Carlos Bringas-Rodriguez v. Loretta E. Lynch

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ALBERTO BRINGAS- No. 13-72682
RODRIGUEZ, AKA Patricio Iron-
Rodriguez, Agency No.
Petitioner, A200-821-303
v.
OPINION
LORETTA E. LYNCH, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 18, 2014—Pasadena, California
Filed November 19, 2015
Before: William A. Fletcher and Jay S. Bybee, Circuit
Judges and Benjamin H. Settle,* District Judge.
Opinion by Judge Bybee;
Dissent by Judge W. Fletcher
*
The Honorable Benjamin H. Settle, District Judge for the U.S. District
Court for the Western District of Washington, sitting by designation.
2 BRINGAS-RODRIGUEZ V. LYNCH
SUMMARY**
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of asylum, withholding of
removal, and protection under the Convention Against
Torture to a citizen of Mexico who sought relief based on his
sexual orientation and HIV-positive status.
Relying on Castro-Martinez v. Holder, 674 F.3d 1073
(9th Cir. 2011), the panel held that substantial evidence
supported the Board’s determination that Bringas-Rodriguez
failed to establish that the Mexican government was
unwilling or unable to protect him, where he did not report
the abuse he suffered to authorities, and his evidence,
including hearsay testimony and country reports, was
insufficient to establish that doing so would have been futile.
The panel held that Bringas-Rodriguez failed to establish
a pattern or practice of persecution of gay men in Mexico.
The panel also held that Bringas-Rodriguez’s CAT claim
failed because he did not show that he would more likely than
not be tortured by or with the acquiescence of the Mexican
government if he is removed to Mexico.
The panel held that the Board did not abuse its discretion
in denying Bringas-Rodriguez’s motion to remand based on
his recent HIV diagnosis.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BRINGAS-RODRIGUEZ V. LYNCH 3
Dissenting, Judge W. Fletcher wrote that he has growing
doubts about this court’s decision in Castro-Martinez, but
even applying Castro-Martinez to the facts of this case,
Bringas-Rodriguez submitted evidence sufficient to show that
the Mexican government was unwilling or unable to protect
him from abuse.
COUNSEL
Andrea Ringer (argued) and Marco Pulido Marques (argued),
Certified Law Students, University of California, Irvine
School of Law, Appellate Litigation Clinic, Irvine, California;
Mary-Christine Sungaila, Pro Bono Attorney, Snell &
Wilmer LLP, Costa Mesa, California, 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,
California, 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.
4 BRINGAS-RODRIGUEZ V. LYNCH
OPINION
BYBEE, Circuit Judge:
Petitioner Carlos Bringas-Rodriguez is a citizen of
Mexico and a gay man who was sexually abused by family
members and a neighbor in Mexico. He challenges the BIA’s
decision denying his applications for asylum, withholding of
removal, and Convention Against Torture (CAT) protection,
and denying his motion to remand to the IJ in light of his
recent HIV diagnosis. Relying on our decision in Castro-
Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), the BIA
found that Bringas failed to show that the Mexican
government was unwilling or unable to control those who
perpetrated such acts. We have jurisdiction under 8 U.S.C.
§ 1252(a), and we deny the petition.
I
Petitioner, Bringas-Rodriguez (Bringas), was born and
raised in Tres Valles, Veracruz, Mexico. He began to realize
that he was attracted to men at age six, and by age ten he
considered himself gay. He is now openly gay and is HIV-
positive. As a child, he suffered physical abuse at the hands
of his father, who would tell him to “Act like a boy, you’re
not a woman!” and to “Do things a man does.” His father
also abused Bringas’s mother and siblings, but he says he was
abused “most of all . . . because [he] was different.”
Bringas was later sexually abused by his uncle, cousins,
and a neighbor. His uncle began the abuse when Bringas was
four and continued the abuse every two or three months until
he turned twelve. When Bringas turned seven, his cousins
began to abuse him on a monthly basis as well. Bringas
BRINGAS-RODRIGUEZ V. LYNCH 5
testified that when he turned eight, his uncle admitted to him
that he was sexually abusing him because Bringas was gay.
He further recalled that his abusers “never called [him] by
[his] name but called [him] fag, f_____g faggot, queer and
laughed about it.”
Bringas first came to the United States with his mother
and stepfather in 2002 when he was twelve, and he lived with
them in Kansas for five months. Bringas was undocumented.
He then moved back to Mexico because he was “troubled”
over hiding his sexuality and history of abuse, and he wanted
to live with his grandmother. Once back in Mexico, however,
the abuse continued. His uncle, cousins, and a neighbor
raped him in his early teens. He never reported the abuse to
the police, believing such a complaint would be frivolous,
and he did not tell his family until years later, fearing that his
abusers would harm his mother or grandmother.
In 2004, at age fourteen, Bringas returned to the United
States to live with his mother and stepfather in Kansas and
“to escape [his] abusers.” In August 2010, Bringas was
convicted of “Contributing to the Delinquency of a Minor” in
Colorado; essentially, he was drinking at his house and a
friend brought over a minor. Bringas spent ninety days in
jail, where he attempted suicide. DHS filed a Notice to
Appear in September 2010.
In February 2012, Bringas filed an application for asylum,
withholding of removal, and relief under the CAT, alleging
that he was raped by his uncle, cousins, and neighbor while
living in Mexico. He explained that he feared returning to
Mexico because he would be persecuted for being gay and the
police would ignore his complaints. The IJ denied all
applications for relief. He denied Bringas’s asylum claim
6 BRINGAS-RODRIGUEZ V. LYNCH
because it was untimely.1 With respect to withholding, the IJ
found that Bringas had suffered sexual abuse at the hands of
his uncle, cousins, and neighbor, but concluded that the
abuse, while “horrendous,” did not constitute past persecution
“on account of” a protected status. The IJ found that
“perverse sexual urges” motivated the abusers, and not
Bringas’s sexual orientation. The IJ also observed that
Bringas never reported his abuse to an adult or to the
Mexican police and that there was no evidence that Mexican
authorities were unwilling to offer protection.
Turning to the risk of future persecution, the IJ looked at
Country Reports for Mexico for 2009 and 2010 and found
that, despite a few specific accounts of persecution of
homosexuals in Mexico, the country as a whole—and
especially in Mexico City—has made significant advances
with respect to gay people. Accordingly, Bringas could
relocate to a place like Mexico City without risking possible
future abuse. So, the IJ found, Bringas did not show a “more
likely than not possibility of persecution on account . . . of his
membership in a particular social group of male
homosexuals.”
