In Re ______________  Removal Proceedings

Respondent.
 
 

The Respondent, Mr. ______________, is a twenty-eight-year-old native and citizen of Indonesia, who was born in Barembeng in the district of Gowa in the province of South Sulawesi, Indonesia. Declaration of Mr. ______________ [hereinafter "Decl."] at paras. 1-2. Mr. ______________ is homosexual. Decl. at para. 1. In May 1997, Mr. ______________ fled Indonesia and came to the United States on a visa because he feared that he would be killed if he remained in Indonesia. Decl. at paras. 1, 37, 40-41. Mr. ______________ will be killed with the inaction and acquiescence of the Indonesian government because of his sexual orientation and because people are trying to execute him under a traditional custom of honor killing, known as sirik, for his perceived shaming of the family of his homosexual partner and the family of his fiancee. Decl. at paras. 14-20, 22, 30-35, 40-41. Mr. ______________ can not get protection from the government because it is corrupt; because it will not interfere in sirik, and because homosexuality is not considered appropriate conduct. Decl. at paras. 1, 5, 14, 23-27, 29, 40-41. Mr. ______________ believes that the government would condone his persecution, torture, and death and not act to prevent it. Decl. at paras. 1, 14, 23, 27, 40-41.

Because his family was so poor, Mr. ______________ lived in an orphanage for about six years while he was very young. Decl. at para. 2. He never knew his father because his parents separated while he was very young. Then his father died when he was about five-years-old. Decl. at para. 2

At an early age, Mr. ______________ realized that he is homosexual because he felt more comfortable playing with girls rather than with boys and because he was not attracted to girls. Decl. at para. 5. Mr. ______________ lived in a society which treated homosexuals harshly. Decl. at paras. 5, 11, 14, 15, 23, 28-29, 40-41. He therefore felt forced to hide his homosexuality in order to remain safe. Decl. at paras. 5 and 11.

Although Mr. ______________ attempted to hide his homosexuality, his effeminate mannerisms often led people to perceive him as being gay. Decl. at paras. 5-7, 12-13. While Mr. ______________ was living at the orphanage, a man raped him. Decl. at para. 6. The man targeted Mr. ______________ because Mr. ______________ appears effeminate. Id.

While Mr. ______________ was living at the orphanage, a group of four boys at school regularly harassed him for being effeminate and for playing with girls rather than with boys. Decl. at para. 7. One day the boys attacked Mr. ______________ and attempted to castrate him with a sharpened bamboo stick. Id. The boys targeted Mr. ______________ because he is homosexual. Id. When Mr. ______________ notified the head of the orphanage, she merely became angry at him for being weak. She refused to send him to a doctor or a hospital and never notified his mother of the attack. Decl. at para. 8. The attackers were never disciplined. Id.

Sometime between elementary school and junior high school, at a very impressionable age, Mr. ______________ saw a man immediately after the man had been stabbed by his family in an honor killing because he made his sexual orientation as a homosexual publicly known. Decl. at para. 10. The man was well known in the community for being gay because the man publicly dressed and wore make-up like a woman. Id. It was also well known in the community that, because he was gay, his family was ashamed of him and therefore targeted him for death under "sirik." Id. Sirik is an Islamic traditional custom of honor killing. Decl. at para. 18-19. Mr. ______________ was aware that, although everyone in the community knew this man was targeted under sirik, no one attempted to intervene to stop his murder. Mr. ______________ was traumatized by seeing the aftereffects of the brutal stabbing of this gay man. This horrendous event emphasized for Mr. ______________ how his society treats homosexuals and the reality of the threat of sirik being applied on the basis of sexual orientation. It also reaffirmed his need to keep his homosexuality a secret. Decl. at 11.

While Mr. ______________ was attending the University 45, a local gang twice attacked him and his friends as they were walking from class to the bus. Decl. at paras. 12-13. The gang targeted them because they are gay. Id. Each time the gang attacked them, the gang members shouted disparaging words at them, such as "dirty gay" and "trash" and threw stones at them. Id. Mr. ______________ and his friends feared going to the police because the police are notoriously corrupt in Indonesia and express antagonism towards homosexuals. Decl. at paras. 1, 14, 23-27, 29, 40-41. Mr. ______________ feared that the police might try to physically or verbally abuse him or might try extort money from him for protection, rather than providing protection under the law. Decl. at para. 14.

