NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 20-3368 _____________ K.S., Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA _______________ On Petition for Review of a Decision of the Board of Immigration Appeals (BIA 1:A099-214-065) Immigration Judge: Audra R. Behne _______________ Argued September 21, 2021 Before: JORDAN, PORTER, and RENDELL, Circuit Judges (Filed: January 5, 2022) _______________ Joseph A. Brophy [ARGUED] Brophy & Lenahan 18 Campus Boulevard – Suite 100 Newtown Square, PA 19073 Counsel for Petitioner Margot L. Carter [ARGUED] United States Department of Justice 1100 L Street, N.W. Washington, DC 20530 Colin J. Tucker United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondents _______________ OPINION _______________ JORDAN, Circuit Judge. K.S. seeks review of a decision of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for asylum and withholding of removal. We will grant his petition. I. BACKGROUND K.S. is a native and citizen of Jamaica. In 2003, he was admitted to the United States and has been a lawful permanent resident since 2005. Pursuant to 8 U.S.C. § 1227 (a)(2)(B)(i), the Department of Homeland Security (“DHS”) sought to remove him in March 2019 for convictions involving controlled-substances violations. The Immigration Judge (“IJ”) sustained the charge of removability . K.S. applied for asylum, withholding This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 2 of removal, and relief under the Convention Against Torture (“CAT”). In his written application, he claimed that his family faced threats of harm in Jamaica because of his mother’s political affiliations. He did not claim to face persecution on any other basis. The IJ held a merits hearing, and K.S. then claimed for the first time that he would be persecuted in Jamaica because of his sexual orientation. His counsel informed the IJ that K.S. had “recently admitted … that he is bisexual and he does cross-dress.” (AR at 102.) On direct examination, in addition to testifying about his mother’s political affiliation, K.S. testified about his sexual orientation, saying that he was bisexual and that he had been having sexual relations with men since about 2009. On cross-examination, K.S.’s testimony produced some inconsistencies and some new, salient assertions that had been omitted from his written application and direct examination. With regard to his sexual orientation in particular, he said that his first sexual relations with a man occurred in 2005, and that he first realized that he was attracted to men after an incident in 1995, while he still lived in Jamaica and a man made advances to him. K.S. explained that he had not mentioned the 1995 experience on direct examination because he “wasn’t thinking” and he “wasn’t focusing on that.” (AR at 161.) He also claimed that he did not mention his sexual orientation on his written application because he “didn’t want to tell [his] family” and he …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals