805 F.3d 1171 (9th Cir. 2015), 13-72682, Bringas-Rodriguez v. Lynch

Docket Nº:13-72682
Citation:805 F.3d 1171
Opinion Judge:Jay S. Bybee, Circuit Judge:
Party Name:CARLOS ALBERTO BRINGAS-RODRIGUEZ, AKA Patricio Iron-Rodriguez, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent
Attorney:Andrea Ringer (argued) and Marco Pulido Marques (argued), Certified Law Students, University of California, Irvine School of Law, Appellate Litigation Clinic, Irvine, California; Mary-Christine Sungaila, Pro Bono Attorney, Snell & Wilmer LLP, Costa Mesa, California, for Petitioner. Stuart F. Dele...
Judge Panel:Before: William A. Fletcher and Jay S. Bybee, Circuit Judges and Benjamin H. Settle,[*] District Judge. Dissent by Judge W. Fletcher. W. FLETCHER, Circuit Judge, dissenting:
Case Date:November 19, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

Petitioner, 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), and denying his motion to remand to the IJ in light of his recent HIV diagnosis. The court concluded that, in light of Castro-Martinez v. Holder, substantial evidence supports the BIA’s determinations... (see full summary)

 
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Page 1171

805 F.3d 1171 (9th Cir. 2015)

CARLOS ALBERTO BRINGAS-RODRIGUEZ, AKA Patricio Iron-Rodriguez, Petitioner,

v.

LORETTA E. LYNCH, Attorney General, Respondent

No. 13-72682

United States Court of Appeals, Ninth Circuit

November 19, 2015

Argued and Submitted November 18, 2014 Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A200-821-303.

SUMMARY[**]

Immigration

The panel denied 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 sought relief based on his sexual orientation and HIV-positive status.

Relying on Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), the panel held that substantial evidence supported the Board's determination that Bringas-Rodriguez failed to establish that the Mexican government was unwilling or unable to protect him, where he did not report the abuse he suffered to authorities, and his evidence, including hearsay testimony and country reports, was insufficient to establish that doing so would have been futile.

The panel held that Bringas-Rodriguez failed to establish a pattern or practice of persecution of gay men in Mexico. The panel also held that Bringas-Rodriguez's CAT claim failed because he did not show that he would more likely than not be tortured by or with the acquiescence of the Mexican government if he is removed to Mexico.

The panel held that the Board did not abuse its discretion in denying Bringas-Rodriguez's motion to remand based on his recent HIV diagnosis.

Dissenting, Judge W. Fletcher wrote that he has growing doubts about this court's decision in Castro-Martinez, but even applying Castro-Martinez to the facts of this case, Bringas-Rodriguez submitted evidence sufficient to show that the Mexican government was unwilling or unable to protect him from abuse.

Andrea Ringer (argued) and Marco Pulido Marques (argued), Certified Law Students, University of California, Irvine School of Law, Appellate Litigation Clinic, Irvine, California; Mary-Christine Sungaila, Pro Bono Attorney, Snell & Wilmer LLP, Costa Mesa, California, for Petitioner.

Stuart F. Delery, Assistant Attorney General, Civil Division, Kohsei Ugumori and John W. Blakeley (argued), Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Peter E. Perkowski, Winston & Strawn LLP, Los Angeles, California, for Amici Curiae The Public Law Center, Lambda Legal Defense and Education Fund, the National Immigrant Justice Center, the Center for HIV Law and Policy; HIV Law Project; Immigration Equality; Disability Rights Legal Center; and the Asian & Pacific Islander Wellness Center.

Before: William A. Fletcher and Jay S. Bybee, Circuit Judges and Benjamin H. Settle,[*] District Judge.

OPINION

JAY S. BYBEE, Circuit Judge.

Petitioner Carlos Bringas-Rodriguez is a citizen of Mexico and a gay man who was sexually abused by family members and a neighbor in Mexico. He challenges the BIA's decision denying his applications for asylum, withholding of removal, and Convention Against Torture (CAT) protection, and denying his motion to remand to the IJ in light of his recent HIV diagnosis. Relying on our decision in Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), the BIA found that Bringas failed to show that the Mexican government was unwilling or unable to control those who perpetrated such acts. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.

I

Petitioner, Bringas-Rodriguez (Bringas), was born and raised in Tres Valles, Veracruz, Mexico. He began to realize that he was attracted to men at age six, and by age ten he considered himself gay. He is now openly gay and is HIV-positive. As a child, he suffered physical abuse at the hands of his father, who would tell him to " Act like a boy, you're not a woman!" and to " Do things a man does." His father also abused Bringas's mother and siblings, but he says he was abused " most of all . . . because [he] was different."

