After the DHS decided to reinstate Gonzalez-Posadas' pre-existing expedited order of removal, he was provided a reasonable fear interview, where he expressed fear of being harmed by his family and the gangs due his perceived homosexuality. The interviewing officer determined that he had a reasonable fear of persecution, and he was placed in withholding of removal/Convention Against Torture proceedings. During these proceedings, Gonzalez-Posadas testified that he is gay and that his cousin, a member of MS-13, had raped him twice in Honduras. He also described mistreatment by other family members and sexually-charged threats by other gang members. The Immigration Judge (IJ) denied Gonzalez-Posadas' requests for withholding of removal and protection under the Convention Against Torture. The IJ determined that Gonzalez-Posadas' credibility was suspect because his story had "evolved" over time, seemingly demonstrating harsher and harsher treatment by the police and others as it progressed. The IJ also determined that the unreported rapes and homophobic slurs did not amount to past persecution on account of Gonzalez-Posadas' membership in the particular social group composed of homosexual men, and found that his alternative social group (young Honduran men who share experiences of repeated resistance to gang recruitment) was not cognizable because it did not exist independent of the alleged persecution. The BIA affirmed the IJ's decision.
On appeal, Gonzalez-Posadas challenged only the IJ's decisions regarding past persecution on account of his homosexuality and a clear probability of future harm on account of his homosexuality. The Third Circuit acknowledged that the IJ had conflated the question of whether the harm Gonzalez-Posadas suffered rose to the level of persecution with the question of whether that persecution was directed at him on account of a protected ground. The court then assumed that the harm he experienced did, in fact, rise to the level of persecution, but found that Gonzalez-Posadas' testimony did not establish that the gangs targeted him because of his homosexuality instead of his refusal to join them or provide them with financial support or because of his decision to report them to the Honduran police. As for the rapes he endured at the hands of his cousin, the court agreed with the IJ that they were “isolated criminal acts” that were not motivated by Gonzalez-Posadas’s homosexuality.
With regard to the issue of future harm, the court noted that the Honduran government has established a special unit in the attorney general’s office to investigate crimes against LGBT persons and other vulnerable groups. It concluded that while the documentary evidence demonstrated that LGBT persons may face violence at the hands of their fellow Honduran citizens and suffer indignities and discrimination, the record did not compel the conclusion that there is a “systematic, pervasive, or organized” pattern or practice of persecution of LGBT persons in Honduras.
The full decision in Gonzalez-Posadas v. Att'y General can be found here: http://www2.ca3.uscourts.gov/opinarch/141732p.pdf