1
Bringas entered the United States in November 2004 but did not file an
asylum application until April 2011, well beyond the one-year deadline.
The IJ acknowledged that being an unaccompanied minor entering the
country may qualify as an “exceptional circumstance” that excuses late
filing, but even assuming that Bringas was an unaccompanied minor upon
entering the United States, his application was still untimely because he
waited years after turning eighteen to file it. Bringas had argued,
however, that in this case the age of adulthood was twenty-one, not
eighteen, which would make his asylum application timely because it was
filed before his twenty-first birthday. But the IJ rejected this reasoning,
finding no evidence to suggest that asylum officers use twenty-one and not
eighteen to determine the legal disability excuse.
BRINGAS-RODRIGUEZ V. LYNCH 7
The IJ also denied relief under the CAT on the grounds
that Bringas offered insufficient evidence that the government
routinely turns a blind eye to allegations of sexual abuse of
children. As a result, Bringas could not prove that “torture in
the future by the government, or with the acquiescence of the
government” was likely.
The BIA affirmed. It denied Bringas’s asylum claim on
the merits, assuming the application 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. Bringas was thus not entitled to a
presumption of future persecution. 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. Citing our opinion in
Castro-Martinez v. Holder, 674 F.3d 1073, 1082 (9th Cir.
2011), the BIA explained that no “widespread brutality
against homosexuals or . . . criminalization of homosexual
conduct [exists] in Mexico.” Additionally, the BIA discussed
Mexico’s improved treatment of homosexuals over the years:
“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 BIA also rejected Bringas’s withholding of removal
and CAT claims. With respect to withholding, it noted that
because Bringas “failed to satisfy the lower burden of proof
required for asylum, it follows that he has also failed to
satisfy the higher standard of eligibility required for
withholding of removal.” With respect to CAT, the BIA
8 BRINGAS-RODRIGUEZ V. LYNCH
found no clear error in the IJ’s determination that Bringas
failed to show that he will more likely than not be tortured in
Mexico “by or with the acquiescence” of the Mexican
government.
Finally, the BIA rejected Bringas’s argument that his case
be remanded to the IJ in light of Bringas’s recent HIV
diagnosis. Bringas’s brief to the BIA explained that, since his
hearing before the IJ, he had been diagnosed with HIV. He
argued that “this fact is significant because it now places
[him] in a more vulnerable position should he be returned to
Mexico.” The BIA declined to remand Bringas’s case to the
IJ for further consideration because Bringas had “not
provided any additional country conditions evidence or
specific arguments regarding how his status as an HIV
positive homosexual changes the outcome of his case.” He
filed a timely Petition for Review of the BIA’s dismissal and
sought a stay pending review. We granted the stay and now
deny the petition for review.2
II
Bringas argues that the BIA erred in denying his asylum
and withholding of removal claims. “To be eligible for
asylum, an alien must demonstrate that he is unable or
unwilling to return to his home country because of [past]
persecution or a well-founded fear of [future] persecution on
account of race, religion, nationality, membership in a
2
“We review questions of law in immigration proceedings de novo.”
Romero-Mendoza v. Holder, 665 F.3d 1105, 1107 (9th Cir. 2011). We
review the denials of asylum, withholding of removal, and CAT relief for
substantial evidence. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th
Cir. 2014).
BRINGAS-RODRIGUEZ V. LYNCH 9
particular social group, or a political opinion.”
Castro-Martinez v. Holder, 674 F.3d 1073, 1080 (9th Cir.
2011) (citing 8 U.S.C. § 1101(a)(42)(A)). The requirements
for a withholding claim are similar, except that the alien must
prove a “clear probability” of persecution on account of a
protected characteristic. 8 U.S.C. § 1231(b)(3)(A). If a
petitioner cannot establish his eligibility for asylum, his
withholding claim necessarily also fails. Zehatye v.
Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
Substantial evidence supports the BIA’s determinations
that Bringas failed to establish past persecution or a well-
founded fear of future persecution, and he is thus ineligible
for asylum. See Castro-Martinez, 674 F.3d at 1080 (9th Cir.
2011); I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)
(quoting 8 U.S.C. § 1105a(a)(4)) (noting that we must uphold
the BIA’s factual findings if “supported by reasonable,
substantial, and probative evidence on the record considered
as a whole”).3 Because Bringas failed to meet his burden to
establish eligibility for asylum, he also fails the higher burden
required to obtain withholding of removal. Castro-Martinez,
674 F.3d at 1082 (citing Gomes v. Gonzales, 429 F.3d 1264,
1266 (9th Cir. 2005)).
3
We cannot resolve Bringas’s asylum claim on untimeliness grounds
because the BIA ignored this procedural defect when it “assume[d]
arguendo that the respondent filed a timely asylum application.” See
Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en banc) (“When
the BIA has ignored a procedural defect and elected to consider an issue
on its substantive merits, we cannot then decline to consider the issue
based upon this procedural defect.”).
10 BRINGAS-RODRIGUEZ V. LYNCH
A. Past Persecution
Asylum petitioners may produce evidence of their past
persecution, which “creates a presumption of a fear of future
persecution.” Hanna v. Keisler, 506 F.3d 933, 937 (9th Cir.
2007); see 8 C.F.R. § 1208.13(b)(1). To establish past
persecution, Bringas must show (1) that he has suffered harm
“on the basis of [a] protected ground[]” and (2) that the harm
was “inflicted either by the government or by individuals or
groups the government is unable or unwilling to control.”
Castro-Martinez, 674 F.3d at 1080. The BIA concluded that
Bringas failed to satisfy both prongs. We will only address
the second of these prongs. Even if we thought that the
record compelled the conclusion that Bringas was abused on
account of his sexual orientation, Bringas provided
insufficient evidence that the government was unwilling or
unable to prevent that abuse.
Because the sexual abuse Bringas suffered was not
inflicted by government actors, he must “show that the
government was unable or unwilling to control his attackers.”
Id. at 1078. “In determining whether the government was
unable or unwilling to control violence committed by private
parties, the BIA may consider whether the victim reported the
attacks to the police.” Id. at 1080 (citing Baballah v.
Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004)); see id.
(“[W]here the persecutor is not a state actor, we consider
whether an applicant reported the incident to police, because
in such cases a report of this nature may show governmental
inability to control the actors.”) (quoting Rahimzadeh v.
Holder, 613 F.3d 916, 921 (9th Cir. 2010) (internal quotation
marks omitted)). Nevertheless, petitioners are not required to
report persecution to the police in order to show that the
government is unable or unwilling to control their abusers.
