Carlos Bringas-Rodriguez v. Jefferson Sessions

accurately Congress’s Carpenter’s (Uni- in our view reflects el. John The Thing Cf. provide pro- broad versal intent whistleblower Pictures says tections under DFA. The Rule things who

anyone any does of the de- (iii) (i), (ii),

scribed subdivisions provision

the anti-retaliation entitled to is in-

protection, including those who make Sarbanes-Oxley.

ternal disclosures under

They are all The Rule whistleblowers. direct: “For the anti- quite purposes of Carlos Alberto BRINGAS-RODRI protections

retaliation afforded Section GUEZ, AKA Patricio Iron- 21F(h)(l) (15 Exchange Act U.S.C. Rodriguez, Petitioner, 78u-6(h)(l)), you ... are a whistleblower if: provide that [y]ou information in manner v. provision] in [the described anti-retaliation Attorney *, Jefferson B. SESSIONS III (15 Exchange Act 78u- U.S.C. General, Respondent. 6(h)(1)(A)).” §' 17 C.F.R. 240.21F-2. No. 13-72682 regulation accurately con- The reflects gressional that DFA em- intent United States Court of Appeals, they whether in- ployees blow the whistle Ninth Circuit. instances, ternally, in many as Argued and Submitted En Banc directly to the The district SEC. 7, September 2016 San correctly recognized. court so Francisco, California judgment of the district court is 8, Filed March AFFIRMED.

OWENS, Judge, dissenting: Circuit

I agree the Fifth Circuit in Asadi v. (USA), L.L.C., Energy

G.E. 2013), Jacobs’ Judge LLC, Neo@Ogilvy

dissent Berman v. (2d 2015), 155-60 Both respectfully

therefore dissent.

majority here and the Circuit in Second Burwell, rely part on King

Berman

— U.S. —, 135 S.Ct. 192 L.Ed.2d (2015), to read the relevant statutes government’s my

favor-of the position.

view, quarantine King we should and its

potentially dangerous shapeshifting nature specific facts to avoid of that case

jurisprudential disruption on a cellular lev-

* States, pursuant Appellate B. Sessions III for his Jefferson is substituted Federal Rule of 43(c). predecessor Attorney General of United Procedure Kathryn Chemerinsky (argued),

Erwin Soni, Davis, Pro Bono Munmeeth M. California, Counsel, University of Irvine Clinic, Law, Appellate Litigation School California; Irvine, Ringer and Andrea Marquez, Farmer, Marco Pulido Certified Law Stu- Alice United High Nations dents, California, Commissioner for University Refugees, Washington, Irvine D.C.; Reyes, Record, Ana C. Clinic, Counsel Law, Litigation School of Appellate LLP, & Connolly Williams Washington, California; Irvine, Mary-Christine Sungai- D.C.; for Amicus Curiae United Nations la, Attorney, Pro Bono Snell & Wilmer High Commissioner for Refugees. LLP, Haynes LLP and and Boone Costa Mesa, California, for Petitioner. THOMAS, SIDNEY Before: R. Chief Blakely (argued), Judge, Di-

John W. Assistant DIARMUID F. O’SCANNLAIN, rector, Mizer, BARRY C. G. Benjamin Principal Depu- SILVERMAN, KIM McLANE General, ty Attorney Assistant Divi- Civil WARDLAW, FLETCHER, WILLIAM A. sion, Keener, Director, Deputy Donald E. CLIFTON, RICHARD R. T. CARLOS F. Delery, Attorney Stuart Assistant Gen- BEA, JR., SMITH, MILAN D. MORGAN eral, Division, Ugumori Civil Kohsei CHRISTEN, B. JOHN B. OWENS Counsel, Carlson, Litigation Jesi J. Senior FRIEDLAND, T. MICHELLE Circuit Justice, Department United States Of- Judges. Litigation, Washing- fice of Immigration ton, D.C., Respondent. CLIFTON; Judge Concurrence Perkowski, Legal, Peter E. Perkowski by Judge Dissent BEA PC, California, Amici Angeles, Los for Center, Curiae The Law Lambda Public OPINION Fund, Legal Defense and Education the WARDLAW, Circuit Judge: Center, Immigrant National Justice (Brin- Bringas-Rodriguez Alberto Carlos Policy; Center for Law and HIV HIV gas), gay man who is a native and citizen Project; Immigration Equality; Law Dis- Mexico, petitions for review of the Center; ability Legal & Rights the Asian (BIA) Immigration Board of Appeals’ deni- Center, Pacific Islander National Wellness applications asylum, al of his withhold- Rights, Center for Lesbian LGBT Center removal, ing of Against and Convention OC, Center, Transgender Law Florence (CAT) protection. Bringas Torture Refugee Immigrant Rights Project, & and sexually and physically abused as a child La Raza. Legal Centro De orientation, on account his sexual and he submitted evidence that Mexico was un- Rrishnaswami, Charanya Cortelyou C. unwilling persecu- able or his control (Volunteer), Jaskol, Kenney and Lisa Pub- (IJ) Immigration Judge tors. Both the and California, Counsel, Angeles, lic Los BIA Bringas’s testimony found credi- Defense, Amici In Curiae Kids Need of ble, acknowledged and both sexual Center, Tahirih Ref- Justice and Women’s identity and orientation can establish ugee Commission. membership “particular social group.” Daniel, Laurie Webb Charles L. Cole- Nevertheless, both the and the BIA IJ III, Kim, man Kyong M. and Garrett S. relief, part denied based on a Garfield, Counsel, Pro Bono Holland & that his was insuffi- evidence conclusion California; LLP, Francisco, Knight San gov- cient Mexican to demonstrate that the Lee, Musalo, Eunice Blaine Karen unwilling unable ernment was control Bookey, Counsel, Center for Gender & private individuals who attacked him. Studies, Francisco, Refugee San Califor- doing, both BIA so the IJ and the failed nia; for Gen- Bringas’s Amicus Curiae Center for plausible, to address unrefuted laughed der & that Mexican Refugee testimony police Studies. raped years him when he was four ele first attempted who his Mends uncle, old, and in addition to his three other abuse. rape and neighbor physically cousins and a male his agreed, our court panel of A divided regular him a sexually abused basis our decision Cas- relying primarily on in Mexico. father while he lived tro-Martinez v. child, him, telling “Act also beat him as a 2011), interpreted the “unable which boy. You are not a woman.” When he like requir- standard as to control” eight, Bringas’s uncle told him that are unable or ing proof gay. His the abuse was because he was the sexual abuse of unwilling to control uncle, cousins, neighbor never called Bringas-Rodriguez generally. children name, only to him referring him his 1171, 1178-79 Lynch, fucking faggot, queer,” and “fag, withdrawn). 2015) (now majority panel “laughed about it.” conclusion that it was adopted the IJ’s the Mexican unlikely his mother in the Bringas lived with “abuse no action to control the would take for a when he period United States brief granted children.” Id. at 1181-82. We years He to Mex- was twelve old. returned and now hold that the rehearing en banc ico, however, grand- he missed his agen- Bringas adduced before mother, had him since he was who raised testimony cy "written and oral —credible upon re- nine. The abuse intensified his reporting potentially was futile and Again repeatedly raped turn. he was young gay men had dangerous, other uncle, cousins, neighbor. their abuse to the Mexican occasion, On one when refused avail, and news country reports to no comply neighbor’s with his demand for documenting official and articles copulation, neighbor oral beat and of individuals on account him, leaving Bringas eyes with black raped long- orientation —satisfies our their sexual Bringas’s and bruises. abusers also threat- evidentiary standards for estab- standing grandmother, to hurt his with whom ened past persecution compels and lishing close, he was if he ever what was Bringas past per- that suffered conclusion happening. Fearing they would follow government secution that the Mexican threats, through Bringas on their did not unwilling or to control.1 We over- unable mother, teachers, anyone tell his else to the extent it rule Castro-Martinez about the sexual abuse. this might suggest otherwise and remand proceed- to the BIA for further petition in Bringas age fled Mexico 2004 at four- ings. get away from his He teen abusers. inspec- entered the United States without

I. Paso, Texas, El tion at and lived with his Mexico, Valles, Veracruz, years. in in mother Kansas for three He then Born Tres home, horrifically living his fa- moved out of his mother’s Bringas was abused ther, uncle, cousins, in neighbor, all elsewhere in Kansas and Colorado. He an and jobs, including or to worked several different perceived gay of whom him to be positions supermarket, pizzeria, His un- at a exhibit effeminate characteristics. Mexico, Country Report Contrary suggestion, ment of State dissent's Brin- articles, psychologi- gas corroborating newspaper and a submitted substantial evi- several describing Bringas’s past he do so. cal evaluation histo- dence after the IJ recommended Depárt- ry of abuse. That evidence included a 2010 U.S. August Bringas reports a. chocolate In showed that the violence rose shop. even contributing guilty attempted to as—and pleaded perhaps because—Mexican laws Colorado; a minor in he delinquency becoming were increasingly gay tolerant of some drinking rights.2 had been at home brought when another friend over friends BIA, reviewing IJ’s denial of spent Bringas minor who became drunk. relief, rejected claims for his ninety days jail, during which time he recognized claims on merits.3 The BIA attempted hospitalized, suicide and was [Bringas] “the serious abuse that endured finally doc- precipitated telling

which found, however, that, as a It child.” as in child- tor and then his mother about his Castro-Martinez, Bringas did not demon Department hood abuse. The of Homeland strate “abuse was inflicted by (DHS) Security a Notice Appear issued government actors or that the August 2010. unwilling or unable to control his twenty, age Bringas applied Concluding Bringas abusers.” thus removal, asylum, withholding of establish past persecution, failed to protection. previously Bringas He had been BIA pre CAT denied the concomitant government could sumption persecution. unaware “that the future It then [U.S.] [him],” only rejected Bringas’s argument found out when he that he protect had a “spoke officer in persecution with an ICE Colorado well-founded fear of future be Brin- September application, In his cause had a pattern 2010.” he failed to show practice abuse he men in gas gay described sexual endured Mex ico, feared explained distinguishing Mukasey, Mexico and he Bromfield 2008), if he returned because he was 543 F.3d 1071 because “the police gay that the Mexican record ... not demonstrate d[id] wide credibly spread brutality against him. testified homosexuals or criminalization experiences any about his friends’ with that [was] there ho in Veracruz. Those friends to mosexual conduct in The BIA went Mexico.” had been also concluded that had failed to raped, ignored re- but the officers their show that Mexican had ports “laugh[ed] their faces.” been unable to control [sic] Additionally, perpetuated he submitted 2009 and individuals who violence homosexuals, Department Country Reports against State finding U.S. Mexico for Mexico newspaper positive steps and several articles “has taken numerous to ad against, rights Finally, that includ- dress the documented violence homosexuals.” of, ing rejected murders and The the BIA gays Bringas’s withholding lesbians. High Bringas’s asylum 2. The United Nations Commissioner for 3. The IJ denied claim as (UNHCR) Refugees guidelines has issued one-year filing untimely under the rule after orientation, refugee on sexual claims based scuffling about had some whether explain legal improvements which that unaccompa- United entered the States as an widespread mutually persecution are ex- BIA, however, nied minor. The assumed that UNHCR, clusive. Guidelines on International timely, electing asylum application the Refugee Protection Claims to Status No. 9: Bringas's asylum determine claim on.its mer- Based on Sexual Orientation Gender and/or Abebe v. its. We must do same. See Gon- 1A(2) Identity Context Within the Article zales, 2005) (en the 1951 Convention Its 1967 Protocol and/or banc). ¶ 37, Relating Refugees, to the Status U.N. (Oct. 23, 2012), Doc. avail- HCR/GIP/12/09 http://www.unhcr.org/509136ca9.pdf. able at ” at Against Homophobia.’ Id. Day a tional claims and denied and CAT removal (alteration original) (quoting diag- 1179 n.5 HIV-positive remand to consider Rights, for Human High Comm’r U.N. nosis. Against Indi- & Violence Discrimination three-judge a divided majority of The on Their Sexual Orienta- viduals Based agreed court panel of our ¶¶ 40, 74, 75 Identity, U.N. tion & Gender heightened eviden- to meet had failed 2015)4). Fur- (May Doc. A/HRC/29/23 that it persecution tiary past burden thermore, majority found insuffi- panel applicable to BIA determined and the testimony gay that his Bringas’s cient reading on their claim based Bringas’s persecution male friends had suffered Acknowledging Castro-Martinez. Veracruz, only police it to the victim, “let an abuse nothing requires Id. at laugh officers them. to have the child,” report alone reports if the friends’ were 1180-81. Even majority reasoned panel police, credited, majority explained, panel abuse, even fails to where 'victim police to establish that reports those failed child, proof about ‘gap “there is as a city in the or state of Veracruz practices respond- would have how in Tres police practices linked to could be ed,’ the burden to petitioner bears Valles, Bringas’s hometown.. showing gov- gaps’ by in the how ‘fill conclusion, the support Further in of its re- responded have had he ernment would of evi- majority noted the absence panel Bringas-Rodriguez, 805 the abuse.” ported that Mexi- suggesting in the record dence Castro-Martinez, (quoting at 1178 sexually protect refuse to can majority panel F.3d at Stating “Bringas’s abused children. country reports 2009 and 2010 found just allegations are not about discrimina- uncon- widespread, to establish inadequate Mexicans— against gay tion and lesbian men either trolled molestation,” pan- child are about or town. Id. at 1178- Bringas’s home state lack- majority found el Rather, panel majority found put forward no evi- ing “ha[d] because he country reports demonstrated that Mexico tolerates the sexual dence gay pride marches permitted Mexico children, or that Mexican officials abuse of equality. Id. at expanded marriage had an abused child would refuse to majority also cited a Unit- panel 1179. The gender on the of his or her abusers.” based stating that Mexico had ed Nations “ Bringas had not de- Id. at 1182. Because hate crime ‘specialized established who scribed “how old his ‘friends’ were ],’ judi- developed a ‘new unit[ prosecution police,” Bringas’s reported abuse to the adjudication of cases guide protocol cial insuffi- testimony reports about those human violations on involving rights cient. Id. at 1181. orientation,’ implement- of sexual grounds officers, Finally, panel majority interpreted specialized training for ed to foreclose it from find- officially May 17 as ‘Na- Castro-Martinez designated Amicus Curiae at 3. In http://www.un.org/en/ga/search/ Brief for UNHCR as Available at particular, the UNHCR states that it "has not view_doc.asp?symbol=A/HRC/29/23. One of position individuals sup- taken the that LGBTI eighteen amici that briefs submitted fleeing have a well-founded The Mexico cannot porting is the UNHCR. UNHCR 5, contradicting misunderstanding persecution,” of id. at any fear “correct[ ] did so to panel majority’s to the con- clarity” experi- conclusion lack of in its assessment bisexual, lesbian, at 1179 transgender trary, Bringas-Rodriguez, 805 F.3d gay, see ences of (LGBTI) in Mexico. n.5. and intersex individuals

