People For the American Way

Trump Judge Would Send Asylum Applicant to Face Worsening Anti-LGBTQ+ Persecution: Confirmed Judges, Confirmed Fears

News and Analysis
Trump Judge Would Send Asylum Applicant to Face Worsening Anti-LGBTQ+ Persecution: Confirmed Judges, Confirmed Fears
Senate Judiciary Committee hearing, October 30, 2019

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Juan Bautista, an immigrant from Mexico who had previously been denied asylum, sought to have his case reopened on the basis of changed circumstances in his home country. The Board of Immigration Appeals (BIA) rejected the expert testimony he had submitted to support his case, and they denied his petition. Bautista sued and won in the Ninth Circuit, but Trump judge Lawrence VanDyke would have upheld the BIA’s decision. The July 2020 case was Bautista v. Barr.

Bautista had provided expert testimony from Dr. Nielan Barnes, who reported that anti-LGBTQ+ persecution in Mexico had become increasingly worse over the years, due in part to a backlash against ongoing advances in equality. She listed several of those advances, including some that occurred after Bautista’s original petition had been rejected in 2009. However, the BIA rejected the testimony with little explanation and found no evidence of changed circumstances. It therefore denied Bautista’s petition to reopen his case as untimely.

On appeal, the Ninth Circuit majority ruled that the BIA failed to analyze Barnes’s declaration under the right standard. The court noted that the BIA was required to accept her expert testimony as true unless they found it to be “inherently unbelievable.” Therefore, the majority—which included conservative George W. Bush nominee Jay Bybee—ordered the BIA to conduct the proper analysis by determining whether Barnes’s testimony was “inherently unbelievable.”

Judge VanDyke dissented, characterizing the expert testimony as “only  indicat[ing] ongoing discrimination” rather than changed circumstances. He acknowledged that Dr. Barnes discussed an “increasingly more perilous” backlash against those perceived as LGBTQ+ people [emphasis added], and that the advances in equality she listed included some that occurred after 2009. But he faulted her for not “expressly” tying the backlash to the events after 2009.

He further criticized her because she has long testified about the backlash—a term VanDyke repeatedly put in quotation marks:

Dr. Barnes has previously opined that the “backlash” has been occurring in Mexico since well before 2009. It is therefore reasonable to view any post-2009 policy advances as merely the latest stimulus for an ongoing backlash.

But because VanDyke’s position did not command a majority, Juan Bautista has an opportunity to make his case before officials who will have to consider his case fairly and seriously.