Thursday, March 9, 2017
Ninth Circuit, Sitting En Banc, Overturns Gay Man’s Deportation to Mexico
By a MetNews Staff Writer
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, may be eligible for asylum, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In a 9-2 en banc decision, the court said Carlos Bringas-Rodriguez was entitled to a presumption that he would be persecuted in the future, and remanded to the Board of Immigration Appeals for a ruling as to whether the government rebutted the presumption. The court also directed the board to reconsider its denials of Bringas-Rodriguez’s requests for withholding of removal and relief under the Convention Against Torture.
“We…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,” Judge Kim Wardlaw wrote for the court.
The ruling overturns a 2015 three-judge panel decision in which the Ninth Circuit denied relief.
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 came over, accompanied by the minor.
He attempted suicide while serving 90 days in jail. After being served with the notice of removal proceedings, he petitioned for relief under the immigration statutes.
He testified that as a 6-year-old, he began to realize he was attracted to men, and 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 the country, 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, finding:
“Mexico has taken numerous positive steps to address the rights of homosexuals, including legalizing gay marriage in Mexico City and prosecuting human rights violations against homosexuals.” The board cited Castro-Martinez v. Holder (9th Cir. 2011) 674 F.3d 1073, holding that a gay asylum applicant who claimed he was denied access to HIV drugs because of his sexual orientation had not demonstrated persecution because a “lack of access to HIV drugs is a problem suffered not only by homosexuals but by the Mexican population as a whole,” and that the applicant’s failure to report the abuse to the authorities cast doubt on his claims.
In its 2015 decision denying Bringas’s petition for review, the court said his case was very similar to Castro-Martinez and said a widely reported incident of government persecution of a gay man in 2008, which occurred more than 300 miles from Bringas’s hometown, cannot establish that persecution of gay people occurs “across a country of 122 million people.”
The panel also cited participation of hundreds of thousands of people in gay pride marches, and the legalization of same-sex marriage in Mexico City and recognition of such marriages elsewhere in the country as proof that gay men are not persecuted in Mexico.
Wardlaw, however, said Castro-Martinez and other cases were wrongly decided to the extent they have made it difficult or impossible for applicants who did not report their abuse to authorities to prove that those authorities were unwilling or unable to stop such abuse. This is particular where, as in the cases of Bringas and the petitioner in Castro-Martinez, the abuse occurred when the applicant was a child.
The prior cases “also failed to consider the difference between a country’s enactment of remedial laws and the eradication of persecutory practices, often long ingrained in a country’s culture,” Wardlaw wrote.
While Mexico’s efforts to end persecution are laudable, she said, “it is well recognized that a country’s laws are not always reflective of actual country conditions,”citing an amicus brief by the United Nations High Commissioner for Refugees and a 2015 case in which the Ninth Circuit panel found that attacks on gays, lesbians, and transgender individuals were becoming more numerous in the country even as legal protections were being expanded.
Wardlaw was joined by Chief Judge Sidney R. Thomas and Judges Barry G. Silverman, William A. Fletcher—the dissenter on the three-judge panel—, Milan D. Smith Jr., Morgan B. Christen, John B. Owens and Michelle T. Friedland. Senior Judge Richard R. Clifton concurred separately, saying the case should be remanded on the narrower ground that the BIA did not fully consider the petitioner’s evidence.
Judge Carlos T. Bea, joined by Senior Diarmuid F. O’Scannlain, dissented. Bea argued that Bringas presented “scant evidence that the Mexican authorities were unable or unwilling to protect him” and said the decision “undervalues evidence of social progress in Mexico regarding rights for homosexual individuals in a manner that defies logic.”
The effect of the ruling, he said, will be to compel a finding that the authorities are unwilling or unable to protect someone from abuse if the person presents any evidence, even uncorroborated hearsay, to that effect, regardless of the weight of evidence to the contrary. “This is not and cannot be the law,” he wrote.
UC Irvine law school dean Erwin Chemerinsky argued for Bringas-Rodriguez. He was assisted on the brief by Andrea Ringer and Marco Pulido Marques, who argued before the three-judge panel as certified law students—Ringer has since been admitted to the State Bar—and by pro bono attorney Mary-Christine Sungaila.
Assistant Director John W. Blakeley of the Department of Justice, Office of Immigration Litigation argued for the government.
The case is Bringas-Rodriguez v. Sessions, 13-72682.
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