not report this incident to the police because they were at the parade encouraging the anti-gay hooligans and participating in the attack. (Id.) The decision not to go to the police for help was confirmed when CLIENT returned to St. Petersburg. Police arrested him and his friends at the train station in St. Petersburg and taken into custody. (Id. 40.) They were questioned about their activities in Moscow, and the officer threatened them that they would be treated much worse if they ever attended another gay pride event in Russia. (Id.) C. Since coming to the United States, CLIENT has been able to live as an openly gay man, even marrying another man. Since coming to the United States, CLIENT has been able to openly express his sexual orientation without fear of reprisal. He met openly gay men, went to gay clubs, and even joined an online dating service. In 2009 he met CLIENT S PARTNER on this dating site, and the two immediately hit it off. (Ex. A 44-45; Ex. KK.) At first they talked on the phone and via Skype, but in 2009 they decided to meet in person. (Ex. A 46; Ex. KK.) Not Pre-Hearing Statement CLIENT A

9 long after that, CLIENT S PARTNER asked CLIENT if he would come to live with him in the Chicago suburbs, and the two have been living together ever since. (Ex. A 48-50; Ex. KK.) After CLIENT and CLIENT S PARTNER began living together, CLIENT S PARTNER was diagnosed with fibromyalgia. (Ex. A 53-54; Ex. KK.) As a result of his condition, he often needs help getting dressed, and taking care of himself. (Id.) CLIENT provides that care. (Id.) As their relationship became more serious, CLIENT became increasingly afraid of returning to Russia. He realized that it would not have been possible for them to get married in Russia, much less live together in Russia without fear of persecution. (Ex. A 57.) He knew that he would not be able to hide his sexual orientation, and he knew that CLIENT S PARTNER would not be able to accompany him back to Russia. (Id ) These fears, along with the growing intolerance of gay people in Russia, prompted him to seek legal assistance and apply for asylum, even though when he first came to the United States the lawyer who assisted him neglected to assess his potential eligibility for asylum or even inquire as to his sexual orientation. STATEMENT OF COUNTRY CONDITIONS Based on current assessments of country conditions, CLIENT s fear of returning to Russia is reasonable because the country is an increasingly dangerous place for individuals who are lesbian, gay, bisexual, or transgender (LGBT). From every region of the country, reports of extreme discrimination, assault, and even murder motivated by the victim s sexual orientation are common. And recent legislation outlawing gay propaganda has Pre-Hearing Statement CLIENT A

10 been a major step backward for the Russian LGBT community; many fear that the new laws which are quickly spreading all over the country will lead to fines and even imprisonment of any gay person who is open about his sexual orientation. (See Ex. JJ.) A. The Russian government has a long history of persecuting members of the LGBT community and tolerating the same behavior by private citizens. Until 1993, it was illegal to be gay in Russia. (See Ex. BB.) That ban was lifted nearly twenty years ago, but the change in the law did not mark a material improvement in the lives of members of the Russian LGBT community. To the contrary, police and others within the Russian government have continued to abuse these individuals. For example, even though gay activists have attempted to hold gay pride rallies and parades, these efforts have regularly been thwarted by the Russian government. Moscow has banned gay pride parades since gay activists first attempt to hold one in (See Ex. O; Ex. Q; Ex. BB.) At the parade that led to this ban, which CLIENT attended, the police encouraged the behavior of antigay skinheads as they assaulted participants by beating them and throwing stones at them. (See Ex. O; Ex. P; Ex. R.) Similar attacks on gay pride parades have occurred in subsequent years too, again with police failing to intervene or provide protection against violent anti-gay protestors. (See Ex. U; Ex. V; Ex. Z.) The first gay pride parade in St. Petersburg was cut short after only 40 minutes because of overwhelming violence. (See Ex. BB.) At many of these rallies, the police have facilitated the abuse of LGBT individuals and then jailed the victims in dangerous conditions. (See Ex. T.) Pre-Hearing Statement CLIENT A

