Castro-Martinez v. Holder
2011 WL 6016162
| 9th Cir. | 2011Background
- Castro-Martinez, a Mexican national, is homosexual and HIV-positive, and entered the U.S. without inspection in 1995.
- He sought asylum in 2007 after a two-week visit to Mexico and presenting himself at San Ysidro; he conceded removability.
- Castro alleged past persecution in Mexico, including child sexual abuse by male youths, on account of his sexual orientation.
- He claimed the Mexican government was unwilling or unable to protect him from attackers, and that he would face persecution in Mexico if removed.
- The IJ denied asylum, withholding of removal, and CAT relief, finding Castro failed to show past persecution or a future well-founded fear.
- The BIA affirmed, concluding Castro did not prove government unwillingness or inability to protect him or that persecution against homosexuals/HIV-positive individuals is official policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Past persecution requirement met? | Castro argues government unwilling/unable to protect him due to homosexuality. | Holder asserts no government-perpetrated or uncontrolable private persecution shown. | Castro failed to show government unwilling/unable to protect him; no past persecution established. |
| Reporting to authorities as proof of state inability or unwillingness? | Rioting and threats made reporting futile; private abuse could not be controlled. | Failure to report does not automatically prove state inability/unwillingness. | Castro did not demonstrate reporting would have been futile; insufficient to prove state failure. |
| Well-founded fear of future persecution established? | Mexico's pattern against gays and police corruption create a fear; HIV status adds risk. | Record shows some government efforts; no systematic pattern or targeted risk validated. | No pattern or individualized risk proven; fear not well-founded. |
| HIV status as a protected ground and risk of treatment denial? | HIV treatment would be unavailable due to discrimination against homosexuals. | HIV drug access is a general Mexican issue, not limited to homosexuals; not persecution. | Lack of HIV treatment access shown as general, not persecution based on protected status. |
Key Cases Cited
- Sangha v. INS, 103 F.3d 1482 (9th Cir. 1997) (persecution must be by government or those uncontrolable by government)
- Rahimzadeh v. Holder, 613 F.3d 916 (9th Cir. 2010) (private persecution may show unwillingness to protect if futile or dangerous to report)
- Ornelas-Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006) (futility of reporting can establish state inaction in some contexts)
- Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005) (homosexual social group; evidence of discrimination and state response)
- Ornelas-Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006) (adequacy of state response to private violence considered)
- Gomes v. Gonzales, 429 F.3d 1264 (9th Cir. 2005) (private violence not persecutory if state provides protection)
- Ghaly v. INS, 58 F.3d 1425 (9th Cir. 1995) (government response and protection framework )
- Raass v. INS, 692 F.2d 596 (9th Cir. 1982) (general poverty or lack of access not per se persecution)
- Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004) (well-founded fear requires past persecution or pattern/practice)
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (pattern or practice analysis for fear of future persecution)
- Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir. 2008) (systematic persecution concept and evidence standard)