1059 ing Bringas’s subjective fear of refugee future evidence that he ais who is pre- reasonable, objectively sumptively asylum eligible for based on again citing “improving” situation for past persecution by nongovernmental ac- gay men in Mexico. Id. 1182-83. tors, it is helpful analysis to our to review dissented, development refugee of our Judge gen- laws writing W. Fletcher misgivings erally. that he had developed about opinion in Castro-Martinez —an which he Beginning with persons displaced joined explaining had even —but II, World War the United States has controlled, if “part[ed] Castro-Martinez he struggled approach to define its to refu-

ways with on majority” reading its of gees. See Stephen Legomsky H. & Cristi- reject Bringas’s asylum the decision to Rodriguez, na M. Immigration and (Fletcher, J., claim. Id. at 1186-87 dissent- Refu- (5th 874-76, gee Law and'Policy 878 ed. ing). Judge pointed W. Fletcher to our 2009).'The Immigration and Nationality ample precedent require does vic- (INA) 1952, 82-414, Act L. Pub. No. private persecution, especially tims of 66 child victims, 163, contemporaneously report predecessor, their Stat. and its the Immi- abuse to authorities in gration 1924, order Act 68-139, Pub. L. No. 43 asylum in eligible to become the United 153, special Stat. provision “contained no “Yet,” wrote, States. Id. at 1192. he “Cas- exempting [refugees] from the restrictions today’s tro-Martinez and decision effec- generally applicable immigrants.” Id. at tively just require that.” 876, 881; see also E. Deborah Anker & Posner, Forty Michael H. Year Crisis: II. Legislative A History Refugee Act jurisdiction We have under 8 1980, (1981). 9, Diego 19 San L. Rev. 14 1252(a). § U.S.C. Because the BIA con result, Congress passed As until com- adopt ducted its own review and did not prehensive legislation concerning refugees decision, the IJ’s our review “is limited to 1980, largely States United re- Gonzales, the BIA’s decision.” Hosseini v. sponded refugee crises on an ad hoc 2006) (9th (internal 953, 471 F.3d Cir. 957 temporary basis measures. Le- omitted) quotation (quoting mark Cordon- gomsky Rodriguez, supra, & at 881. The (9th INS, 985, Garcia v. Cir. 1948, Displaced Persons Act Pub. L. 2000)). legal We review the Board’s conclu 80-774, 1009, No. Stat. the first novo, Holder, sions de Romero-Mendoza measure, provided sanctuary such 1105, 2011), and its Nazi, fleeing Soviet, certain refugees evidence, factual findings for substantial fascist persecution, “displaced[ as well as ] 1088, Zhi v. conquered forced laborers from states A finding the IJ is not Posner, Germany.” supra, Anker & at 13. supported by “ substantial when legislative Later efforts included the Refu- ‘any adjudicator reasonable would be 83-203, gee Relief Act of Pub. L. No. compelled contrary’ conclude 67 Stat. and its extension in based on in the the evidence record.” Id. which of natural assisted “victims calami- 1252(b)(4)(B)). § (quoting 8 U.S.C. refugees ties” and from “communist-domi- parts nated and the Europe III. Middle Posner, supra, East.” Anker & at 14. Refugee A. Evolution Law U.S. policies Finding these narrow inade- ultimately Because this case turns quate, whether adduced President decided after compelling has Eisenhower throughout the 1970s. in 1956— that were debated Hungary invaded the Soviets Posner, supra, at 20-42. Anker & 200,000 to flee— Hungarians causing some tem- Attorney General request 1980, parole power, limit the create In 15,000 Hungarian refugees porarily parole permanent admissions predictable a at 14-15. At States. Id. into United obligations, fulfill system, and international INA, Attorney time, under the Congress passed Refugee Act of 1980 (the parole, “Act”), 96-212, had the discretion L. No. 94 Stat. General Pub. admit, Rodriguez, supra, at persons Legomsky into the 102. & formally .not set The final version of bill 882-83. reasons or for rea- country emergent “for refugee for admissions and limited quotas strictly public in the inter- sons deemed authority. parole the executive branch’s (quoting at 15 8 U.S.C. est.” Id. Posner, supra, at 60-62. It Anker & 1182(d)(5) (1952)). originally § Parole was nondiseriminatory definition of adopted the noncitizens individual intended benefit Na- refugee included the 1951 United situations; Hungarian emergency Relating to the Status of tions Convention it was represented the first time crisis by including amended it Refugees, but refugees en masse. Id. used to admit only persons persecu- who feared future ' expanded use light president’s In of the were victims of tion but also those who Congress decided to reassert parole, Anker, past persecution.5 Deborah Law of a refugee policy into and create more itself (2016). § Asylum, 1:2 in the United States Legomsky & Rodri- regime. structured Furthermore, statutory provided the Act perma- at The first guez, supra, 881-82. asylum, granting of status to basis statutory admitting refugees nent basis for physical- been refugees who arrive have part group in 1965 as Id.; was enacted ly present in the United States. see INA. Id. at 881. Under amendments to the supra, at Legomsky Rodriguez, also & amendments, a new admissions brought the 1965 Act the United 893. The for “those who category conformity was created with the 1951 Con- States into either fleeing respect withholding and were vention with re- feared moval, country remedy by applicant which an ‘Communist-dominated’ country return to a prevent of the can forcible general ‘within the area ” persecution. Legomsky he & where fears (quoting at Pub. L. Middle East.’ Id. supra, day, at To this (1965)). Rodriguez, 893. § No. 89-236 79 Stat. principal governing Act is the statute However, ideological geographic asylum, refugees, grants admission of category, as well as the restrictions withholding Legomsky of removal. & 17,400 inadequate” ceiling of en- “painfully at Rodriguez, supra, 883. year, category’s limited the reach. per tries contin- at Presidents therefore 881-82. concept persecution by non-state refugee crises rely parole ued to when actors is “inherent” the definitions arose, entry to hundreds of thou- granting and the the 1951 Convention Cuba, Indochina, refugees sands of from Anker, Refugee supra, Act of 1980. at European Indeed, and Eastern coun- § and Soviet Hand- 4:8. the 1979 UNHCR words, refugee In other tries. Id. 882. on Procedures and for De- book Criteria hoc, spurring poli- Refugee the 1951 termining admissions remained ad Status Under Relating overhauling system and the 1967 Protocol cy proposals Convention Refugees, incorporated the Con- the Unit- which the United States ratified Relating to the Status of vention. ed Nations Protocol Refugees to the Status of stated per 1314. As the British soldiers became more secution included discriminatory “serious violently anti-Catholic, torturing prisoners ... by other offensive acts committed plotting to use armed against force populace the local ... if knowing are demonstrators, nonviolent civilian McMul- authorities, ly tolerated or if the len deserted them join the Provisional refuse, unable, prove authorities to offer Republican (PIRA), Irish Army nongov- protection.” Posner, effective Anker & su ernmental group purported UNHCR, pra, (quoting at 67 Handbook on Catholics from the British army, but which Procedures and Criteria Determining for became, eventually view, McMullen’s ex- Refugee Status Under 1951 Convention tremist and terroristic. quit Id. He and the Relating 1967 Protocol to the Sta PIRA, jailed but Republic of (1979)). Refugees tus Even under U.S. Ireland for his earlier activities as statutory definitions of persecution pre part of the PIRA. Id. When he was re- dating 1980, the Refugee Act of a First leased, the pressured PIRA partici- him to Circuit opinion published, and a prece- pate plan to kidnap American, an dential BIA opinion suggested perse McMullen refused. Id. cution non-state cognizable actors was predicate as a INS, for relief. v. See Rosa Upon learning that the PIRA intended (1st 100, 102 1971); Cir. Matter refusal, murder him for that McMullen (BIA Eusaph, 458, 10 I. & N. Dec. States, fled to the United cooperated with 1964). authorities, U.S. sought withholding of removal.6 Id. at 1313-14. The. BIA re- Our circuit first ap determined that the versed IJ’s propriate standard of determination review for BIA deci sions under “McMullen Refugee deportable Act of was not 1980 is the now familiar “substantial evidence” in ‘the Government of Republic test of Ireland INS, 1312, 1316 McMullen v. is unable to control the activities of the 1981). INS, Sagermark See 767 PIRA and that if [McMullen] were to be McMullen returned to that he would suffer provided our first occasion to address meaning within the “[p]erseeution by ... group which the (United Nations) Convention, Protocol, and ” government is unable to control” under the 243(h) (of 1253(h)).’ § section 8 U.S.C. McMullen, Act. 658 F.2d at 1315. court, at 1315. Before our

McMullen, descent, “concede[d] within the. Catholic of Irish 243(h) joined meaning had Army perse- the British includes [section] and been deployed to Northern by nongovernmental Ireland in 1969 cution groups such as part PIRA, of British peacekeeping efforts. Id. at where it is shown that courts, application 6. McMullen concerned an including Supreme Court. See removal, withholding asylum, Stevic, but the 429-30, INS v. 467 U.S. 104 S.Ct. analysis "persecution” is the same for both. (1984). Indeed, 81 L.Ed.2d 321 the cur removal, withholding To obtain the Refu- regulations governing withholding rent of re gee requires applicant Act of 1980 that an interchangeably, moval use the terms 8 C.F.R. show that his "life or freedom would be 1208.16, § as did we in McMullen. Further country. threatened” if returned to his home more, although specific statutory provi 1231(b)(3). § Though See 8 U.S.C. semantical- McMullen, 1253(h), § sion at issue 8 U.S.C. ly required showing different from the predecessor was the to the current withhold "persecution” prove refugee that one is a statute, 1231(b)(3), ing § of removal 8 U.S.C. eligible asylum, a threat to life or freedom statutory language the relevant is identical. equated persecution by has been the BIA grounds; country protected count of one or more proposed of the government (3) by con- was committed unwilling persecution or unable to is deportation by gov at 1315 n.2. or forces that the group.” government, Id. trol was unable or ernment conr Today Refugee B. Law Baghdasaryan v. 592 F.3d trol.” (9th 2010). may, 1018, 1023 in his Attorney General Cir. discretion, grant asylum applicants meet the definition States who

the United Early discussing decisions the “unable under U.S.C. “refugee” 8 unwilling” or standard the context 1158(b)(1). 1101(a)(42)(A). An § § 8 U.S.C. private persecution refugee if he “is qualifies as applicant years following passage of For several home unwilling to return to his or unable 1980, Act of decisions consid Refugee fear of country because a well-founded ering government whether a was unable race, account of reli persecution on future private persecution al unwilling to control nationality, membership particu in a gion, exclusively most involved a fear of future group, political opinion.” Na lar social (9th INS, 646, by organized groups, 217 654 Cir. such as v. F.3d vas may See., applicant guerillas. e.g., An establish a “well- Artea anti-government (9th persecution” INS, 1227, in two founded fear of ga v. 836 F.2d 1231 Cir. future by ways: by proving past persecution, 1988) BIA (remanding for the to consider demonstrating “subjectively that he has a petitioner established a well- whether the objectively fear of reasonable” genuine by guerillas founded fear of 654-56, at 656 n.11. persecution. future the El could Salvadoran control), abrogated grounds not on other asy for Because applied Elias-Zacarias, 478, v. 502 U.S. INS REAL ID Act passage after lum 812, (1992); 112 S.Ct. 117 L.Ed.2d 38 San 231, 2005, 109-13, L. No. 119 Stat. Pub. (9th INS, 1482, gha v. 103 F.3d 1487 Cir. that his sexual orientation he must show 1997) (holding petitioner that the had been persecu for his “one central reason” was persecuted by group a terrorist 1158(b)(l)(B)(I). However, § tion. 8 U.S.C. control). government of India could not In may caused more “persecution his be decisions, it undisputed either was such reason, one central need [he] than unable or unwill which reason was Parus prove dominant.” powerful organizations to control the ing (9th 734, Mukasey, 555 F.3d simova issue, inability proved or the to control was 2009). Bringas If is to show that Cir. able evidence, documentary such as through he subjected past persecution, he was See, reports. e.g., conditions Go of a presumption to a rebuttable entitled INS, 916-17 mez-Saballos v. persecution. future fear of well-founded (9th 1996) (concluding that “documen Cir. Ashcroft, Tawadrus v. tary general evidence about conditions 2004); 8 C.F.R. see also 1208.13(b)(1). Nicaragua” enough to show that the § to control” for

government was “unable Unwilling” The “Unable or Standard C. members); Arteaga, mer’ National Guard (analyzing eligibility F.2d at 1231 alleging past perse applicant “An gueril asylum assumption under the establishing cution has burden (1) govern las were not controlled per treatment rises to the level of ment). (2) secution; persecution was on ac however, review, precedential in In published, opinion, petitions

