Boer-Sedano v. Gonzales

• Citation: 418 F.3d 1082
• Decision Date: 12 August 2005
• Docket Number: No. 03-73154.,03-73154.
• Parties: Jose Patricio BOER-SEDANO, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

418 F.3d 1082

Jose Patricio BOER-SEDANO, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 03-73154.

United States Court of Appeals, Ninth Circuit.

Submission Deferred February 3, 2005.

Submitted June 21, 2005.^**

Filed August 12, 2005.

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Angela M. Bean, Angela M. Bean & Associates, Oakland, CA, for the petitioner.

Peter D. Keisler, Margaret J. Perry, and Mary Jane Candaux, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A76-335-880.

Before D.W. NELSON, W. FLETCHER, and FISHER, Circuit Judges.

D.W. NELSON, Circuit Judge.

Jose Patricio Boer-Sedano, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' (BIA's) summary affirmance of the Immigration Judge's (IJ's) denial of his requests for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We grant his petition for review in part, reverse the BIA's decision on his asylum claim and remand for the Attorney General to exercise his discretion on this claim. We also remand to the BIA to reevaluate Boer-Sedano's withholding of removal and CAT claims in light of this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Boer-Sedano last entered the United States on September 6, 1990, as a nonimmigrant visitor with authorization to remain in the United States for six months. On November 7, 1997, Boer-Sedano was placed in removal proceedings for overstaying this visa. On November 15 and 20, 2001, during a merits hearing before the IJ, Boer-Sedano conceded his removability based on overstay. However, he sought asylum, withholding of removal, and protection under the CAT. Because the IJ found Boer-Sedano to be credible, the following facts to which he testified, including the reasonable inferences to be drawn from these facts, must be accepted as true. See Damon v. Ashcroft, 360 F.3d 1084, 1086 n. 2 (9th Cir.2004); Zheng v. Ashcroft, 332 F.3d 1186, 1189 n. 4 (9th Cir.2003).

Boer-Sedano was born in Tampico, a small Mexican city, and is a homosexual man living with Acquired Immune Deficiency Syndrome (AIDS). Boer-Sedano testified that he has known he was gay since the age of seven and that he could not live "a gay life openly in Mexico" because of how he would be treated if his sexuality were known. Despite his attempts to conceal his sexuality, others could perceive it and Boer-Sedano was ostracized by his family, friends, and co-workers on this basis. His family refused to allow him to interact with other family members or his friends, fearing that Boer-Sedano would be a "bad influence" on them. Boer-Sedano was also harassed at his Tampico workplace because of his sexuality. Co-workers called him a "maricon" ("faggot") and tried to convince another department head to accept him, but the department head refused because he did not want "queers" working in his department.

Boer-Sedano's asylum claim centers on his interactions, in 1988, with a "high-ranking police officer." Late one evening, the officer stopped Boer-Sedano and a friend in the town square and arrested and detained the two men for twenty-four hours. The officer told the two men they were being held for being gay and because he believed they were on their way to a hotel together. Boer-Sedano correctly testified that being gay is not a crime in Mexico. Over the next three months, the same police officer stopped Boer-Sedano on nine separate occasions. On each occasion, the officer ordered Boer-Sedano into his official police car, drove to a dark location, and forced Boer-Sedano to perform oral sex on him.

To get Boer-Sedano to comply, the officer told Boer-Sedano that he knew "where [he] lived and where [he] worked" and would tell others that Boer-Sedano was a homosexual if he resisted. After each time Boer-Sedano performed oral sex on the officer, the officer would hit Boer-Sedano's head and arms and insult him by saying that he "didn't know how to [perform oral sex] well." The officer also warned Boer-Sedano that "if he killed [him] and threw [his] body somewhere no one would ask about [him], . . . because . . . [he] was a gay person" and the officer would not be committing murder, but simply "cleaning up society." During one encounter with this officer, the officer "pulled out his hand gun and put a bullet in the chamber and rolled the cylinder and put the gun to [Boer-Sedano's] head and said `if you're lucky this is going to be your fate.'"