11 Not only have the Russian police enabled violence against the LGBT community, but they have also participated in it. Police have repeatedly raided gay night clubs and detained patrons without cause. (See Ex. AA.) In these raids, the police have been known to ridicule gay individuals, call them slurs, and threaten to have them punished or otherwise abused for attending gay clubs. (See id.) But the attacks accompanying these raids have not been merely verbal. Police have also been known to round up club patrons, force them to the ground, and beaten and kick them. (See Ex. EE.) Russian politicians and state officials have regularly encouraged this sort of violence. Nationalist politicians frequently speak out against homosexuality in their public addresses, referring to lesbians and gay men as perverts who are sinful and subhuman. (See Ex. X; Ex. DD; Ex. TT; Ex. YY.) The mayor of Moscow, for example, has called LGBT individuals Satanic and a deadly moral poison for [Russia s] children. (See Ex. EE.) B. In addition to participating in the violence against the LGBT community, Russia s government has tolerated decades of societal violence against this community. Even in the years since the ban on homosexuality was lifted, societal stigma, discrimination, and violence against LGBT individuals have persisted. (See Ex. BB; Ex. CC.) In a 2010 poll, 74 percent of Russians indicated that they believed that gays and lesbians are morally dissolute or mentally defective. (See Ex. CC.) In a different survey, over 90 percent of gay and bisexual survey respondents reported that they have had at least one personal experience of discrimination because of their sexual orientation. (See Ex. FF.) Additionally, 27 percent of respondents said that they had suffered physical violence as a Pre-Hearing Statement CLIENT A

12 result of their sexual orientation. (See id.) Despite the frequency with which this violence occurs, victims of sexual-orientation based violence report that they cannot go to the police because they are either convinced that their complaints will go unheard, or they are afraid of the governmental reaction. (See id.) The societal abuse against LGBT individuals takes many forms. Gay men are often beaten, fired from their jobs, or excommunicated from the Russia Orthodox Church if it is discovered that they are gay. (See Ex. FF.) LGBT individuals have also been denied educational opportunities, and medical professionals have been known to refuse to provide healthcare as a result of their own biases. (See Ex. O; Ex. DD.) This societal abuse is also frequently violent. LGBT individuals have been subjected to extra-judicial killing due to their sexual orientation. (Ex. EE; see Ex. BB; DD.) Here too, when victims survive these instances of hate-based violence, there is often little they can do in the form of recourse. The police provide almost no protection against these threats, either ignoring reports of violence or helping to cover up such crimes. There are also few support groups for gay individuals, and those that do exist operate largely underground out of fear of reprisal. (See Ex. BB.) As a result of this violence and discrimination, most people in the LGBT community are forced to conceal their sexual orientation. (See id.) C. The situation for LGBT individuals in Russia has deteriorated further in recent months following the passage of regional and national anti-gay legislation. Pre-Hearing Statement CLIENT A

13 Recently, conditions for LGBT individuals in Russia have gotten even worse than the already-dire situation described above. The impetus for the latest round of anti-gay rhetoric in Russia originated in St. Petersburg, CLIENT s hometown. Just last month (in March 2012) the city enacted legislation prohibiting homosexual propaganda. (See. Ex. UU; Ex. XX.) And around the same time, a national bill was introduced in Russia s lower house of parliament. (See Ex. AAA; Ex. BBB; Ex. CCC.) These laws impose fines for spreading gay propaganda among minors. (Ex. NN.) In recent months, these pieces of anti-gay legislation have been popping up all over Russia. Immediately following the introduction of the St. Petersburg bill, there was speculation that it would serve as precedent for similar legislation in other Russian cities and at the national level. (See Ex. SS; Ex. BBB.) That speculation has proven true. Since the introduction of the law in St. Petersburg, similar laws have been passed in the Russian regions of Ryazan, Arkhangelsk, and Kostroma. (Ex. BBB.) The national bill introduced in March 2012 also follows St. Petersburg s example. The language in these legislative measures is broad and extremely damning to the Russian LGBT community. The now illegal propaganda covers the targeted and uncontrolled dissemination of generally accessible information capable of harming the health and moral and spiritual development of minors, particularly that which could create a distorted impression of marital relations. (Ex. TT; See Ex. WW, DDD.) In plain language, these laws prohibit gay individuals from communicating openly about their Pre-Hearing Statement CLIENT A