Later similarly. BIA I- per reasoned In re O-Z & past for relief based on claims volved (BIA Z, 1998), 22 I. & N. Dec. 23 a father and indi by unorganized groups secution son, natives and citizens of Russia See, INS, e.g., Singh v. viduals. Ukraine, were beaten and threatened with 1996) (stating that 1357-60 death several occasions because “need not petitioner’s [have] assailants They reported were Jewish. Id. at 23-24. incorporation articles before file[d] times, three police the attacks but the In such capable persecution”). can be beyond no action writing report.” “took instances, petitioner the was re where that, at 26. From the concluded Id. BIA were quired previous to attacks show [government un that “the Ukrainian was acquiescent shadow an committed the unwilling to respon able or control the we looked evidence of how government, to protect attackers and him or his dent’s son responded petitioner’s to the police the the anti-Semitic from acts of Id. Singh, for ex protection. In requests Indian cit petitioner police the ethnic In such instances of failure to ample, —an report from Fiji respond persecution, threats we izen of death —received petitioner that a pro- and was at work. have held need not Fijians ethnic assaulted evidence that a is “unable family were also vide Id. at 1357-58. He unwilling [persecution] or to control ‘on at their home. Id. We attacked twice ” countrywide Ashcroft, basis.’ v. Mashiri showing that looked to record evidence (9th 2004) 1112, (reject- Cir. encouraged and government ha[d] “the governments on a harassment, ing the reliance U.S. discrimination, condoned country report of State Department Fijians against by ethnic and violence local petitioner’s evidence of counter at But Indo-Fijians.” Id. 1360. we unwillingness to her and her police protect “Singh that he testified highlighted “Instead, may an family). asylum applicant threat to the each assault and her burden with evidence that meet ... failed to police police unwilling was unable or any reports.” of his crime Id. respond to in the applicant’s control govern therefore concluded that We city home or area.”7 not con Fiji “could or would not ment of Id.; Andria persecutors. trol” the see also or discussing 2. the “unable Decisions INS, 1033, 1042-43 sian v. unwilling” standard where 1999) (“[T]he widespread nature of unreported docu persecution of ethnic Armenians 2000, in a Country early the BIA concluded Department the State As mented published, opinion that precedential officer’s Report, combined unwilling” could be leave or standard [advising Mr. Andriasian to “unable response in the of a country] Mr. Andriasian turned established absence when gov clearly violence or threatened violence help, to him for establishes S-A-, 22 I. & N. Azerbaijan not ernment officials. re government of either could (BIA 2000). There, sought to Dec. or would not control Azeris who of a native living plight harm Armenians BIA addressed threaten and ethnic Morocco, S-A-, age four- who at country.”). citizen their area,” city did not hold that explained that an "home or we Though 7. we in Mashiri her inability prove governmental applicant required can applicants are to do so. unwillingness through specific to regular beatings to suffer and was began teen unable control ap- burned, kicked, punched plicant’s her abusive father because “the rec- father on account of ord that the police orthodox Muslim her reflects did not have a presence respondent’s more liberal Muslim beliefs. Id. 1329-30. in the small town” Both and her citizen aunt “the respondent S-A- U.S. credi- was under 14 occurred”). bly going years old the harm testified would when because, futile, “in have been Moroccan similarly long We have held that a vic- society, action [have such been] tim of need not it govern- abuse only unproductive potentially danger- ment govern- authorities to establish the The BIA ous.” Id. at consid- inability unwillingness ment’s testimony Depart- ered that and the U.S. INS, him. In Korablina 158 F.3d 1038 Country Reports ment of State on Human 1998), the petitioner, a Jewish Rights Practices for which corrobo- Ukraine, native of Russia and citizen of the rated that few Moroccan women report was the victim of and beatings harassment judi- abuse to the authorities the “because perpetrated against Jewish citizens. Id. at procedure against them,” cial is skewed 1041-42. job Korablina was fired from the reported and that women who were often she twenty-eight years had held for by a returned to their abusers. Id. at 1333. new boss who was a of an member ultra- and group. The BIA found that the credible nationalist anti-Semitic Id. at testi- mony searching 1041. After country report and for six months for a suffi- ciently job, new she found work established the “unable or clerical sec- unwill- standard, ing” retary to a man. at reasoning: Jewish Id. 1042. In that position, new she saw three men attack respondent’s [T]he source the re- her boss and monthly thereafter return assaults, peated physical imposed iso- money. the office to extort Id. Though she lation, deprivation and of education was employees reported her fellow the not government, the but her own father. beating police, the the officers never Although request she did protection not appeared, and when sought help Korablina government, from the the evidence con- hall, from at municipal city a friend the respondent vinces us even if the friend disappeared. Id. Korablina then be- had turned to the government help, gan receiving death anti-Semitic threats Moroccan authorities would have been if warned retaliation she reported unwilling unable or to control her fa- anyone. thereafter, threats Id. Soon respondent ther’s conduct. The violently two men attacked Korablina and compelled have been return to her barely left breathing, telling her her she domestic situation and her circum- “could ... origin.” conceal her Jewish may well stances have worsened. that, Id. at 1335. The BIA concluded be-

cause S-A- had Though reported suffered at Korablina never of her govern- attack, hands father that the credibly threats or the she testified unwilling control, ment unable or “the were not interested in Jews,” government protecting failed to re- that reporting “would be presumption persecution, fruitless,” of future frightened and that she was Id.; asylum. S-A- was entitled to see if reported also she she would share same Garcia-Gonzalez, In re Luis Jose A201 fate friend in municipal city as her hall. (BIA *1 daughter WL Nov. Id. Korablina’s credibly tes- 2011) (unpublished) (finding that “telling Mexico tified that the authorities was use- parties she less,” why neither nor her which was reported violent anti-Semitic at- unable to not have

father control need Id. at 1042- if had suffered. to the authorities he tacks that Furthermore, “arti- Korablina offered convincingly doing 43. can establish that so unrespon- authorities’ detailing subjected cles would have been futile or have made complaints siveness to Jewish him to further abuse. at 1043. We

victims in Kiev.” Id. deter- Gonzales, Ornelas-Chavez v. testimony mined that the credible and cor- 1052, 1058 thus We enough articles were to estab- roborating explicit” only may what have been “ma[d]e was unable and lish Korablina, In Reyes-Reyes, and implicit unwilling to control acts Omelas-Chavez, In re S-A-. Id. we consid violence, “[c]onspicuous by noted that withholding ered a of removal claim a any authoritative evi- its absence [was] great Mexican who “suffered a male government disputing dence from the of abuse deal ... because of his homosexu and of the govern- thrust of her evidence ality identity”: female sexual he was Id. at 1045. complicity.” ment’s parents raped by beaten his his Ashcroft, 384 F.3d 782 Reyes-Reyes friend, cousins, father’s and a worker his 2004), expressly suggest- we first grandfather’s at his hacienda. Id. at reporting requirement per ed that a se BIA request denied his for withhold Reyes- Id. at 789 & n.3. In was untenable. testimo ing despite finding of removal past persecution the Reyes, considered we credible, ny concluding Ornelas-Cha- an El “homosexual male of Salvadoran government’s failed to vez establish the identity” with a sexual who had female inability or to him. unwillingness age raped at thirteen been beaten so, In BIA doing Id. at 1055. the cited because his sexual orientation and iden- of “only pieces background two of evidence: tity. Though Id. we to “deeline[d] at 785. country conditions and Ornelas-Chavez’s the argument that had Reyes’s reach” IJ report failure to incident to the authori the reporting a se re- incorrectly imposed per legal Id. at held this was ties.”8 1056. We nevertheless stated that quirement, we light in of credible error Ornelas-Chavez’s such a rule “would indeed be bright-line testimony report not the abuse he did light in in troubling, especially police police the same “[b]ecause in El rape victims Salvador record [him]”; that harasse[d] mistreated and to regularly underreport such crimes due were as “two of friends [his homosexual] authorities,” poor response sassinated,” presumably on account of precedent documenting well as circuit orientation; and that others their sexual physical against by attacks homosexuals when he told had reacted with indifference America. at police national in Latin Id. 789 Id. them about the attacks he suffered. at & n.3. (second original). in alteration We later, years squarely Two we held: disregarding Ornelas-Cha- reasoned testimony why about he vez’s credible who seeks establish applicant [A]n police “was report failed to his abuse withholding of removal un- eligibility 1231(b)(3) pri reporting making der on the tantamount section basis of qua non past persecution private at the hands of vate a sine testimony light solely credible in 8. The have relied vez’s was not BIA could not reports specifi- background "unless it conditions conditions.” cally or all of held that some Ornelas-Cha- deh, withholding of success of removal 613 F.3d at 921. [his] We introduced claim.”9Id. at new analyzing construct for the situation where no has report been made: up

We next took “unable or unwill- of a report absence does pair in ing” argued, standard cases anything not reveal about a submitted, by govern- on the and filed same dates one, ability willingness ment’s to control panel. same Rahimzadeh attackers; instead, Holder, 2010), F.3d 916 it leaves gap proof received about how the petitioner, who had death threats asked, by if physical respond peti- attacks extremist which the and suffered may attempt Netherlands he tioner to fill Muslims other meth- Christian, did the violence ods. persecutors threatened kill because his Rahimzadeh, 613 F.3d at 922 (emphasis if him and his sister he did so. In the added); Afriyie, see also 613 F.3d at 931. other, Afriyie v. 613 F.3d 924 We several filling summarized avenues for 2010), petitioner, who was violent- this on a “gap,” survey prior based case ly basis of attacked on the his Christian petitioner law. We that a fill stated could Ghana, religion by Muslims did file 1) the evidentiary gap by: “demonstrating written with the and request- country’s that a effectively laws customs protection, ed to no avail. but Both Rahim- deprive petitioner any meaningful were Afriyie zadeh and deemed credible governmental protection,” recourse to Ra we agency, denied Rahimza- himzadeh, F.3d at 921 (citing In re S- Afriyie’s. petition granted deh’s A-, 1330, 1332-33, I. & N. Dec. at 2) 1335); describing “[p]rior interactions analysis began

We our both cases authorities,” with the (citing id. Ornelas Omelas-Chavez, citing precedent, our -Chavez, 3) 1054); “showing that BIA, S-A-, correctly that of In re reports others have made inci similar recognize “reporting persecution avail,” dents to no id. at 922 (citing government authorities is not essential to Afri 4) yie, 932-33); 613 F.3d at “establishing demonstrating government that the is un private that particular of a unwilling protect able or to petitioner] [a sort is and widespread from well-known but not private Afriyie, actors.” 613 at F.3d 931; Rahimzadeh, government,” controlled (citing see at the also 613 F.3d id. INS, v. reporting 921-22. noted that Avetova-Elisseva police We and 5) 2000)); inaction establishing gov “convincingly is one means or inability unwillingness establishing] ernmental or to [reporting] that would have protect control the attackers or been subjected the at futile or [would] [the have 931; (third Afriyie, abuse,” tacked. 613 F.3d at applicant] Rahimza to further id. al- Ornelas-Chavez, distinguished thing” In we our de and that she was afraid her father Gonzales, cision in would beat her. Id. We also the Castro-Perez found that 2005), country which report concluded that in evidence did not conclusive petitioner ly the to government failed establish that the show Hon that the Honduran ignored rape. duran was unable or to have Orne Id. In her, las-Chavez, raped part explained control the man who had in we that Castro-Perez reported contrary because she had not at reporting attack. Id. was not to our rule that Assuming 1070-72. that she required; simply petitioner’s was a member of not we found the particular group, peti reporting social we found the reasons for in not in Castro-Perez reporting not governmental inability tioner's reasons for insufficient. sufficient to establish petitioner only protect Id. at 1072. unwillingness had testified to her. Ornelas-Cha vez, police any- willing not “were to do 458 F.3d at 1057-58. Religious original) (citing Ornelas-Cha of State International Freedom in teration vez, at Report, “[g]overn- also indicated at to sought protect ment all levels [the “BIA was entitled stressed that the We full religion] freedom of in not and did all evidence in the rely on relevant abuse, by governmental tolerate its either record, including [country] reports,” to de- (second private actors.”10Id. alteration unwilling” “unable or whether the termine original). met, Afriyie, 613 F.3d at was standard in both decisions we examined all contrast, By Afriyie, we concluded evidence to determine whether

the record finding Afriyie that the IJ’s failed to agen- supported evidence substantial inability unwillingness establish Ghana’s Indeed, different cy’s denial relief. or protect to control his attackers him not turn on in the cases did outcomes supported preaching while sub- reported were attacks whether Afriyie stantial evidence. Although rather, turned on our decisions police; report, able to file police that said little evidence, includ- quality nature police pro- about were whether able country testimony reports ing credible Afriyie, Afriyie’s tect him. 613 F.3d at 931. other in the record. and all testimony credible “indicate[d] [that] Rahimzadeh, concluded that the we forces the re- police Ghanaian lacked of a report treated the absence properly IJ necessary protect sources him.” Id. at factor in “merely authorities as one 931-32. testified that had Afriyie group government’s of the Dutch assessment requested protection, police but “the control willingness ability only tlm gun had one entire station.” extremists, asylum.” not as bar to per se testified Id. 928. He also F.3d at 922. concluded that We relied on the individuals who were at- finding that “the Dutch authorities in IJ’s bring tacked track down willing and would have been able fact perpetrators, and that two murders of his was sup- Rahimzadeh’s attackers control group’s were but re- members Id. by substantial evidence.” at 923. ported Afriyie mained further testi- unsolved. of State Department The 2006 U.S. Coun- fied that if the could even Rights try Report Human Practices bribes, him, suggesting their required only Netherlands noted not Moreover, unwillingness to do so. Id. provides law for freedom of reli- “[Dutch] on which the relied did IJ “the gion,” gen- persecution against not state that claims in erally respect[s] right practice.” this Id. investigated prosecut- Christians were and (alterations in original). Specifically, the ed; only corruption claims of it noted that system provided “effective judicial means” pursued. at 933. against police were Id. abuse, addressing rights human and in the that report There no evidence taken “firm government had action protection, able to obtain Christians were sup- violence in against groups espousing, in the general and could statements agenda,” an Islamic id. port of extremist not, event, any spe- in Afriyie’s contradict very Rahimzadeh groups that de- cific, testimony. Id. at 933- persecutors. his A direct credible gov- second scribed Department 34. report, the 2006 U.S. ernment country general reports that ‘'[a]lthough country- the IJ did not use the