BRINGAS-RODRIGUEZ V. LYNCH 11
Id. at 1080–81 (“We have never held that any victim, let
alone a child, is obligated to report a sexual assault to the
authorities, and we do not do so now.”).
Where a petitioner does not report the abuse to the
authorities, however, there is a “gap in proof about how the
government would have responded,” and the petitioner bears
the burden to “fill in the gaps” by showing how the
government would have responded had he reported the abuse.
Id. at 1081 (internal quotation marks and alterations omitted).
It is insufficient for a petitioner to state his belief that the
government would do nothing about a report of abuse.
Rather, a petitioner may show, “[a]mong other avenues,” that
“private persecution of a particular sort is widespread and
well-known but not controlled by the government or . . . that
others have made reports of similar incidents to no avail.” Id.
(quoting Rahimzadeh, 613 F.3d at 922) (internal quotation
marks omitted).
We agree with the BIA that Bringas has not met his
burden to prove the government’s unwillingness to respond.
The BIA relied on our decision in Castro-Martinez v. Holder,
674 F.3d 1073, 1080–81 (9th Cir. 2011), in determining that
Bringas had not met his burden here. The facts in Bringas’s
case are very similar to those in Castro-Martinez. In Castro-
Martinez, Castro, a gay, HIV-positive Mexican man, sought
asylum on account of a credible history of sexual abuse
suffered because of his sexual orientation. Id. at 1078–79.
Castro also had failed to report the abuse to Mexican
officials, and the BIA ultimately concluded that he had failed
to demonstrate that “Mexican authorities would have ignored
the rape of a young child or that authorities were unable to
provide a child protection against rape.” Id. at 1081; see also
id. at 1079. We denied Castro’s petition for review.
12 BRINGAS-RODRIGUEZ V. LYNCH
Bringas attempts to distinguish Castro-Martinez. He
argues that while Castro offered nothing more than a
conclusory statement “that he believed the police would not
have helped him,” id. at 1081, Bringas “provided such gap-
filling evidence” by giving a reason why he never reported
his abuse to the Mexican police: He testified that “a couple”
of his gay friends told him “that they got raped, they got beat
up, like abuse, and they went to the police [in Veracruz,
Mexico] and they didn’t do anything” except “laugh [in]
their faces.”4
We agree with the dissent that Castro-Martinez left open
the possibility that Bringas could meet his burden of proving
that the government was unable or unwilling to control their
abusers by “showing that others have made reports of similar
incidents to no avail.” Id. (citation and internal quotation
marks omitted). But we part ways with the dissent’s assertion
that Castro-Martinez “qualifies” a “gay petitioner . . . for
asylum” as a matter of course, provided that he submits
“country reports documenting official persecution on account
of sexual orientation” and “evidence”—unsubstantiated
hearsay or otherwise—that “others have made reports of
similar incidents to no avail.” Dissenting Op. at 38 (quoting
Castro-Martinez, 674 F.3d at 1081). Castro-Martinez sets
forth no such mechanical formula for obtaining asylum, nor
4
Bringas did not provide a clear picture of when he spoke with these
friends. We know it was at some point “when [he] was living in Kansas,”
but he lived in Kansas twice. His uncle and cousins abused him from age
four to twelve. Then, he moved to Kansas with his mother and stepfather
at age twelve, but five months later, he moved back to Mexico, where the
abuse continued. At age fourteen, Bringas moved back to Kansas again.
Thus, Bringas would have heard his friends’ accounts of their abuse in
Veracruz after at least some (if not all) of Bringas’s own abuse had
already occurred.
BRINGAS-RODRIGUEZ V. LYNCH 13
does our holding there support the proposition that any
evidence of other reports of similar incidents, no matter how
unreliable, is sufficient to satisfy this “other avenue” of
establishing that a government is unable or unwilling to
prevent persecution. Implicit in Castro-Martinez’s holding
is that, in order for this method of proof to be successful, the
evidence must be sufficient.
Here, we agree with the IJ and the BIA that Bringas’s
evidence was not sufficient. Looking first to the country
reports Bringas submitted, neither the 2009 nor the 2010
report mentions any instances of discrimination or
persecution in his home state of Veracruz, Mexico. Indeed,
the two reports, produced by the U.S. State Department to
survey the state of sexual orientation discrimination across a
country of 122 million people, note only one specific example
of government persecution on the basis of sexual orientation
in Mexico. The dissent highlights this incident in detail, but
does not explain why the IJ reviewing this documentation
should have concluded that a single example “establish[es]
that government discrimination . . . persist[s].” Dissenting
Op. at 34. Nor does the dissent seek to draw any connections
from this incident, which occurred in 2008, to circumstances
in Tres Valles, a town nearly 300 miles away.
Rather, the country reports Bringas provided to the IJ
highlighted “gay pride marches in cities across the country,”
the largest drawing 400,000 participants. Additionally, the
report 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, a ruling, we note,
that was made five years before the United States Supreme
Court reached a similar conclusion. In sum, the country
14 BRINGAS-RODRIGUEZ V. LYNCH
reports submitted to the IJ simply do not make a persuasive
case that the Mexican government was unwilling or unable to
protect Bringas.5
5
Seemingly aware that Bringas’s evidence demonstrating government
discrimination or persecution on the basis of sexual orientation was
somewhat thin, the dissent instead highlights the ongoing “societal
discrimination” referenced in the country reports. Dissenting Op. at 33
(quoting the 2010 country report). While certainly troubling, negative
social attitudes in one’s home country cannot form the basis for an asylum
claim. See Ghaly v. I.N.S., 58 F.3d 1425, 1431 (9th Cir. 1995)
(“Discrimination . . . as morally reprehensible as it may be, does not
ordinarily amount to ‘persecution.’”). If that was the case, LGBT
Americans in many parts of this country, unfortunately, would have a
valid claim to seek asylum in other parts of the world, including Mexico.