While Mr. ______________ was still very young and living at the orphanage, the employer of his mother arranged for him to get married to a girl who worked as a maid in her home. Decl. at 9. The girl's name was Farida. Id. Mr. ______________ did not object to the arranged marriage because in his culture the children must obey the parents lest they embarrass the family. Decl. at para. 15. Although Mr. ______________ was never sexually attracted to his fiancee, he was so afraid of people discovering that he is gay that he hoped that the marriage would help hide his homosexuality. Id.

Toward the end of 1991, Farida became pregnant by another man. Farida and ______________ fled to different places within Indonesia because they feared that Farida's family would kill them both for embarrassing the family. Decl. at para. 16. ______________ fled to Ujung Pandang. Decl. at 17. Shortly after Farida and ______________ fled, Farida's family discovered that Farida was pregnant and blamed ______________ for her pregnancy because ______________ and Farida were engaged and they assumed he was at fault. Decl. at para. 17. The family them threatened ______________'s mother and threatened to kill ______________. The death threats have continued up to the present. Decl. at para. 17. ______________ is targeted by Farida's family under sirik because Farida's family believes that he was responsible for her pregnancy before they were properly married, and therefore he shamed her family. Decl. at 16-17.

Toward the end of 1994, while Mr. ______________ was visiting his mother, he was in the home of his mother's neighbor when he was caught having sex with another man. Decl. at para. 22. The man's name is Daeng Bella. Id. One of Daeng Bella's brothers caught the two men having sex. Id. The brother beat ______________ and Daeng Bella and chased them out of the house. While outside, the brother yelled at them that he was going to kill them and he threw stones at them. Id. Because the brother made such a spectacle, everyone in the community gathered around to watch. The local police station was nearby. Id. Because the brother made such a scene, everyone in the community found out about the sexual encounter. ______________ and Daeng Bella fled for their lives. Id. Mr. ______________ knew that he was now targeted, under sirik, by Daeng Bella's family.

Later that same day, Daeng Bella's family broke into ______________'s mother's house looking for ______________. They destroyed ______________'s mother's house and she therefore had to move to another home. Decl. at para. 22. ______________'s mother reported the event to the police and reported that Daeng Bella's family were after ______________. Id. Although the police indicated that they would investigate, they did nothing. Id. The police did nothing because they know that Mr. ______________ is targeted under sirik and they do not want to get involved. Id. Also, the police did nothing because they know that ______________ is gay and the government silently condones the persecution of gay people. Decl. at para. 1.

On about four or five occasions, while Mr. ______________ was living in Ujung Pandang, he had cause to believe that members of Farida's or Daeng Bella's family were attempting to kill him. Decl. at paras. 30-34. On some of these occasions, men Mr. ______________ did not know chased him with "badiks," special ritual knifes used for killing under sirik. Id. On those occasions, the men also yelled at him that they were going to kill him. Decl. at 31-32. Although Mr. ______________ alerted someone at work that he was being chased, she refused to do anything because she did not want to get involved with sirik. Decl. at para. 31. Eventually, Mr. ______________ fled Ujung Pandang because he was so afraid and nervous from all the death threats, and he moved to Jakarta where he got a job on a cruise line. Decl. at para. 4. Mr. ______________ was able work at sea on the cruise ship where he could avoid the danger of sirik. During this period, Mr. ______________ worked away from Indonesia on the cruise line under two separate one year contracts. Decl. at para. 36.

But the threats continued. Daeng Bella's family attempted to run over ______________'s mother as she was riding in a rickshaw. Decl. at para. 35. A minivan rammed and crushed the back of the rickshaw. Mr. ______________'s mother jumped from the rickshaw and injured her arm in the incident. Decl. at 35. She saw the driver of the minivan and recognized him as a member of Daeng Bella's family. Id.

