Two years ago, an immigration judge denied Felipe Molina Mendoza’s application for asylum in the U.S., unconvinced of the persecution Molina Mendoza said he would endure as an openly gay man if he was forced to return to Mexico.
Now, an appeals court has vacated that decision, and Molina Mendoza is hoping for a new hearing.
He’s relieved. The ruling resets his asylum case, sparing the twenty-six-year-old—at least for now—from deportation. But it has also brought into stark view just how different the outcome could have been.
“Can you imagine if I didn’t have the resources to pay for the appeal to the Fourth Circuit? I wouldn’t be here. I would have been deported,” he told the INDY. “Some people don’t have those resources, and they’re getting deported. Maybe they had a chance to actually stay here and make a case and now they don’t.”
In essence, the Fourth Circuit Court of Appeals found that while Molina Mendoza’s attorney had presented evidence of “widespread discrimination” and violence against LGBTQ people in Mexico, the immigration judge zeroed in on some “positive steps” taken recently to curb that hostility. Ultimately, the court could only vacate Judge Barry Petinato’s ruling and send it back for further review because neither he nor the Bureau of Immigration Appeals, which had upheld Pettinato’s decision, addressed evidence supporting Molina Mendoza’s asylum claim in their rulings.
“The Immigration Judge may have had good reasons for not crediting the above-mentioned reports and concluding that Mexico’s LGBTQ community does not face a pattern of harm that rises to the level of persecution,” the court’s opinion reads. “He did not, however, provide them. Therefore, our review is obstructed by ‘a problem that has become all too common among administrative decisions challenged in this court—a problem decision makers could avoid by following the admonition they have no doubt heard since their grade-school math classes: Show your work.’”
As the INDY reported last year, Molina Mendoza had expected to be deported on Valentine’s Day 2017, only to learn he would be allowed to stay in North Carolina while he appealed his case. Amid the anti-immigrant rhetoric of the newly inaugurated President Trump, an executive order expanding who was deportable, and fears of ICE raids across the country, supporters rallied around him, including U.S. Representative G.K. Butterfield, whose intervention was instrumental in ensuring Molina Mendoza would not be deported while his case was still under consideration.
In the year since, he’s gotten married, completed a certified nursing assistant program at Durham Tech, and waited for news from the Fourth Circuit. He and his husband, Francisco, are looking to buy a house in Durham. The two met at Riverside High School but didn’t get together until years later and hadn’t planned to get married until after Molina Mendoza was clear of his deportation date.
“I thought, who would want to be with a person who is getting deported, who doesn’t even have control of his own future?” Molina Mendoza says. “He’s helped me realize that even though immigrants are demonized and looked down on, we’re still equal. A social security number does not define your worth as a person. A lot of us don’t know what’s going to happen to us, so we hold back on living.”
Molina Mendoza first came to the United States with his mother and siblings at age eight, leaving behind an abusive father, and moved to North Carolina three years later. He returned to Mexico in 2009 for college, as he was unable to enroll in the States without a social security number. It was during that time that Molina Mendoza decided to come out. He began to face harassment on the streets of Mexico City and was dismissed when he reported the harassment to local police.
He tried to re-enter the U.S. in 2013 and was caught. In 2014, he tried again. This time, he requested asylum at the border.
Molina Mendoza sought asylum on two grounds: that he had faced persecution in Mexico and that he would do so again if he was forced to return. An asylum officer determined both of those claims were credible, according to court documents.
During a hearing before Pettinato, Molina Mendoza’s attorney presented evidence of discrimination and violence against LGBTQ people in Mexico. But Pettinato was apparently unconvinced.
“In reaching this conclusion, the Immigration Judge acknowledged that the record contained evidence of widespread discrimination against Mexico’s LGBTQ community,” the Court of Appeals ruled. “However, he determined—without explanation—that this evidence was outweighed by a report lauding Mexico’s ‘positive steps in recent years to amend its constitution and enact federal legislation prohibiting discrimination on the basis of sexual orientation.’”
For Molina Mendoza, it’s clear that hostility continues despite the fact that same-sex marriage was legalized recently in parts of Mexico—another “positive step” used to support the denial.
“In Mexico, yes, you do have same-sex marriage that got passed, but that doesn’t mean that the government enforces that. That doesn’t mean that the police are protecting LGBT people,” he says.
It’s not easy living in America right now either, he admits. But without a doubt, he’d rather be here than in Mexico.
“In Mexico, LGBT people are still getting killed,” he says. “I don’t want to run into that chance. I’ve already had experiences of people actually threatening me and actually trying to hurt me just for being gay. Here they still beat up LGBT people, and you still have murders of trans people, but at least you have the government to protect you.”
The Fourth Circuit sent the case back to the Bureau of Immigration Appeals “to reevaluate whether Molina Mendoza’s fear of future persecution was objectively reasonable in a manner that is consistent with this opinion,” and it’s likely the BIA could send it back to Pettinato.
The appeals court’s ruling, coupled with a lawsuit recently filed against Pettinato and two other Charlotte immigration judges claiming they routinely deny bond hearings to people in Department of Homeland Security custody, concerns Molina Mendoza.
“[Asylum seekers] heavily rely on an immigration judge to give us a fair shot,” he says. “If we don’t have that, we’re already at a disadvantage.”
Immigration judges in Charlotte have gained a reputation for toughness, in part because of how infrequently they approve asylum applications. Pettinato, for example, approved about 17 percent of asylum cases that came before him from 2012–17, according to Syracuse University’s Transactional Records Access Clearinghouse.
In that same time period, across all immigration courts, 88 percent of asylum seekers from Mexico were denied—the highest denial rate among the ten nationalities with the most asylum cases.
Asylum denials are on the rise nationwide. At the same time, the number of asylum seekers without legal representation is also increasing. According to TRAC, 21 percent of asylum seekers in fiscal year 2017 did not have a lawyer, up from about 13 percent ten years before. Applicants with an attorney are five times more likely to win their case than those without, TRAC says.
Armed with the Fourth Circuit’s ruling, Molina Mendoza says he’s more hopeful about his asylum claim this time around.
“It’s not just about me,” he says. “By me experiencing my case, it gives hope to other immigrants who have their own cases who are fighting.”