SAN FRANCISCO — A gay Filipino immigrant who had been ordered deported won a reprieve from a federal appeals court Wednesday on the grounds that he would be persecuted for his sexual orientation if sent back to the Philippines.
A three-judge panel of the U.S. 9th Circuit Court of Appeals unanimously overturned a decision by the Board of Immigration Appeals to deport Dennis Vitug, 37, a Southern Californian who was ordered removed after being sentenced to prison for drug possession.
While in the Philippines, Vitug was beaten and robbed five times because he was perceived to be effeminate, harassed and threatened by police and denied work because of his sexual orientation, the court said.
"No reasonable fact finder could conclude that the harm Vitug suffered did not rise to the level of persecution," wrote Judge Harry Pregerson, who was appointed by former President Jimmy Carter. He was joined in the ruling by Judges William A. Fletcher, a Bill Clinton appointee, and Jacqueline H. Nguyen, an Obama appointee.
Vitug moved to the United States in 1999 and overstayed his tourist visa, the court said. He worked as an assistant designer for a Sherman Oaks hotel and as a shipping clerk and studied fashion design.
In 2001, he became addicted to crystal methamphetamine. Although he obtained drug counseling, he repeatedly relapsed and was arrested several times. After being diagnosed with HIV in 2005, Vitug relapsed again and was sentenced to a year in state prison, the court said.
The Department of Homeland Security tried to deport him, but an immigration judge said Vitug would probably be persecuted and tortured if returned to the Philippines. The department appealed that decision to the immigration board, which said Vitug had failed to prove that he would be in danger if returned to the Philippines or that the government there would be unwilling to protect him.
The 9th Circuit agreed that Vitug had not proved he would face torture, but said he had presented sufficient evidence to show he would suffer discrimination if returned to his homeland. The panel said there was established law that bars deportation of gay immigrants on the grounds that they would be persecuted for their sexual orientation.
The immigration appeals board failed to show "there is any less violence against gay men or that police have become more responsive to reports of antigay hate crimes" in the Philippines since Vitug relocated, the panel concluded.
Joanna McCallum, Vitug's lawyer, said her client may stay in the United States and work but still needs to find "a basis" for changing his immigration status. "This decision simply means that the initial order that he be removed from the U.S. is 'withheld,' " she said in an email.
maura.dolan@latimes.com
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