TOBOSO-ALFONSO

                                                          Interim Decision #3222




                 MATTER OF TOBOSO-ALFONSO

                           In :Exclusion Proceedings

                                   A-23220644

                   Decided by Board March 12, 1990D 3

  An applicant, who had the status of being a homosexual, both established his
membership in a particular social group in Cuba and demonstrated that his freedom was
threatened within the meaning of section 243(h)(1) of the Immigration and Nationality
Act, 

8 U.S.C. § 1253

(h)(1) (1990), on account of his membership in that group.
EXCLUDABLE: Act of 1952—Sec. 212(a)(9) [

8 U.S.C. § 1182

(a)(9)]--Crime involving
                          moral turpitude
                               Sec. 212(a)(20) [

8 U.S.C. § 1182

(a)(20)]—No valid
                                 immigrant visa
                               Sec. 212(a)(23) [

8 U.S.C. § 1182

(a)(23)]—Convicted of
                                 controlled substance violation
ON BEHALF OF APPLICANT:                             ON BEHALF OF SERVICE:
  Harry A. Loftus, Esquire                           Patricia A. Cole
  602 Sawyer, Suite 201                               General Attorney
 Houston, Texas 77007

BY: Milhollan, Chairman; Dunne and Heilman, Board Members. Dissenting Opinion:
     Vacca, Board Member. Concurring in the Dissenting Opinion: Morris, Board
     Member.


   In a decision dated February 3, 1986, the immigration judge found
the applicant excludable under sections 212(a)(9), (20), and (23) of the
Immigration and Nationality, 

8 U.S.C. §§ 1182

(a)(9), (20), and (23),
denied his request for asylum, pursuant to section 208(a) of the Act, 

8 U.S.C. § 1158

(a), but granted his application for withholding of
deportation to Cuba under section 243(h) of the Act, 8 U.S.C.
   As noted, this case was decided by the Board on March 12, 1990. By Attorney
General Order No. 1895-94, dated June 19, 1994, the Attorney General ordered:
hereby designate the decision of the Board of Immigration Appeals in In re- Fidel
Toboso-Alfonso (A23 220 644) (March 12, 1990) as precedent in all proceedings
Involving the same issue or issues."
Interim Decision #3222

§ 1253(h). The Immigration and Naturalization Service has appealed
this decision. The appeal will be dismissed.
   The applicant is a 40-year-old native and citizen of Cuba who was
paroled into the United States in June of 1980, as part of the Mariel
boat lift. In 1985 his parole was terminated. He was placed in
exclusion proceedings and appeared before an immigration judge in
Houston, Texas. The applicant conceded his excludability and applied
for asylum and withholding of deportation to Cuba.
   The immigration judge ultimately concluded that the applicant was
statutorily eligible for asylum and withholding of deportation as a
member of a particular social group who fears persecution by the
Cuban Government. He denied the applicant's request for asylum in
the exercise of discretion, but granted him withholding of deportation.
   The Service contends that the applicant did not meet his burden of
proof, that the evidence presented was inadequate to prove the
existence of a particular social group or a clear probability of
persecution in Cuba, and that he was ineligible for withholding in view
of his conviction for possession of cocaine. As the applicant did not
appeal from the immigration judge's decision, the only issues now
before us pertain to the immigration judge's grant of withholding of
deportation to Cuba to this alien.
   An alien who seeks withholding of deportation from any country
must show that his "life or freedom would be threatened in such a
country on account of race, religion, nationality, membership in a
particular social group, or political opinion." Section 243(h)(1) of the
Act. In order to make such a showing, the alien must establish a "clear
probability" of persecution on account of one of the enumerated
grounds. INS v. Stevie, 467 US. 407 (1984). This "clear probability"
standard requires a showing that it is more likely than not that an alien
would be subject to persecution. Unless an alien is barred from relief
under the provisions of section 243(h)(2), once he establishes that he
qualifies for withholding of deportation, it must be granted and he
cannot be returned to the country where he would face persecution. He
can, however, be sent to another country under certain circumstances.
   In the instant case, the applicant asserts that he is a homosexual
who has been persecuted in Cuba and would be persecuted again on
account of that status should he return to his homeland. He submits
that homosexuals form a particular social group in Cuba and suffer
persecution by the government as a result of that status.
   The applicant testified that there is a municipal office within the
Cuban Government which registers and maintains files on all homo-
sexuals. He stated that his file was opened in 1967, and every 2 or 3
months for 13 years he received a notice to appear for a hearing. The
notice, the applicant explained, was a sheet of paper, "it says Fidel
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                                                 Interim Decision #3222

