Wednesday, June 15, 2016
Court Grants Review in Gay Man’s Deportation Case
Divided Panel Said Failure to Report Abuse Was Fatal to Asylum Claim
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals agreed yesterday to decide en banc whether a gay man who claims to have been physically abused in Mexico as a child because of his sexual orientation, but did not seek the protection of authorities there, is entitled to asylum.
The court said in a brief order that a majority of its nonrecused active judges had voted to rehear the case of Carlos Bringas-Rodriguez. A divided three-judge panel ruled last November that the petitioner was not entitled to a presumption that he would be persecuted in the future, because he failed to demonstrate that he was abused because he was gay, or that the Mexican government was unable or unwilling to stop the abuse.
The government sought to deport Bringas-Rodriguez, an undocumented immigrant, after he was convicted of contributing to the delinquency of a minor in Colorado in 2010. He explained that he was drinking in his own home when a friend brought the minor with him.
Police in Basalt, the town where he was arrested, told the Aspen Times that the boy drank vodka provided by Bringas-Rodriguez and got extremely intoxicated, and became incensed when Bringas-Rodriguez, then 19, started “kissing him and touching him.”
Bringas-Rodriguez, who attempted suicide while serving 90 days in jail, petitioned for asylum, withholding of removal, and relief under the Convention Against Torture. He testified that as a 6-year-old, he began to realize he was attracted to men, and that he has identified as gay since he was 10.
As a result, he said, he was beaten by his father and sexually abused by an uncle, cousins, and a neighbor. His abusers called him homophobic names and laughed about it, he said.
He never reported the abuse to police, he said, because such a complaint would have been treated as frivolous, and he did not tell his family, because he was afraid his abusers would harm the family members he was closest to, his mother and grandmother.
He came to the United States “to escape” the abuse in 2004, at age 14, he said, living with his mother and stepfather in Kansas.
The immigration judge found that Bringas-Rodriguez had suffered “horrendous” abuse, but that the abusers were motivated by their own “perverse sexual urges,” rather than by Bringas-Rodriguez’s homosexuality. The IJ also noted that the applicant never reported the abuse to anyone who could do anything about it and failed to offer evidence that the authorities in his home country would not protect him.
The IJ also reviewed State Department reports and found that persecution of gays in Mexico, and particularly in Mexico City, had become rare, meaning that there were at least some parts of Mexico in which the applicant could live without fear of persecution based on sexual orientation.
The Board of Immigration Appeals affirmed.
Judge Jay Bybee, writing for the Ninth Circuit panel, said there was substantial evidence to support the BIA’s decision.
Bybee acknowledged a widely reported incident of government persecution of a gay man in 2008. But that single incident, which occurred more than 300 miles from Bringas-Rodriguez’s hometown, cannot establish that persecution of gay people occurs “across a country of 122 million people,” Bybee said, in which hundreds of thousands have participated in gay pride marches, and same-sex marriages are legal in Mexico City and recognized elsewhere in the country under a ruling of the county’s Supreme Court.
U.S. District Judge Benjamin Settle, visiting from the Western District of Washington, joined Bybee’s opinion.
Judge William Fletcher dissented.
Bringas-Rodriguez, he said, “established that government discrimination on the basis of sexuality in Mexico persisted, even years after he fled the country.” He also explained why he did not seek official protection in Mexico, testifying that gay friends had been beaten, and that police “laughed in their faces” when they complained.
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