There is strong reason to believe that Mr. ______________ is targeted under sirik to be killed by both Farida and Daeng Bella's families. Decl. at paras. 17 and 40. Mr. ______________ can not hide in another part of Indonesia because both Farida and Daeng Bella's families have family members and friends living throughout Indonesia, and therefore Mr. ______________ would always live in fear that their families would find him. Decl. at para. 41.

Throughout his life, Mr. ______________ has seen examples of people who were killed under sirik, and no one, not even the police, bothered to intervene or to investigate these threats or crimes because they are considered part of the accepted social fabric. Decl. at paras. 19-21. One example is the gay man, who was stabbed by his family. Decl. at para. 20. On another occasion, a man was killed by an axe blow to the head for marrying a woman without his or the woman's family's consent. Decl. at para. 21. In both examples, the communities knew that the men were targeted by their families under sirik for shaming their families, but no one intervened because it is custom in Indonesia to not interfere with sirik. Decl. at para. 21 and 40.

Because corruption is so rampant in Indonesia and because the government silently condones the persecution of gay people, Mr. ______________ knows that he can not hope to obtain protection from the government in Indonesia. Decl. at paras. 23-27, 29, 40-41. Mr. ______________ knows about the government corruption through reading the newspapers, listening to reports on the radio, and through talking with other people such as his family members. Decl. at paras. 24 and 27. For instance, Mr. ______________'s uncle was killed by another man in a car crash. Decl. at para. 24. The other driver paid the police to set him free. Id. Mr. ______________'s brother and one of his sister had to pay money to the government to avoid threats from the government to give them failing scores on their school exams. Decl. at para. 25-26. It is also common knowledge in Indonesia that the government is corrupt. Decl. at paras. 23, 40-41.

On or about May 15, 1997, Mr. ______________ fled Indonesia by plane and flew to Detroit, Michigan via Singapore. Decl. at para. 37. Mr. ______________ had a visa to come to the United States. Decl. at para. 39. Mr. ______________ came to the United States instead of another country because he had a visa to come to the United States and because it would have taken more time to get a visa to go to another country. Id. He also came to the United States because he knew people here. Id. When Mr. ______________ arrived in Detroit, he then took a Greyhound bus to Los Angeles, California. Decl. at para 37. In January 1998, Mr. ______________ took a Greyhound bus from Los Angeles to Atlanta, Georgia in order to meet a friend, Anne Muffet, whom he had met while working on the cruise ship. Id. On or about January 12, 1998, the INS arrested Mr. ______________ in Sierra Blanca, Texas as he was on his way to Atlanta. Id. Mr. ______________ has been in detention since that date. Decl. at para. 42.

It is the Respondent's position that he meets the criteria established under Article 3 of the Convention Against Torture (CAT) (opened for signature February 4, 1985, ratified by the U.S. Senate October 27, 1990, 136 Cong. Rec. S17486-92, Oct. 27, 1990), and its implementing legislation (section 2242 of Public Law 105-277, reprinted in 144 Cong. Rec. H11265, Oct. 19, 1998) and regulations (8 CFR Parts 3, 103, 208, etc., Vol. 64 Fed. Reg. 8478, et seq., Feb. 19, 1999), and that he therefore is subject to protection under those standards from refoulement (return) to his country of origin where he faces the prospect of torture. Namely, coverage under CAT is established by the facts that he is faced with the threat of harassment and death under the practice of "honor killing" from the families of his homosexual partner and fiancee, that these threats are real, prolonged and continuing and constitute both physical and psychological pain and suffering to an extreme degree, that these threats have been evidenced by a number of actual confrontations and attacks on both the Respondent and his mother, that this threat is based to a considerable degree on the Respondent's sexual orientation, and discrimination emanating from his sexual orientation, that the government of Indonesia is heavily implicated in the existence of this threat because they are very much aware of the widespread practices of "honor killing" and persecution of homosexuals in their country, but are unable or unwilling to prevent or punish them, and thereby have acquiesced in the imposition of the threat of torture on Respondent by the private parties who have invoked the practice of sirik against him.

A. Prior Decisions and Findings Regarding the Respondent's Asylum Claim Should Not Be Considered Dispositive or Relevant to his CAT Petition.

