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Media Alerts - Carlos Alberto Bringas-Rodriguez, aka Patricio Iron - Rodriguez, Petitioner, v. Loretta E. Lynch, Atty Gen - 9th Circuit
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March 1, 2016
  Carlos Alberto Bringas-Rodriguez, aka Patricio Iron - Rodriguez, Petitioner, v. Loretta E. Lynch, Atty Gen - 9th Circuit
Headline: Ninth Circuit affirms denial of Petitioner's application for asylum, withholding of removal and protection under the Covenant Against Torture, despite his recent HIV diagnosis due to years of physical and sexual abuse as a child in Mexico.

Area of Law: Immigration Law

Issue Presented: Whether an alien, who was subjected to child abuse and was recently diagnosed with HIV, can meet the evidentiary standards of proof required for asylum and withholding of removal and protection under the Covenant Against Torture.

Brief Summary: Petitioner, a gay man, was subject to years of physical and sexual abuse at the hands of his family members and a neighbor. In February 2012, he filed an application for asylum, withholding of removal and relief under the Covenant Against Torture. He sought review of the Board of Immigration Appeals' previous denial of his applications as well as his motion to remand in light of a recent HIV diagnosis.
The court found that Petitioner was unable to establish either past persecution, a well-founded fear of future persecution in Mexico based on his homosexuality, or that the government was unwilling or unable to protect him. Since he never reported these issues to authorities, the production of State Department country reports to demonstrate how the government would have responded were insufficient. The reports described only one instance of discrimination against or persecution of homosexuals in the country.

In fact, the reports highlighted gay pride marches in cities across the country, described the expansion of marriage equality in Mexico City, and detailed a Mexican Supreme Court ruling which required states to recognize legally performed marriages performed elsewhere. Petitioner's testimony about his friends who relayed their negative experience with police when they reported physical abuse on the basis of their sexual orientation was too vague and failed to connect the general police practices in the state with those of police where Petitioner resided.

Extended Summary: Petitioner, Bringas-Rodrigues was born and raised in Tres Valles, Veracruz, Mexico. Bringas found himself attracted to men by age six and identified himself as homosexual by age ten. As a child his father physically abused him and told him things like "Act like a boy, you're not a woman!" and "Do things a man does." Bringas was later sexually abused by his uncle. The sexual abuse by his uncle began at age four and continued until he was about twelve years old. At age twelve, he moved to the state of Kansas with his mother and stepfather.

Five months later, Bringas returned to Mexico to live with his grandmother because he was troubled over hiding his sexuality and sexual abuse. However, once he returned to Mexico, the abuse continued. This time, his uncle, cousins, and a neighbor raped him. The incidents were never reported to police because Bringas believed any complaint would be futile. He also neglected to tell his family until years later out of fear his abusers would harm his mother or grandmother.

In 2004 when he was fourteen, Bringas returned to Kansas to live with his mother and stepfather in escape of his abusers. In August 2010, he was convicted of "Contributing to the Delinquency of a Minor" in Colorado. Because of this, he spent 90 days in jail where he attempted suicide. DHS filed a Notice to Appear in September 2010.

Procedural History
In February 2012, Bringas filed an application for asylum, withholding of removal, and relief under the Covenant against Torture. He explained that he feared persecution if he returned to Mexico because of his sexual orientation and that police would overlook his complaints. The Immigration Judge denied all applications for relief.

The asylum claim was denied because Bringas did not file within the one-year deadline. His withholding claim was denied because he did not establish that the past persecution was on account of a protected status and never reported. There was also no evidence that the Mexican authorities were unwilling to offer protection. Further, Bringas did not establish the requisite risk of future persecution because he could not demonstrate a more likely than not possibility of persecution on account of his membership in a particular social group of male homosexuals. Lastly, his CAT claim was denied due to insufficient evidence that the government turns a blind eye to allegations of sexual abuse by children. As a result, Bringas could not prove that torture in the future by the government or acquiescence of the government was likely.

The Board of Immigration Appeals ("BIA") affirmed. It denied his asylum claim on the merits and assumed it was timely filed. The BIA concluded that Bringas failed to establish past persecution because (1) he could not show that he was abused on account of a protected ground, and (2) he had not demonstrated that the government was unwilling or unable to control his abusers. The BIA also found that Bringas did not have a well-founded fear of future persecution because he failed to show a pattern or practice of persecution against gays in Mexico. Additionally, it rejected his withholding of removal and CAT claims because Bringas failed to establish the lower burden of proof required for asylum. It followed that he also failed to satisfy the higher standard of proof required for eligibility of withholding removal.

Lastly, the BIA rejected Bringas' argument that his case should be remanded in light of his recent HIV diagnosis because it placed him in an even more vulnerable position should he be returned to Mexico. Bringas failed to establish that he would be unable to obtain treatment for HIV in Mexico, or that lack of access was a problem experienced by homosexuals in particular. He filed a timely Petition for Review of the BIA's dismissal and sought a stay pending review. The Court of Appeals granted the stay and denied the petition for review.

Discussion
On appeal, Bringas argued that the court erred in denying his asylum and withholding of removal claims. The court used a two part approach to determine whether Bringas was eligible for asylum. In order to be eligible an alien must demonstrate either (1) that he is unable or unwilling to return to his home country because of past persecution or (2) a well-founded fear or future persecution on account of his race, religion, nationality, membership in a particular social group or a political opinion. Castro - Martinez v. Holder, 674 F.3d 1073, 1080. The requirements of a withholding claim are similar but require a higher evidentiary standard of proof. For example, an illegal alien must prove a "clear probability" of persecution on account of a protected characteristic. 8 U.S.C. Section 1231 (b)(3)(A). Thus, if a petitioner is unable to establish his eligibility for asylum, his withholding claim also fails.

