Bringas-Rodriguez v. Sessions, No. 13-72682 (9th Cir. 2017)
Annotate this CasePetitioner, a citizen of Mexico and a gay man, challenged the BIA's decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). A divided panel of this court, relied primarily on the court's decision in Castro-Martinez v. Holder, which interpreted the "unable or unwilling to control" standard as requiring proof that the police are unable or unwilling to control the sexual abuse of children generally. The panel majority adopted the IJ's conclusion that it was unlikely that the Mexican government would take no action to control the "abuse of children." The court granted rehearing en banc and held that the evidence petitioner adduced before the agency satisfied the court's longstanding evidentiary standards for establishing past persecution. In this case, petitioner provided credible written and oral testimony that reporting was futile and potentially dangerous, that other young gay men had reported their abuse to the Mexican police to no avail, and country reports and news articles documenting official and private persecution of individuals on account of their sexual orientation. Therefore, the court concluded that petitioner suffered past persecution that the Mexican government was unable or unwilling to control. The court overruled Castro-Martinez to the extent it might suggest otherwise and remanded the petition to the BIA for further proceedings.
Court Description: Immigration. The en banc court granted a petition for review of the Board of Immigration Appeals’ denial of asylum, withholding of removal, and protection under the Convention Against Torture to a citizen of Mexico who asserted that Mexican officials were unable or unwilling to protect him from harm by private individuals due to his sexual orientation. The en banc court held that the evidence Bringas- Rodriguez adduced before the agency—credible written and oral testimony that reporting his abuse would have been futile and potentially dangerous, that other young gay men had reported their abuse to the Mexican police to no avail, and country reports and news articles documenting official and private persecution of individuals on account of their sexual orientation—satisfied longstanding evidentiary standards for establishing past persecution and compelled the conclusion that Bringas-Rodriguez suffered past persecution that the Mexican government was unable or unwilling to control. The court overruled Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), and other circuit precedent, to the extent BRINGAS-RODRIGUEZ V. SESSIONS 3 they introduced the construct that the failure to report private persecution to government authorities creates a “gap” in the evidence or imposed a heightened evidentiary requirement to establish governmental inability or unwillingness to protect. The en banc court held that Bringas-Rodriguez was entitled to a presumption of future persecution and remanded for the Board to consider whether the presumption was rebutted, and to consider Bringas-Rodriguez’s claims for withholding of removal and CAT protection, taking into account new evidence of Bringas-Rodriguez’s HIV diagnosis. Concurring in the judgment, Judge Clifton agreed that the petition should be granted and remanded for further proceedings, but would not dictate to the Board that Bringas- Rodriguez established past persecution. Dissenting, Judge Bea, joined by Judge O’Scannlain, wrote that the majority failed to properly apply the substantial evidence standard and would hold that the evidence does not compel the conclusion that the Mexican government is unwilling or unable to protect homosexuals from persecution. 4 BRINGAS-RODRIGUEZ V. SESSIONS
This opinion or order relates to an opinion or order originally issued on November 19, 2015.
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