10. We noted omitted). ordinarily (citations information is insufficient to purpose.” level Id. direct, specific, testimony, credited contradict unwilling” Nevertheless, “unable or the next deci- though the credible testi involving nonreporting, sion Castro-Mar- mony report evidence met the tinez, interpreted we the Rahimzadeh and types evidence that held in we Rahim Afriyie construct in “gap” the context of a Afriyie fill zadeh would the evidentia- gay, seeking asylum man HIV-positive ry “gap” reporting, created not we de physical based on the childhood and sexual termined the evidence was insufficient. We abuse his he suffered “because of homo- stated “Castro’s primary reason for sexuality feminine characteristics.” 674 contacting not was that authorities he be F.3d at Castro credibly 1079. testified that police lieved the not helped would have parents he his never told about the re- This, held, more, him.” Id. we “without peated, rapes brutal he suffered between gaps sufficient to fill the in [was] ages of six ten the abus- relief, Id. In denying record.” Castro we so, if ers threatened that he did also relied on the lack of evidence in the kill parents. beat him and his He fur- Id. record that “Mexican authorities would credibly ther testified that “given these ignored the rape young have child or threats, stigma and the associated with authorities provide were unable to .that homosexuality Mexico, in it would have protection against rape.” Further, child Id. unreasonably been dangerous for him to n country report we dismissed evidence of have the sexual abuse his police men, gay harassment of stating that teachers, neighbors, or parents.” Id. More- compel “none of these reports the conclu over, because the police might Mexican police sion that the disregard would have themselves abuse him on account his ed or harmed a male child who reported sexual orientation and were ineffective being victim of rape by homosexual dealing with homosexu- another male.” als, Id. it would have been danger- futile and go police. ous 1081. again petitioner’s We addressed a claim up testimony Castro backed this credible of past on account of his sexu- by presenting “country reports document- al orientation where violence was not ing police corruption participation reported Vitug 723 F.3d 1056 abuse, torture, and trafficking, as well as Thirty-seven-year-old Vi- incidents of harassment of credibly tug he testified that was “beaten men.” Id. at street, five times on the and two of these We stated never “[w]e have held beatings were ‘severe’ he was “ha- victim, any child, let alone a is obligat rassed and threatened be- ed to a sexual assault to the author perceived orientation”; cause sexual ities, and do not do we so now.” Id. We and that he was-“unable to obtain employ- that, acknowledged also respect Philippines.” ment Id. at 1064. He petition, Castro’s “the complicat matter is credibly “police testified that the [in ed the fact Castro was between the Philippines] will not do anything to ages years of six and ten when the attacks abuse,” help gay men who report and that occurred,” we and cited Hernandez-Ortiz “it well Philippines is known in (9th that Gonzales, 1042, v. 496 F.3d 1046 Cir. police gay harass turn a 2007), eye men and blind proposition for the that “when the to child, against hate crimes committed petitioner gay is a the IJ assess the must (alteration men.” Id. at alleged persecution from a 1064-65 in perspec origi- child’s nal). Castro-Martinez, tive.” 674 He bolstered testimony F.3d 1081 this credible (emphasis original). in “documentary evidence of a police

1069 have during subjected raid theater which futile or him to [would] on a ” (alteration patrons.” at 1065. original) beat robbed the further abuse’ and Ornelas-Chavez, (quoting 458 F.3d at did not or even Vitug, apply, we 1058)); 904, Holder, v. Vahora mention, Afriyie the Rahimzadeh and 2013) (7th (same); Ngengwe 908-10 Cir. v. Rather, that “gap” construct. we held Vi- 1029, Mukasey, 543 F.3d 1035-36 Cir. testimony documentary tug’s and credible 2008) (holding that evidence substantial abuse of homosexuals evidence “ support finding did not the IJ’s that Came ‘convincingly [reporting that established] roon was able and willing protect to have futile or have been attacks] nonreporting petitioner, petitioner’s where abuse,’ thereby subjected him to further testimony po credible explaining demonstrating that protect lice do not women from domestic (al to control attackers.” Id. unwilling violence, Department country the State re original) (citing Ornelas-Cha terations ports, relative’s and a affidavit evidenced vez, F.3d at anything”

that Cameroon would “not to do D. Castro-Martinez her, S-A-); protect citing In re Lopez v. Gen., Att’y U.S. of a eviden- heightened Introduction 2007) (holding BIA Cir. erred for children tiary standard reasoning “that the protec failure to seek per private To determine whether tion more is to enough without defeat govern secutors are individuals whom asylum,” remanding claim for control, or we unwilling ment is unable to peti BIA to consider in the instance first “all in the examine relevant evidence must testimony country reports, ap tioner’s record, [country] including reports.” Afri S-A-). In re plying survey yie, F.3d at 933. The useful reported of the of evidence Whether victim has types from Rahimzadeh report attempted the “unable or unwill violence or abuse may establish may test for is a ing” prong past persecution the authorities factor be was, considered, testimony not, an exhaustive list. as is credible or doc and never ques umentary explaining why a victim all other circuits consider Like tion, Afriyie report report. not deem the failure to did not Rahimzadeh and we do determinative, unnecessarily the construct to authorities outcome introduced “gap” we all evidence in the record. See that the failure creates consider evidence, v. 27-28 the because our law is clear Castillo-Diaz (1st 2009) we, review, must (holding peti agency, upon that where report her to authori examine all the evidence in the record rape tioner failed to ties, question gov in a properly the IJ relied on evidence bears on whether control a that El Salvador ernment is unable Department State question rape significant pen persecutor. Framing laws with enforces its nonreporting as a “failure” that creates to conclude was able alties evidentiary “gap” an had the inadvertent willing protect petitioner); Cardozo (3d Gen., evidentiary stan Fed.Appx. heightening Att’y 138-39 effect of 2012) beyond types proof, the traditional (unpublished) (citing Omelas- dard every prior that we proposition appli accepted precedent, that “an Chavez for have deemed sufficient to demonstrate persecu cant ‘need not have th[e] inability convincing governmental unwillingness if tion to the authorities he can the ex- ly doing persecution. so victims of To would have been establish of gap filling tent that our cases’ discussion ranted of specificity” “effectively level and of suggested proof burden [country reports] eliminated as a method governmental inability unwillingness or to of a showing foreign government’s inability beyond protect something the stan- unwillingness or prevent sexual abuse of proof by dard use for other we gay Bringas-Rodriguez, elements — children.” evidence, preponderance a consider- J., (Fletcher, F.3d at 1192 dissenting). ing all the evidence in the record —we futility Castro’s evidence demonstrated the supersede those cases clarifying that and potential danger reporting of heightened proof no require- there is authorities, Ornelas-Chavez, 458 very petition ment.11 The next for review 1058, the widespread and pri tolerance of context that we considered of nonre- persecution vate homosexuals Castro-Martinez, porting which trans- authorities, Rahimzadeh, 613 F.3d at “gap” “gulf,” formed the into a never to be we held evidence insufficient. We filled, quite especially for those who were imposed higher that required burden children, as least likely per- victimized Castro to demonstrate that “Mexican au sons to their abuse to authorities. ignored thorities would have the rape of a Castro-Martinez, Castro adduced or young child that authorities were unable testimony detailing rapes credible he provide protection against child rape.” a child suffered as on account of his sexual 674 F.3d at 1081. holding The result this characteristics, and orientation feminine was to carve out a sub-group “gay chil both risk of retaliation from his abus- dren” within broader social group abuse, ers and the if he “gay individuals.” It necessarily and country reports documenting private erroneously govern assumed that where harassment and violence ment authorities and willing are able against Despite homosexuals. all this evi- children, protect heterosexual they will be dence, we held that Castro failed to meet equally and willing able children gaps” his burden to “fill in the because he who exhibit different sexual orientation had not shown Mexican officials were ways. However, are “different” in other specifical- unable to intervene our immigration recognize per laws ly children, gay the abuse of opposed as enumerated, fall sons who within the pro gay generally. individuals Castro-Mar- refugee categories tected are often treated tinez, F.3d at 1081-82. Yet the nature harshly by more than authorities those quality of Castro’s evidence fell within not, precisely who do because of the char the categories proof several of that we that provided acteristics them with statu suffice, said in Rahimzadeh would tory protection refugee under our laws satisfy which have should been sufficient to place. first the “unable unwilling” standard under correctly applied law. Furthermore, adult and child victims By effectively physical and sexual defining Castro’s abuse alike face signif- social group as children icant rejecting reporting Cas- barriers their abuse and evidence, tro’s we protection an unwar- seeking “demand[ed] of authorities. Sexu- child, adult, linchpin opposed Thus the of the dissent—that this to an who does not opinion departs from the substantial evidence to the authorities. The misguided. opinion merely standard —is This standard, applied wrong legal BIA which standard, legal clarifies evidence, substantial it drew we incorrectly ap- from standard heightened is not or made more plied in Castro-Martinez. stringent when the directed family and are members. victims commonly results “severe abusers Child al abuse effects, frequently including “avoidance of sexual abuse “lack the infor- long-lasting” official, navigate complex, often trigger of the mation memories of situations shame, report required channels and are violation, abuse” profound feelings [and] likely unaware of agen- to be shelters or remembering Lopez-Ga difficulty events.” might provide protection. cies them INS, larza v. Asylum training at 9-10. 1996) officers’ E. Shana & Joan (quoting Swiss guidelines specifically them to con- require Giller, A Medi Rape As Crime War: difficulty may experi- sider the children 270 J. Ass’n Perspective, Am. Med. cal reporting ence abuse: “The fact that (1993)). Bringas, As was case with protection child did not seek in his or her retaliation, just may also fear not a victim country origin necessarily does un- not abusers, society, “police, but from from asylum his or her offi- dermine case. The family members.” even what, explore if means the any, cer must even reporting The barriers to become seeking protection.” child had of U.S. Citi- a child. As greater when the victim is Servs., Immigr. zenship Asylum Offi- Judge Fletcher noted in his dissent W. Training cer Basic Course: Guidelines for panel-majority opinion: from the (2009).12 Asylum Children’s Claims 40 these Many report children will not Even if a child able for some of the same reasons crimes abuse, may he not be able to articulate of- not. Abusers Bringas-Rodriguez did happened what to the “in the same if their victims with harm ten threaten and, adults,” result, “may way as- be anyone, they they tell sometimes easily seri- more dismissed or not taken those good on threats. Children make UNHCR, officials ously by the concerned.” difficulty information getting also have Guidelines International Protection: especially family if mem- police, to the Asylum Claims Articles Child Under neighbors who people bers —the 1(A)2 1(F) Convention the abus- might report abuse—are Relating 1967 Protocol to the Sta- and/or ers. ¶ 39, Refugees, U.N. Doc tus HCR/ at 1192 Bringas-Rodriguez, (Dec. 2009).13 GIP/09/08 (Fletcher, J., may dissenting). Children reasons, recog For all of these we cognitive ability to understand lack the abused, abuse that children who suffer sexual they being are beat- nize unlikely that abuse generally be rapes they adults should are ings unlikely Because they Kids in to authorities. are to trust are crimes. Brief for able similarly unlikely al. at it is report, of Defense et as Amici Curiae Need tp be able cognitive if do or other evidence will reports 11. Even have that or lack police response, fear may only child victims document ability, authorities, thereof, sexual of children. abuse reporting retaliation for burden of Placing to do so on Castro added may practically also be unable inability or demonstrating governmental con- day-to-day actions are because their abuse abusers, unwillingness if their to control child sexual especially their trolled http://www.unhcr.org/50ae http://www.uscis.gov/sites/ Available at Available 13. default/files/USCIS/Humamtarian/Refugees% 46309.pdf. 20Asylum/Asylum/AOBTC% 20Les- 20% 26% son%20Plans/Guidelines-for-Childrens-Asy- laugl0.pdf. lum-Claims-3 always imposing tantamount to laws are not reflective of actual generally was thus a sexually country on conditions. It is not unusual that requirement a reporting commitments country’s to petitioner jure either the must “de LGBTI abused children: case, protection align in own or other do not with the de reported have his facto reality of is must have to create the whether State able and children general willing country report provide protection.” a on the to Brief for basis for inap- That burden as Amicus Curiae 4. we response.14 added UNHCR And recently recognized it a have that Mexico has propriate, both because reflected proof in heightened gap-filling requirement experienced “an increase violence lesbian, regard- gay, transgender against it focused evidence indi and because gay years in which ing during greater of children rather viduals the treatment gener- gay legal protections than of Mexicans have been extended to the treatment ally. communities.” Avendano-Hernandez these (9th 1072, Lynch, 1081

v. Cir. Overemphasis 2015) on laws as opposed in (emphasis original). practices Moreover, the anti-discrimination Castro-Martinez, we also failed in efforts discussed Castro-Martinez seem consider the difference between a coun- govern to have been made the national try’s enactment of remedial laws and the ment, necessarily do not thus reveal persecutory practices, of often eradication anything practices about the within state country’s in long ingrained a culture. Re- municipal jurisdictions. Madrigal See that, Mexico, claim in jecting Castro’s 2013) Holder, 499, (9th 507 Cir. F.3d systematic pattern practice persecu- of (noting gov that while Mexico’s national remained, we against tion homosexuals willing drug ernment was to control the unpersuasive evidence “in found Castro’s petitioner, cartel that attacked the it was light country reports,” recent which so, necessarily part not able to do be government’s that showed “Mexican cause state local were officials involved prevent efforts to violence and discrimina- traffickers).15 drug ... in- against tion homosexuals ha[d] Castro-Martinez, recent years.” IV. creased in 674 F.3d at 1082. compels Substantial evidence Bringas