14 sexual orientation, and in doing so, they effectively legalize discrimination against the LGBT community. (Ex. ZZ; see Ex. NN; Ex. YY.) This legislation is particularly dangerous for someone in CLIENT s position. One of the aims of the legislation is to protect appropriate moral views concerning marriage and to criminalize conduct that is contrary to those views. As a legally married gay man, CLIENT is likely to be a target under this legislation, particularly if he is seen in public with CLIENT S PARTNER. Even beyond the laws efforts at protecting marriage, though, the St. Petersburg law has drastic implications. First, it dangerously conflates homosexuality with the crime of pedophilia by placing the offences together under the same legislation, which risks stoking anti-gay sentiment. (Ex. NN; see Ex. OO; Ex. BBB.) It is also likely that the language of the bill is so vague that it [will] catch anything remotely gay-positive that minors could possibly see, such as the display of a rainbow flag or wearing a t-shirt with a gay friendly logo. (Ex. BBB; see Ex. JJ.) And at a more fundamental level, in a country where anti-gay sentiments already predominate, these legislative reforms promise to entrench these views into Russian culture and society. Because the minds of both the government and the Russian people are people firmly rooted in homophobic notions, gay individuals like CLIENT continue race substantial risks of persecution. The government is not only unable to control the risk violence against the LGBT community, but it is also actively complicit in it. Until there is a commitment by the Pre-Hearing Statement CLIENT A

15 Russian government to protect members of the LGBT community, the country will continue to be a dangerous place to be a gay man. ARGUMENT CLIENT is a gay man who fears returning to Russia because he fears that he will be targeted for persecution and abuse on account of his sexual orientation. Because he qualifies as a refugee and changes in circumstances justify his failure to apply within one year of arriving in the United States, the court should exercise its discretion and grant that request. Should the court conclude that CLIENT is ineligible for asylum, he is nonetheless eligible for the non-discretionary protection provided by withholding of removal or for relief under the Convention Against Torture and should be awarded one of those remedies. If the court finds that CLIENT does not qualify for any of these forms of protection, he also asks that his case be administratively closed until the constitutionally of DOMA is decided by federal courts. I. CLIENT Meets the Definition of a Refugee and Should Be Granted Asylum. This court should grant CLIENT s application for asylum because his credible testimony, along with the attached materials, demonstrates that he meets the Immigration & Nationality Act s (INA) definition of a refugee. He is unable or unwilling to return to Russia because of persecution or a well-founded fear of persecution on account of... [his] membership in a particular social group. INA 101(a)(42)(A); see Escobar v. Holder, 657 F.3d 537, 542 (7th Cir. 2011). In addition to proving his membership in the social group of Pre-Hearing Statement CLIENT A

16 gay men, he has also demonstrated that there is a nexus between his fear of persecution and his membership in that group. See Ishitiaq v. Holder, 578 F.3d 712, 715 (7th Cir. 2009). A. CLIENT Belongs to the Particular Social Group of Russian Gay Men. CLIENT s affidavit and testimony, especially when coupled with the attached supporting documents and the testimony of his husband, establish that he is a member of a particular social group of gay men. The Board of Immigration Appeals has defined particular social group as a group whose members share common characteristics that members of the group either cannot change, or should not be required to change because such characteristics are fundamental to their individual identities. Gatimi v. Holder, 578 F.3d 611, 614 (7th Cir. 2009) (quoting In re Kasinga, 21 I. & N. Dec. 357, (BIA 1996)). It is well established that homosexuality qualifies as a particular social group. See Moab v. Gonzales, 500 F.3d 656, 661 n.2 (7th Cir. 2007) (citing Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, (BIA 1990)). CLIENT has demonstrated that he belongs to this group. CLIENT has known that he is gay for most of his life, and he has been regularly abused because of this aspect of his identity. His first sexual experience occurred when he was around 16 years old, and he has dated men from that point forward. He regularly went to gay clubs in Russia, most of them existing underground, in an effort to find gay friends and someone to love. He even attended a gay pride parade in Russia, only to get beaten up by hooligans and police. Since coming to the United States, CLIENT has been more comfortable living as an openly gay man than he could have been in Russia. In 2009 he moved in with his now- Pre-Hearing Statement CLIENT A