Bringas was later sexually abused by his uncle, cousins, and a neighbor. His uncle began the abuse when Bringas was four and continued the abuse every two or three months until he turned twelve. When Bringas turned seven, his cousins began to abuse him on a monthly basis as well. Bringas testified that when he turned eight, his uncle admitted to him that he was sexually abusing him because Bringas was gay. He further recalled that his abusers " never called [him] by [his] name but called [him] fag, f g faggot, queer and laughed about it."

Bringas first came to the United States with his mother and stepfather in 2002 when he was twelve, and he lived with them in Kansas for five months. Bringas was undocumented. He then moved back to Mexico because he was " troubled" over hiding his sexuality and history of abuse, and he wanted to live with his grandmother. Once back in Mexico, however, the abuse continued. His uncle, cousins, and a neighbor raped him in his early teens. He never reported the abuse to the police, believing such a complaint would be frivolous, and he did not tell his family until years later, fearing that his abusers would harm his mother or grandmother.

In 2004, at age fourteen, Bringas returned to the United States to live with his mother and stepfather in Kansas and " to escape [his] abusers." In August 2010, Bringas was convicted of " Contributing to the Delinquency of a Minor" in Colorado; essentially, he was drinking at his house and a friend brought over a minor. Bringas spent ninety days in jail, where he attempted suicide. DHS filed a Notice to Appear in September 2010.

In February 2012, Bringas filed an application for asylum, withholding of removal, and relief under the CAT, alleging that he was raped by his uncle, cousins, and neighbor while living in Mexico. He explained that he feared returning to Mexico because he would be persecuted for being gay and the police would ignore his complaints. The IJ denied all applications for relief. He denied Bringas's asylum claim because it was untimely.1 With respect to withholding, the IJ found that Bringas had suffered sexual abuse at the hands of his uncle, cousins, and neighbor, but concluded that the abuse, while " horrendous," did not constitute past persecution " on account of" a protected status. The IJ found that " perverse sexual urges" motivated the abusers, and not Bringas's sexual orientation. The IJ also observed that Bringas never reported his abuse to an adult or to the Mexican police and that there was no evidence that Mexican authorities were unwilling to offer protection.

Turning to the risk of future persecution, the IJ looked at Country Reports for Mexico for 2009 and 2010 and found that, despite a few specific accounts of persecution of homosexuals in Mexico, the country as a whole--and especially in Mexico City--has made significant advances with respect to gay people. Accordingly, Bringas could relocate to a place like Mexico City without risking possible future abuse. So, the IJ found, Bringas did not show a " more likely than not possibility of persecution on account . . . of his membership in a particular social group of male homosexuals."

The IJ also denied relief under the CAT on the grounds that Bringas offered insufficient evidence that the government routinely turns a blind eye to allegations of sexual abuse of children. As a result, Bringas could not prove that " torture in the future by the government, or with the acquiescence of the government" was likely.

The BIA affirmed. It denied Bringas's asylum claim on the merits, assuming the application was timely filed. The BIA concluded that Bringas failed to establish past persecution because (1) he could not show that he was abused on account of a protected ground, and (2) he had not demonstrated that the government was unwilling or unable to control his abusers. Bringas was thus not entitled to a presumption of future persecution. The BIA also found that Bringas did not have a well-founded fear of future persecution because he failed to show a " pattern or practice" of persecution against gays in Mexico. Citing our opinion in Castro-Martinez v. Holder, 674 F.3d 1073, 1082 (9th Cir. 2011), the BIA explained that no " widespread brutality against homosexuals or . . . criminalization of homosexual conduct [exists] in Mexico." Additionally, the BIA discussed Mexico's improved treatment of homosexuals over the years: " Mexico has taken numerous positive steps to address the rights of homosexuals, including legalizing gay marriage in Mexico City and prosecuting human rights violations against homosexuals."

The BIA also rejected Bringas's withholding of removal and CAT claims. With respect to withholding, it noted that because Bringas " failed to satisfy the lower burden of proof required for asylum, it follows that he has also failed to satisfy the higher standard of eligibility required for withholding of removal." With respect to CAT, the BIA found no clear error in the IJ's determination that Bringas failed to show that he will more likely than not be tortured in Mexico " by or with the acquiescence" of the Mexican government.

Finally, the BIA rejected Bringas's argument that his case be remanded to the IJ in light of Bringas's recent HIV diagnosis. Bringas's brief to the BIA explained that, since his hearing before the IJ, he had been diagnosed with HIV. He argued that " this fact is significant because it now places [him] in a more vulnerable position should he be returned to Mexico." The BIA declined to remand Bringas's case to the...

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