Indeed, the United Nations recognizes Mexico’s “history of protecting
asylum-seekers” and notes that it has “long been a signatory of the 1951
Refugee Convention and its 1967 Protocol.” UNHCR Hails Mexico as
New Refugee Law Comes Into Force, U.N. HIGH COMM’N FOR REFUGEES
(Jan. 28, 2011), http://www.unhcr.org/4d42e6ad6.html. In 2011, President
Felipe Calderón signed new legislation to ensure that Mexico’s asylum
system conformed to international standards. Id. Three years later,
Mexico adopted the “Brazil Declaration and Plan of Action,” an
international agreement committed to “the protection of refugees,”
including “particularly vulnerable groups” like “lesbian, gay, bisexual,
transgender, and intersex people.” See Brazil Declaration and Plan of
Action, Dec. 3, 2014, at 8, http://www.acnur.org/t3/fileadmin/scripts/
doc.php?file=t3/fileadmin/Documentos/BDL/2014/9865. And this year,
a United Nations report noted that Mexico had established a “specialized
hate crime prosecution unit[],” developed a “new judicial protocol to
guide adjudication of cases involving human rights violations on grounds
of sexual orientation,” implemented specialized training for police
officers, and officially designated May 17 as “National Day Against
Homophobia.” See U.N. High Commissioner for Human Rights,
Discrimination & Violence Against Individuals Based on Their Sexual
Orientation & Gender Identity, ¶¶ 40, 74, U.N. Doc. A/HRC/29/23 (May
4, 2015), http://www.un.org/en/ga/search/view_doc.asp?symbol=A/
HRC/29/23&referer=/english/&?Lang=E.
BRINGAS-RODRIGUEZ V. LYNCH 15
Turning next to Bringas’s testimony, Bringas provided
very few details about his friends’ negative experiences with
police in Veracruz. He offered no details about his friends’
accounts—no names, ages, indication of the nature of their
relationship to Bringas, information on how or to whom they
reported their abuse, or any evidence showing that these
nameless friends actually reported any abuse to the Mexican
authorities. Even if we could fully credit Bringas’s friends’
statements, there is 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.6 Without
something to suggest that the police in Tres Valles would
respond in the same way as the police described in Bringas’s
friends’ reports, we decline his invitation to compel the BIA
to paint all the police in Veracruz with the same broad brush.
The dissent resists this conclusion by stating that because
Bringas’s friends reported discrimination by police in
Veracruz and “Tres Valles is in the state of Veracruz,” any
“geographic objection[s]” to Bringas’s evidence must fail.
Dissenting Op. at 37–38. To draw a parallel, the dissent’s
argument is that if someone reports discrimination at the
hands of police in “California,” it would be fair to assume
that police in San Diego, Eureka, or Santa Barbara would act
in accordance with that report. We refuse to make this
6
We note that the Mexican state of Veracruz supports a population of
nearly eight million residents divided into more than two hundred distinct
municipalities. See Perspectiva Estadística Veracruz de Ignacio de la
Llave, INSTITUTO NACIONAL DE ESTADÍSTICA Y GEOGRAFÍA, Dec. 2011,
at 9–10, 14, http://www.inegi.org.mx/est/contenidos/espanol/sistemas/
perspectivas/perspectiva-ver.pdf. The city of Veracruz is roughly eighty
miles away from Bringas’s town of Tres Valles. See MAPQUEST,
http://www.mapquest.com/maps?1c=Veracruz&1y=MX&2c=Tres%20
Valles&2y=MX (last visited Nov. 3, 2015).
16 BRINGAS-RODRIGUEZ V. LYNCH
unfounded logical leap. The dissent is correct that in light of
the difficulty of gathering evidence of persecution, we
“adjust[] the evidentiary requirements” for asylum seekers,
id. at 14 (quotation marks omitted); we do not, however,
forego them completely, and reference to vague reports from
anonymous friends cannot overcome the lack of any
corroborating evidence.7
By highlighting the factual gaps in Bringas’s description
of his friends’ reports, the dissent suggests that we
inappropriately discount his testimony despite the fact that
the IJ found his testimony “credible.” See Dissenting Op. at
36. Not so. We agree that as “a general rule, because the
Immigration Judge did not render an adverse credibility
finding, we must accept [Bringas’s] factual testimony as true”
and that Bringas’s “testimony includes hearsay evidence from
. . . anonymous friend[s]” that “may not be rejected out-of-
hand.” Gu v. Gonzales, 454 F.3d 1014, 1021 (9th Cir. 2006).
Similarly, we do not challenge the “well established”
principle, Dissenting Op. at 36, that “hearsay [evidence] is
admissible in immigration proceedings,” Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003).
7
The dissent’s citation to Yan Rong Zhao v. Holder, 728 F.3d 1144 (9th
Cir. 2013), to support its position is inapposite. There, we observed that
“evidence from the local province, municipality, or other locally defined
area may be sufficient to show a well-founded fear of persecution;
respondents are not required to present evidence from their town or city.”
Id. at 1147–48 (emphasis in original). But at issue in Zhao were family
planning policies memorialized in a written notice from the “Family
Planning Office.” Id. at 1146. Had Bringas produced roughly comparable
evidence of Mexico’s, Veracruz’s, or Tres Valles’s policy or practice, we
would not be having this exchange.
BRINGAS-RODRIGUEZ V. LYNCH 17
However, these two propositions do not compel the result
pressed for by the dissent. As we have repeatedly held “the
absence of an adverse credibility finding does not prevent us
from considering the relative probative value of hearsay.”
Gu, 454 F.3d at 1021; see also Singh v. Holder, 753 F.3d 826,
835 (9th Cir. 2014); Sharma v. Holder, 633 F.3d 865, 870–71
(9th Cir. 2011). Indeed, in Gu, we explained that “statements
by the out-of-court declarant may be accorded less weight by
the trier of fact when weighed against non-hearsay evidence.”
454 F.3d at 1021. Here, without many details to flesh out the
context of Bringas’s friends’ hearsay statements, their relative
probative value is rather low.
To be clear, we are not, as the dissent charges,
“discount[ing]” Bringas’s hearsay testimony. Dissenting Op.
at 36. Nor are we requiring a certain level of “specificity” in
Bringas’s description of his friends’ out-of-court reports. Id.
at 11. Instead, we are making what, we think, are common-
sense observations: A more detailed description should be
afforded greater weight than a less detailed description, and
hearsay statements with details that can be corroborated are
more probative than hearsay statements that do not include
any verifiable details.
The dissent’s response to these conclusions brings the
very problem this hearsay evidence poses into sharp relief.
In light of Bringas’s hearsay testimony and submitted country
reports, the dissent chastises the IJ’s statement that “‘we
certainly do not have any evidence whatsoever’ that Mexican
authorities were unwilling to protect” Bringas as plainly
“wrong.” Dissenting Op. at 35. The dissent only quoted the
IJ in part. Here is the full statement:
18 BRINGAS-RODRIGUEZ V. LYNCH
[W]e certainly do not have any evidence
whatsoever that the police in Mexico or the
authorities do not take any action whatsoever
to offer some type of protection against the
abuse of children, sexually, whether the
sexually abused child is a male or female, or
whether the abuser is a male or a female.
(emphasis added).
