Court tosses ruling that asylum seeker failed to prove he was gay

The James R. Browning U.S. Court of Appeals Building, home of the 9th U.S. Circuit Court of Appeals, is pictured in San Francisco, California February 7, 2017. REUTERS/Noah Berger

(Reuters) – A U.S. appeals court on Wednesday revived an asylum bid by a Nigerian man who says he will likely be tortured or killed in his home country because he is gay, after an immigration board said he failed to back up claims about his sexual orientation.

A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals said Peter Udo’s inconsistent testimony about the location of a hotel where he claims that he and his boyfriend were detained and beaten was not enough to doom his quest for asylum.

Individuals whose asylum applications are deemed frivolous are generally permanently barred from seeking any immigration relief in the United States.

The U.S. Board of Immigration Appeals had affirmed an immigration judge’s ruling that Udo’s asylum bid was frivolous because he deliberately fabricated a key element of his application and failed to establish that he is gay.

Udo initially gave an asylum officer the name of a hotel that did not exist, later saying that he was afraid to identify the actual hotel, according to court filings.

But the location of the hotel is at best ancillary to Udo’s claims, the 9th Circuit said, “and is certainly not a material element.”

A lawyer for Udo did not immediately respond to a request for comment. Nor did the U.S. Department of Justice.

Udo said he and his boyfriend were severely beaten by a local “community security” group in 2015 after a hotel waiter walked in on them having sex and reported them. A 2014 Nigerian law criminalized same-sex marriage and relationships.

Udo escaped from a detention center and fled to the U.S., where he applied for asylum, according to the 9th Circuit decision.

The court on Wednesday remanded the case to the Board of Immigration Appeals to reconsider Udo’s claims.

The panel included Circuit Judges Sidney Thomas and Margaret McKeown and U.S. District Judge Donald Molloy of Montana, who sat by designation.

The case is Udo v. Garland, 9th U.S. Circuit Court of Appeals, No. 20-70078.

For Udo: David Casarrubias of Hanson Bridgett

For the government: Sheri Glaser of the U.S. Department of Justice

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