Mexico is to be lauded for efforts. that its conclusion has established country’s persecution. But it recognized past is well that a imposed heightened 14. We bur- have such was unable only, den in two decisions rejected require- Castro-Martinez him. We have such a Bringas-Rodriguez panel-majority and the Gonzales, past. See ment Krotova v. past persecution opinion. Both involved 2005) (exam- imposed child. We have never stan- such ining failure petition involving dard an claim in a adult’s throughout arrest anti-Semitic attackers past persecution. Russia); Rang Yan Zhao v. 2013) (municipal-level however, noting, contrary 15. It bears that — proof government persecution required not panel majority's putative requirement that petitioner presented province-level where the Bringas persecuted that show he would be Rather, proof). we must the entire assess evi- though at the hometown —even actions dentiary application, record each and we may always national and local levels not presence' any applicant do not deem the or lack of align, required present an is not practices type specific evidence of local of evidence conclusive. establish lar group” acknowledge A. on Account a Protected social Persecution man. Ground is a is no dispute There Finally, even if we read the BIA’s deci- beatings rapes brutal sion “perverse to conclude the IJ’s as a child rise to the level suffered erroneous, finding clearly desire” well persecution. “It established compels the entire' record the conclusion physical under 8 violence that at one Brin- least central reason for 1101(a)(42)(A).” § v. U.S.C. Li gas’s was his sexual orienta- (9th 1096, 1107 F.3d Cir. Indeed, there is tion. no evidence suggesting Bringas’s record were abusers Likewise, there is dispute no real else; by anything motivated to find other- Bringas’s that sexual orientation was to effectively wise would be rule that chil- reason persecu least one central for his dren can never be victims of abuse on the acknowledged, tion. BIA “sexual As the identity, basis of sexual as such abuse will identity and sexual can be the orientation always presumption be subsumed establishing a particular basis for social grounds pro- abuse on unrelatéd to their Gonzales, group.” Boer-Sedano See v. group. tected social This cannot be the 2005) (holding F.3d 1087-88 only that Bringas case. need demonstrate men in consti “homosexual Mexico” his sexual orientation was “at least one group purposes tute social for particular abuse; for the not central reason” he need Gonzales, asylum); Karouni Parussimova, only show it was the reason. 2005) (concluding 1171-73 The replete 555 F.3d at 741. record is asylum petitioner eligible that the was for by Bringas’s to ex- statements abusers as of persecu because of a well-founded fear they targeted him. father actly why His “membership tion of his on account being him as a effemi- chastised child homosexuals”). particular group of social him he was “differ- nate and beat argues the BIA government The Bringas eight, his uncle ent.” When was failed rejected Bringas’s claim because he physi- ongoing told him the reason that the sexual he suf- establish abuse sexuality. cal abuse his and sexual was homosexuality. fered was on account his uncle, his cous- Bringas explained his reads government the BIA’s decision fag, ins, neighbors and his “called [him] IJ’s that the sexu- affirming finding laughed about fucking faggot, queer and Bringas were predators al who attacked no reading it.” A full of the record leaves sexual pedophiles perverse motivated- on ac- Bringas persecuted was doubt urges. adopt the BIA did not the IJ’s But his sexual orientation. count of decision, nothing about the BIA’s deci- Bringas’s it suggests sion denied Unwilling B. Private to Control Unable Rather, by ac- grounds. claim on nexus Persecutors Bringas the abuse suffered as knowledging Although persecutors child, Bringas’s immediately pivoting then actors, the Castro-Martinez, government, reasoning private, were BIA’s that, compels the conclusion only have been as in Castro- record evidence could unwill Martinez, unable or claim failed for want that the was not re control them. proof ing was unable Indeed, his the authori quired his abuse to to control abusers. ample evidence demonstrates following para- the BIA three ties because decision’s futile and particu- reporting would have been graphs discuss homosexuals as “a dangerous. Bringas asy- volunteered At his removal hearing, Bringas lum application reason he believed he testified that he tell anybody did not about if would harmed be returned Mexico: abuse because he was afraid that his him, abusers would hurt his family, and police they If I wouldn’t went do person he chose to tell. fur They will anything. take a ther testified that he afraid to return follow-up on it never would sim- get to Mexico because up he “beat at me I ply laugh got and tell me that by police, society, family even members.” gay. what I because I My deserved am The IJ and Bringas following then had the living from Veracruz friend Kan- exchange: me City happened sas told this is what to him. Okay, you’re IJ: go older now. You can you tell if return to Mexico and affidavit, In his sworn Bringas stated: “I abuse, you suffer could tell police. anyone my'abuse tell was afraid to about you ... Couldn’t that? do my because uncle threatened hurt me family.” my Bringas and explained further Bringas: They will do I nothing. ... neighbor sexually that when his assaulted know that I because when was living in him, laughed [Bringas] and “[h]e said Kansas,16 couple my friends told me [Bringas] that if told anyone, he would do they got they that raped, got up, beat something [Bringas] sorry would be for.” abuse, like they and went to recognized The IJ that Bringas’s abusers they and didn’t anything. do They even abusers, pedophilic acted like “usually who laugh on their faces. [sic] manipulate their a way victims such Thus, even the IJ improba- understood the them, terrify and prevent them from bility of a younger Bringas reporting his going to an adult and reporting the abuse authorities; abuse stating “you’re want to perpetrat- continue older ... you now could tell ing their on Finally, 'abuse the victim.” that,” .... you [c]ouldn’t do the IJ Bringas recog- stated his “The police affidavit: nized the are no and difference help cannot me. minor’s They between ability to anything report Moreover, wouldn’t do and my They an adult’s. abusers. laugh at me I both the IJ and tell me deserved and the BIA found this testi- what I I got because gay. hap- mony was This credible under heightened stan- pened to friends of mine in Veracruz.” dards of the Real ID Act.17 panel-majority opinion 16. testimony sufficiently faults this specific evi- was to be being dence sufficiently age-specific. as not explained deemed Bringas credible. through However, asylum application, his application testimony his and his where he states that he lived in Kansas from 2004 to (Kan- experiences learned about his friends' is, age from the of fourteen to sas), to whom and report- where these friends that, From seventeen. we can draw infer- (the against ed violence them Mexican ence that his friends were also minors when Veracruz), police in types and of attacks they attempted report in Veracruz. they had (rape battery). Inexpli- suffered and cably, neither the BIA nor the IJ discussed Though Bringas's report friends’ ex testimony, panel majority this and the found periences hearsay, we made have clear it agency insufficient. While the is not re- hearsay, hearsay upon hearsay, or even quired evidence, every piece to discuss asylum eligibility. can this establish Ramirez-Ale crucial, particular piece jandre Ashcroft, v. because it ex- 370 2003) (en banc); INS, plains why any reporting Cordon-Garcia 204 would have been Bringas’s dangerous. 992-93 and futile and asylum applica- his sworn reaucratic abuses some criminal acts addition affidavit, testimony, tion, impunity.” “rape credible It also offi- by of discrimination Mexican ample acceptance creasing social of homosexuals cials: Mexico, especially parts in in certain prominent eases of dis- of the most Mexico,

One City, such as Mexico where same- gay and against crimination violence marriage legalized. has been But the sex Agustín Humberto Es- was that men panel-majority opinion, like the Castro- gay activ- Negrete, trada teacher and and BIA decision Martinez decision Ecatepec, Mexico 2007 ist from State. here, falsely equated legislative and execu- march gay rights in a participated he prohibiting persecution enactments tive Accord- wearing high a dress and heels. Moreover, on-the-ground progress. with Asilegal, after the ing to the NGO soon depicted in re- new laws march,. receiving threat- began Estrada gay 2010 ports legalizing include a law calls ening telephone and verbal Supreme in Mexico Court marriage City, fired attacks. In he was physical 2008 recognize requiring other states to decision disabil- the school children with from allowing marriages, and a 2010 law those he worked. After his dismiss- ities where adopt in Mexico gay couples children began al, group supporters and a he here, how- City. question The we address lobbying the to reinstate ever, Bringas past per- is whether suffered him; governor’s went when years in the 2004. preceding secution a meeting to attend with state palace Therefore, important developments these May, police in him and his officials beat abuse, little relevance to bear taken day The next he was supporters. in which ended threatened, Al- raped. prison, released, contin- though he was Estrada V. authori- to face harassment state ued ties. Examining all the evidence record, applying long-standing that “some country report 2010 states The compels precedent, bu- substantial evidence public perpetrate officials continued to proven deferential, has I agree conclusion with the dissent past due to his identification as that it applied way has been individual, gay and he need not addition- this ease. ally to him a provide specific majority opinion The acknowledges that He is child. therefore entitled to the finding by supported the IJ is not presumption of a well-founded fear of fu- “ ‘any substantial evidence when reason Accordingly, persecution.18 ture we remand adjudicator able compelled would be agency consideration the first conclude the contrary’ based on the presumption instance of whether the has evidence in the Majority Op. record.” at rebutted, been for consideration of .and Holder, (quoting Zhi v. Bringas’s withholding of removal and CAT 2014)). majority The respondent, Attorney claims.19The Gener- opinion agrees had the III, al B. Jefferson Sessions shall bear the establishing burden of appeal. costs on by Bringas, suffered in the form of the GRANTED; REMANDED. child, sexual on him attacks when he was a “was committed ... forces that CLIFTON, Judge, Circuit concurring government was or unwilling unable judgment: control.” (quoting Baghdasar agree major- I of the conclusion yan v. ity opinion petition for review filed 2010)). by Carlos Alberto Bringas-Rodriguez granted should be matter remand- The by Bringas evidence offered in sup- ed to the BIA for further proceedings. port proposition that the Mexican my basis for conclusion much narrower unable or adopted by majority than that opinion, control sexual against attacks children was view, my majority however. In opinion evidence, not so overwhelming. That de- respect does not the proper majority standard for scribed in opinion at 1073-74 our n.15, court’s review of an order of removal. the dissent at 1087 amounted supposed That standard is to highly be the an unspecific hearsay end to argues Bringas's persecution 18. The dissent persecution that fear of and his fear of future persecution future as a Mexican man is are the same—his sexual orientation. past persecution "unrelated” to his based on his sexual orientation as a child and we thus Bringas agency asked the to consider his presume persecution cannot future under 8 diagnosis, HIV of which he learned after fil- However, 1208.13(b)(1). § C.F.R. it is not the ing appeal of his notice BIA. to the The BIA persecutory the nature of acts that must be request, stating denied this that failed Rather, presumption related the to for arise. it positive show “how his status an HIV as ground statutory is the enumerated that moti- changes homosexual outcome of the his vates the that be must related —in remand, Upon agency case.” the should con- words, other the reason for fear of future information, sider this new which is “materi- persecution must be to the related reason for al” and “could not have been discovered or A-T-, past persecution. Matter 24 I. Cf. of presented” to the IJ. Ali v. (A.G. 2008) & (recognizing, N. Dec. 2011) (quoting 1031-32 provision in the of a context related for with- 1003.2(c)(1)); § Angov C.F.R. see removal, holding presumption Lynch, arises the fear where of future Bringas’s diagnosis may HIV also be relevant statutory ground" “on account the same as relocation, question agen- to the which the past persecution feared harm cy upon past need not take a form must consider remand. See "identical” Boer- Here, harm). Sedano, Bringas’s past the reasons for F.3d at 1090-91. [Bringas] protection to offer from by one or unable he was told of what by Bringas him perpetrated upon sexual abuse hap- had about what persons two other a child. made to report was when a pened would have town. That evidence

a different general, conclusion was more The BIA’s a conclusion support sufficient been not stating that the “evidence does estab- would have a child to the report by that the Mexican is un- lish” futile, powerful that but it was not so been or unable to control vio- willing could found adjudicator have But the BIA against no reasonable lence homosexuals. finding is true about the contrary. The same did not correct the IJ’s there by Bringas support “no evidence whatsoever” to evidence offered general more police report contention that a arti- newspaper country reports from futile, and it did not would have been men against gay about discrimination cles any awareness of the evidence reflect That in Mexico. homophobic violence view, my the failure to that effect. speak directly did general evidence and to account for recognize that evidence It by Bringas. violence suffered the kind of justifies remand to the it in the decision the Mexi- say much about how did not so including agency proceedings, for further it have reacted that would can question further consideration adju- any reasonable compelled would have past persecution. whether suffered opin- majority agree with dicator to review, but I grant petition I assessment. ion’s own past the answer to that would not dictate peti- that the that I conclude reason persecution question. is that granted be should tion review BEA, Judge, with whom Circuit the evi- disregard agency appeared O’SCANNLAIN, Judge, joins, Circuit subject. on the Bringas offered dence that dissenting: oral decision The IJ stated majority I dissent from the respectfully any not have certainly do usurps power it opinion [W]e (BIA) police in Mexico Immigration Appeals whatsoever Board any action by reciting, not take this authorities do facts. It does determine protec- from the “sub- type ultimately departing, offer some whatsoever to children, sexu- which states the abuse of evidence” standard against tion stantial are conclusive sexually “findings abused child is of fact agency ally, whether adjudicator would female, any abuser reasonable or whether the unless male or contrary.” to conclude compelled There is no evi- be or a female. is a male 1252(b)(4)(B) (emphasis § add- that, really conclude 8 U.S.C. so I cannot of dence ed).1 unwilling or government that the INS, 847, (9th Holder, 733, Cir. 851 v. 31 F.3d Jiang v. Lianhua Kotasz

1. See anew at the 2014) ("Given are not free to look (9th extremely 'We the 740 Cir. of testimony measure the soundness and then of evidence] standard [substantial deferential by what we would have review, agency's decision the approaching a de novo re- anything compel opposite the Nor does evidence F.3d found. improper.”); Cole v. 659 view is support 2011) ("We just it would also 762, (9th because that conclusion have held 780 Cir. Mukasey, 553 v. a different result. Donchev evidence] standard [substantial strict '[t]his Quan 1206, 2009).”); v. independently reviewing court from the bars Gonzales, 890-91 holding the weighing the evidence J., ("[W]e 2005) (O'Scannlain, dissenting) except eligible asylum, for petitioner is finding fact unless the accept IJ's the shown.' must compelling evidence is where cases Here, BIA Brin- not to unpersuasive compel the found us reverse the BIA’s find- ing.2 govern- deny petition We should the for re- gas’s of the Mexican evidence view. inability unwillingness control to ment’s prevent the abuse homosexuals. To reach its conclusion the record hearsay

record evidence—uncorroborated compels evidence the conclusion that Brin- testimony Bringas’s Mends past gas persecution, established the ma- reports respond failed to to Veracruz jority any if holds that there is evidence- abuse; newspaper homosexual articles including hearsay uncorroborated testimo- average an than which document fewer foreign ny is unable —that per year of sixty murders homosexuals control persecution by pri- to Mexico, regarding with no at all evidence vate, individuals, public, the adminis- to government responded how the Mexican trative trier of fact must disdain evidence murders; single instance of the those contrary, ignore and must persecution of a man Mexi- homosexual produce any alien’s failure to agen- officials; strong evidence, can evi- cy-requested corroborating govern- immigration efforts the Mexican specifically dence of which our law re- quires.3 ment to homosexual citizens—does The effect of this new standard: compels contrary Bringas’s private persecutors, conclusion. This control extremely granted Bringas 120-day óf is an deferential standard re- even extension enough sup- During provide corroborating view: it is not that the evidence such details. conclusion, IJ, contrary panel hearings ports a that the one of the before the the IJ made weighed differently, following Bringas’s attorney: would have the evidence comments to panel persuaded attorney, go or even that the that the "If I were an I’d the corrobo- incorrect; because, me, mean, finding is the evidence must be so ration I it’s a lot more overwhelming just panel ‘any important presented but your that not to make sure case is adjudicator compelled adequate proof, would be with all reasonable rather than risk contrary.’ you The law the Su- conclude in order see if able are to beat the unequivocal point.” preme Court are get this clock and a work card.” attor- omitted)). (internal ney citations hearing responded at the IJ with the "Well, following: just go let’s ahead’ it and set Elias-Zacarias, provide corroborating over so that we can 2. See INS 502 U.S. n.1, (1992) evidence. 112 S.Ct. L.Ed.2d I don't know how successful we’re be, Indeed, ("To going finding only problem.” reverse BIA we must find that’s the only supports 120-day provided by evidence not that con even after the that the extension clusion, IJ, compels compels supplement it—and also did not the hear- petitioner] say testimony [the further conclusion that had a of his friend or friends —which guerrillas fear governmental well-founded was the core his claim of before, to, persecute political opin him contempt pleas lassitude (emphases original)). ion.” government help any affidavits from —with corroborating through his friends or details 1158(b)(1 ("The )(B)(i)-(U) proofs testimony, any § nor with 3. See 8 U.S.C. that he proof applicant “reasonably burden of is on the to estab- could not obtain” evidence. applicant refugee majority points lish that is a Where The evidence .... to as corrob- applicant orating the trier of fact determines evidence to refute this dissent has provide nothing actually should evidence that oth- corroborates to do with the corroboration IJ, testimony, requested erwise credible such must evidence under 8 U.S.C. 1158(b)(l)(B)(ii). applicant required § be corroborated unless does not The IJ evidence reasonably have the evidence and cannot ob- to corroborate claim Mexican evidence.”). Immigration Judge government tain unwilling was unable or to con- (IJ) Bringas's corroborating Bringas's persecutors. asked counsel for trol The State Department support Bringas's Country Report details to claim is silent on score, They newspaper Mexican was unable or as are the articles. removal, quested asylum, withholding of presentation his burden of having carried evidence, Against from and relief under the Convention discharged alien is of (CAT). This is not and Torture He claimed that he had persuasion.4 of his burden suffered sexual abuse a minor and the law. cannot be . amounted to past persecution this abuse I. account of his sexual orientation. on is Bringas-Rodriguez Alberto Carlos Bringas’s asylum The IJ denied claim old, homosexual, and a twenty-six years untimely respect it was filed. With ages From the of four citizen of Mexico. removal, withholding of the IJ found twelve, sexually Bringas repeatedly Bringas credible but ruled Bringas uncle, cousins, neighbor abused his past persecution had established not Valles, a town in the Mexican state in Tres ground for rea- protected account of two twelve, age Bringas At the of of Veracruz. (1) sons: The evidence established that the stepfather moved to Kansas with “central reasons for the abuse were the months, with his mother several live abusers,” perverse urges sexual of the not year returned to Tres that same but within (2) orientation, Bringas’s sexual there grandmother. live with his Once Valles to no that the in Mexico evidence Valles, con- the sexual abuse back Tres Bringas “from protected have never the abuse tinued. perpetrated upon him as abuse sexual fourteen, age At the of he police. to the Bringas’s fear of future a child.” As to “to with his mother returned to Kansas country the IJ noted that re- persecution, He entered escape abusers.” [his] persecu- a few instances of ports included inspection or au- States without United Mexico, any but not tion of homosexuals thorization. government partic- “pattern practice” or in such later, twenty ipation acquiescence persecu- age years Six Moreover, country Colorado, reports tion. Bringas pleaded living while country as a whole—and attempted showed to and was convicted guilty City particular sig- made of a Mi- Mexico “Contributing Delinquency to the —had thereafter, rights immigration au- nificant advances with Shortly respect nor.”5 homosexuals, po- could such that Appear. him a Notice to thorities issued of the tentially part relocate to a removability but re- Bringas conceded INS, incidents, nothing Mejia-Paiz say reports but contain 1997) ("[T]he petitioner bears the burden government's involvement about the Mexican course, persuading is credi- the IJ that his incidents. Of or reaction to those ble, to evaluate asser- Bringas quite and the IJ is entitled psychological evaluation claims, light persecution in 'of the pasq and his tions properly tells us about him strength of such other evidence or weakness nothing to his claims but tells us corroborate (internal present.” cita- petitioner may as the or reac- of Mexican involvement omitted)). tions committed tion to incidents of persons. other ("(1) Any person § 18-6-701 Rev. Stat. 5. Colo. induces, aids, ("The encourages 1158(b)(l)(B)(ii) a child to who § testi- 8 U.S.C. 4. See law, municipal any federal or state [asylum] applicant may violate mony be suffi- ordinance, county or court order commits applicant's burden with- cient to sustain the corroboration, delinquency contributing of a minor. only applicant out if section, the term purposes of this applicant's For the fact that the satisfies the trier of credible, age of any person under the ‘child’ means testimony persuasive, is and refers (2) Contributing yéars. to the delin- eighteen specific sufficient to demonstrate facts added)); felony.”). is a class 4 quency of a minor refugee." (emphases applicant is a 1080 rejected Bringas’s safe. IJ also denied the BIA Finally, he would be The re-

where quest light to remand his ease to IJ in grounds that the under the CAT on the relief of recent Brin- Bringas’s diagnosis. HIV offered insufficient evidence that Bringas gas’s to the BIA explained brief his recent government, in future “torture the diagnosis argued that “this fact acquiescence govern- or with of significant because it in places [him] now a likely was ment” more than not. position more vulnerable should he be re- appeal. BIA dismissed Bringas’s The turned to Mexico.” The BIA declined claim Bringas’s asylum The BIA denied remand case for further consid- merits, assuming arguendo that Bringas provided eration because had not timely BIA application was filed. The con- any additional conditions evidence Bringas past failed to establish cluded specific arguments regarding how his persecution proved because he had an positive status as HIV homosexual government or unwill- unable change the outcome of his case. abusers, control ing avoiding Bringas petitioned this court review question Bringas whether established that BIA’s three-judge decision. The abused he was because he was homosexu- panel Bringas’s petition denied for review. BIA Bringas al. The also found that did panel first noted that it could not per- not have well-founded fear of future Bringas’s asylum “resolve claim on timeli “pat- secution because he failed to prove grounds ignored ness because the BIA this practice” persecution against tern ” procedural defect .... Bringas-Rodri in Mexico. this Citing homosexuals court’s (9th Lynch, 1171, guez v. 805 F.3d 1177 opinion Castro-Martinez v. 2015) (now withdrawn); Cir. see also Abebe (9th 2011), F.3d Cir. and com- Gonzales, v. experience paring of homosexual men 2005) (en banc) (“When BIA ig has to the experience Mexico of homosexual procedural nored a defect and elected to Jamaica,6 explained inmen the BIA an merits, consider issue on its substantive “widespread brutality against no homosex- we cannot then decline to consider the ... uals or criminalization homosexual defect.”). upon procedural issue based this respect [exists] conduct Mexico.” With reviewing In Bringas’s asylum claim on the removal, withholding Bringas merits, panel concluded the evidence satisfy proof failed the lower burden of compel did not reversal of the BIA’s deter required asylum, BIA found that that Bringas mination failed to establish satisfy he failed to higher standard for past or a well-founded fear of withholding of respect removal. With persecution. as-Rodriguez, future Bring relief, BIA CAT found no clear error at 1177. The panel followed the the IJ’s determination that analyzed BIA only whether prove failed torture or with the establish failed to that his was in abuse acquiescence the Mexican flicted individuals the likely control, than was more not. thereby unable or Mukasey, persons against numerous cases of violence Bromfield 2008), grant- Circuit Ninth by police based on their sexual orientation petition ed a for review and remanded after vigilante groups, brutality against homo- finding pattern practice sexuals, as well as Jamaican law criminaliz- men homosexual in Jamaica. The evidence conduct, ing resulting homosexual in several compelled finding such a based on culture prosecutions. homosexuals, against of severe discrimination Bringas Bringas’s suf- avoiding question experi- the whether details about friends’ friends, including because he homosexual. Id. the fered abuse names of his ences— they they at how old were when 1177-78. were abused abuse, they reported and when their BIA agreed with the IJ and panel The abused, they whom were they to whom failed to that Bringas that establish abuse, reported their or where the abuse or unwill- government Mexican unable -justified the BIA’s conclusion occurred— abusers, control his and therefore ing to failed to Bringas that establish that persecution. past to establish Id. at failed government would be unable or country reports hearsay 1178. The to control his abusers.7 Id. at 1180. The by Bringas evidence introduced did not panel therefore held that Bringas was not sufficiently gap proof close presumption to a entitled of a well-founded respond- how the would have Id. at persecution. fear of 1182. abuse, reports ed to of his had such re- ports panel made. Id. at 1180-82. With Bringas’s been The concluded that evidence, supported respect to conditions BIA’s conclusion country reports Bringas failed to a well- panel stated establish of persecution. no instances or founded fear of future noted discrimination Id. The “only spe- panel recognized in Veracruz and one two Bringas avenues for example government persecution objectively of an cific establish reasonable fear (1) persecution: of sexual in Mexi- of future on the basis orientation that he was a highlighted 1179. The of a panel group against co.” Id. at member disfavored portions reports describing “gay systematic pattern which there was or (2) pride” practice marches across as a persecution, Mexico as well that he be- “requir- Court Supreme longs group Mexican decision to a disfavored and has an legally ing recognize being singled Mexico’s states individualized risk of out for performed marriages per- persecution. Bringas Id. the sec- [same-sex] forfeited elsewhere,” by failing that was argument formed decision ond to raise it before Therefore, years panel only made five before the States the BIA. focused United Bringas reached conclu- on Supreme pattern Court a similar whether established a Turning testimony Bringas’s practice sion. Id. of homosexual Veracruz, experiences panel his friends’ men in Mexico. Id. concluded about recognized panel first adduced no evidence estab- credibly “couple” lishing change of his in Mexico testified conditions they him “that decided they got raped, friends told since the court Castro-Martinez abuse, got up, they beat like went Veracruz, 2011).8Therefore, panel held that sub- [in Mexico] anything” supported their except “laugh

didn’t do stantial evidence the BIA’s find- [in] Nonetheless, panel ing pattern practice persecu- faces.” Id. at 1178. of no corroborating the lack tion. Bringas-Rodriguez, concluded 1183. requested though acknowledged 7. were court These details evidence of counsel, attacks, together a provision of time for discrimination and societal isolated supra production. See 3. their note required governmental as to the element of incapacity, explained it “the lassitude or Castro-Martinez, rejected this court government’s prevent Mexican vio- efforts system- that "the Mexican claim against lence and discrimination homosexuals atically harmed men failed to years.” ... increased recent ha[d] Al- them from violence.” 674 F.3d at 1082. claim, respect Bringas’s CAT himzadeh Afriyie With the extent “[t]o held that the same evidence that panel gap filling suggested [the] discussion of pat the BIA’s dismissal of the supported proof governmental burden of on supported inability claim also tern-or-practice unwillingness Bringas IJ and BIA’s conclusion that something beyond the standard we use for a likelihood of failed to establish torture. proof by other a preponderance elements — stated, panel Id. at 1184. As the conditions evidence, considering all the evi- “insufficiently dangerous in Mexico are Op. dence the record.” at 1069-70. How- gay people to constitute a likelihood of ever, any neither case held that “gap” government-initiated or -sanctioned tor created report the failure to could not Id.; Castro-Martinez, ture.” 674 F.3d at most, be filled other At evidence. panel 1082. The noted that the likelihood “gap” language commented on the lack of especially given of future torture was low evidence, one kind which sup- could be Bringas is now a “selfsufficient [sic] planted by another kind of evidence. It did homosexual adult” could who “relocate to a evidentiary not increase the burden on the part Bringas-Rodri of Mexico.” different instance, petitioner. For “gap” there is no guez, at 1184. in establishing the date of a fire loss when the homeowner report does not file a

Finally, the BIA panel held that the did Department, the Fire produces if he a not abuse its discretion in declining to date-stamped burning. video of his house remand on diagnosis. based HIV Similarly, there is no “gap” asy- when an According panel, the BIA offered a lum petitioner does not report persecu- his explanation reasoned that was neither ar- tion private government individuals to bitrary pro- nor irrational: did not officials, produces alternative, if he “any com- country vide additional conditions evi- pelling specific arguments foreign govern- dence or evidence that the regarding how ment at changes his issue is or unwilling [HIV] status the outcome of unable persecutors. his control his case.” Id. 1185. Second, petition rehearing majority filed a en overrules Castro-

banc, granted. because, case, which we A majority of the Martinez in that im- “[w]e panel today en banc overrules posed higher Castro, several of burden [on who prior immigration our cases in persecuted by two re- was private individuals spects, only by misreading those cases. that required child] Castro to demonstrate First, majority holds that Rahimzadeh that ‘Mexican ig- authorities would have Afriyie “unnecessarily introduced rape nored the of a young child or that construct'that the failure to report [private provide authorities were unable to a child ” government (cit- protection against rape.’ Op. authorities] at 1070 evidence, creates a ‘gap’ ing Castro-Martinez, 1081). because our 674 F.3d at we, agency, law is clear that the upon majority The holds that this language ef- review, must examine all the evidence in fectively imposed “a reporting requirement question record bears on the sexually abused pe- children: either the whether the is unable or un- titioner reported must have in his own willing private persecutor.”9 cáse, to control a or other children must have atOp. majority 1069. The overrules Ra- to create the basis for a report on Holder, 613 F.3d 916 v. Rahimzadeh 2010); 613 F.3d 924 Afriyie who, Afriyie petitioner that a 1072. Howev- dek and Op. at response.” general unequivocally does not er, stated Castro-Martinez evidentiary chil- officials leaves an especially asylum petitioners,

dren, abuse to estab- how those officials “gap” regarding their need Castro-Martinez, persecution. report.10 majority See past lish react such (“We never held at 1081 have “supersedes” Afriyie Rahimzadeh and be- child, victim, obligat- let alone any “[fjraming question of nonre- cause author- a sexual assault to the report ed to as a ‘failure’ that creates an evi- porting now.”). ities, Instead not do so and we do dentiary ‘gap’ had the inadvertent effect Castro-Martinez, accurately reading of heightening evidentiary standard of respect clarification with needed no which beyond types proof, traditional ac- of requirement exists reporting a to whether every prior precedent, that we cepted the ma- any age, of asylum petitioners to demonstrate have deemed sufficient requirement imposed jority removes inability unwillingness or to governmental Congress by Supreme Court persecution.” Op. at protect victims evidence petitioners produce to asylum added). (emphasis 1069 that the compel to the conclusion sufficient that Rahimzadeh and The assertion Af- unwill- was unable or foreign government heightened evidentiary riyie created private persecution. ing protect against to report fail to petitioners standard for who in turn. majority’s two issues I address government to private persecution their language to the ignores authorities clear II. Rahimzadeh contrary opinions. from both reporting pri- clear that Afriyie made majority rejects our substantial A The government authorities persecution to vate holding that standard past persecu- required to establish “types merely proffering traditional Afriyie pro- Rahimzadeh and tion.11 categorically to estab- proof’ suffices regarding how evi- guidance clear vided unwilling” claim. an “unable or lish can reports police than dence other of- government compel the conclusion the com- majority takes issue with The protect unwilling or to ficials were unable reached in Rahimza- monsense conclusion Rahimzadeh, (“The Rahimzadeh, ("The 613 F.3d at 921 11. See 613 F.3d at 922 10. See reveal report reporting private persecution to does not to the author- absence of ability will anything government’s or not, however, about a requirement an essential ities is attackers; instead, it ingness private to control unwillingness government establishing govern gap proof about how the leaves a attackers.”); inability id. at 922 to control asked, peti respond which the would if ment (”[I]t to the IJ treated the failure is clear that methods.”); may attempt fill other tioner to merely in the assessment report as one factor (" absence of a Afriyie, TT]he F.3d at 931 613 willingness and government’s of the Dutch gap proof report police ... leaves a extremists, ability private not as to control government respond, how about Afriyie, F.3d at per asylum.”); 613 se bar to attempt petitioner may to fill which the ” ("We reporting per- begin by noting that 931 Rahimzadeh, (quoting other methods.’ is not es- government authorities secution to 922)). “gap” Recognizing that a exists demonstrating sential change the make it determinant or is not to protect him from is unable or requires all evidence proof which standard actors.”). Vitug private See matter to be considered. on the 2013) (9th Cir. ("[T]he where it its discretion evidence.”). BIA abuses ignores arguments (em- private from petitioners persecution.12 persecution.” The Op. victims of at 1069 language opinions added). from those needed no The phases majority ignores that further clarification. response an inadequate by government of- petitioner’s ficials to direct majority

But the does not overrule those clarify provide will sometimes attempt an how this cases persecution. past reviews evidence of stronger court evidence that offi- Instead, recites, majority yet ignores cials unable or unwilling are past persecution standard of review for against private persecution than other involving private persecutors.13 claims types prior recog- of evidence. Our cases majority “[f]raming question holds that nized this uncontroversial statement re- nonreporting as a ‘failure’ creates See, garding e.g., the nature of evidence. evidentiary ‘gap’ an had the inadvertent (“[W]hen F.3d at Afriyie, appli- an evidentiary of heightening effect stan- attempts cant beyond types proof, dard traditional them, request protection from accepted every prior precedent, that we (or thereof) response authorities’ lack to deemed sufficient have to demonstrate requests may provide such powerful evi- governmental inability unwillingness or to respect dence with to government’s the protect persecution.” Op. victims of at 1069 or willingness ability protect to the re- added). we, (emphasis nor any Neither added)). questor.” (emphasis Rahimzadeh court, accepted has notion other that Afriyie did not heightened create a presentation of a type proof used in evidentiary petitioners burden for who do cases, regardless other of its val- probative report persecution. not their Those cases ue, categorically is to sufficient establish simply recognized petitioner’s that a direct government that unable officials were or government officials, report by to followed unwilling to private persecution. control an or inadequate by nonexistent response quality nature and The evidence officials, provides proof those “powerful” However, always adduced mattered. under indirect, vague, that hearsay evidence view, majority’s probative value of My may colleagues fundamentally lack. al- proof peti- becomes irrelevant when longstanding ter our substantial evidence provide a “type[ proof, accepted tioners ] of of review every suggesting standard that evi- prior precedent, that we have than a govern- report perse- deemed sufficient to dence other failure to demonstrate inability or unwillingness protect police mental cution to as —such Afriyie, explained majority 12. In we 13. The opinion Rahimzadeh characterizes its as petitioners report pri- who do not their standard, merely clarifying legal that "the persecution government vate authorities evidence, heightened substantial is not government can establish that authorities stringent made more when the is protect unwilling were unable or them child, opposed to a directed as an adult through evidentiary several channels. For ex- Op. at majority ....” n.ll. But the does ample, petitioners could establish that others apply the true not substantial evidence test to reports made have of similar incidents to no petitioners. either or adult On children this proffering avail—as did here point, agrees. Concurring the concurrence See hearsay statements of as to their his friends ("In view, Op. my majority opin- at 1076 contemptuous reception by insouciant and respect proper ion not does standard for police, Afriyie, Mexican see at 932- our review of court's an order of removal. “private persecution particu- or that of a supposed highly That standard is defer- to be widespread sort lar is well-known ential, Rahimzadeh, agree I with the it has government.” controlled dissent that . case.”). applied way 613 F.3d at 922. not been in this victim’s of the abuse to categori- whether the testimony from hearsay Mends — requirement, else an evi- evi- was a compelling to constitute cally suffices dentiary would make the rest of the gap are unable officials government dence insufficient, and whether this by pri- proof victim’s to control unwilling only as to homosexu- requirement obtained vate, individuals. nongovernmental Castro-Martinez, 674 F.3d al children. See evi- aside substantial majority B. The sets (“We any have never held that excusing peti- adult review dence victim, child, obligated is let alone persecuted were children tioners who authorities, report a sexual assault alternative adducing sufficient, now.”). and we do not do so Castro-Mar- from was un- language permit does not express tinez ’s them. able or reporting requirement that a reading of a only children and persecuted exists for take issue with the follow- My colleagues than similar adults. such children rather ing language Castro-Martinez: Nonetheless, majority concludes observed, there was no evi- BIA As the a reporting created re- Castro-Martinez Mexican au- in the record that dence persecuted children. quirement rape ignored have thorities would were or that authorities young child undoubtedly correct that majority protection a child provide unable to are un- who suffer sexual abuse children reports ... against rape. [N]one [the] their abuse to likely compel the conclusion their own accord. The fact that officials of or harmed a disregarded have or private persecution young victims of — being the victim male child who their to unlikely report to abuse old—are male. rape by another of homosexual why have never explains we authorities Castro-Martinez, Ac- 674 F.3d at 1081. private persecution that victims of held colleagues, language this cording my to past to report to their abuse establish need private child victims of effectively requires See, e.g., asylum purposes. persecution abuse to the report to their persecution (“None Rahimzadeh, at following reason- based on authorities any surveyed], or immigration cases [the ing: found, a freestand- have creates other we are who suffer sexual abuse [C]hildren requirement qualify to ing reporting that abuse unlikely report to generally majority much fur- goes But the asylum.”). unlikely are authorities. Because to child victims of restating than ther similarly unlikely that report, to it pri- like all victims of private persecution, be or other evidence will country reports report need not their persecution, vate police response, able to document majori- the authorities. The persecution to of chil- thereof, to the sexual abuse lack that, children are ty concludes inap- ... That added burden dren. similarly unlikely unlikely report, “it is to reflected a both because it propriate, will reports or other evidence proof requirement heightened gap-filling police response, able to document the be on evidence re- because it focused of chil- thereof, to the sexual abuse lack gay children the treatment garding added). In (emphasis at 1071 Op. dren.” Mexi- rather than the treatment words, should excuse this court other generally. cans “country report[ or other any ] absence of added). were government officials evidence” (emphasis Castro- Op. at 1071-72 peti- adult unwilling protect to unable or this exact issue: addressed Martinez persecution tioners who suffered as a child soon “country excuse the absence re- unlikely report because children are to ports or other evidence” asylum peti- from private persecution their to the authorities. tioners experienced private who persecu- tion as adults under the same reasoning majority explain why fails to adults adopted by majority today. lackWe private who suffer authority to make such a family, neighbors, hands of their dramatic or com- munity any likely less shift in our immigration are to their nation’s asy- private persecution authori- lum law. If relaxing there is to be a of our ties, deserving less majori- thus asylum requirements for victims of ty’s approach. lack-of-evidence-be-damned persecution, authority lies with Con- require private per- We do not victims of court, gress, not this to enact it. secution to authori- past persecution