It is important to note at the outset, in considering Respondent's coverage by the definitions of CAT, that the particulars of the Respondent's Convention Against Torture case should not be controlled or prejudiced in any way by the previous decisions in his case relating to his request for asylum status. Although the goals and protections established under CAT requirements are similar in several important respects to those applied in asylum cases, there are significant differences in the legal standards set out under these two approaches. It therefore is vital to keep these distinctions in mind in considering the Respondent's CAT claim, and not to view prior findings and decisions in the asylum portion of his case as determinative or dispositive. For example, unlike the asylum law, CAT and its implementing statute and regulations do not have a requirement that the threat of abuse must be shown to be motivated by particular forms of persecution. Under CAT, any threat of torture, whatever the reason it may be imposed, triggers the non-return prohibition of Article 3. There is no need to show that the threat is related to one of the five forms of persecution set out in the Refugee Convention and in the asylum law, as was true for the asylum proceeding. The threat of torture "for any reason" is sufficient to establish grounds for protection.

This distinction is vitally important because the prior decisions of the Immigration Judge and the Board of Immigration Appeals on appeal relied heavily on the specific finding and conclusion that the Respondent did not establish a connection to any of the five bases of persecution. This failure was the primary basis for justifying the finding of ineligibility under the asylum law. Both the initial decision of the immigration judge and the decision of the BIA on appeal specified in the clearest of terms that the reason for their conclusion was the Respondent's failure to show the requisite connection to one of the five grounds of persecution specified in the law. The December 16, 1998 decision of the Board of Immigration Appeals, for example, concluded that the Respondent:

"has failed to satisfy his burden of proof of establishing past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.... It has not been shown that a reasonable person in his circumstances would fear persecution on account of a qualifying ground." [emphasis provided in opinion itself]

Whatever the deficiencies of the Respondent's asylum case may have been in this regard they should not be considered dispositive of the CAT petition now under consideration, which requires a de novo determination based solely whether his case meets the definitions of CAT, irrespective of his qualification, or lack of qualification, for asylum, and without regard to a showing of the relationship of the threatened torture to any particular causation, which is not required for CAT protections to apply.
 

B. Respondent's Case Falls Within the Definitional Requirements of Article 3 of the Convention Against Torture

In order to come under the non-return protections of Article 3 of the Convention Against Torture, as spelled out in the treaty, the implementing legislation passed by Congress, and the implementing regulations issued by the Immigration and Naturalization Service, it is necessary to satisfy three requirements:

• that the practices or circumstances that the Respondent is fleeing involve the infliction of severe pain and suffering, either physical or psychological;
• that the infliction of torture is done on an intentional basis; and,
• that government involvement, through either direct action or consent ("instigation"), or as a result of a failure or refusal to act the prevent torture by private parties ("acquiescence"), must be present.

In addition, the regulations specify that where government failure or refusal to act is in issue, as is the case with the Respondent's claim, the involved public official must "have awareness of such activity and ... breach his or her legal responsibility to intervene to prevent such activity" (section 208.18(a)(7). As explained in the following subsections, these specifications for awareness and purposeful failure to act on the part of government officials also are met in the Respondent's case.

1. The Respondent Faces the Ongoing Threat of "Honor Killing" (Sirik) and Imminent Death Should He Be Returned To Indonesia.

" In the life of the Bugis-Makassar people, the most basic element is siri. For them, no other value merits to be more defended and preserved. Siri is their life, their self-respect and their dignity. This is why, in order to uphold and to defend it when it has been stained or they consider it has been stained by somebody, [they] are ready to sacrifice everything, including their most precious life, for the sake of its restoring. So says the saying ... 'When one's honor is at stake, without any afterthought one fights.'" (Hamid Abdullah, Manusia Bugis-Makassar, quoted in The Bugis by Christian Pelras, Blackwell Press, 1996, p. 206)

There is ample evidence in the record that Respondent's fear of suffering an "honor killing" at the hands of the families of his homosexual partner and his impregnated fiancee is real and prolonged, and that these threats continue to exist and would likely be executed wherever the Respondent might locate in Indonesia. First, he fears assault and death at the hands of his fiancee's family because they believe he engaged in premarital sex with her and caused her pregnancy. Second, he faces honor killing by the family of his male sexual partner as a result of his being caught taking part in a homosexual act in the family's home.