17 husband, CLIENT S PARTNER, and when New York State legalized same sex marriage in 2011, they decided to formalize their relationship by getting legally married. Since that time and even before, they have been living as a married couple, sharing household expenses and responsibilities, traveling together, and supporting one another through the ordinary difficulties that life can present. CLIENT fully intends to continue living his life as an openly gay man, and he hopes to be able to do so with his husband, whom he loves. This court cannot ask him to abstain from such relations as an alternative to protection from persecution. Muhur v. Ashcroft, 355 F.3d 958, 960 (rejecting government s argument that applicant should avoid persecution by practicing religion covertly); Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir. 2005) (holding that asylum applicants cannot be asked to conceal their sexual orientation). B. CLIENT Suffered Past Persecution On Account Of His Sexual Orientation. Persecution can come in many forms, but it usually involves the use of significant physical force against a person s body, or a credible threat to inflict grave physical harm. Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011). CLIENT has shown that he endured qualifying harm in the form of significant physical abuse accompanied by credible threats on his life at the hands of both the Russian police and other citizens. CLIENT was first persecuted on account of his sexual orientation when he was a teenager. When he was about 16 years old, neighbors learned that he had had sex with another neighborhood boy, and they ganged up on him and beat him up. Afterward these same neighborhood boys bullied CLIENT and threatened to kill him. These boys even beat Pre-Hearing Statement CLIENT A

18 up CLIENT a second time, this time in a much larger group of approximately ten people. These events were a direct response to the knowledge that CLIENT had been sexually active with another boy. These threats and beatings amount to past persecution. Death threats compel a finding of past persecution when they are of a most immediate and menacing nature or if the perpetrators attempt to follow through on the threat. Bejko v. Gonzales, 468 F.3d 482, 486 (7th Cir. 2006). Because the neighbors threats were accompanied by physical violence, they were sufficiently menacing to constitute persecution. The accompanying violence indicated that the perpetrators were serious about their intentions to follow through with their threats. In addition, these threats amount to persecution because they forced CLIENT to hide his sexual orientation. See Kantoni v. Gonzales, 461 F.3d 894, 898 (7th Cir. 2006) (Any credible threat that causes a person to abandon [a lawful, protected group] is persecution.). In fact, these events compelled CLIENT to take great pains to conceal his identity. He was forced to transfer high schools and move out of his family s apartment and hide in a friend s home in order to avoid the neighbors. The only time that CLIENT had reprieve from these threats was when he pretended not to be gay when he brought a girlfriend to his neighborhood. The first incident in CLIENT s neighborhood was not an isolated one. After he transferred schools to avoid this persecution, classmates at his new school beat him up and tried to get him to make a confession about his sexual orientation. And when CLIENT was a young adult, he was badly beaten by antigay hooligans as he was coming out of a night Pre-Hearing Statement CLIENT A

19 club. These hooligans kicked CLIENT in the face on this occasion, and he required surgery to repair his nose. CLIENT did not report any of these incidents to the police because he was afraid that his family would discover his sexual orientation and because he feared that the police would make the situation worse. CLIENT also suffered significant physical and emotional abuse at the hands of government actors. When he was about 20, CLIENT was beaten in the stomach by police officers while being detained at a gay nightclub in St. Petersburg. Several years later, he was again attacked by police in 2006 when he attended the country s first gay pride parade in Moscow. Police did nothing to stop hooligans from attacking parade participants, and they even incited violence themselves by beating participants with their police sticks. See supra STATEMENT OF COUNTRY CONDITIONS. CLIENT was himself injured when he was hit a sharp object and once again hit in the head. Rather than coming to his aid, police treated CLIENT like he was the criminal. The St. Petersburg police detained CLIENT and interrogated him after the Moscow pride event, threatening to arrest him if he ever participated in similar events again. Each of these events alone is sufficient to constitute past persecution, but even if the court disagrees on that point, it should still conclude that, in the aggregate, these events constitute past persecution. See Matter of O-Z- & I-Z, 22 I. & N. Dec. 23, (BIA 1998) (noting that past persecution can be the cumulative effect of various instances of past harm even if those instances would not themselves rise to the level of persecution). CLIENT was beaten, arrested, threatened, harassed, and bullied all because of his sexual orientation. Pre-Hearing Statement CLIENT A