Armando Toboso, homosexual and the date I have to appear." Each
hearing consisted of a physical examination followed by questions
concerning the applicant's sex life and sexual partners. While he
indicated the "examination" was "primarily a health examination," he
stated that on many occasions he would be detained in the police
station for 3 or 4 days without being charged, and for no apparent
reason. He testified that it was a criminal offense in Cuba simply to be
a homosexual. The government's actions against him were not in
response to specific conduct on his part (e.g., for engaging in
homosexual acts); rather, they resulted simply from his status as a
homosexual. He further testified that on one occasion when he had
missed work, he was sent to a forced labor camp for 60 days as
punishment because he was a homosexual (i.e., had he not been a
homosexual he would not have been so punished).
   The applicant stated that at the time of the Mariel boat lift, the
Union of Communist Youth received permission to hold a demonstra-
tion against homosexuals at the factory where he worked. Several of
the members got on top of a table and screamed that all homosexuals
should leave—should go to the United States. He testified that on that
same day there was a sheet of paper tacked to the door of his home
which stated that he should report to "the public order." The applicant
presented himself at the police station in the town of "Guinea" where
he was informed by the chief of police that he could spend 4 years in
the penitentiary for being a homosexual, or leave Cuba for the United
States. He was given a week to decide and decided to leave rather than
be jailed.
   The applicant further testified that the day he left his town, the
neighbors threw eggs and tomatoes at him. He claims that the situation
was so grave that the authorities were forced to reschedule his
departure time from the afternoon to 2:00 a.m., in order to quell the
protesting residents.
   In addition to the applicant's testimony, he supplemented the
record with the following information: several articles describing
"Improper Conduct," a film which centers on the testimony of 28
Cuban refugees and recounts the human rights violations, including
incarceration in forced labor camps known as "Military Units to Aid
Production," suffered by Cubans whom the Government considers to
be dissidents or "antisocial," particularly male homosexuals; a news-
paper article entitled, "Gay Cubans Survive Torture and Imprison-
ment," in which Cuban homosexuals in the United States, most of
whom were part of the Mariel boat lift, describe their treatment by the
Cuban Government, including repeated detentions, incarcerations,
and physical beatings; and, Amnesty International's Report for 1985
which describes the political situation in Cuba.
Interim Decision #3222

   The immigration judge found the "applicant's testimony to be
credible and worthy of belief, and, if anything, perceive[d] that he was
restrained in his testimony as to the difficulty of his life during the
years that he lived in Cuba." The immigration judge further concluded
that the applicant had been persecuted in Cuba and that he has a well-
founded fear of continued persecution in that country. He found that
this persecution resulted from the applicant's membership in a
particular social group, namely homosexuals. The immigration judge
denied the applicant's asylum application in the exercise of discretion
because of the nature of the applicant's criminal record in the United
States. However, as the immigration judge found that the applicant's
crimes did not bring him within the scope of section 243(h)(2)(B), he
granted his application for withholding of deportation to Cuba.
   The Immigration and Naturalization Service appeals from the grant
of withholding of deportation to Cuba to the applicant, arguing that
homosexuals were not a particular social group contemplated under
the Act, that the applicant has not presented adequate evidence to
show either a well founded fear or a clear probability of persecution,
                    -


and that the applicant is ineligible for relief under section 243(h) of the
Act because of his conviction for possession of cocaine.
   We do not find that the Service has presented persuasive arguments
on which to reverse the immigration judge's finding that the applicant
established his membership in a particular social group in Cuba. The
Service argues that "socially deviated behavior, i.e. homosexual
activity is not a basis for finding a social group within the contempla-
tion of the Act" and that such a conclusion "would be tantamount to
awarding discretionary relief to those involved in behavior that is not
only socially deviant in nature, but in violation of the laws or
regulations of the country as well." The applicant's testimony and
evidence, however, do not reflect that it was specific activity that
resulted in the governmental actions against him in Cuba, it was his
having the status of being a homosexual. Further, the immigration
judge's initial fmding that a particular social group existed in Cuba
was not "tantamount to awarding discretionary relief' to that group.
Individuals in a particular social group are not eligible for relief based
on that fact alone, among other showings they must establish facts
demonstrating that members of the group are persecuted, have a well-
founded fear of persecution, or that their life or freedom would be
threatened because of that status.
   We principally note regarding this issue, however, that the Service
has not challenged the immigration judge's finding that homosexuality
is an "immutable" characteristic. Nor is there any evidence or
argument that, once registered by the Cuban government as a
homosexual, that characterization is subject to change. This being the