The reality and seriousness of the threat of "honor killings," especially in Muslim countries, recently was brought to public attention by Amnesty International in their report "Pakistan: Violence Against Women in the Name of Honor." (Amnesty International Report Number ASA 33/17/99, Sept., 1999) Although this report focuses on gender-based application of the practice of "honor killings," triggered by what are considered inappropriate sexual practices of women in these cultures, this practice also is directed against men who have engaged in "improper" sexual activities, including homosexuality and pre-marital sexual relations with women. The justification for the practice of "honor killings," as the Amnesty report indicates, is the belief that these sexual activities cast a dishonorable light on the entire family, and that only expurgation of the offenders through execution can return the family to a situation of respect.

Honor killing is a practice that is followed by many Muslims, in many regions of the world, in an effort to uphold tradition and respect for family values. Honor killing can consist of a variety of abusive and punishing acts, culminating in execution (usually by stabbing), inflicted on those who have brought shame to the family or any of its members, even including those who may have been victimized by rape. The purpose of this practice is to restore family honor (Sati, Nur "Dark Side on Honor," accessed at web publication: Arabia Culture, The Culture Channel by Arabia.On.Line, Nov, 16, 1997). It is believed that the more brutal the killing, and more prolonged the intimidation that is delivered prior to the killing, the more likely it is that the family's honor will be restored. (Id.)

The underlying justification is that the family is seen as the nucleus of society, and that marriage and proper sexual conduct are the foundation of family life (Doi, Abdur Rahman "About Islam and Muslims: Marriage," accessed at web publication : UNN Islamic Society, 1997). Any threat to the integrity of the family, and to the ability of a husband and wife to procreate normally is considered taboo and subject to extreme punishment. Acts such as elopement, premarital sex, rape and homosexuality are frowned upon and prohibited as inconsistent with the integrity and viability of the family, and the actual values it represent.

Recent honor killing incidents in Muslim countries that have been reported include a brother killing his sister because of a rumor that she had disgraced the family by sexual activities, and a father executing his daughter because she eloped ("'Honor Killer' Convicted of Murder," accessed at web publication: Arabia Culture, the Culture Channel by Arabia.On.Line, March 5, 1998).

There is ample evidence that the Respondent faces a similar, serious and ongoing threat of this practice of sirik from the families of his homosexual partner and his fiancee. In the former case, these threats also are directly linked to his sexual orientation, and to discriminatory treatment based on his sexual orientation, one of the specific criteria cited in the INS CAT regulations in the definition of what will be considered torture and who qualifies for protection. Section 208.18(a)(1) of the regulations, specifically notes coverage of "intimidating or coercing" conduct "based on discrimination of any kind."

Respondent has a long-standing history of persecution based on his sexual orientation that is detailed in the record and in his declaration statement in support of this CAT claim. There also are very clear indications that the Respondent has in fact been targeted for honor punishment and killing by either or both of the families of his homosexual partner and his fiancee. When he was discovered taking part in a homosexual act with a male partner, he was severely beaten by his partner's family, and threatened with death and mutilation. He was attacked on the street by a member of his boy friend's family wielding the type of traditional knife used in honor killings, but was able to escape. The home of his mother was stoned and vandalized during a search for the Respondent. He has been accosted by people carrying traditional knives, and threatened with honor killing. He continued to receive threats even after he fled to the northern part of the country in an effort to escape harassment and abuse. These incidents took place over a substantial period of time subsequent to his being discovered in a homosexual relationship, and to the impregnation of his fiancee, and also took place in several, widely diversified locations in Indonesia, suggesting that he would not be safe in any part of that country should he be forced to return there. The Respondent's mother confirms in a written affidavit that these threats persist and that the danger to the Respondent is a continuing one. One of the key elements of sirik is the infliction of psychological intimidation on the target prior to the actual execution. This has taken place in this case, with numerous threats and assaults taking place over a period of time in various locations throughout the country. This meets the definition of psychological as well as physical abuse. It is also important to note that no form of abuse can be more extreme than execution and the ongoing threat of execution.

