Court revives man’s deportation challenge
A federal appeals court has reversed a decision by an immigration judge who revoked a Nigerian man’s political asylum in the United States and ordered him deported from California. The immigration judge had said Monsuru Wole Sho had not shown that he would be tortured in his homeland for being gay — or even that he is gay.
The judge “disregarded independent evidence of Sho’s arrest and detention for being homosexual as detailed in a police diary and a wanted poster describing the continuing search for him in Nigeria,” the 9th U.S. Circuit Court of Appeals said in a ruling Tuesday reinstating his challenge to deportation.
Or as Sho put it in a court filing, if deported “I will be sent to a certain death” in Nigeria, Africa’s most populous country, where homosexuality is a crime punishable by 14 years in prison, and by death in some of its states.
Sho, now 58, said he has known he was gay since age 13 or 14. But he followed social customs in Nigeria and had relationships with women, got married and fathered a child, said Edward Pilot, a lawyer who has represented him in immigration courts. Then a hotel employee caught him with his boyfriend and called the police, who arrested him. Sho said in court papers that officers beat him, paraded him naked in public and slashed him with blades, scars he still bears.
He later escaped and fled to the United States, crossed the Mexican border in 2006 and applied for asylum on the grounds that he would face persecution if deported. An immigration judge granted him asylum in 2011, and he lived and worked for several years in Central California and Nevada.
But Sho continued to have relations with women as well as men, Pilot said, and a domestic dispute with a woman resulted in a kidnapping conviction and three-year state prison sentence in 2018.
He was released after 27 months, with time off for good behavior, then was turned over to immigration officers, who have held him for two years at a privately run detention center in McFarland (Kern County). Government lawyers said Sho was no longer eligible for asylum or U.S. residency because of his crime.
Sho claimed he would face torture in Nigeria, a legal basis for sparing him from deportation. The immigration judge said a U.S. Embassy investigation had shown that his documents, including the police diary, had been forged, and that Sho “failed to establish that he is gay or that he was ever harmed in Nigeria for being a gay person.”
But the appeals court said the immigration judge, and the Board of Immigration Appeals that upheld the judge’s ruling, had not given Sho a meaningful opportunity to challenge the government’s findings. The court said the embassy’s report contained little specific evidence to contradict the legitimacy of the police diary, the poster showing he was still being sought in Nigeria and other documents supporting his testimony.
“These documents are potentially dispositive of Sho’s (torture) claim because they independently confirm Sho’s homosexuality, past arrest and detention, and likelihood of future torture,” the three-judge panel said.
The court ordered the immigration judge to reconsider Sho’s case based on the evidence he presented. The ruling was issued by Judges Sidney Thomas, an appointee of President Bill Clinton; Eric Miller, appointed by President Donald Trump; and Gabriel Sanchez, appointed by President Biden.
Pilot said Sho appreciates the panel’s “well-reasoned” decision and looks forward to his new hearing.
“Although the Ninth Circuit did not reach Mr. Sho’s argument that the record compels a reversal of (the government’s) adverse credibility finding,” Pilot said, “he is confident that after he has a meaningful opportunity to challenge the report … the immigration judge will find him to be credible.”