*

Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr., is substituted for

Michael B. Mukasey as United States Attorney General, effective February 3,

2009.

FILED

United States Court of Appeals

Tenth Circuit

April 21, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TARIK RAZKANE,

Petitioner,

v. No. 08-9519

ERIC H. HOLDER, JR.,*

 United States

Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER FROM 

THE BOARD OF IMMIGRATION APPEALS

Jayne E. Fleming, Reed Smith LLP, Oakland, California, for Petitioner.

Barry J. Pettinato, Assistant Director (Monica G. Antoun, Trial Attorney, with

him on the brief), United States Department of Justice, Civil Division, Office of

Immigration Litigation, Washington, D.C., for Respondent.

Before BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
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I. INTRODUCTION

Petitioner Tarik Razkane remained in the United States beyond the period

authorized by his non-immigrant visa. After receiving a notice to appear from the

Department of Homeland Security charging him as removable under 8 U.S.C.

§ 1227(a)(1)(B), Razkane applied for, inter alia, restriction on removal pursuant

to the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(b)(3). The

Immigration Judge (“IJ”) denied Razkane’s request for restriction on removal. 

The IJ determined Razkane had not made the necessary showing that it was more

likely than not he would be persecuted on account of his membership in a

particular social group, homosexuals, upon return to Morocco. Razkane appealed

the IJ’s decision to the Board of Immigration Appeals (“BIA”). The BIA issued a

brief order adopting and affirming the IJ’s decision. Exercising jurisdiction

pursuant to 8 U.S.C. § 1252, we reverse the decision of the BIA and remand for

proceedings consistent with this opinion.

II. BACKGROUND

Razkane was admitted to the United States on a non-immigrant J-1 visa on

August 4, 2003. On December 30, 2004, the Department of Homeland Security

served upon Razkane a Notice to Appear, charging him as removable under 8

U.S.C. § 1227(a)(1)(B) for staying in the country beyond the period for which he

was authorized to remain pursuant to his visa. Razkane admitted he stayed in the

United States without authorization, and applied for asylum, restriction on
1

“Restriction on removal was known as withholding of removal before

amendments to the INA made by the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 100 Stat. 3009.”

Ismaiel v. Mukasey, 516 F.3d 1198, 1200 n.2 (10th Cir. 2008). Although “[t]he

regulations under the INA . . . retain the former term withholding of removal, see,

e.g., 8 C.F.R. § 208.16(b), and both the IJ and the BIA have referred to

withholding of removal,” this court uses the statutory term “restriction on

removal.” Ismaiel, 516 F.3d at 1200 n.2. 

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removal,1

 and voluntary departure under the INA, and protection under the United

Nations Convention Against Torture (“CAT”). 

In removal proceedings before the IJ, Razkane explained he was born and

raised in Morocco. He was not open with his friends, family members, or

community about his sexuality because homosexuality is perceived as deviant

behavior in Morocco. He avoided dating and kept his contacts with gay men to a

minimum. Despite his efforts to hide his sexual orientation, Razkane was

attacked by a neighbor. The neighbor came up behind Razkane, held a knife to

his neck, and told him “[his] death is better than [his] life since [he is] gay.” The

neighbor was eventually persuaded to release Razkane, and the neighbor’s family

later apologized for the incident. Razkane believed the neighbor became

suspicious of his sexual orientation after seeing him with gay male friends. 

Razkane was haunted by fear of more attacks, social ostracism, family rejection,

and imprisonment because of his sexual orientation. He sought a way to study in

the United States, and eventually entered the country under the Fulbright

Program. 
-4-

Razkane submitted evidence during his removal proceedings regarding the

treatment of homosexuals in Morocco. Specifically, through expert testimony and

affidavits Razkane presented evidence indicating Morocco is an overwhelmingly

Islamic country. Razkane’s expert on country conditions testified that “[m]ost

orders of Islam, including those practiced in Morocco, view homosexuality as an

abomination, a violation of the natural order intended for mankind by Allah.” In

addition, Moroccan law criminalizes homosexual conduct. Razkane also

submitted evidence indicating that merely flirting with a member of the same sex

or socializing with other homosexuals may result in imprisonment. Additional

evidence demonstrated that due to Moroccan society’s views regarding

homosexuality, those suspected of being homosexual have been harassed, beaten,

raped, and even killed. This evidence indicated that police protection of

homosexuals is often non-existent, and “it is common for the police to harm, beat

or rape with impunity the people whom they see as vulnerable because of sexual

orientation.” 

In denying Razkane’s application for asylum, the IJ concluded Razkane’s

application was filed after the one-year filing deadline, and Razkane did not meet

any of the deadline exceptions. In determining whether to grant Razkane

restriction on removal or CAT protection, the IJ considered whether Razkane had

been persecuted in the past on account of his membership in a particular social

group, homosexuals, and whether it was more likely than not that he would be
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persecuted or tortured upon return to Morocco. The IJ first determined Razkane

had not been subjected to past persecution because the attack he suffered had not

resulted in injury and the family of the assailant apologized. 

