(CN) - An openly gay Marshall Islander who did show that he will "more likely than not" be tortured there is not eligible for U.S. asylum, the 9th Circuit ruled.
A California court convicted Antipas Konou, originally from the Marshall Islands in the northern Pacific, in 1999 of assaulting his then-boyfriend with a deadly weapon and of battery causing serious bodily injury.
This crime was serious enough to make him eligible for removal, an immigration judge ruled.
Finding that Konou was also likely to be tortured for his homosexuality if he were forced to return to the Marshall Islands, however, the judge granted him relief from deportation.
Indeed Konou had fled his homeland as a teenager after he was sexually assaulted and beaten for being gay, homeless child. He said the authorities there did nothing to intervene.
On the U.S. government's challenge, however, the Board of Immigration Appeals gave more weight to a State Department report that the Marshall Islands has no enforced prohibition on homosexuality.
Konou agreed to be voluntary removed from the United States and now lives in the Marshall Islands.
The 9th Circuit declined to overturn the board's decision Friday.
"The record regarding current public attitudes towards homosexuality in the Marshall Islands is less than clear. But the record contains substantial evidence supporting the BIA's conclusion that Konou would not likely be subjected to torture if removed to the Marshall Islands," Judge Ronald Gilman wrote for the panel, sitting by designation from the Cincinnati-based 6th Circuit.
Konou failed to show that the torture he previously endured in the Marshall Islands makes it likely he will be tortured again, according to the ruling.
"But just as a State Department report alone can carry an applicant's burden of establishing a probability of torture, a report can also serve to outweigh an applicant's evidence of a probability of torture," Gilman wrote.
Neither the immigration judge nor the appellate board questioned Konou's credibility.
Nevertheless, "even if past torture is deemed sufficient to raise a presumption of future torture, the government may overcome such a presumption by 'individualized analysis of how changed conditions will affect the specific petitioner's situation,'" the 18-page opinion states.
The appeals board also did not err in considering Konou's sentencing enhancement on his assault and battery convictions when finding them to be serious crimes. This designation justified the presumption that Konou was a dangerous person properly subject to deportation.