Past Persecution
The first issue on appeal was whether Bringas established sufficient evidence that the government was unwilling or unable to prevent the abuse he suffered as a child. In order to establish past persecution, Bringas was required to show (1) that he suffered harm on the basis of a protected ground and (2)(a) that the harm was inflicted either by the government or (2)(b) by individuals or groups the government is unable or unwilling to control. Castro - Martinez, 674 F.3d at 1080. The court only addressed the second prong.

Bringas was required to meet 2(b) and provide evidence that the government was unable or unwilling to control his attackers because the people who abused him were not government actors. Courts consider whether the victim reported the abuse to the police in order to show the government's inability to control the actors, but it is not a requirement. Bringas-Rodriguez v. Lynch (9th Cir. 2015) 805 F.3d 1171, 1178. However, where a victim does not report the abuse to the authorities, there lies a gap in proof about how the government would have responded, and the victim bears the burden to fill in the gaps by showing how the government would have responded had he reported the abuse. Id. at 1081

As 'gap filling' evidence, Bringas offered country reports and testimony about his friends experiences with police in Veracruz. The country reports from 2009 and 2010 from U.S. Department surveyed the state of sexual orientation discrimination across Mexico. He also testified that a couple of his gay friends told him that when they reported to the police that they were raped and beaten, they laughed in their faces and did nothing.
The court held that the evidence was insufficient. As for the country reports, the court found them unpersuasive because they noted only one specific example of government persecution on the basis of sexual orientation in the whole country of Mexico. The reports actually indicated positive sentiments toward the homosexual population. For example, they highlighted gay pride marches in cities across the country, described the expansion of marriage equality in Mexico City, and detailed a ruling from the Mexican Supreme Court requiring Mexico's states to recognize legally performed marriages performed elsewhere. The court pointed out that the ruling was made five years before the United States Supreme Court reached a similar conclusion. Regarding Bringas's testimony, he did not offer enough details or any evidence that the abuse was actually reported. Additionally, there was no evidence connecting general police practices in the state or city of Veracruz with the specific police practices in Bringas's town of Tres Valles.

Future Persecution
Since he was unable to establish past persecution, Bringas was not entitled to a presumption of future persecution. Therefore, he was required to provide evidence of a well-founded fear of future persecution by demonstrating that his fear was subjectively genuine and objectively reasonable. Bringas' credibility was not at issue, which allowed the court to proceed to determine whether his fear was objectively reasonable.
To show that his fear was objectively reasonable, Bringas could establish either (1) he was a member of a disfavored group against which there was a systematic pattern or practice of persecution or (2) he belongs to a disfavored group and has an individualized risk of being singled out for persecution.

Bringas failed to raise the argument that he was singled out as a member of a disfavored group when he failed to raise it to the BIA. Bringas argued that there was a pattern or practice of prosecution of gay men in Mexico. To confute his argument, the court cited Castro v. Martinez where the court rejected the petitioner's similar argument. In Castro, the country reports indicated that the Mexican government made efforts to prevent violence and discrimination against homosexuals in recent years. Further, Mexican law actually prohibited discrimination on the basis of bias on sexuality and required federal agencies to promote tolerance. Bringas produced no evidence that conditions in Mexico have changed since Castro was decided.

Covenant Against Torture
The second issue was whether Bringas met the evidentiary standard of proof required for a CAT claim such that he would "more likely than not" be tortured by or with the acquiescence of the Mexican government if he is removed to Mexico. Garcia-Milian v. Holder, 755 F.3d 1026, 1031.

The court affirmed the BIA's decision and further stated that even if his past experiences of abuse as a child were considered torture, the BIA is not required to presume that he would be tortured again especially now that he is a self-sufficient adult.

Motion to Remand - HIV Diagnosis
Lastly, the court affirmed the BIA's decision not to remand the case back to the Immigration Judge. The BIA rejected Bringas's argument that due to his diagnosis, he was in an even more vulnerable class because he did not provide any additional evidence or arguments demonstrating how this was certain. The lack of access to HIV drugs in Mexico is a widespread problem suffered not only by homosexuals, but also by the population as a whole.

To read the full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/19/13-72682.pdf

Panel: William A. Fletcher and Jay S. Bybee, Circuit Judges and Benjamin H. Settle, District Judge for the U.S. District Court for the Western District of Washington

Argument Date: November 18, 2014

Date of Issued Opinion: November 19, 2015

Docket Number: 13 - 72682

Decided: Affirmed Board of Immigration Appeals decision to deny application for asylum, withholding of removal, protection under the Covenant Against Torture and motion to remand

Case Alert Author: Mia Lomedico

Counsel: Andrea Ringer (argued) and Marco Pulido Marques (argued), Certified Law Students, University of California, Irvine School of Law, Appellate Litigation Clinic, Irvine, CA; Mary - Christine Sungaila, Pro Bono Attorney, Snell & Wilmer LLP, Costa Mesa, CA, for Petitioner.

Stuart F. Delery, Assistant Attorney General, Civil Division, Kohsei Ugumori and John W. Blakeley (argued), Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Peter E. Perkowski, Winston & Strawn LLP, Los Angeles, CA, for Amici Curiae 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

Author of Opinion: Jay S. Bybee

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 03/01/2016 12:55 PM     9th Circuit  

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