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                                                    Interim Decision #3222

 case, we do not find the Service's challenge to the immigration judge's
 finding that this applicant was a member of a particular social group in
 Cuba adequately supported by the arguments set forth on appeaL
    The next issue is whether the immigration judge erred in finding
 that the applicant had established that his life or freedom would be
 threatened in Cuba. The immigration judge not only found the
 applicant's testimony regarding the events in Cuba credible, but
 concluded that, if anything, he was "restrained in his testimony as to
 the difficulty of his life during the years that he lived in Cuba." In this
 regard, he noted that the applicant simply took as a matter of course
 that he "would be frequently detained for days [by government
officials] while being subjected to verbal and physical abusive treat-
 ment." The applicant's testimony that simply because of his status as a
homosexual he was advised by his government to leave the country or
face incarceration for a period of 4 years is not contested. There is no
 evidence or allegation that this "choice" he was given resulted from
 any specific acts on his part or that the government did not intend to
jail him if he failed to leave. The record indicates that rather than a
penalty for misconduct, this action resulted from the government's
 desire that all homosexuals be forced to leave their homeland. This is
not simply a case involving the enforcement of laws against particular
homosexual acts, nor is this simply a case of assertion of "gay rights."
 Particularly in view of the final governmental threat that precipitated
the applicant's departure from Cuba, we agree with the immigration
judge's finding that the applicant's freedom was and is threatened
within the contemplation of section 243(h)(1).
    The final issue regarding his application for withholding of deporta-
tion to Cuba is whether he is ineligible for this relief under the
provisions of section 243(h)(2)(B). Although we do not minimize the
seriousness of the offenses for which this applicant was convicted, they
are not "particularly serious crimes" as contemplated by section
243(h)(2)(B) of the Act, and the applicant is not barred from
withholding of deportation. See Matter of Garcia-Garrocho, 

19 I&N Dec. 423

 (BIA 1986); Matter of Frentescu, 

18 I&N Dec. 244

 (BIA
 1984). The applicant's drug conviction was for simple possession of
cocaine and the Service agrees with the immigration judge's conclu-
sion that the burglary offense was not a particularly serious crime
within the scope of section 243(h)(2)(B).
    In view of the mandatory nature of section 243(h), the immigration
judge's grant of withholding of deportation to Cuba to the applicant
will stand and the following order will be entered.
    ORDER:          The Service's appeal is dismissed.
Interim Decision #3222

DISSENTING OPINION: Fred W. Vacca, Board Member

   I respectfully dissent.
   As the majority correctly states, the sole matter before us on appeal
is whether the applicant has demonstrated his eligibility for withhold-
ing of deportation to Cuba under the provisions of section 243(h) of
the Immigration and Nationality Act, 

8 U.S.C. § 1253

(h). To be
eligible for withholding of deportation, the applicant must show that
his "life or freedom would be threatened in such a country on account
of race, religion, nationality, membership in a particular social group,
or political opinion." Section 243(h)(1) of the Act. In order to make
such a showing, he must establish a "clear probability" of persecution
on account of one of these enumerated grounds. INS v. Stevic, 

467 U.S. 407

 (1984). This "clear probability" standard requires a showing that
it is more likely than not that an alien would be subject to persecution.
   On this record, I do not find that the applicant has shown a "clear
probability" that his life or freedom would be threatened on account of
one or more of the aforementioned grounds if he returns to Cuba.
Accordingly, I would dismiss the appeal for this reason and order his
exclusion and deportation to his country of nationality.
   There are two principal factual aspects of the applicant's claim that
he will likely be subject to persecution if returned to Cuba. The first
relates to his treatment by the Cuban authorities from the time he was
registered by the Government as a practicing homosexual in 1967 until
 1980. The second relates specifically to the threat that was made to
him in 1980—at the time of the "Marielito" exodus—to leave Cuba or
be jailed for 4 years.
   The applicant testified that he has been a practicing homosexual
since he was 9 years old. The government apparently became aware of
this fact in 1967 as he was put on a government register that year. He
stated that he was never actually incarcerated because of his homosex-
uality. As a homosexual, however, he was called in and questioned by
the authorities with some regularity. He testified that he was detained
for several days "a whole bunch of times" as a result of "many
investigations - because the authorities "said we knew everything ...
homosexuals knew ... who was stealing and the assaults and
everything." When asked whether the government examinations were
primarily health examinations, the applicant responded: "Yes, and
mostly ... so there wouldn't be any kind of disease or sickness." One
specific incident the applicant referred to as occurring during this
period was the subject of contradictory testimony. On one hand, he
testified that he worked at a textile factory and that "no homosexuals
could work there." Yet, when he violated a regulation about missing
work for 3 days without a doctor's certificate, he stated that he was

