Bringas-Rodriguez v. Sessions

Citation850 F.3d 1051
Decision Date08 March 2017
Docket NumberNo. 13-72682,13-72682
Parties Carlos Alberto BRINGAS–RODRIGUEZ, AKA Patricio Iron–Rodriguez, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

850 F.3d 1051

Carlos Alberto BRINGAS–RODRIGUEZ, AKA Patricio Iron–Rodriguez, Petitioner,
v.
Jefferson B. SESSIONS III* , Attorney General, Respondent.

No. 13-72682

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc September 7, 2016 San Francisco, California
Filed March 8, 2017


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

850 F.3d 1055

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.

Concurrence by Judge Clifton ;

Dissent by Judge Bea

OPINION

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

850 F.3d 1056

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.

I.

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, Bringas did not tell his mother, teachers, or anyone else about the sexual abuse.

Bringas fled Mexico in 2004 at age fourteen to get away from his abusers. He entered the United States without inspection at El Paso, Texas, and lived with his mother in Kansas for three years. He then moved out of his mother's home, living elsewhere in Kansas and in Colorado. He worked several different jobs, including positions at a supermarket, a pizzeria, and

850 F.3d 1057

a chocolate shop. In August 2010, Bringas pleaded guilty to attempted contributing to the delinquency of a minor in Colorado; he had been at home drinking with some friends when another friend brought over a minor who became drunk. Bringas spent ninety days in jail, during which time he attempted suicide and was hospitalized, which precipitated his finally telling a doctor and then his mother about his childhood abuse. The Department of Homeland Security (DHS) issued a Notice to Appear in August 2010.

In 2011, at age twenty, Bringas applied for asylum, withholding of removal, and CAT protection. He had previously been unaware "that the [U.S.] government could protect [him]," and only found out when he "spoke with an ICE officer in Colorado in September 2010." In his application, Bringas described the sexual abuse he endured in Mexico and explained that he feared persecution if he returned because he was gay and that the Mexican police would not protect him. Bringas also credibly testified about his gay friends' experiences with police in Veracruz. Those friends went to the police to report that they had been raped, but the officers ignored their reports and "laugh[ed] on [sic] their faces." Additionally, he submitted 2009 and 2010 U.S. Department of State Country Reports for Mexico and several newspaper articles that documented violence against, including murders of, gays and lesbians. The reports showed that the violence rose even as—and perhaps because—Mexican laws were becoming increasingly tolerant of gay rights.2

The BIA, reviewing the IJ's denial of Bringas's claims for relief, rejected his claims on the merits.3 The BIA recognized "the serious abuse that [Bringas] endured as a child." It found, however, that, as in Castro-Martinez , Bringas did not demonstrate that the "abuse was inflicted by government actors or that the government was unwilling or unable to control his abusers." Concluding that Bringas thus failed to establish past persecution, the BIA denied Bringas the concomitant presumption of future persecution. It then rejected Bringas's argument that he had a well-founded fear of future persecution because...

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