Friday, November 20, 2015
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Ninth Circuit Upholds Gay Man’s Deportation to Mexico
Divided Panel Finds Failure to Report Abuse Fatal to Asylum Claim
By KENNETH OFGANG, Staff Writer
A gay man who claims to have been physically abused in Mexico as a child because of his sexual orientation, but did not seek the protection of authorities there, is not entitled to asylum, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In a 2-1 decision, the panel said Carlos Bringas-Rodriguez was not entitled to a presumption that he would be persecuted in the future, because he failed to demonstrate that he was abused because he was gay, or that the Mexican government was unable or unwilling to stop the abuse.
The government sought to deport Bringas-Rodriguez, an undocumented immigrant, after he was convicted of contributing to the delinquency of a minor in Colorado in 2010. He explained that he was drinking in his own home when a friend brought the minor with him.
He attempted suicide while serving 90 days in jail.
Bringas-Rodriguez petitioned for asylum, withholding of removal, and relief under the Convention Against Torture. He testified that as a 6-year-old, he began to realize he was attracted to men, and has identified as gay since he was 10.
As a result, he said, he was beaten by his father and sexually abused by an uncle, cousins, and a neighbor. His abusers called him homophobic names and laughed about it, he said.
He never reported the abuse to police, he said, because such a complaint would have been treated as frivolous, and he did not tell his family, because he was afraid his abusers would harm the family members he was closest to, his mother and grandmother.
He came to the United States “to escape” the abuse in 2004, at age 14, he said, living with his mother and stepfather in Kansas.
The immigration judge found that Bringas-Rodriguez had suffered “horrendous” abuse, but that the abusers were motivated by their own “perverse sexual urges,” rather than by Bringas-Rodriguez’s homosexuality. The IJ also noted that the applicant never reported the abuse to anyone who could do anything about it and failed to offer evidence that the authorities in his home country would not protect him.
The IJ also reviewed State Department reports and found that persecution of gays in the country, and particularly in Mexico City, had become rare, meaning that there were at least some parts of Mexico in which the applicant could live without fear of persecution based on sexual orientation.
The Board of Immigration Appeals affirmed, finding:
“Mexico has taken numerous positive steps to address the rights of homosexuals, including legalizing gay marriage in Mexico City and prosecuting human rights violations against homosexuals.”
The board cited Castro-Martinez v. Holder, 674 F.3d 1073, 1082 (9th Cir. 2011) in which it found that a homosexual asylum applicant had not demonstrated persecution because a “lack of access to HIV drugs is a problem suffered not only by homosexuals but by the Mexican population as a whole.” The board also found that the Mexican government was not likely to torture the applicant, or acquiesce in his torture by others.
The Ninth Circuit granted Bringas-Rodriguez’s request for a stay of removal pending a ruling on his petition for review, which it denied yesterday.
Judge Jay Bybee, writing for the court, said there was substantial evidence to support the BIA’s decision. The case, he said, was factually very close to Castro-Martinez.
Bybee acknowledged a widely reported incident of government persecution of a gay man in 2008. But that single incident, which occurred more than 300 miles from Bringas-Rodriguez’s hometown, cannot establish that persecution of gay people occurs “across a country of 122 million people,” Bybee said, in which hundreds of thousands have participated in gay pride marches, and same-sex marriages are legal in Mexico City and recognized elsewhere in the country under a ruling of the county’s Supreme Court.
U.S. District Judge Benjamin Settle, visiting from the Western District of Washington, joined Bybee’s opinion.
Judge William Fletcher dissented, arguing that Castro-Martinez—which he said is now legally questionable—does not preclude relief in the current case
Bringas-Rodriguez, he said, “established that government discrimination on the basis of sexuality in Mexico persisted, even years after he fled the country.” He also explained why he did not seek official protection in Mexico, testifying that gay friends had been beaten, and that police “laughed in their faces” when they complained.
He elaborated:
“We have repeatedly held that victims, especially child victims, of private persecution need not report their abuse to obtain asylum....Yet, Castro-Martinez and today’s decision effectively require just that. In Castro-Martinez, by demanding unrealistic specificity from country reports, we effectively eliminated those reports as a method of showing a foreign government’s inability or unwillingness to prevent sexual abuse of gay children. In today’s opinion, we effectively eliminate another avenue for obtaining relief.”
The appeal was argued on behalf of Bringas-Rodriguez by Andrea Ringer and Marco Pulido Marques, certified law students from UC Irvine’s Appellate Litigation Clinic. DOJ Senior Litigation Counsel John W. Blakeley argued for the government.
Peter E. Perkowski of Winston & Strawn LLP in Los Angeles authored on amicus brief on behalf of The Public Law Center, Lambda Legal Defense and Education Fund, the National Immigrant Justice Center, the Center for HIV Law and Policy, HIV Law Project, Immigration Equality, Disability Rights Legal Center, and the Asian & Pacific Islander Wellness Center.
The case is Bringas-Rodriguez v. Lynch, 13-72682.
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