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                                                             Interim Decision #3222

sent to a work camp for 60 days because he was a homosexual. He
testified that "if a woman missed out three days of work, and they
didn't have anything like that against her, nothing would happen to
her."'
   The applicant testified in a general manner that some homosexuals
were imprisoned or sent to work camps in Cuba and that a friend "got
five years for what is called being a dangerous person." He noted that
homosexuality was a criminal offense in Cuba.
   I do not find this testimony regarding the circumstances of the
applicant's previous experiences in Cuba as a known practicing
homosexual to be such as to indicate a "clear probability" that his life
or freedom would be threatened if he were to return to that country.
There are apparently Cuban criminal laws regarding homosexuality?
The applicant himself characterized his experiences with the authori-
ties as part of either investigations or health examinations. He did not
describe these incidents as his being "incarcerated" because he was a
homosexual. The United States Supreme Court has in fact found that
state criminal sodomy laws do not violate the fundamental rights of
homosexuals. Bowers v. Hardwick, 

478 U.S. 186

 (1986). Considering
the applicant's own characterization of the events, these experiences
appear related to the investigation of criminal activities and the
control of health matters rather than persecution of the applicant. The
applicant presented some general background materials regarding the
treatment of homosexuals (much of which relates to a documentary
film describing "events of the middle and late sixties and early
seventies"). The 1985 Amnesty International Report introduced by the
applicant makes no reference to the treatment of homosexuals
whatsoever. Particularly under such circumstances, I find the appli-
cant's situation best evaluated in light of his own experiences over his
13 years as a known homosexual in Cuba.
   The second aspect of the applicant's case, which I consider within
the total factual context he has presented, is his testimony that in 1980
he was told by the authorities he would be jailed for 4 years if he did
not leave the country. In my view, this threat must be evaluated in the
context of the time and situation in which it was made. During the
massive exodus of Cubans from Mariel in the spring of 1980, some
departures were entirely voluntary, some coerced. Fidel Castro used

    He further testified in this regard that when he missed work "one would always try to
justify with the doctor or something, but in that case, ... I wasn't able to justify." The
date of this incident was never made entirely clear. In his testimony, he statcd that it
occurred "around 1975." However, this was apparently the incident he referred to on his
asylum application as occurring in 1977 and involving 90 days imprisonment.
  2No evidence was presented as to the specifics of Cuban criminal law in this regard.
Interim Decision #3222


the plight of the "Marielitos" as an opportunity to rid Cuba of many
who were deemed undesirable by his government, including criminals
and homosexuals. In view of his prior experiences, it is clear that the
purpose of the particular threat to the applicant was to get him to leave
the country. If he were to return to Cuba today with the permission of
the Cuban authorities, has he demonstrated a "clear probability" that
the threat made in 1980 has relevance? For reasons discussed in
Matter of Barrera, 

19 I&N Dec. 837

 (BIA 1989), I would find that such
is not the case. The Cuban government has agreed to the return of
those who departed (many with "encouragement" or coercion) in 1980
and has given diplomatic assurances of "no reprisal" to those who are
returned. As I view the threat to the applicant in 1980 as principally
motivated to coerce his departure, I do not find that he has
demonstrated a "clear probability" that has meaning today, particular-
ly when viewed in the context of his experiences over the years from
1967 to 1980.
   As I do not find that the applicant has adequately established that
his "life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political
opinion," I would sustain the Service appeal in this regard and order
the applicant excluded and deported from the United States_

CONCURRING IN THE DISSENTING OPINION:                  James P.
Morris, Board Member
  I concur in the foregoing dissenting opinion.




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