The IJ’s finding is quite correct. There is no doubt that
Bringas did not offer any evidence suggesting that Mexican
police refused to protect abused children. The submitted
country reports make no reference to it, and because
Bringas’s hearsay statement was so lacking in detail, we have
no idea how old his “friends” were who reported abuse to the
police in Veracruz. Because Bringas’s testimony was so
vague, even the dissent’s attempts to bolster its veracity get
tangled up in its factual shortcomings. Rather, the full
statement of the IJ only demonstrates how firmly in line the
IJ and BIA were with this court’s precedent. See Castro-
Martinez, 674 F.3d at 1081 (affirming the BIA’s reliance on
the lack of “evidence in the record that Mexican authorities
would have ignored the rape of a young child or that
authorities were unable to provide a child protection against
rape”).8
8
The dissent also argues that “[n]either the BIA nor the IJ mentioned
Bringas-Rodriguez’s testimony about what his friends had told him.”
Dissenting Op. at 35. True enough. But that does not mean the IJ and the
BIA did not consider or weigh that evidence. This court has repeatedly
found that an IJ’s decision is not required “to discuss every piece of
evidence” presented by a petitioner. Almaghzar v. Gonzales, 457 F.3d
915, 922 (9th Cir. 2006); see also Cole v. Holder, 659 F.3d 762, 771 (9th
Cir. 2011) (“That is not to say that the BIA must discuss each piece of
BRINGAS-RODRIGUEZ V. LYNCH 19
As the IJ recognized, Bringas’s allegations are not just
about discrimination against gay and lesbian Mexicans—they
are about child molestation. Bringas has put forward no
evidence that Mexico tolerates the sexual abuse of children,
or that Mexican officials would refuse to protect an abused
child based on the gender of his or her abusers. Instead,
substantial evidence supports the BIA’s finding that Bringas
failed to prove that the government would be unwilling or
unable to control his abusers, and Bringas’s bare hearsay
assertions from friends of unknown ages are insufficient to
overturn the BIA’s contrary conclusion, which was based on
other evidence in the record. Accordingly, we hold that
Bringas failed to establish his past persecution and is
therefore not entitled to a presumption of a well-founded fear
of future persecution. See 8 C.F.R. § 1208.13(b)(1).
B. Well-Founded Fear of Future Persecution
Alternatively, in the absence of evidence of past
persecution, a petitioner may simply provide evidence of a
well-founded fear of future persecution. “To establish a
well-founded fear,” Bringas must show “that his fear of
persecution is subjectively genuine and objectively
reasonable.” Castro-Martinez, 674 F.3d at 1082 (citing
Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007)). “As
there was no adverse credibility determination, we accept that
[Bringas’s] fear of future persecution was genuine.” Id.
(citing Li v. Holder, 559 F.3d 1096, 1107 (9th Cir. 2009)). In
order to show that his fear of future persecution was
“objectively reasonable,” Bringas has two avenues. He may
demonstrate: (1) “that he was a member of a disfavored
evidence submitted.”). Here, Bringas’s evidence is not sufficient to
compel a contrary result.
20 BRINGAS-RODRIGUEZ V. LYNCH
group against which there was a systematic pattern or practice
of persecution,” or (2) that he belongs to a “disfavored group”
and has an individualized risk of being “singled out for
persecution.” Id.; Sael v. Ashcroft, 386 F.3d 922, 925 (9th
Cir. 2004); see 8 C.F.R. § 1208.13(b)(2)(iii).
Bringas’s “pattern or practice of persecution” argument
lacks merit, and he forfeited his argument that he will be
“singled out” as a member of a “disfavored group” when he
failed to raise it before the BIA.
1. Pattern or Practice of Persecution
Bringas argues that there is a pattern or practice of
persecution of gay men in Mexico. Despite some evidence of
violence against gays in Mexico, Castro-Martinez forecloses
this argument. In Castro-Martinez, we rejected the claim that
“the Mexican government systematically harmed gay men
and failed to protect them from violence.” 674 F.3d at 1082.
Although we acknowledged evidence of discrimination and
attacks, we explained that country conditions reports showed
that “the Mexican government’s efforts to prevent violence
and discrimination against homosexuals. . . . ha[d] increased
in recent years,” and, we noted, “Mexican law prohibits
several types of discrimination, including bias based on
sexuality, and it requires federal agencies to promote
tolerance.” Id. (recognizing the Mexican government’s 2005
“radio campaign to fight homophobia” and noting the various
country reports’ reflections of the “ongoing improvement of
police treatment of gay men and efforts to prosecute
homophobic crimes”).
Here, the BIA made findings similar to those in Castro-
Martinez and found that the situation for gay men in Mexico
BRINGAS-RODRIGUEZ V. LYNCH 21
is improving. It first cited Bromfield v. Mukasey, 543 F.3d
1071, 1078 (9th Cir. 2008), a case where we held that there
was a pattern or practice of persecution against gay men in
Jamaica—a country which criminalized homosexual conduct
and prosecuted individuals under the law; the evidence there
also showed numerous cases of violence and widespread
brutality against persons based on sexual orientation. Then
the BIA turned to Bringas’s case and stated that unlike
Bromfield:
[T]he record here does not demonstrate
widespread brutality against homosexuals or
that there is any criminalization of
homosexual conduct in Mexico. . . . To the
contrary, the record shows that 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.
Bringas offers no evidence showing that there has been a
change in conditions in Mexico since we decided Castro-
Martinez. Accordingly, we are bound by our holding in
Castro-Martinez, and the BIA’s determination that no pattern
or practice of persecution exists is supported by substantial
evidence.9
9
Bringas argues that the BIA applied the wrong standard to his pattern-
or-practice claim because it cited to withholding cases in discussing the
asylum claim. But, as the government noted and as Bringas acknowledges
in his reply, the withholding and asylum standards do not differ in any
relevant respect as to his pattern-or-practice claim.
22 BRINGAS-RODRIGUEZ V. LYNCH
2. Singled Out for Persecution as a Member of a
Disfavored Group
Even without evidence of a pattern or practice of
persecution, Bringas could still establish a well-founded fear
if he could demonstrate a particularized risk that he will be
singled out for persecution if returned to Mexico. Bringas
argues that he has been singled out in the past for
mistreatment for his membership in the disfavored group of
homosexual men, so he “has a ‘strong’ individualized risk of
future harm.” The government argues that Bringas forfeited
this claim when he failed to raise it before the BIA. We agree
that Bringas failed to exhaust this argument before the BIA.