ties to establish for asy- III. because, purposes lum no matter their age, unlikely are report private victims Bringas’s evidence does not compel the persecution given reporting may be conclusion that Mexican authorities were dangerous. futile Afriyie, See unwilling unable or control Nonetheless, at 931. our immigra- nation’s private persecutors. reciting, After requires asylum tion law still petitioners to lowering then our standard of review be- adduce sufficient evidence other than their yond the bounds set Supreme Court reports governmental or others’ author- in Elias-Zacarias Congress in 8 prove ities to that those authorities were 1252(b)(4)(B), U.S.C. the majority easily protect unable or asylum peti- reaches the conclusion that Bringas ad- private persecution. tioners from The ma- duced evidence sufficient to compel the jority requirement dismisses that for a conclusion that Mexican authorities were petitioner experienced who unable or unwilling him. The when he was a though child—even majority reaches this conclusion com- petitioner, adult, an can reasonably paring Bringas’s evidence to the evidence identify documentary, anecdotal, other presented in other in cases our circuit statistical support evidence to his “unable involving petitioners who private suffered unwilling” petitioner claim—because the persecution and reported never per- their unlikely report was his secution to the Op. authorities. at 1064-69. when he a petitioners was child. But adult However, a careful review unlikely are also of the their evidence private authorities, presented in explains those cases why and thus simi- the larly unlikely quality to obtain nature and “country reports or of the evidence ad- by other evidence” documenting “police Bringas the duced does not come close to response, or lack thereof’ to reports compelling the conclusion reached the persecution. I private fear our court majority.14 will Compared to the evidence in INS, 1038, 14. See Korablina v. 158 F.3d part petition 1042 in the for review based on credi- (9th 1998) (granting petition (1) Cir. the testimony petitioner for re ble per- was petitioner view based sonally on evidence that the mistreated by police and harassed offi- boss, cers, beating witnessed the jailed of her Jewish who him and threatened to do so beating reported men, whose police again to the dating (2) if he continued and avail, reported beating no and police to a brutally friend officers maimed and killed the hall, municipal city at the friends); petitioner’s gay who soon thereafter Afriyie, 613 F.3d at Gonzales, "disappeared”); (9th 2010) v. 928-29 (granting Cir. part Ornelas-Chavez in (9th 2006) (granting petition 1057 Cir. for review based on credible testimo- private perse- discrimination and cases, includ- dents Bringas’s evidence prior our homosexual individuals in hearsay against testimo- cution unspecific only vague, ed Mexico,16 a single persecu- instance experiences describing his ny friend[s]’ Veracruz,15 byman Mexican against tion a homosexual newspaper police with involving prior inci- officials.17Our cases isolated which documented articles credibility finding, (1) but authorizes petitioner and others no adverse ny avail, require corroborating fact to evi- petitioner’s the trier of police, to no to the dence, actors, and in the absence of such corroborat- beating by private the murder of mem- evidence, ing reject actors, allows the trier of fact to group by private religious bers of his credible evidence as of insuffi- the otherwise petitioner’s of the sister and the murder weight precisely hap- cient what home, (2) police of her destruction —which Bringas. given days pened to He was police with only gun, at the station had one testimony corroborating his de- buttress petitioner’s religious which to rejected op- He tails and other evidence. Vitug, group); 723 F.3d at why portunity. gave explanation as to He no 2013) (granting part petition for review produce any corroborating could not he petitioner on evidence based though requested, even statute personally and threatened harassed grounds specifically provides for available orientation). on account of his sexual officers produce excuse failure to the corroboration. credible, 1158(B)(i)-(ii)("The following § hear- 15.Bringas gave the burden of See 8 U.S.C. living testimony: proof applicant I was in Kan- to establish that the say is on the ”[W]hen sas, got they applicant refugee Where trier of couple my told me that is a .... friends abuse, pro- they applicant up, determines that the should raped, they got beat like fact credi- they evidence that corroborates otherwise didn’t vide [in Mexico] went testimony, such evidence must be corrobo- laugh their ble anything. They [sic] even do nqt applicant does have following unless also stated rated faces.” reasonably cannot obtain po- evidence and .-the asylum application: "If I went to the added)); supra (emphasis see also anything. evidence.” they do wouldn’t [in Mexico] lice note 3. follow-up They and never will take simply laugh at me and on it or "Bringas additionally offered several news- 16. got because I I what I deserved tell me that articles, including paper one in which the living in gay. My gay from Veracruz am friend reported that a review of Associated Press happened to City told me this is what Kansas newspapers in Mexican than 70 more presented state- inconsistent him.” average increase from ‘an states’ revealed an single "friend” or regarding ments whether killings year hom- nearly 30 motivated reported to the Mexican multiple “friends” ‘nearly 60 ophobia and 2000’ to between 1995 abuse, all to police they had been victims ” Op. at year 2001 and 2009.’ between evidence, hearsay such as Credible no avail. statements, may be friends’ admissi- Rojas-Garcia immigration proceedings. ble in Neg- [Agustin Humberto Estrada 17. “In Ashcroft, gay rights wear- participated á march rete] weight majority places great on the fact According The high to the ing heels. a dress sufficiently spe- march, "Bringas’s testimony was that Asilegal, Estrada soon after the NGO Op. at 1074 deemed credible.” threatening telephone cific to be calls began receiving Here, majority gives a concrete us n.17. In 2008 he physical attacks. and verbal and usurpation fact-finding pow- example of its children with the school for was fired from agency to itself. the administrative his dis- er from he worked. After disabilities where "sufficiently” spe- missal, began supporters group Whether the evidence he and a him; majority’s Whether call. reinstate lobbying cific was not to specific governor’s palace com- to hearsay testimony was so as to to the when went May, proper in adjudged meeting stan- with state officials pel credible is attend a it be Moreover, next supporters. ab- The judgment. the mere him and his dard beat for threatened, and finding prison, credibility day does he was taken to adverse sence an .of released, Although Estrada finding raped. con- he was compel make a our court to by state author- face harassment a hash out continued to trary BIA. That would make Op. ities.” at 1075. which assumes the REAL ID Act of explain join cannot why successfully improve partic- I conditions for groups asylum, any ular holding eligible social majority in that the evidence here private backlash that results from such compels the conclusion that Mexican au- government-sponsored improvements unwilling pro- thorities were unable or to interpreted by court should be this as evi- tect We have never reached such Bringas. foreign government dence that is in a on evidence as weak as that conclusion unwilling” protect fact to “unable presents. which particular group. Op. at social See majority not err only by But the does (“The reports showed violence overweighing scant evidence that rose perhaps even as—and because—Mex- the Mexican authorities were unable or ican becoming increasingly laws were tol- majority unwilling protect him. The rights.”). words, erant of In other progress undervalues evidence of social in willing countries become more able and regarding rights Mexico for homosexual protect particular group, a social the trier a logic. in manner that defies individuals disregard of fact must that evidence of majority The first summarizes the relevant progress social conclude countries progress evidence of social Mexico iden- willing are in able protect fact less panel Bringas-Rodriguez tified particular groups isolated social when inci- 2015) (now Lynch, private persecution dents of occur. The withdrawn): majority provide any limiting does not [three-judge] majority panel [T]he found principle regarding when court our should country reports demonstrated begin accept the significant evidence of permitted gay pride that Mexico progress foreign protecting countries marriage marches and had expanded citizens, why its or explain most vulnerable panel equality. majority The also cited a an average evidence of less than report stating that United Nations Mex- homophobia-motivated year murders “ ‘specialized ico had established a hate by private committed actors Mexico be- unit[],’ prosecution developed crime tween 2001 and 2009 permits conclusion judicial protocol adjudica- guide ‘new government, the Mexican overseeing involving rights tion of cases human vio- country more than people, 120 million orientation,’ grounds lations on of sexual unable or its homosex- implemented specialized training po- ual citizens.18 officers, officially designated lice majority alternatively The sets aside the May ‘National Day Against 17 as Homo- progress evidence of Mexico’s social ad- ” phobia.’ vancing rights of homosexuals because (internal omitted). Op. at 1058 citations changes the evidence reflects made after that, The majority despite holds this the period during evi- which abused, of progress, Op. dence as countries like Mexico ended in which at 1075- CIA, (2016), especially confounding given 18. See avail- citizens is World Factbooic https://www.cia.gov/library/ able the same article which documents those mur- publications/the-world-faclbools/geos/mx.html goes govern- ders on to discuss the Mexican (estimating population campaign promote Mexico's ment’s be "radio in 2005 to 123,166,749 homosexuals,” July majority's passed as of The tolerance of the laws in average City conclusion an fewer that of than 60 Mexico which elevated homosexual mar- homophobia-motivated year riage a a murders in a to the same status as heterosexual mar- people compels riage couples adopt of 120 million the and allowed to same-sex children, City’s "gay pride conclusion that the Mexican Mexico is and annual unwilling protect parade.” unable or its homosexual course, establishing same can be said about bears the that 76. Of burden the added). (emphasis fear is well-founded.” Bringas of the relies on to most evidence majority The police responds noting support his claim that Mexican were that Bringas’s fear persecution him of future on unable or before ac- of his count sexual orientation is country reports clearly The are from 2009 2004. to his past persecution related on single example police 2010. account and The only of his sexual orientation. But the against pri- homosexual man oc- violence a persecution vate newspaper Bringas experienced in ever curred 2008. The articles on Mexico account of his sexual published Using majori- in 2010. orienta- were age tion was when he a child to ty’s only relevant evidence was four- reasoning, teen, uncle, and at hands of his hearsay cous- Bringas adduced testimo- ins, (and neighbor,- all of whom lived ny regarding his homosexual ex- friend[s]’ live) Valles, Mexico, presumably still in Tres periences with the and a Vera- cruz, Mexico. the isolated location single documenting the Given article number abuse, Bringas’s given the fact by private murders committed actors each Bringas subject is no a longer and 2009 child year between 1995 that were oversight family his no control of by homophobia, motivated discus- Valles, neighbors in I Mexican Tres would hold that sion whatsoever of how Bringas’s past persecution acts. is unrelated responded to those Even un- within the meaning review 8 C.F.R. adopted der the standard of relaxed 1208.13(a)(1), § and does not entitle him today, does not compel evidence presumption of a well-founded majority. fear of the conclusion reached persecution. future I would further deny IV. Bringas’s petition for review because he not has carried his burden to establish that if agreed majority Even I with the a compels finding of well- compelled the evidence here the conclusion founded fear persecution, of future as ex- persecution, I past suffered in the plained opinion well-reasoned would still dissent on the basis that three-judge panel. Bringas-Rodriguez, See past persecution purportedly established 2015) 1182-84 pre- here does not entitle (now withdrawn).19 sumption fear of of a well-founded future 1208.13(a)(1) does, Assuming, majority § persecution. 8 C.F.R. as the states, Bringas’s past entitles him part, appli- persecution “[i]f relevant persecution presumption cant’s fear future of a well-founded fear of unrelat- majority acted past persecution, applicant persecution, ed to the future cor- of A-T-, Dec. In Matter 24 I. & N. threatened the future ‘on basis of the words, (A.G. 2008), asy original BIA held that a claim’—in other on account of female petitioner undergone statutory ground." had the same Id. at 622. lum who female How- ever, genital against Attorney will in .the his mutilation her Mali was General based decision genital presumption not of well- on the fact "female entitled to the mutilation is persecution capable repetition,” and founded fear of future indeed per petitioner’s there was no chance that she would be fear of future sonally persecuted procedure. past persecution. again by the therefore her related to Here, Bringas Attorney vacated the deci at 621-22. has adduced General BIA sion, past persecution an evidence that is related that'“where alien demon stated past given the persecution, a fear of future nature strates that she suffered bases, identity persecu- statutory abuse of his account of one of the it is of his and the presumed’ or freedom tors. that her life would be rectly remanding agency in to the “for persecution entitles him to presump- consideration the first instance of tion aof well-founded perse- fear of future presumption whether the a well-found- cution, however, [of agree I majority persecution] ed fear of future has been that we must leave questions these at 1076. See v. Op. rebutted.” INS Orlando agency in the first instance on remand.20 Ventura, 12, 16-17, 353, 537 U.S. 123 S.Ct. (2002). remand, 154 L.Ed.2d 272 On V. agency may well conclude that Mexico’s Despite my colleagues’ faithful recitation significant progress regarding rights for proper review, standard of changed homosexuals constitute conditions effectively replace it with a much lower presumption sufficient to rebut standard violation Supreme Court persecution.

well-founded fear of future precedent and our nation’s immigration 1208.13(b)(1)(A) § See 8 C.F.R. (stating Therefore, law. I respectfully dissent. change that a “fundamental in circum- applicant that the longer stances such no fear of persecution

has well-founded applicant’s country of nationality” may

rebut the presumption of a well-founded persecution).

fear of future agency Or the may Bringas, conclude that now a finan- ZANOWICK, Richard an individu adult, cially self-sufficient who has been al; Clark-Zanowick, Joan an in employed in the only United States not dividual, Plaintiffs-Appellees, entry-level positions in the food service v. industry, in at least one supervisory BAXTER position, reasonably can safely relo- HEALTHCARE CORPORA TION, Mexico, individually cate to a new area within sued such as and as succes City, Mexico where he would Hospital be safe from sor-in-interest to American only Supply Corporation individuals in Mexico who and American persecuted have ever him on account Erroneously of his Scientific Products Sued 1208.13(b)(l)(i)(B). § sexual orientation. Id. International, As Inc., Baxter Defen Assuming arguendo that Bringas’s dant-Appellant. past 20. In a footnote at the end of its opinion, motions to remand for abuse of discretion.” remand, majority "[u]pon states that Gonzales, (citing Vargas-Hernandez v. agency [Bringas’s diag- should consider HIV (9th 2007))). Cir. Bringas failed nosis], which is 'material' and 'could not have provide additional conditions evi presented’ been discovered or Op. to the IJ.” arguments support dence or the claim that (internal omitted). at 1076 n.19 citations After diagnosis his HIV put him in a more appeal filed his notice of of the IJ’s position, vulnerable should he be returned to decision, diagnosed he claims that he was Also, Mexico. the record does not contain Bringas requested with HIV. the BIA any discrepancy evidence of between men remand to the IJ to consider HIV- and women or between homosexuals and het positive applications status in his for relief. erosexuals in drugs-in access to HIV Mexico. Bringas’s brief to the only BIA included one provided The BIA explanation a reasoned stating significant line that his HIV status is declining to remand that was neither arbi places Bringas it in a "more vulnera- trary nor irrational. See v. Muka Romero-Ruiz position ble should he be returned to Mexi- sey, co.” The BIA declined to remand to the IJ. Therefore-, disagree majority I also This decision with the was not an abuse of discretion. Taggar agency See must consider the evidence of 2013) (“We review the Bringas's [BIA’s] denial of diagnosis HIV on remand. notes 2010 U.S. the 2009 and Bringas submitted filed rarely complaints victims with the Re- Rights State Department of Human police, in part because of the authorities’ newspaper ports for Mexico several unsupportive responses ineffective and gay describing the treatment of articles victims.” reports men in Mexico. The and 2010 additionally offered several and violence show official discrimination articles, newspaper including one which homosexuals, police against and show Associated Press that a “re- men a serious remained of more than 70 in 11 newspapers view problem years in Mexico five six after states” an increase from Mexican revealed report in 2004. Bringas fled The 2009. nearly average year killings “an states, experi- homosexual conduct “While by homophobia motivated between Na- growing acceptance, social enced “nearly year 2000” to between to Prevent and Control tional Center HIV/ Thus, totality 2009.” of Brin- 2001 and discrimination persist- stated AIDS gas’s compels the conclusion ed.” The 2010 includes an identical reporting his abuse would have been futile Human from the National observation dangerous. Additionally, the 2009 Rights Commission. ex- particularly severe describes reports, in- From we do see

Case Details

Case Name: Carlos Bringas-Rodriguez v. Jefferson Sessions

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 8, 2017

Citation: 850 F.3d 1051

Docket Number: 13-72682

Court Abbreviation: 9th Cir.