Ornelas-Chavez v. Gonzales

• Decision Date: 21 August 2006
• Docket Number: No. 04-72798.,04-72798.
• Citation: 458 F.3d 1052
• Parties: Francisco ORNELAS-CHAVEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

458 F.3d 1052

Francisco ORNELAS-CHAVEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-72798.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2005.

Filed August 21, 2006.

Elizabeth B. Wydra, Washington, DC, for the petitioner.

Carol Federighi, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A96-106-917.

Before: BROWNING, D.W. NELSON, and O'SCANNLAIN, Circuit Judges.

BROWNING, Senior Circuit Judge:

Francisco Ornelas-Chavez timely petitions this court for review of a Board of Immigration Appeals ("BIA") final order affirming the Immigration Judge's ("IJ") denial of his application for withholding of removal under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 U.S.C. § 1231(b)(3), and the United Nations Convention Against Torture ("CAT").¹ He also appeals the BIA's denial of his due process challenge to the proceedings before the IJ. Ornelas-Chavez claims (1) the BIA erroneously required that he must have reported third-party persecution to government authorities to qualify for withholding of removal under section 1231(b)(3); (2) the BIA erred in denying protection under CAT by affirming the IJ's decision requiring that the alleged torture occur within the control or custody of a state actor who "sanctioned" it; and (3) the IJ's stereotyping of the way gay men dress and behave prevented him from receiving a fair hearing in violation of his due process rights.

We have jurisdiction under 8 U.S.C. § 1252(a). We conclude the BIA applied the wrong legal standards to Ornelas-Chavez's claims for withholding of removal under IIRIRA and CAT; therefore, we grant his petition with respect to those claims. Because we remand to the BIA for application of the correct standards, we do not reach his due process claim.

I.

Ornelas-Chavez is a Mexican national who came to the United States illegally in 1998 to escape a lifetime of abuse suffered on account of his female sexual identity.²

Ornelas-Chavez suffered a great deal of abuse in his youth because of his homosexuality and female sexual identity. As a young boy, his mother beat him for dressing in her clothes. On several occasions, his father became so enraged at discovering evidence of his homosexuality that he beat Ornelas-Chavez savagely enough to leave noticeable injuries. Once, his father conspired with a friend to humiliate Ornelas-Chavez by permitting the friend to rape the boy after drugging him. When Ornelas-Chavez was six, two cousins raped him after seeing him dressed in women's clothes and playing with dolls. The cousins repeated this abuse until Ornelas-Chavez was twelve years old. A worker on his grandfather's hacienda who witnessed the cousins' abuse also raped him several times between the ages of seven and nine. Ultimately, Ornelas-Chavez fled his parents' home and lived in hiding from most of his family.

From his childhood through his adulthood in Mexico, Ornelas-Chavez's dealings with government officials and employees was marked by either animus toward his female sexual identity or tacit acceptance of the abuse he received because of it. After he reported to his second-grade teacher that his mother beat him for putting on her clothes, the teacher told him only "fags" dressed up in women's clothes. When he told the teacher that he had performed sexual intercourse with older men, she told him he "shouldn't do that because only homosexuals did that." The teacher never reported the sexual abuse to the proper authorities. When Ornelas-Chavez was sixteen, his father arranged to have the local police chief arrest and detain him for six hours to "teach[him] to behave." (The father was apparently on close terms with the local police, even renting a home to some of the officers.) Upon releasing Ornelas-Chavez, the police chief threatened to detain him longer if he found out again he was sexually involved with men. In 1989 Ornelas-Chavez took a job as a correctional officer at a state-run prison in Uruapan. Co-workers there repeatedly threatened and beat him, telling him that homosexuals discredited the work. Three times Ornelas-Chavez complained to his supervisor who, instead of disciplining the co-workers, encouraged him to quit, saying the job was "for men and not for homosexuals." Ornelas-Chavez did quit but, two years later, returned because he thought conditions had improved. Soon after returning, however, four or five of his co-workers tried to smother him with a pillow, boasting they were "finally going to get rid of another homo." When he reported this incident to his new supervisor, the man offered Ornelas-Chavez the choice of changing his shift or quitting but, again, took no action against the co-workers. Finally, while Ornelas-Chavez was living in Uruapan, the police killed two of his acquaintances who were homosexuals. The men were found stabbed to death with sticks inserted in their rectums.

