Castro-Martinez v.Holder
| Citation | 2011 Daily Journal D.A.R. 17352,674 F.3d 1073,11 Cal. Daily Op. Serv. 14516 |
| Decision Date | 12 January 2011 |
| Docket Number | No. 08–70343.,08–70343. |
| Parties | Rafael CASTRO–MARTINEZ, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
OPINION TEXT STARTS HERE
Judith Marty, Fullerton, CA, for the petitioner.
Gregory G. Katsas, Assistant Attorney General, Civil Division, Mary Jane Candaux, Assistant Director, Aimee J. Frederickson, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A088–515–684.Before: M. MARGARET McKEOWN, WILLIAM A. FLETCHER, and RICHARD R. CLIFTON, Circuit Judges.
The opinion filed on April 15, 2011, is amended as follows:
1. At page 5118 of the slip opinion (641 F.3d 1103, 1107), omit the following sentence and citation from the end of the paragraph at the top of the page:
Violence or discrimination inflicted by private parties does not constitute persecution if it is not condoned by the state and if the state takes reasonable steps to prevent and respond to it. See Gomes v. Gonzales, 429 F.3d 1264, 1267 (9th Cir.2005); Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995).
2. At page 5118 of the slip opinion (641 F.3d at 1108), insert the following at the end of the paragraph beginning “Likewise,” after “ See Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir.2004)”:
As we have held previously, “[w]here the persecutor is not a state actor, ‘we consider whether an applicant reported the incident to police, because in such cases a report of this nature may show governmental inability to control the actors.’ ” Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir.2010) (quoting Baballah, 367 F.3d at 1078).
3. At pages 5118–19 of the slip opinion (641 F.3d at 1108), replace the first citation and beginning of the next sentence:
Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir.2010). An
with the following:
Id. Here, the matter is complicated by the fact that Castro was between the ages of six and ten years when the attacks occurred. See Hernandez–Ortiz v. Gonzales, 496 F.3d 1042, 1046 (9th Cir.2007) (). We have never held that any victim, let alone a child, is obligated to report a sexual assault to the authorities, and we do not do so now.
Without any report, however, there is a “gap in proof about how the government would [have] respond[ed]” had Castro reported the attacks. Rahimzadeh, 613 F.3d at 922. Among other avenues, an
4. At pages 5118–19 of the slip opinion (641 F.3d at 1108), replace the text of footnote 1 with:
Contrary to what Castro argues, the BIA did not impose a “reporting requirement” but regarded the lack of a report of the abuse as one factor in its assessment of whether Castro had sufficiently established the Mexican government's unwillingness or inability to control his attackers. The BIA concluded that, on the record as a whole, Castro had “not demonstrated that the Mexican government was unable or unwilling to protect him from harm.”
5. At page 5119 of the slip opinion (641 F.3d at 1108), replace “unwillingness” in the first full sentence with “lack of ability or willingness.”
6. At page 5119 of the slip opinion (641 F.3d at 1108), omit the following from the end of the first paragraph:
at 922. In other words, the applicant need not have reported the crime if he can demonstrate that doing so would have been futile, or that contacting the authorities would have subjected him to further abuse. Ornelas–Chavez, 458 F.3d at 1057–8.
7. At page 5119–20 of the slip opinion (641 F.3d at 1108), replace the paragraph beginning with “In this case” and ending with with the following:
An applicant can also meet his burden by “demonstrating that a country's laws or customs effectively deprive the petitioner of any meaningful recourse to governmental protection” or by “convincingly establish[ing] that [going to the authorities] would have been futile or would have subjected [the individual] to further abuse.” Id. at 921–22.
Beginning with the proposition that a victim is not obligated to report the attacks, we look to the record to determine whether Castro met his burden to “fill in the gaps” and show that the government would have been unable or unwilling to control his attackers. Castro's primary reason for not contacting the authorities was that he believed the police would not have helped him. However, such a statement, without more, is not sufficient to fill the gaps in the record regarding how the Mexican government would have responded had Castro reported his attacks. See Castro–Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir.2005).