On the issue of whether Razkane would more likely than not be persecuted

on account of his membership in a particular social group or tortured upon return

to Morocco, the IJ first recognized the BIA has indicated homosexuals can

constitute a particular social group for restriction on removal claims. The IJ went

on to distinguish Morocco, which criminalizes homosexual conduct, from a

country that persecutes homosexuals because of their status as homosexuals. The

IJ explained that while the status/conduct distinction would not necessarily

require denial of restriction on removal, Razkane could not show his status as a

homosexual would likely lead to persecution in Morocco. 

This conclusion was based on a series of findings by the IJ. First, although

the IJ found Razkane to be “an essentially credible witness” who “attempted to

testify carefully and honestly before the Court,” he determined one aspect of

Razkane’s testimony was not “convincing.” The government asked multiple

questions involving the assumption that certain individuals appear “gay.” 

Specifically, at one point, the government’s lawyer asked Razkane if Moroccan

people would identify him as gay by the way he talked, dressed, and moved.

Razkane answered in the affirmative. The government lawyer went on to ask

Razkane’s country conditions expert his opinion as to what would happen to
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someone who “looked . . . gay” while walking the streets in Morocco, to which

the expert responded “Ma’am, I’m sorry, I can’t help you with that. I just don’t

know what it means to look like a gay.” In his oral ruling, the IJ found Razkane’s

“appearance does not have anything about it that would designate [him] as being

gay. [He] does not dress in an effeminate manner or affect any effeminate

mannerisms.” 

In addition, the IJ noted Razkane had not had “any boyfriends or other gay

encounters in Morocco” and although he had engaged in homosexual conduct in

the United States, “he has had no boyfriends” and did not “appear to be

committed to any particular homosexual relationship.” The IJ stated Razkane

“testified that he would probably be ‘involved’ in homosexual activity if he

returned to Morocco.” Nevertheless, the IJ found that Razkane had not “shown

that it is more likely than not that he would be engaged in homosexuality in

Morocco or, even if he was, that it would be the type of overt homosexuality that

would bring him to the attention of the authorities or of the society in general.” 

The IJ concluded Razkane failed to prove it was more likely than not “he

would be identified as a homosexual in Morocco, or that he would be persecuted

in that country because of his social group membership” as required for

restriction on removal under the INA or be “faced with torture by the government

or with its acquiescence” as required for restriction on removal under the CAT.
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Thus, the IJ denied Razkane’s applications for asylum, restriction on removal, and

CAT protection, but granted him voluntary departure.

Razkane appealed the IJ’s decision to the BIA, which dismissed the appeal. 

In addressing Razkane’s claim for restriction on removal, the BIA stated only that

it agreed with the IJ “that the alleged mistreatment is insufficient to rise to the

level of persecution necessary to meet the burden of proof for [restriction on]

removal.” Razkane timely petitioned this court for review. He challenges only

the denial of his claim for restriction on removal under the INA. 

III. DISCUSSION

This court reviews the BIA’s legal determinations de novo, and findings of

fact under a substantial-evidence standard. Niang v. Gonzales, 422 F.3d 1187,

1196 (10th Cir. 2005). When a single member of the BIA issues a brief order

affirming an IJ’s decision, this court reviews both the decision of the BIA and any

parts of the IJ’s decision relied on by the BIA in reaching its conclusion. 

Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007). We may consult

the IJ’s decision to give substance to the BIA’s reasoning. Uanreroro v.

Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). “This is especially appropriate

where the BIA incorporates by reference the IJ’s rationale or repeats a condensed

version of its reasons while also relying on the IJ’s more complete discussion.” 

Id. Because the BIA, through a single member, issued only a brief order adopting

the IJ’s decision, our analysis focuses on the IJ’s decision. 
2

After discussing the status/conduct distinction the IJ stated, “The Court

does not believe that this distinction would necessarily require a denial of the

withholding application if the respondent were able to show that his status as a

homosexual would inevitably lead to persecution in Morocco.” In light of this, it

is unclear why the IJ even raised the purported distinction.

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“To obtain a restriction on removal . . . [a noncitizen] must establish a clear

probability of persecution in that country on the basis of race, religion,

nationality, membership in particular social group, or political opinion.” Chaib v.

Ashcroft, 397 F.3d 1273, 1277 (10th Cir. 2005) (quotation omitted). “The

question under [the clear-probability] standard is whether it is more likely than

not that the [noncitizen] would be subject to persecution” upon return to the

country. INS v. Stevic, 467 U.S. 407, 424 (1984). Neither party disputes that

homosexuals constitute a particular social group under the INA. Rather, the

parties dispute whether the IJ erred in his analysis of whether it was more likely

than not Razkane would be persecuted on account of his membership in this social

group upon return to Morocco. 

While the IJ stated there is an important distinction between a country like

Morocco with laws that criminalize homosexual conduct and a country that

persecutes homosexuals because of their homosexual status, he proceeded to

explain that this distinction did not require denial of Razkane’s claim.2

 After

noting the distinction, the IJ proceeded to a predicate consideration of whether

Razkane would be identified in Morocco as a homosexual, presumably by
3

The IJ ended his fact-finding at this predicate stage because he found that

Razkane would not be identified as a homosexual and thus necessarily not

persecuted as such. The IJ’s finding that Razkane would not be identified as a

homosexual was not premised on Razkane’s ability to suppress indicia of

homosexuality, a notion which has been severely criticized. See Karouni v.

Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005); Hernandez-Montiel v. INS, 225

F.3d 1084, 1093 & n.6 (9th Cir. 2000), overruled on other grounds by Thomas v.

Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005). Were the IJ to have found that

Razkane would be identified as a homosexual, but nonetheless denied relief

because Moroccan law criminalizes homosexual conduct and not homosexual

status, the status/conduct distinction drawn by the IJ would merit careful scrutiny. 

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Moroccan authorities or society, and thus might be persecuted.3

 In determining

whether Razkane would be identified as a homosexual, however, the IJ relied on

his own views of what would identify an individual as a homosexual rather than

any evidence presented. Specifically, the IJ found there was nothing in Razkane’s

appearance that would designate him as being gay because he did not “dress in an

effeminate manner or affect any effeminate mannerisms.”

The Second Circuit recently addressed the propriety of similar findings and

comments by an IJ. Ali v. Mukasey, 529 F.3d 478, 485, 491-92 (2d Cir. 2008). In

Ali, the petitioner sought relief pursuant to the CAT based on his fear that he

would be tortured because of his sexual orientation if he was returned to Guyana. 

Id. at 484. The court stated the IJ’s comment that the “common

understanding . . . would suggest that violent dangerous criminals and feminine

contemptible homosexuals are not usually considered to be the same people”

reflected “stereotypes about homosexual orientation and the way in which
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homosexuals are perceived.” Id. at 491. This, along with a further remark by the

IJ that “no one would perceive [the petitioner] as a homosexual unless he had a

partner or cooperating person[,]” demonstrated the IJ “clearly abrogated his

responsibility to function as a neutral, impartial arbiter.” Id. at 491-92

(quotations omitted). The court concluded the IJ’s comments reflected “an

impermissible reliance on preconceived assumptions about homosexuality and

homosexuals,” which along with other negative comments about the petitioner,

“result[ed] in the appearance of bias or hostility such that [the court could not]

conduct a meaningful review of the decision below.” Id. at 492 (quotation

omitted). Similarly, the Eighth Circuit reversed the denial of an application for

asylum and restriction on removal that was based in part on “the IJ’s personal and

improper opinion that [the applicant] did not dress or speak like or exhibit the

mannerisms of a homosexual.” Shahinaj v. Gonzales, 481 F.3d 1027, 1029 (8th

Cir. 2007).

The IJ’s homosexual stereotyping likewise precludes meaningful review in

this case. The IJ’s reliance on his own views of the appearance, dress, and affect

of a homosexual led to his conclusion that Razkane would not be identified as a

homosexual. From that conclusion, the IJ determined Razkane had not made a

showing it was more likely than not that he would face persecution in Morocco. 

This analysis elevated stereotypical assumptions to evidence upon which factual

inferences were drawn and legal conclusions made. To condone this style of
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judging, unhinged from the prerequisite of substantial evidence, would inevitably

lead to unpredictable, inconsistent, and unreviewable results. The fair

adjudication of a claim for restriction on removal is dependent on a system

grounded in the requirement of substantial evidence and free from vagaries

flowing from notions of the assigned IJ. Such stereotyping would not be tolerated

in other contexts, such as race or religion. See, e.g., Cosa v. Mukasey, 543 F.3d

1066, 1069 (9th Cir. 2008) (reversing adverse credibility finding because it

improperly “stemmed from pure speculation about how a [member of the

petitioner’s religion] might look and act”); Huang v. Gonzales, 403 F.3d 945, 949

(7th Cir. 2005) (“[The IJ’s] personal beliefs or some perceived common

knowledge about the religion . . . [are] . . . not a proper basis for an adverse

credibility finding.”). Nor will it be tolerated in the case of a homosexual

applicant seeking restriction on removal. See Ali, 529 F.3d at 492; Shahinaj, 481

F.3d at 1029. As a consequence, remand is necessary so that all findings are

based on evidence and subject to meaningful review.

IV. CONCLUSION

For the reasons discussed above, we reverse the decision of the BIA and

remand for proceedings consistent with this opinion. If on remand the BIA

concludes further consideration by an IJ is warranted, this matter should be

reassigned to a different IJ. See Ali, 529 F.3d at 493 (instructing the BIA to

assign the case to a different IJ on remand to ensure an unbiased proceeding);
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Huang v. Gonzales, 453 F.3d 142, 151 (2d Cir. 2006) (“[T]he authority of courts

to review the decisions of officers exercising adjudicative functions includes the

power to require reassignment when necessary to avoid repetition of a biased

discharge of those functions or even to avoid the appearance of substantial

injustice.”). 

During the pendency of this appeal, this court entered a temporary stay of

removal. That temporary stay will remain in effect while this court has

jurisdiction and will expire upon issuance of the mandate.