Carlos Bringas-Rodriguez v. Jefferson Sessions
2017 U.S. App. LEXIS 4077
| 9th Cir. | 2017Background
- Carlos Alberto Bringas‑Rodriguez, a Mexican national who is gay, suffered repeated sexual and physical abuse from family members and a neighbor as a child in Tres Valles, Veracruz, and fled to the U.S. at age 14.
- He applied for asylum, withholding of removal, and CAT protection in 2011, adducing credible testimony that police would not protect gay victims and hearsay that gay friends who reported rape in Veracruz were laughed at by police, plus 2009–2010 State Department reports and news articles.
- The IJ found Bringas credible but denied relief for lack of proof that the Mexican government was unable or unwilling to control his private abusers; the BIA affirmed, relying on Circuit precedent (Castro‑Martinez) and evidence of legal reforms in Mexico.
- A three‑judge Ninth Circuit panel initially affirmed, applying a heightened “gap‑filling” approach (especially for child victims) from Castro‑Martinez; the court granted en banc rehearing.
- The en banc majority held that Bringas’s credible testimony plus corroborating country reports and news articles satisfy the longstanding evidentiary standards to establish past persecution by private actors the government was unable or unwilling to control; it overruled Castro‑Martinez to the extent it imposed a heightened burden and remanded to the BIA to consider rebuttal and other claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bringas suffered past persecution on account of sexual orientation | Bringas: child sexual assaults were motivated at least in part by his sexual orientation; abuse rose to persecution | Govt: abuse was pedophilic, not on account of sexual orientation; insufficient proof of nexus | Court: Past persecution established; sexual orientation was at least one central reason for abuse |
| Whether government was unable or unwilling to control private persecutors (reporting not made) | Bringas: credible testimony that reporting was futile/dangerous, friends’ reports of police laughing, country reports show official/private violence | Govt: country reports and legal reforms show Mexico combats violence; hearsay friends’ reports are uncorroborated and insufficient | Court: Total record (testimony + country reports + articles) compels finding Mexico was unable/unwilling to control persecutors; no heightened “child‑reporting” burden |
| Proper evidentiary standard when private persecution was unreported, especially as to children | Bringas: victims (esp. children) need not report; credible testimony and background evidence may suffice | Govt: Ninth Circuit precedent (Castro‑Martinez) required more specific evidence that authorities would ignore child sexual abuse | Court: Overruled Castro‑Martinez to the extent it imposed a heightened gap‑filling rule; reaffirmed substantial‑evidence review considering all record evidence |
| Remedy and scope on remand | Bringas: entitled to presumption of future persecution and remand to BIA to consider rebuttal, withholding, CAT, and HIV evidence | Govt: BIA’s original adverse findings should stand; HIV remand unnecessary | Court: Granted petition, remanded to BIA to decide rebuttal to presumption, withholding, CAT, and to consider post‑hearing HIV evidence |
Key Cases Cited
- Castro‑Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011) (prior panel applying a stricter "gap‑filling" approach to unreported child sexual abuse claims)
- Ornelas‑Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006) (victim need not report if can convincingly show reporting would be futile or dangerous)
- Rahimzadeh v. Holder, 613 F.3d 916 (9th Cir. 2010) (explains ways to "fill the gap" when persecution was unreported; considers country reports and other evidence)
- Afriyie v. Holder, 613 F.3d 924 (9th Cir. 2010) (similar to Rahimzadeh; analyzes police response and resource limitations)
- Vitug v. Holder, 723 F.3d 1056 (9th Cir. 2013) (crediting testimony plus documentary evidence of police abuse of homosexuals to show reporting would be futile)
- McMullen v. INS, 658 F.2d 1312 (9th Cir. 1981) (early recognition that persecution by non‑state actors can qualify if government unable/unwilling to control them)