Castro-Martinez v. Holder
2011 U.S. App. LEXIS 7743
9th Cir.2011Background
- Castro-Martinez, Mexican citizen, challenges BIA denial of asylum, withholding, and CAT after entering U.S. without inspection in 1995.
- Castro is homosexual and HIV-positive; he believes he contracted HIV in the U.S. and learned of it in 2004.
- In 2007, Castro visited Mexico and attempted to re-enter the U.S., requesting asylum at San Ysidro and conceding removability.
- Castro claimed past persecution in Mexico based on homosexuality, including childhood sexual abuse, and feared future persecution if returned.
- The IJ denied relief, finding no government-perpetrated or unable/unwilling-to-protect persecution; the BIA affirmed the denial.
- The Ninth Circuit reviews the BIA’s decision de novo on law and substantial-evidence on factual findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Past persecution required for asylum | Castro contends private abuse can qualify if govt unable/unwilling to protect | BIA found no govt actors or inability/willingness to control attackers | Castro failed to prove past persecution. |
| Well-founded fear of future persecution | Castro argues pattern of persecution against gays/HIV-positive individuals in Mexico and lack of treatment access | Record shows govt efforts to protect gays and HIV-treatment issues are generalized, not targeted per Castro | Castro failed to show a well-founded fear based on protected status. |
Key Cases Cited
- Sangha v. INS, 103 F.3d 1482 (9th Cir.1997) (persecution standard; government unwilling/unable to protect private harm)
- Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir.2005) (private persecution must be controlled or futile reporting acceptable)
- Ornelas-Chavez v. Gonzales, 458 F.3d 1052 (9th Cir.2006) (failure to report can be reasonable where govt indifference showed past abuse)
- Rahimzadeh v. Holder, 613 F.3d 916 (9th Cir.2010) (reporting not essential if futile or reporting would expose to harm)
- Castro-Perez v. Gonzales, 409 F.3d 1069 (9th Cir.2005) (insufficient reporting explanation where laws exist but not shown unenforced)
- Gomes v. Gonzales, 429 F.3d 1264 (9th Cir.2005) (private violence not persecution absent govt complicity/response failure)
- Baballah v. Ashcroft, 367 F.3d 1067 (9th Cir.2004) (considering private persecution in govt-protection analysis)
- Raass v. INS, 692 F.2d 596 (9th Cir.1982) (generalized deprivation not per se persecution)
- Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir.2004) (pattern/practice of persecution context in well-founded fear)
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir.2009) (pattern or practice requirement for fear of future persecution)