20 These events, several of which occurred at the hands of government actors and all of which were at the government s acquiescence, constitute past persecution. C. The Government Cannot or Will Not Protect CLIENT or Other Members of the LGBT Community from Persecution. CLIENT has also demonstrated that the Russian government is both unable and unwilling to protect members of the LGBT community from precisely the sort of physical violence that he has already endured. Country reports demonstrate violence against LGBT individuals persists throughout Russia and that recent changes to the law have made the country markedly more dangerous for LGBT individuals. See supra STATEMENT OF COUNTRY CONDITIONS. First, it is apparent that the government is complicit in the behavior of anti-gay skinheads and hooligans. Persecution that is perpetrated by private actors is sufficient to qualify an applicant for asylum when the government turns a blind eye to or acquiesces in the private actions. See Chatta v. Mukasey, 523 F.3d 748, 753 (7th Cir. 2008); Doe v. Gonzales, 484 F.3d 445, (7th Cir. 2007); Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000). That is exactly what the Russian government has done in the numerous instances of violence against the LGBT community. But even more telling is the government s own sponsorship of an anti-gay agenda. The recent gay propaganda laws are nothing more than hate laws, and the effect of these legislative measures will likely result in a mass silencing of the LGBT community on a national basis. Regional and national politicians drafted these pieces of legislation, while police and members of conservative Russian society promoted them. This court, therefore, Pre-Hearing Statement CLIENT A

21 should conclude that the Russian government is both unable and unwilling to protect members of its LGBT community. D. CLIENT Has a Well-Founded Fear of Future Persecution. Because CLIENT has suffered past persecution on account of his sexual orientation, he is entitled to a presumption of future persecution in Russia. See 8 C.F.R (b)(1)(i), (b)(1)(i); Stanojkova, 645 F.3d at 946. The government will be unable to rebut this presumption because the persecution of gay men in Russia has increased. See supra STATEMENT OF COUNTRY CONDITIONS. The recent legislation banning gay propaganda is a telling example of the current anti-gay sentiment that pervades Russian society. Yet, even if the court concludes that CLIENT s history of abuse is not sufficient to merit a finding of past persecution, he can nonetheless establish a well-founded fear of future persecution. A well-founded fear of persecution does not require CLIENT to prove that it is certain, or even more likely than not that he will be persecuted in Russia on account of his sexual orientation. Indeed, it is sufficient to show that there is a reasonable possibility that he will be persecuted because of identity as a gay man. See Kllokoqi v. Gonzales, 439 F.3d 336, 345 (7th Cir. 2005). As the Supreme Court has noted, a reasonable possibility can be as low as a one in ten chance of future persecution. See INS v. Cardoza- Fonseca, 480 U.S. 421, 440 (1987). CLIENT has demonstrated that he has both an objective and subjective fear of returning to Russia. From an objective perspective, it is reasonable for a gay man, especially one who is married, to fear returning because gay men continue to be persecuted Pre-Hearing Statement CLIENT A

22 throughout the entire country. See supra STATEMENT OF COUNTRY CONDITIONS. Gay men have not only been the targets for skinhead aggression but have also been murdered on account of their sexual orientation. See id. And instead of taking steps to respond to this violence and aggression, the government has passed legislation that is likely to fuel it. See id. CLIENT s affidavit demonstrates, and his testimony will further prove, that he has a subjective fear of facing this sort of persecution if returned to Russia. Since moving to the United States he has married another man, and he hopes to continue that relationship for the rest of his life. Even if he is forced to return to Russia, CLIENT hopes to maintain his connection to CLIENT S PARTNER. Yet, given the climate in Russia, it would be impossible for them to be together as a couple in Russia. Moreover, CLIENT left Russia following years of pervasive abuse, and since his departure, the country has only grown more hostile to gay people. He has no reason to expect any better treatment now. In addition, CLIENT s fear of persecution is well-founded because internal relocation within Russia is not an option. Where there has been past persecution or the persecutor is the government, it shall be presumed that internal relocation would not be reasonable C.F.R (b)(3)(ii). While it is true that an asylum applicant relying on a well-founded fear of future persecution (as opposed to demonstrated past persecution) must show that he could not relocate within his home country to avoid persecution, the court must consider not only whether relocation is possible but also whether it is reasonable. See id (b)(2)(ii), (b)(3); Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir. 2008). Although Russia is a vast country, persecution of members of the LGBT community Pre-Hearing Statement CLIENT A