2. Although the Abuse and Threats Faced by the Respondent Emanate from Private Parties, the Indonesian Government's Failure to Prevent and Punish Activities Related to Honor Killing Practices and Discrimination Based on Sexual Orientation Contribute Significantly to Their Continued Existence in that Country, in General, and to the Specific Threats Faced by Respondent

It is well established by legal precedent (see subsection 3 immediately below) and by the specific terms of CAT's implementing statute and regulations, that the threat of violence and abuse carried out by non-state actors can provide the basis for protection from deportation where the government is unwilling or unable to prevent or punish these practices, or in some other way acquiesces in, or supports the threatening activities.

Section 208.18 of the Regulations acknowledges that in addition to direct action or instigation by government officials providing the basis for coverage by Article 3 protections, CAT also applies where "such [severe] pain or suffering" takes place "with the consent or acquiescence of al public official or other person acting in an official capacity" (Section 208.18(a)(1)). The Regulations go on to explain that U.S. Senate understandings attached to the ratification of CAT suggest that the term "acquiescence" requires that a "public official, prior to the activity constituting torture have awareness of such activity and thereafter breaches his [or her] legal responsibility to intervene to prevent such activity," citing 136 Cong. Rec. 36198.

This definitional standard is met in the case of the practice of honor killings and the imposition of discriminatory abuses based on sexual orientation in Indonesia. The practice of sirik is widely known and practiced in Indonesia, yet the government has been unwilling or unable to take action to prevent it from taking place. The evidence suggests that the government of Indonesia has purposefully refrained from taking any action to prevent or punish the carrying out of honor killings for fear of intruding in these widely held, and deeply felt, social mores and beliefs. Indeed, the government of Indonesia's reluctance to intervene to prevent or punish these illegal private actions based on customary practices, or to protect intended victims in some other way, has been so extreme as to be specifically noted by the U.S. Department of State in their Indonesia Country Report on Human Rights Practices for 1998, issued by the Bureau of Democracy, Human Rights and Labor, February 26, 1999, at page 24. The State Department indicated that governmental authorities rarely investigate violence which is considered "private" or family-based, and that this failure to act contributes to human rights violations taking place in that country. The State Department particularly condemned domestic violence and violence against women. The same "blind eye" is trained on practices associated with traditional honor killings, and persecution of homosexuals.

Amnesty International also has made specific reference to the problem of government inaction in response to complaints of a variety of different human rights abuses. Of 241 complaints formally submitted to the government, only 40 were found to have received any attention or produced an investigation of any kind ("Indonesia and East Timor," Amnesty International Report 1998, at page 2). Amnesty's report echoes the U.S. Department of State findings that hundreds of people have been kidnaped, tortured, killed or disappeared all across Indonesia, but that the government has not undertaken the action required to prevent or punish these practices. Adequate monitoring and control of violations committed by private parties has been particularly difficult for the government. Mob action resulting in human rights violations has taken place unchecked. Anti-Chinese riots and mass rapes have taken place without government intervention after the May, 1998 resignation of President Soeharto (U.S. State Department Report, page 11). The U.S. Department of State report generally condemns the government's inability to enforce human rights protections, and protect prospective victims from violence.

Numerous independent sources confirm the Respondent's testimony and statements in his Declaration about the futility of reporting and seeking protection from the police authorities regarding threats related to sirik and persecution associated with sexual orientation. Indonesian police officials are particularly known for their tendency to take advantage of the insecure position of gay men, and the general social animosity that is directed against them, by arresting them for no valid reason, and extorting money and sexual favors from them. See, e.g., Gay Identities: Inside Indonesia, March, 1996.