Bringas failed to argue that he would be singled out for
persecution as a member of a disfavored group in his brief to
the BIA.10 He consequently has forfeited this claim. See
Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en
banc) (per curiam) (holding that an alien is “deemed to have
exhausted only those issues he raised and argued in his brief
before the BIA”); see also Alvarado v. Holder, 759 F.3d
1121, 1126 n.4, 1128 (9th Cir. 2014) (“Although [a]
petitioner need not . . . raise [his] precise argument in
10
In his brief to the BIA, Bringas argued that the IJ erred in failing to
find that Bringas had a well-founded fear of persecution, stating that a
well-founded fear can be shown by a pattern or practice of persecution.
The sections of our cases that he cited concerned only pattern-or-practice
evidence. One of the cases he cited, Wakkary v. Holder, 558 F.3d 1049,
1061 (9th Cir. 2009), discussed the singled out/disfavored group analysis
at length, but not on the page that Bringas cited. He never argued that he
would be singled out in the future as a member of a disfavored group. The
BIA expressly recognized that Bringas failed to make this argument,
observing in a footnote that Bringas “does not argue that his claim falls
within the ‘disfavored group’ analysis espoused by the Ninth Circuit.”
BRINGAS-RODRIGUEZ V. LYNCH 23
administrative proceedings, . . . [he] must specify which
issues form the basis of the appeal.”) (alterations and
emphasis in original) (citations and internal quotation marks
omitted). He argues that by raising his similar claim of a
pattern or practice of anti-gay persecution, he necessarily
exhausted his argument before the BIA. Not so. The pattern
or practice argument is separate and distinct from the singled
out/disfavored group argument, and we analyze them
separately. E.g., Wakkary v. Holder, 558 F.3d 1049, 1061–62
(9th Cir. 2009). Unlike the pattern or practice analysis, the
singled out/disfavored group analysis requires proof of an
individualized risk of harm. See 8 C.F.R.
§ 1208.13(b)(2)(iii); see also Castro-Martinez, 674 F.3d at
1082; Wakkary, 558 F.3d at 1060–62; Sael, 386 F.3d at 925.
Our holding in Castro-Martinez forecloses Bringas’s
“pattern or practice of persecution” argument, and he failed
to exhaust his argument that he will be “singled out” as a
member of a “disfavored group.” Bringas has not
demonstrated a well-founded fear of future persecution, and,
accordingly, we deny the petition with respect to asylum and
withholding of removal.
III
Bringas’s claim under the CAT fails because he did not
show that he would more likely than not be tortured by or
with the acquiescence of the Mexican government if he is
removed to Mexico. See Garcia-Milian v. Holder, 755 F.3d
1026, 1031 (9th Cir. 2014). “To qualify for CAT relief, an
alien must establish that ‘it is more likely than not that he . . .
would be tortured if removed to the proposed country of
removal.’” Id. at 1033 (quoting 8 C.F.R. § 208.16(c)(2)).
The BIA found “no clear error in the [IJ’s] determination that
24 BRINGAS-RODRIGUEZ V. LYNCH
[Bringas] did not demonstrate that he will more likely than
not be tortured in Mexico by or with the acquiescence . . . of
an official of the Mexican government.”
Even if Bringas’s past experiences constituted torture, the
BIA is not required “to presume that [he] would be tortured
again because of his own credible testimony that he had been
subjected to torture as a . . . child.” Konou v. Holder,
750 F.3d 1120, 1125 (9th Cir. 2014). This is especially true
where “the factors that precipitated [Bringas’s] mistreatment
as a child would be less relevant to a ‘selfsufficient
homosexual adult.’” Id. at 1126. Here, the IJ determined that
Bringas could likely relocate to a different part of Mexico,
such as Mexico City, where the population appears more
accepting of gays, and the IJ noted the complete lack of
evidence indicating that the Mexican government was aware
of any torture taking place. The IJ concluded that Bringas’s
reports showing “instances of mistreatment of homosexuals
in Mexico” were not “sufficient to establish the burden of
proof requirement of a more likely than not possibility of
torture.” The same evidence that supported the BIA’s
dismissal of the pattern-or-practice claim also supports the
IJ’s and BIA’s conclusions that Bringas failed to establish a
likelihood of torture: Conditions in Mexico are insufficiently
dangerous for gay people to constitute a likelihood of
government-initiated or -sanctioned torture. See Castro-
Martinez, 674 F.3d at 1082. And because substantial
evidence supported the BIA’s denial of CAT relief, we deny
Bringas’s petition with respect to his claim under the CAT.
IV
Finally, the BIA did not abuse its discretion in finding
that Bringas’s HIV diagnosis, standing alone, does not require
BRINGAS-RODRIGUEZ V. LYNCH 25
a remand to the IJ. In Bringas’s brief to the BIA, he moved
to remand the case because, not long after the IJ’s decision
issued, he discovered that he is HIV positive. The BIA
denied his motion to remand.
Denials of motions to remand are reviewed for abuse of
discretion. Malhi v. I.N.S., 336 F.3d 989, 993 (9th Cir. 2003).
“The BIA abuses its discretion if its decision is ‘arbitrary,
irrational, or contrary to law.’” Romero-Ruiz v. Mukasey,
538 F.3d 1057, 1062 (9th Cir. 2008) (quoting Lopez–Galarza
v. I.N.S., 99 F.3d 954, 960 (9th Cir. 1996)); Konstantinova v.
I.N.S., 195 F.3d 528, 529 (9th Cir. 1999) (“The BIA abuses
its discretion when it fails to offer a reasoned explanation for
its decision, distorts or disregards important aspects of the
alien’s claim.”).
The BIA gave a rational explanation for its denial of
Bringas’s motion to remand based on his HIV diagnosis. In
requesting a remand, Bringas merely noted in one short
paragraph at the end of his brief to the BIA that his diagnosis
is a “significant [fact] because it now places [him] in a more
vulnerable position should he be returned to Mexico.” The
BIA rejected this argument because Bringas did not provide
“any additional country conditions evidence or specific
arguments regarding how his status as an HIV positive
homosexual changes the outcome of his case.” The BIA also
noted that the lack of access to HIV drugs is a problem
suffered not only by homosexuals but by the Mexican
population as a whole. See Castro-Martinez, 674 F.3d at
1082. Because the BIA offered a reasoned explanation and
its decision was neither arbitrary nor irrational, we hold that
the BIA did not abuse its discretion in denying Bringas’s
motion to remand.
26 BRINGAS-RODRIGUEZ V. LYNCH
V
In sum, we hold that substantial evidence supported the
BIA’s denial of Bringas’s claims for asylum, withholding of
removal, and relief under the CAT. We also conclude that
the BIA did not abuse its discretion in denying Bringas’s
motion to remand.