23 persists throughout. See supra STATEMENT OF COUNTRY CONDITIONS. CLIENT has himself faced persecution in both Moscow and St. Petersburg, and the murders mentioned above took place outside of these urban areas, highlighting how pervasive homophobic hate crimes are throughout the entire country. 8 C.F.R (b)(3)(ii); Tu Kai Yang v. Gonzales, 427 F.3d 1117, 1122 (8th Cir. 2005). E. CLIENT s Marriage and the Recent Deterioration of Country Conditions in Russia Constitute Changes in Circumstances that Should Excuse His Failure to Apply for Asylum Within One Year of Arriving in the United States. CLIENT understands that, although he meets the definition of a refugee and is eligible for asylum on that basis, the INA also requires that he apply for protection within one year of their most recent entry to the United States. See 8 U.S.C. 1158(a)(2)(B). He does not contend that he met this filing deadline, but instead maintains that changed circumstance materially affecting his eligibility for asylum justify his delay in filing. 1. CLIENT s Recent Marriage Constitutes a Changed Circumstance. Changed circumstances include circumstances materially affecting the applicant s eligibility for asylum. 8 C.F.R (a)(4)(i)(B). An applicant s material individual life changes can be relied upon to demonstrate a change in circumstances. See Id. (recognizing that activities the applicant becomes involved in outside the country of feared persecution qualify as changes in circumstances.) A change in circumstances is material if it is an effect that increases, in a non-trivial way, the applicant s likelihood of success in his application. Vahora v. Holder, 641 F.3d 1038, 1044 n.4 (9th Cir. 2011). The change in circumstances need not, standing alone, provide an independent basis for granting asylum. Pre-Hearing Statement CLIENT A

24 CLIENT s marriage to his husband on August 23, 2011, constitutes a change in circumstances. CLIENT s new status as a married gay man makes him a more likely target for homophobic threats and violence in Russia for at least two reasons. First, it will make it more difficult for him to live his life as an openly gay man, especially if he wants to continue his relationship with his husband. The simple act of walking down the street hand in hand will put CLIENT at risk of violence and persecution. In addition, his marriage is likely to be seen as a direct contravention of the most recent wave of anti-gay legislation. Although the aims of that legislation are broad and dangerously vague, the objective evidence in the record shows that one of the clear aims of these laws outlawing gay propaganda is to curb behavior that is likely to be viewed as interfering with traditional family values. See supra STATEMENT OF COUNTRY CONDITIONS; Ex. JJ. A same-sex marriage flies in the face of this legislation and thus constitutes a change in circumstances. 2. Notwithstanding CLIENT s Recent Marriage, the Recent Wave of Anti-Gay Legislation also Constitutes a Change in Circumstances. A material deterioration of the country conditions in an applicant s home country can also constitute a change in country conditions and excuse an applicant s failure to file for asylum within one year of arriving in the United States. 8 C.F.R (a)(4)(i)(A). The sudden and dramatic deterioration of conditions for LGBT individuals falls in this category because it makes it clear that Russian society as regressed on LGBT issues. In February 2012 the city of St. Petersburg, CLIENT s home town, passed a law outlawing anti-gay propaganda. See supra STATEMENT OF COUNTRY CONDITIONS. By the Pre-Hearing Statement CLIENT A

