PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 18-1342 _____________ JOHN DOE, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent. ______________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A209-390-025) Immigration Judge: Leo Finston ______________ Argued: April 30, 2019 ______________ Before: RESTREPO, ROTH and FISHER, Circuit Judges. (Filed: April 16, 2020) Adrian N. Roe First Floor 428 Boulevard of the Allies Pittsburgh, PA 15219 Paige Beddow [ARGUED] Scott A. Cain [ARGUED] (Admitted Pursuant to Third Circuit LAR 46.3) West Virginia University College of Law 101 Law School Drive Morgantown, WV 26506 Pro Bono Counsel for Petitioner Jeffrey R. Meyer Jonathan K. Ross [ARGUED] United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent ______________ OPINION OF THE COURT ______________ RESTREPO, Circuit Judge. Petitioner fled his home country of Ghana and entered the United States without authorization after his father and neighbors assaulted him and threatened his life when they 2 discovered that he was in a same-sex relationship. Petitioner seeks asylum and withholding of removal under the Immigration and Nationality Act (INA) and protection from removal under the Convention Against Torture (CAT), because he fears being persecuted or tortured on account of his sexual orientation and identity as a gay man if returned to Ghana – a country that criminalizes same-sex male relationships and has no proven track record of combatting widespread anti-gay violence, harassment and discrimination. The Immigration Judge (IJ) denied his application and ordered his removal, and the Board of Immigration Appeals (BIA) affirmed. He now petitions this Court for review of the BIA’s final decision. He argues that the BIA erred in finding, among others, that he had not suffered past persecution and did not have a well-founded fear of future persecution. For the following reasons, we will vacate the BIA’s decision and remand for further proceedings consistent with this opinion.1 I. BACKGROUND A. Petitioner’s Experience in Ghana Petitioner was born and raised in Ghana’s capital, Accra. He first realized he was gay when he was fourteen years old. He came to this realization after sharing an intimate encounter with another boy, whom he had met at Muslim school. One afternoon, the two boys were spending time together in Petitioner’s bedroom and, after sharing a toffee that 1 Because we believe this case can be disposed of on the merits of Petitioner’s asylum claim, we will not resolve his withholding of removal or CAT claims at this time. 3 Petitioner had bought for his schoolmate, they had sex for the first time. Over the next twelve years, the two young men continued to see each other but kept their sexual relationship hidden. Being gay in Ghana, Petitioner believed, was simply “not acceptable.” JA101. He could not speak to his family about his feelings because he worried that, as Muslims, they would disapprove of his sexual orientation or, even worse, that his father ...
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