8. At page 5120 of the slip opinion (641 F.3d at 1108), omit the sentence at the beginning of the first full paragraph:
Here, it was not unreasonable for the BIA to perceive Castro's explanation for not contacting the authorities to be less than persuasive.
9. At page 5120 of the slip opinion (641 F.3d at 1108), in the second sentence of the first full paragraph, replace “argued” with “also testified.”
10. At page 5120 of the slip opinion (641 F.3d at 1108), replace the end of the last sentence of the first full paragraph:
child, which is a crime under Mexican law.
with the following:
young child or that authorities were unable to provide a child protection against rape.
11. At page 5120 of the slip opinion (641 F.3d at 1108), in the first sentence of the second full paragraph, replace “claimed” with “stated.”
12. At page 5120 of the slip opinion (641 F.3d at 1108–09), in the second full paragraph, replace the section beginning with “But the record” and ending with “prosecute homophobic crimes” with the following:
But none of these reports compel the conclusion that the police would have disregarded or harmed a male child who reported being the victim of homosexual rape by another male.
13. At pages 5120–21 of the slip opinion (641 F.3d at 1109), replace the paragraph:
In sum, while we do not diminish the trauma Castro experienced, substantial evidence supported the BIA's conclusion that Castro's failure to report the crime undermined his claim that he was unable to seek protection from the state against his abusers. See Ornelas–Chavez, 458 F.3d at 1057; Rahimzadeh, 613 F.3d at 920–23. Because Castro did not meet his burden to show that the government was unable or unwilling to control his attackers, he failed to demonstrate that he had been the victim of past persecution.
with the following:
In sum, while we do not diminish the trauma Castro experienced, substantial evidence supported the BIA's conclusion that Castro did not meet his burden to show that the government was unable or unwilling to control his attackers and therefore failed to demonstrate that he had been the victim of past persecution.
14. At page 5121 of the slip opinion (641 F.3d at 1109), replace the first paragraph under the heading with the following three paragraphs:
Substantial evidence also supported the BIA's conclusion that Castro failed to demonstrate a well-founded fear of future persecution. To establish a well-founded fear of future persecution, an applicant must demonstrate that his fear of persecution is subjectively genuine and objectively reasonable. Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir.2007). As there was no adverse credibility determination, we accept that Castro's fear of future persecution was genuine. See Li v. Holder, 559 F.3d 1096, 1107 (9th Cir.2009).
To establish that his fear of persecution was objectively reasonable, Castro could have demonstrated that he was a member of a disfavored group against which there was a systematic pattern or practice of persecution, or that he was singled out for persecution. See generally Wakkary v. Holder, 558 F.3d 1049 (9th Cir.2009) (citing 8 C.F.R. § 1208.13(b)(2)(iii)). As to the latter, Castro did not argue that any government actor had singled him out for persecution. As to the former, Castro cited evidence of societal discrimination against gays in Mexico, and attacks on gay men committed both by private parties and the police, to argue that the Mexican government systematically harmed gay men and failed to protect them from violence. The record did not compel this conclusion, however, particularly in light of recent country reports.
The BIA noted country reports in the record indicating the Mexican government's efforts to prevent violence and discrimination against homosexuals. These efforts have increased in recent years. Mexican law prohibits several types of discrimination, including bias based on sexuality, and it requires federal agencies to promote tolerance. In April 2005, the Mexican government launched a radio campaign to fight homophobia in conjunction with Conasida, the National Center to Prevent and Control HIV/AIDS. Country reports submitted by Castro noted the ongoing improvement of police treatment of gay men and efforts to prosecute homophobic crimes.
15. At page 5122 of the slip opinion (641 F.3d at 1110), replace the short citation:
with the following long citation:
Gomes v. Gonzales, 429 F.3d 1264, 1266 (9th Cir.2005).
With the opinion as amended, the panel voted to deny both the petition for rehearing and petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for rehearing and petition for rehearing en banc are DENIED. No further petition for rehearing and/or petition for rehearing en banc may be filed.
Rafael Castro–Martinez (“Castro”), a native and citizen of Mexico, timely petitions this...
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