Concurrently, we grant the motion 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 to file a brief as Amici Curiae in
support of Bringas. We deny Bringas’s motion to take
judicial notice of facts beyond the administrative record. See
8 U.S.C. § 1252(b)(4)(A); Singh v. Ashcroft, 393 F.3d 903,
905–06 (9th Cir. 2004).
PETITION DENIED.
W. FLETCHER, Circuit Judge, dissenting:
Carlos Bringas-Rodriguez, a Mexican national, testified
credibly that throughout his childhood in the town of Tres
Valles in the state of Veracruz he was sexually abused by his
uncle, his cousins, and a neighbor. His abusers told him they
were abusing him because he was gay, and they referred to
him using homophobic slurs. His abusers also punched him
and beat him, and they threatened to hurt him and his
grandmother if he told anyone about the abuse.
BRINGAS-RODRIGUEZ V. LYNCH 27
Bringas-Rodriguez left Mexico twice. The first time, he
came to the United States at age twelve and lived briefly with
his mother and step-father in Kansas. While he was in
Kansas, some of his gay Mexican friends told him that they
had reported similar abuse to Mexican police officers but that
the officers had laughed at them, refused to provide help, and
told them they deserved the abuse they received. The second
time, he came to the United States at age fourteen. He has
not returned to Mexico.
Bringas-Rodriguez never reported to Mexican police the
abuse he suffered. He testified credibly before the
Immigration Judge (“IJ”) that he did not do so because he
believed a report would be pointless.
The panel majority denies Bringas-Rodriguez’s asylum
claim. The majority relies primarily on Castro-Martinez v.
Holder, 674 F.3d 1073 (9th Cir. 2011), a decision in which
we denied a similar asylum claim. But Castro-Martinez was
a carefully circumscribed decision. In Castro-Martinez we
stated that, even if a petitioner himself had not reported
abuse, asylum could be warranted if the petitioner showed
that Mexican officials were unwilling to help other gay
victims of abuse.
I have growing doubts about the correctness of
Castro-Martinez, an opinion with which I agreed when it was
issued. However, even to the extent Castro-Martinez should
remain the law of this circuit, I respectfully dissent from the
panel’s conclusion that it forecloses relief in this case.
28 BRINGAS-RODRIGUEZ V. LYNCH
I. Past Persecution in Mexico
Carlos Bringas-Rodriguez began to realize his same-sex
attractions when he was six. As early as ten years old, he
considered himself gay. As a child, Bringas-Rodriguez was
physically abused by his father, who told him, “Act like a
boy, you’re not a woman.” His father abused Bringas-
Rodriguez’s mother and siblings as well, but he abused
Bringas-Rodriguez the most because he was “different.”
Bringas-Rodriguez was also abused and raped by an
uncle, his cousins, and a neighbor. Bringas-Rodriguez’s
uncle began to sexually abuse him when he was just four
years old, and his uncle abused him every two or three
months thereafter. After Bringas-Rodriguez turned seven, his
cousins sexually abused him on a monthly basis. Bringas-
Rodriguez’s uncle, cousins, and a neighbor raped him at
home when his mother was not there, and sometimes dragged
him into nearby bushes in the neighborhood. Bringas-
Rodriguez’s abusers told him that they would hurt him and
his grandmother if he told anyone, and, on a few occasions,
they punched him. On one occasion, when Bringas-
Rodriguez resisted one cousin’s attempt to rape him, the
cousin beat him severely.
When Bringas-Rodriguez was eight, his uncle told him
that the reason for the ongoing abuse was Bringas-
Rodriguez’s sexuality. His uncle was not alone in his anti-
gay views. Bringas-Rodriguez testified, “[my abusers] never
called me by my name but called me fag, fucking faggot,
queer and laughed about it.”
Bringas-Rodriguez first came to the United States in
2002, when he was twelve. He lived in Kansas with his
BRINGAS-RODRIGUEZ V. LYNCH 29
mother and step-father for five months, and continued to hide
his sexuality and history of sexual abuse. When Bringas-
Rodriguez returned to Mexico to live with his grandmother
after his stay in Kansas, the abuse resumed unabated.
Bringas-Rodriguez’s uncle sexually abused him again.
Bringas-Rodriguez’s cousins referred to him as their “sex
toy” and resumed their abuse. A neighbor raped him. The
neighbor’s assault left Bringas-Rodriguez with bruises all
over his body. Because of the continuing abuse and rape,
Bringas-Rodriguez fled Mexico, returning to the United
States in 2004 at age fourteen.
Bringas-Rodriguez never told the Mexican police about
the abuse he had suffered. Even though he wanted protection
from his abusers, Bringas-Rodriguez believed any complaints
to the police would have been futile. He testified before the
IJ that, while he was living in Kansas, two Mexican gay
friends “told me that they got raped, they got beat up, like
abuse, and they went to the police and they didn’t do
anything. They even laugh [in] their faces.” In a declaration
submitted to the Immigration Court, Bringas-Rodriguez wrote
that he feared that the Mexican police “would laugh at me
and tell me I deserved what I got because I was gay. This
happened to friends of mine in Veracruz.”
II. Persecution the Government is Unable or Unwilling to
Control
To establish his eligibility for asylum, Bringas-Rodriguez
“must demonstrate that he is unable or unwilling to return to
his home country because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or a political
opinion.” Castro-Martinez, 674 F.3d at 1080 (citing 8 U.S.C.
30 BRINGAS-RODRIGUEZ V. LYNCH
§ 1101(a)(42)(A)). Bringas-Rodriguez must also show the
harm was “inflicted either by the government or by
individuals or groups the government is unable or unwilling
to control.” Id.
A. Persecution on the Basis of a Protected Ground
We have held that gay men in Mexico “can constitute a
social group for the purpose of an asylum claim.” Id.; see
also Boer-Sedano v. Gonzales, 418 F.3d 1082, 1087–89 (9th
Cir. 2005). Undisputed evidence in the record shows that
Bringas-Rodriguez was abused, over a sustained period, for
being gay. Bringas-Rodriguez testified that his uncle told
him he was being abused because he was gay. Bringas-
Rodriguez also testified that his uncle, cousins, and neighbor
“never called me by my name but called me fag, fucking
faggot, queer and laughed about it.” Every person who
abused Bringas-Rodriguez throughout his childhood either
told him that he was being abused for being gay or referred to
him using homophobic slurs.
B. Government Unable or Unwilling to Control the Harm
The question at the heart of this case is thus not whether
Bringas-Rodriguez was abused because he was gay. Rather,
it is whether Bringas-Rodriguez can show that the Mexican
government was unable or unwilling to control his abusers.
