Last week, the U.S. Court of Appeals for the Eleventh Circuit ruled that an Immigration Judge improperly relied on gay stereotypes to reach an adverse credibility determination. See Todorovic v. Attorney General, Case No. 09-11652 (11th Cir. Sept. 27, 2010). 

Mladen Todorovic is a gay man from Serbian who came to the United States in 2000.  He applied for asylum in 2003, claiming to have endured several acts of persecution in Serbia on account of his sexual orientation.  Some of the persecution was perpetrated by government officials.  Mr. Todorovic was also persecuted by private individuals, but the government would not protect him.  His asylum claim was filed late, and his case was referred to the Immigration Court.

In his decision, the IJ stated, “[t]he 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 IJ continued, “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.”  In reaching his conclusion, the IJ again noted that Mr. Todorovic “is not overtly homosexual,” and, therefore, that there was no reason to believe he would be “immediately recognized” as gay.

The Eleventh Circuit first noted that “One clearly impermissible form of conjecture and speculation, sometimes disguised as a ‘demeanor’ determination, is the use of stereotypes as a substitute for evidence.”  A number of other circuits have “rejected credibility determinations that rest on stereotypes about how persons belonging to a particular group would act, sound, or appear.”

The Court held:

As we see it, this so-called “demeanor” determination rests on wholly speculative assumptions made by the IJ; it is untethered from any evidential foundation; and it is thoroughly vague in its reference to “other trait[s]” that would mark the petitioner as a homosexual. Whatever else these offensive observations made by the fact-finder were, they were not credibility findings based on demeanor, but instead were driven by stereotypes about how a homosexual is supposed to look… The IJ’s comments elevated these ungrounded assumptions to demeanor evidence, and the IJ drew adverse inferences about the petitioner’s credibility and legal conclusions from them… These stereotypes most assuredly are not substantial evidence. They “would not be tolerated in other contexts, such as race or religion.” … We see no reason to tolerate them here.

The Court vacated the agency’s decision and remand the matter for a new hearing, “free of any impermissible stereotyping or ungrounded assumptions about how gay men are supposed to look or act.”