The existence in Indonesia of social and cultural practices and barriers that impose restrictions on the enjoyment of human rights, particularly for women, also have been noted by the government of Indonesia itself in its 1998 report to the United Nations Committee on the Elimination of Discrimination Against Women under the Convention of the same name. The government reported that its efforts to improve the plight of Indonesian women are "impeded by the prevailing religious and cultural norms that constitute the backdrop of Indonesia's legal and police efforts." These very same culturally and socially based restrictions and conditions, and the negative impacts they produce on the ability of the police and judicial authorities to prevent and punish illegal activities that produce human rights violations, are at the heart of the problems that the Respondent faces. In essence, the government, in its report to the United Nations, has acknowledged that these problems exist, and seeks to use the private nature of these practices as a justification for their failure to act in a more effective way to protect and promote the human rights of its citizens. This provides direct confirmation, by the government itself, of the statements and belief of the Respondent that the government is unwilling or unable to provide protection to the Respondent in dealing with the dual threats of sirik and discrimination based on his sexual orientation that serve as the foundation for the physical and psychological torture that he has faced in the past, and will face again if returned to Indonesia.

3. Legal Precedent Acknowledges the Protected Status of Those Facing Threats and Persecution from Private Parties Where Government Inaction and Acquiescence Are Present

Especially in recent years, with the experiences of Kosovo, Bosnia, Rwanda and East Timor as points of reference, where rape has been used widely by paramilitary groups and private individuals as an instrument of torture, intimidation, forced deportation and other crimes against humanity, there has been a growing recognition that private actions, particularly those involving sexual and gender-based abuse, can provide the basis for protection from deportation (and sometimes even international criminal prosecutions). This is particularly true where a requisite amount of government support or acquiescence can be established. Private, socially-based conduct has been accepted by the courts as grounds for protection if the government is aware of the offending practice but chooses, for whatever reason, not to take sufficient action to prevent it, or to prosecute the perpetrators so as to discourage and prevent these activities in the future.

The most recent, obvious example of the application of this principle by the courts was the granting of asylum coverage to potential victims of female genital mutilation (FGM). FGM is widely practiced in many countries in Africa as well as some regions in Asia, although this custom has been widely condemned elsewhere and frequently made subject to criminal penalties, as is the case in the United States. Beginning with the case of In re Kasinga, Interim Dec. 3278 (BIA 1996), the U.S. government recognized that the threat of FGM constituted a valid basis for seeking refuge in the U.S., pointing out that "persecution can consist of the infliction of harm or suffering by ... persons a government is unwilling or unable to control...." The analogy between the Kasinga case and the Respondent's CAT claim is particularly relevant, given that both these cases involve widely held social beliefs and mores, heavily based on custom and traditional cultural practices that the governments involved tolerate and do not seek to prevent. Significantly, both FGM and sirik also emanate from, and are strongly linked with, and based upon social perceptions regarding favored (and disfavored) sexual behavior and practices.

The U.S. Supreme Court has recognized the necessity of granting protection to victims of private abuses in the context of violence committed by non-governmental paramilitary groups, holding that "acts of [coerced] conscription constitutes persecution on account of political opinion," justifying the granting of asylum status. (INS v. Elias-Zaacarias, 502 U.S. 478,480 (1992)) Similar recognition of how private conduct can provide the basis for protection has been given by U.S. courts to an asylum seeker fleeing persecution by the Irish Republican Army (McMullen v. INS, 658 F.2d 1312, 9^th Cir. 1981), and in numerous other cases where "the government is unable or unwilling to control" or prevent the persecution. (See, e.g., Rosa v. INS, 440 F.2d 100, 102 (1^st Cir. 1971), Singh v. INS, 94 F.3d 1353, 1360 (9^th Cir. 1996) and Hengen v. INS, 79 F.3d 60, 62 (7^th Cir. 1996)).

It is especially significant that in the decision on the asylum aspects of the Respondent's case issued by the Board of Immigration Appeals, the Board acknowledged that asylum seekers were protected from persecution by non-governmental as well as governmental actors where the government is unable or unwilling to control the persecution (BIA decision at page 3). This observation follows a long line of decisions by the Board to the effect that private conduct is covered in situations where persecution can not be prevented or controlled by government. (See, e.g., In re Tan, 12 I and N Dec. 564, 568 (BIA 1967); Matter of Acosta