25 time the law took effect in late March, similar laws had popped up in other regions of the country, and one had even passed in the lower house of the national parliament. See id. The full effect of this law remains to be seen, but its implications are significant. It is the most aggressive and blatant effort to date by the Russian government to marginalize gay individuals. See id.; Ex. JJ. This law will effectively force LGBT individuals to keep all aspects of their relationships hidden from public view. Walking down the street holding hands with someone of the same sex could now lead to fines. So too could a person s decision to wear clothes that promote LGBT activities. See Ex. JJ. With these relatively innocent activities now outlawed, there is no way that CLIENT could live with his husband or attend gay pride events because these sorts of behavior will almost certainly fall under the ambit of the laws outlawing gay propaganda. Although Russia was an unfriendly place for people to be gay even before these incidents, this court should recognize that these developments mark a significant and unprecedented turn for the worse and are sufficiently drastic to constitute a change in circumstances materially affecting CLIENT s eligibility for asylum. 3. CLIENT Applied for Asylum Within a Reasonable Period Given These Changes in Circumstances. CLIENT has also demonstrated that he applied for asylum within a reasonable period of time after the change in his circumstances. See 8 C.F.R (a)(4)(ii); Taslimi v. Holder, 590 F.3d 981, 984 (9th Cir. 2010). CLIENT and CLIENT S PARTNER married in August 2011, and he submitted his application for asylum just two months later. As his Pre-Hearing Statement CLIENT A

26 affidavit and testimony make clear, it was his relationship with CLIENT S PARTNER that made CLIENT appreciate the risk that he would be facing if forced to return to Russia. And for the first time, he also understood how that risk would affect someone else, his husband. As CLIENT s relationship with CLIENT S PARTNER became increasingly serious, he was prompted to reinvestigate his ability to legalize his status in the United States. He decided to approach current counsel for a consultation even though a different immigration lawyer one who failed to inquire as to CLIENT s sexual orientation or fear of returning to Russia had concluded that there was no basis for him to remain in the United States. 2 Given the timing of these events, and given that CLIENT applied for asylum just two months after getting married, this court should conclude that he applied with a reasonable period of time of this change in circumstances. In addition, the deterioration in country conditions in Russia, which makes CLIENT s fear of returning even more significant, is ongoing and extremely recent. The law that took effect in St. Petersburg happened after CLIENT applied for asylum, and conditions appear to be growing worse on a near daily basis. Even though this change happened after CLIENT applied for asylum it is nonetheless qualifies as a material change in circumstances because it significantly strengthens his overall asylum case. See Vahora, CLIENT suffered from an unfortunately common occurrence in which immigration lawyers fail to inquire about an individual s sexual orientation or consider it as a basis for an asylum claim. See Neilson & Morris, The Gay Bar: The Effect of the One-Year Filing Deadline on LGBT/H Foreign Nationals Seeking Asylum or Withholding of Removal, 8 N.Y. CITY L. REV. 601 (2005). Although CLIENT acknowledges that ignorance of the law is generally insufficient to excuse failure to meet the one-year filing deadline, counsel nonetheless asks the court to consider this factor when evaluating the timing of CLIENT s application. Pre-Hearing Statement CLIENT A

27 F.3d at 1044 (explaining that an event that makes it materially more likely that a person will prevail is a change in circumstances, even if the applicant had a viable asylum claim before the change in circumstances.) Accordingly, this court should conclude that the recent deterioration in country conditions in Russia, especially when coupled with CLIENT s recent marriage to CLIENT S PARTNER constitutes a chance in circumstances sufficient to merit a grant of asylum. F. CLIENT Merits Asylum in the Exercise of Discretion. When deportation to a country where the alien may be persecuted is a strong possibility... discretionary factors should be carefully evaluated in light of the unusually harsh consequences which may befall an alien who has established a well-founded fear of persecution; the danger of persecution should generally outweigh all but the most egregious of adverse factors. Matter of Pula, 19 I. & N. Dec. Dec 467 (BIA 1987). CLIENT does not have any criminal convictions, and there are no other adverse factors to suggest that he is undeserving of asylum in the exercise of discretion. Given the extreme threat to his safety that removal to Russia would pose, this court should exercise its discretion in favor of a grant of asylum. CLIENT s relationship to CLIENT S PARTNER is another factor weighing in favor of the positive exercise of discretion. CLIENT S PARTNER and CLIENT are married, and in many respects, CLIENT is a caretaker for his husband, whose fibromyalgia can sometimes be debilitating. But for the discriminatory, unconstitutional provision in DOMA that renders their marriage unrecognizable for immigration purposes, CLIENT would be Pre-Hearing Statement CLIENT A

28 eligible for permanent residence as the husband of a U.S. Citizen, and he wouldn t even have to contemplate a life of returning to Russia. Even if this court cannot itself rule DOMA unconstitutional, it can exercise its discretion in a way that minimizes the adverse consequences of this blatantly discriminatory law by granting CLIENT s request for asylum. II. In the Alternative CLIENT Should be Granted Withholding of Removal or Relief Under the Convention Against Torture. If the Court denies CLIENT s request for asylum, he seeks, in the alternative, withholding of removal and protection under CAT. He is eligible for withholding of removal because he has demonstrated that there is a clear probability that his life or freedom would be threatened on account of his... membership in a particular social group. See 8 U.S.C (b)(3)(a); INS v. Stevic, 467 U.S. 407, 413, (1984). As discussed above in the asylum context, CLIENT has shown that he suffered past persecution on account of his membership in the social group of gay men. He should therefore be entitled to a presumption that he will face future persecution in Russia. See 8 C.F.R (b)(1); Lhanzom v Gonzales, 430 F.3d 833, 842 (7th Cir. 2005). Unlike the grant of asylum, however, withholding of removal is a non-discretionary form of relief that the court must grant if the applicant meets the relevant standard and has no disqualifying crimes. 8 C.F.R (d)(1); see Cardoza-Fonseca, 480 U.S. at , n. 25. CLIENT easily satisfies even this more stringent standard for withholding of removal because he has clearly demonstrated that he has been persecuted in Russia because Pre-Hearing Statement CLIENT A

29 of his sexual orientation and that the government is both unable and unwilling to prevent this sort of persecution in the future. See supra ARGUMENT PART I. Moreover, although CLIENT is entitled to a presumption of future persecution based on the abuse he suffered in the past, he has also shown that it is more likely than not that he will face persecution on account of his sexual orientation if returned to Russia. Accordingly, CLIENT is eligible for withholding of removal and should be granted that relief in the alternative. If the court concludes that CLIENT is not eligible for asylum or withholding of removal, he also seeks protection in the form of withholding or deferral of removal under CAT. CLIENT is eligible for relief under CAT because he has established that it is more likely than not that he would be tortured if returned to Russia. See 8 C.F.R (c)(2). The Convention defines torture as an act causing severe physical or mental pain or suffering intentionally inflicted for a proscribed purpose. 8 C.F.R (a)(1). The torture must be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in official capacity. Id. As detailed above, the Russian government is an active participant in repression of the LGBT community. That repression ranges from the passage of laws that will encourage and promote hate crimes against LGBT individuals to active participation in this sort of abuse against them. CLIENT was himself the victim of significant violence at the hands of the police, and he was also the victim of the sort of skinhead anti-gay violence that the government continues to tolerate and silently promote. Given the deterioration in conditions in Russia, it is more likely than not that CLIENT will again be subject to random Pre-Hearing Statement CLIENT A

30 beatings, or worse murdered because of his sexual orientation. Because it is likely that this abuse would rise to the level of torture, CLIENT is eligible for protection under CAT. III. In the Alternative CLIENT Asks the Court to Administratively Close His Case Pending Resolution of the Constitutionality of DOMA. If the court concludes that CLIENT is not eligible for asylum, withholding of removal, or protection under CAT, he asks that the court administratively close the case to await the outcome of litigation surrounding the constitutionality of the Defense of Marriage Act. As the spouse of a United States citizen, CLIENT would be eligible for adjustment of status if the Department of Homeland Security recognized lawful same-sex marriages. So far, the BIA has refused to confer an immigration benefit based on a same-sex marriage. This interpretation of the law is an application of DOMA, but it contradicts the general principle that a marriage is valid for immigration purposes if it is valid in the place where it is performed. See Matter of Lovo Lara, 23 I. & N. Dec. 746 (BIA 2005) (explaining that immigration courts look to the law where the marriage was performed to assess its legality). As this court is likely aware, there is pending litigation in many different federal courts that will directly address the constitutionality of DOMA. The U.S. Court of Appeals for the First Circuit heard arguments earlier this month, on April 4, 2012, in what is generally considered the lead case on the question, Gill v. Office of Personnel Management, No , , (1st Cir. filed 2011, argued Apr. 2012). In addition to that case and the various other cases pending in circuit courts around the country, at least three Pre-Hearing Statement CLIENT A