After these events, Boer-Sedano quit his job and "didn't go out of [his] house" because he was afraid the officer would find him and continue this abuse. Seeking safety, Boer-Sedano fled to Monterrey, Mexico. For about a year, Boer-Sedano lived in Monterrey, worked at an underground gay discotheque, and began to apply for a visa to enter the United States. His life in Monterrey remained difficult and he could not openly identify as a homosexual. In April 1989, Boer-Sedano was granted a U.S. visitor's visa, but he testified that he did not immediately use the visa to enter the United States because he wanted to save money to assist in his permanent relocation.

Around the time of regional gubernatorial elections, approximately in July 1989, the local police conducted many raids, including one on Boer-Sedano's workplace. The police arrested the customers and the staff who were performing a strip show and closed down the bar. Boer-Sedano testified that the police asked him if he was a homosexual and that he denied his homosexuality to avoid arrest. After this raid Boer-Sedano testified that he was "very, very much afraid" because he feared that the officers were going to assault him and "the same story [was] going to repeat itself." Boer-Sedano testified that after the raid he felt he would not be safe living in Mexico as a gay man. After the raid, Boer-Sedano acquired money for his resettlement by traveling for a period of over one year between the United States and Mexico to purchase goods and resell them in Mexico.

Boer-Sedano fled to San Francisco in September 1990 and has not returned to Mexico. In 1992, he was diagnosed with the Human Immunodeficiency Virus (HIV) and later with AIDS.¹ For the last ten years, Boer-Sedano has worked as a waiter and a bus boy at a hotel, which provides him with health insurance that covers his AIDS treatment, including a combination of six drugs. Over the course of his treatment, Boer-Sedano has developed resistance to some medications, necessitating changes to new drugs. His doctor testified via phone and submitted a letter stating that Boer-Sedano "will require undoubtedly early access to new anti-retroviral agents" in the future. Boer-Sedano testified that he would not be able to get a job in Mexico because he is a homosexual man with AIDS. Without a job, Boer-Sedano testified that he could not afford health insurance or the drugs he currently takes to maintain his health. He also testified that the drugs he uses are not available in Mexico and provided corroborating evidence to support this claim.

On November 20, 2001, the IJ found Boer-Sedano ineligible for asylum because he failed to establish past persecution on account of a protected basis. The IJ concluded that the sex acts that Boer-Sedano was forced to perform by the police officer were simply "a personal problem" he had with this officer. The IJ further concluded that Boer-Sedano had not established a well-founded fear of persecution because "he was not subject to systematic persecution which prevented him from living his chosen life style, . . . particularly after he moved to Monterrey." The IJ also denied Boer-Sedano's withholding of removal and CAT claims. Boer-Sedano timely appealed to the BIA, which on August 4, 2003, affirmed the IJ without opinion. Boer-Sedano timely petitioned for review.

STANDARD OF REVIEW

We review the BIA's decision on whether a petitioner established eligibility for asylum under the substantial evidence standard. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). "This standard limits reversals of BIA decisions to situations where the Petitioner presented evidence so compelling that no reasonable factfinder could fail to find that Petitioner has not established eligibility for asylum." Ali v. Ashcroft, 394 F.3d 780, 784 (9th Cir.2005) (internal quotations and brackets omitted). Here, because the BIA affirmed without opinion, we review the IJ's decision as the final agency determination. 8 C.F.R. § 1003.1(e)(4); see also Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003).

DISCUSSION

I. Asylum Claim

A. Boer-Sedano Established Past Persecution

To qualify for asylum, Boer-Sedano must show that he is a refugee or one "who is unable or unwilling to return to . . . [his native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion[.]" See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b). The IJ rejected Boer-Sedano's argument that he was persecuted on account of his membership in the particular social group of male homosexuals in Mexico because she found that this did not constitute a particular social group for asylum purposes. We recently held that "alien homosexuals" constitute a particular social group. Karouni v. Gonzales, 399 F.3d 1163, 1172 (9th Cir.2005). Therefore, the BIA erred in affirming the IJ's conclusion that homosexual men in Mexico could not form the basis of a social group claim.

Whether particular acts constitute persecution for asylum purposes is a legal question, which we review de novo. Hernandez-Montiel v. INS, 225 F.3d 1084, 1097 (9th Cir.2000). We have held that sexual assault, including forced oral sex, may constitute persecution. Id. Therefore, there can be no doubt that the nine sex acts that...