In 1993, Ornelas-Chavez went to live with a sympathetic aunt in Mexicali. Though occasionally taunted in the streets, Ornelas-Chavez was able to live there relatively free of trouble for five years because he only went to work, otherwise staying inside his aunt's house. Then, in 1998, his father, who had discovered his whereabouts, came to Mexicali and beat him severely, breaking his nose with a bottle. Soon after, Ornelas-Chavez left Mexico for the United States.

In July 2003, United States Immigration and Customs Enforcement began removal proceedings against him. Ornelas-Chavez then filed an application for asylum and with-holding of removal on the basis of a well-founded fear of persecution and torture on account of his female sexual identity.

At his removal hearing, the IJ held that Ornelas-Chavez was ineligible for asylum because he failed to show exceptional circumstances for filing his application later than one year after entering the United States. The IJ also found Ornelas-Chavez failed to establish eligibility for withholding of removal under IIRIRA and that he "provided no evidence of past torture or any mental or physical intentionally inflicted severe pain or suffering that is sanctioned by a public official or by a State Actor." Accordingly, the IJ denied the petition for withholding of removal.

Ornelas-Chavez appealed the IJ's withholding of removal decisions to the BIA. He also claimed that the IJ's hostile comments and stereotypes about the way a gay man should appear and sound prevented him from receiving a fair hearing. In affirming the IJ's section 1231(b)(3) decision, the BIA found that Ornelas-Chavez

suffered one incident of harm, a detention of several hours apparently at [the] request of his father, at the hands of government agents. This single incident does not rise to the level of persecution. All of the other harm suffered by the respondent occurred at the hands of private citizens. The respondent did not report any of these incidents to government authorities.

The BIA also found that some of Ornelas-Chavez's extensive documentation on the conditions of gay men in Mexico described only general police abuse, not necessarily against gay people, and some described only "individual incidents that do not reflect a pattern in any particular police force." It further found that some of the documentation actually reflected "improvements in the situation of gay people in Mexico." The BIA concluded:

[W]here the respondent never reported his incidents of harm to government authorities, and where the background evidence in the record is inconclusive, the Immigration Judge properly found that the respondent did not prove that the Mexican government is unwilling or unable to control those who harmed or may harm him.

As to Ornelas-Chavez's CAT claim, the BIA affirmed the IJ's decision in a one-sentence ruling. Finally, the BIA held that Ornelas-Chavez did not establish a due process violation. This timely petition for review followed.

II.

We review the BIA's construction and application of the law de novo, subject to established principles of deference. See Murillo-Espinoza v. INS, 261 F.3d 771, 773 (9th Cir.2001) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)).

We review the BIA's determination that Ornelas-Chavez did not establish eligibility for withholding of removal for substantial evidence. Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.1999). We also review for substantial evidence "the factual findings underlying the BIA's determination that [Ornelas-Chavez] was not eligible for relief under the Convention Against Torture." Zheng, 332 F.3d at 1193. The "substantial evidence" standard requires us to uphold the BIA's determination if supported by "reasonable, substantial, and probative evidence on the record." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quotation marks omitted). However, our review is "confined to the BIA's decision and the bases upon which the BIA relied." Navas v. INS, 217 F.3d 646, 658 n. 16 (9th Cir. 2000) (quoting Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir.1988)) (quotation marks omitted).

III.

A.

Ornelas-Chavez claims the BIA applied the wrong legal standard in determining that he was not eligible for withholding of removal based upon the alleged persecution he suffered in Mexico at the hands of private persons. We agree.

Under IIRIRA, Ornelas-Chavez may not be removed to Mexico if his "life or freedom would be threatened . . . because of [his] race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). Ornelas-Chavez is entitled to the presumption that such a threat exists if he can show he suffered past persecution on account of his membership in a protected social group.³ See 8 C.F.R. § 208.16(b)(1)(I); Baballah v. Ashcroft, 367 F.3d 1067, 1079 (9th...