Bringas-Rodriguez v. Sessions, 030817 FED9, 13-72682
|Opinion Judge:||WARDLAW, Circuit Judge|
|Party Name:||Carlos Alberto Bringas-Rodriguez, AKA Patricio Iron-Rodriguez, Petitioner, v. Jefferson B. Sessions III[*], Attorney General, Respondent.|
|Attorney:||Erwin Chemerinsky (argued), Kathryn M. Davis, and Munmeeth Soni, Pro Bono Counsel, University of California, Irvine School of Law, Appellate Litigation Clinic, Irvine, California; Andrea Ringer and Marco Pulido Marquez, Certified Law Students, University of California, Irvine School of Law, Appel...|
|Judge Panel:||Before: Sidney R. Thomas, Chief Judge, and Diarmuid F. O'Scannlain, Barry G. Silverman, Kim McLane Wardlaw, William A. Fletcher, Richard R. Clifton, Carlos T. Bea, Milan D. Smith, Jr., Morgan B. Christen, John B. Owens and Michelle T. Friedland, Circuit Judges. CLIFTON, Circuit Judge, concurring ...|
|Case Date:||March 08, 2017|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted En Banc September 7, 2016 San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A200-821-303
Erwin Chemerinsky (argued), Kathryn M. Davis, and Munmeeth Soni, Pro Bono Counsel, University of California, Irvine School of Law, Appellate Litigation Clinic, Irvine, California; Andrea Ringer and Marco Pulido Marquez, Certified Law Students, University of California, Irvine School of Law, Appellate Litigation Clinic, Irvine, California; Mary-Christine Sungaila, Pro Bono Attorney, Snell & Wilmer LLP and Haynes and Boone LLP, Costa Mesa, California, for Petitioner.
John W. Blakely (argued), Assistant Director, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Donald E. Keener, Deputy Director, Stuart F. Delery, Assistant Attorney General, Civil Division, Kohsei Ugumori and Jesi J. Carlson, Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.
Peter E. Perkowski, Perkowski Legal, PC, 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; the Asian & Pacific Islander Wellness Center, National Center for Lesbian Rights, LGBT Center OC, Transgender Law Center, Florence Immigrant & Refugee Rights Project, and Centro Legal De La Raza.
Charanya Krishnaswami, Cortelyou C. Kenney (Volunteer), and Lisa Jaskol, Public Counsel, Los Angeles, California, for Amici Curiae Kids In Need of Defense, Tahirih Justice Center, and Women's Refugee Commission.
Laurie Webb Daniel, Charles L. Coleman III, Kyong M. Kim, and Garrett S. Garfield, Pro Bono Counsel, Holland & Knight LLP, San Francisco, California; Eunice Lee, Karen Musalo, and Blaine Bookey, Counsel, Center for Gender & Refugee Studies, San Francisco, California; for Amicus Curiae of Center for Gender & Refugee Studies.
Alice Farmer, United Nations High Commissioner for Refugees, Washington, D.C.; Ana C. Reyes, Counsel of Record, Williams & Connolly LLP, Washington, D.C.; for Amicus Curiae United Nations High Commissioner for Refugees.
Before: Sidney R. Thomas, Chief Judge, and Diarmuid F. O'Scannlain, Barry G. Silverman, Kim McLane Wardlaw, William A. Fletcher, Richard R. Clifton, Carlos T. Bea, Milan D. Smith, Jr., Morgan B. Christen, John B. Owens and Michelle T. Friedland, Circuit Judges.
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 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.
WARDLAW, Circuit Judge
Carlos Alberto Bringas-Rodriguez (Bringas), a gay man who is a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' (BIA) denial of his applications for asylum, withholding of removal, and Convention Against Torture (CAT) protection. Bringas was physically and sexually abused as a child on account of his sexual orientation, and he submitted evidence that Mexico was unable or unwilling to control his persecutors. Both the Immigration Judge (IJ) and the BIA found Bringas's testimony credible, and both acknowledged that sexual orientation and identity can establish membership in a "particular social group." Nevertheless, both the IJ and the BIA denied Bringas relief, in part based on a conclusion that his evidence was insufficient to demonstrate that the Mexican government was unable or unwilling to control the private individuals who attacked him. In so doing, both the IJ and the BIA failed to address Bringas's plausible, unrefuted testimony that Mexican police laughed at his gay friends who attempted to report rape and other abuse.
A divided panel of our court agreed, relying primarily on our decision in Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), 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. Bringas-Rodriguez v. Lynch, 805 F.3d 1171, 1178-79 (9th Cir. 2015) (now withdrawn). 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." Id. at 1181-82. We granted rehearing en banc and now hold that the evidence Bringas adduced before the agency-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-satisfies our longstanding evidentiary standards for establishing past persecution and compels the conclusion that Bringas suffered past persecution that the Mexican government was unable or unwilling to control.1 We overrule Castro-Martinez to the extent it might suggest otherwise and remand this petition to the BIA for further proceedings.
Born in Tres Valles, Veracruz, Mexico, Bringas was horrifically abused by his father, an uncle, cousins, and a neighbor, all of whom perceived him to be gay or to exhibit effeminate characteristics. His uncle first raped him when he was four years old, and in addition to his uncle, three of his cousins and a male neighbor physically and sexually abused him on a regular basis while he lived in Mexico. Bringas's father also beat him as a child, telling him, "Act like a boy. You are not a woman." When he was eight, Bringas's uncle told him that the abuse was because he was gay. His uncle, cousins, and neighbor never called him by his name, referring to him only as "fag, fucking faggot, queer, " and they "laughed about it."
Bringas lived with his mother in the United States for a brief period when he was twelve years old. He returned to Mexico, however, because he missed his grandmother, who had raised him since he was nine. The abuse intensified upon his return. Again he was repeatedly raped by his uncle, cousins, and neighbor.
On one occasion, when Bringas refused to comply with his neighbor's demand for oral copulation, the neighbor beat and raped him, leaving Bringas with black eyes and bruises. Bringas's abusers also threatened to hurt his grandmother, with whom he was close, if he ever reported what was happening. Fearing that they would follow through on their threats...
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