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. 208.13(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. 208.4(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 000 000 000 20
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. 208.4(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 000 000 000 21
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. 1208.4(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 000 000 000 22
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, 641 2 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 000 000 000 23
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 000 000 000 24