I agree with the panel majority that this question is currently
controlled by Castro-Martinez, an opinion I joined four years
ago. But I part ways with the majority as to the meaning and
application of Castro-Martinez.
In Castro-Martinez, we discussed different methods by
which an asylum seeker could demonstrate a government’s
BRINGAS-RODRIGUEZ V. LYNCH 31
inability or unwillingness to control harm inflicted by private
parties. For example, we stated that “the BIA may consider
whether the victim reported the attacks to the police.”
Castro-Martinez, 674 F.3d at 1080. While such a report can
suffice to demonstrate a government’s unwillingness to
control the persecution, a report is not necessary. “We have
never held that any victim, let alone a child, is obligated to
report a sexual assault to the authorities, and we do not do so
now.” Id. at 1081. But if the victim does not report to the
police, there is a “gap in proof about how the government
would have responded.” Id. (alterations omitted) (quoting
Rahimzadeh v. Holder, 613 F.3d 916, 922 (9th Cir. 2010)).
In such cases, the petitioner bears the burden of filling that
gap. Id.
We were careful in Castro-Martinez to list “other
avenues” through which a petitioner could carry this burden.
Id. Specifically, we identified four additional ways in which
an asylum seeker like Bringas-Rodriguez could show that his
government was unwilling or unable to prevent persecution
by non-governmental parties. He could:
1. “establish[] that private persecution of a
particular sort is widespread and well-
known but not controlled by the
government”;
2. “show[] that others have made reports of
similar incidents to no avail”;
3. “demonstrat[e] that a country’s laws or
customs effectively deprive the petitioner
of any meaningful recourse to
governmental protection”; or
32 BRINGAS-RODRIGUEZ V. LYNCH
4. “convincingly establish that going to the
authorities would have been futile or
would have subjected the individual to
further abuse.”
Id. at 1081 (alterations omitted) (quoting Rahimzadeh,
613 F.3d at 921–22). After reviewing the facts in Castro-
Martinez, we concluded that the petitioner did not present
sufficient evidence to show that Mexican officials would have
been unable or unwilling to prevent his abuse. Id.
The panel majority here concludes that Castro-Martinez
compels denial of Bringas-Rodriguez’s petition because
“[t]he facts in Bringas’s case are very similar to those in
Castro-Martinez.” Op. at 11. The facts are similar in one
respect. In both cases, petitioners introduced United States
State Department country reports describing police violence
against homosexuals. In Castro-Martinez, the petitioner
“submitted country reports documenting societal
discrimination against homosexuals in Mexico and attacks on
gay men committed by private parties.” 674 F.3d at 1079.
“He also presented evidence of widespread police corruption
in Mexico and incidents of police violence against
homosexuals.” Id. We concluded that these reports, without
more, did not “compel the conclusion that the police would
have disregarded or harmed a male child who reported being
the victim of homosexual rape by another male.” Id. at 1081.
In the case now before us, Bringas-Rodriguez submitted
similar country reports. Because Bringas-Rodriguez left
Mexico in 2004 and has not returned since, the relevant
period for purposes of our analysis is the years before 2004.
Bringas-Rodriguez submitted country reports from 2009 and
2010. Although the 2009 and 2010 reports post-date the
BRINGAS-RODRIGUEZ V. LYNCH 33
period at issue in this case, they provide probative
information. Both country reports state that in Mexico
discrimination and persecution based on sexual orientation —
including discrimination and persecution by governmental
officials — had lessened over time. But they also state that
discrimination and persecution remained serious problems,
five and six years after Bringas-Rodriguez left the country.
The 2009 country report states, “While homosexual
conduct experienced growing social acceptance, the National
Center to Prevent and Control HIV/AIDS stated that
discrimination persisted.” The 2010 country report similarly
notes that, according to a governmental agency and a
nonprofit organization, “societal discrimination based on
sexual orientation” remained “common.” The 2009 report
continues:
One of the most prominent cases of
discrimination and violence against gay men
was that of Agustin Humberto Estrada
Negrete, a teacher and gay activist from
Ecatepec, Mexico State. In 2007 he
participated in a gay rights march wearing a
dress and high heels. According to the NGO
Asilegal, soon after the march, Estrada began
receiving threatening telephone calls and
verbal and physical attacks. In 2008 he was
fired from the school for children with
disabilities where he worked. After his
dismissal, he and a group of supporters began
lobbying the government to reinstate him;
when they went to the governor’s palace to
attend a meeting with state officials in May,
police beat him and his supporters. The next
34 BRINGAS-RODRIGUEZ V. LYNCH
day he was taken to prison, threatened, and
raped. Although he was released, Estrada
continued to face harassment by state
authorities.
(Emphasis added.) Through these reports, Bringas-Rodriguez
established that government discrimination on the basis of
sexuality in Mexico persisted, even years after he fled the
country.
While Castro-Martinez and Bringas-Rodriguez both
produced relevant country reports detailing the Mexican
government’s continued discrimination against homosexuals,
the facts of their cases are dissimilar in a critical respect.
Unlike Castro-Martinez, Bringas-Rodriguez provided
evidence that “others have made reports of similar incidents
to no avail.” Castro-Martinez, 674 F.3d at 1081.
Specifically, Bringas-Rodriguez presented evidence that
while living in Kansas, gay Mexican friends told him they
had reported similar sexual abuse and that the Mexican police
in Veracruz had refused to take action. Bringas-Rodriguez’s
oral testimony was brief, but quite clear:
Q: You can go tell police if you return to
Mexico and suffer abuse, you could tell the
police. . . . Couldn’t you do that?
A: They will do nothing.
Q: How do you know that?
A: I know that because when I was living in
Kansas, couple of my friends told me that
they got raped, they got beat up, like abuse,
BRINGAS-RODRIGUEZ V. LYNCH 35
and they went to the police and they didn’t do
anything. They even laugh [in] their faces.
Bringas-Rodriguez provided similar testimony in his written
declaration, explaining that, if he reported his abuse, the
police “would laugh at me and tell me I deserved what I got
because I was gay. This happened to friends of mine in
Veracruz.”
Neither the BIA nor the IJ mentioned Bringas-
Rodriguez’s testimony about what his friends had told him.
In fact, the IJ, whose decision the BIA affirmed, stated in
denying asylum that “we certainly do not have any evidence
whatsoever” that Mexican authorities were unwilling to
protect a child like Bringas-Rodriguez. The IJ’s statement is
wrong. It is undisputed that Bringas-Rodriguez submitted
probative country reports, and that he provided both oral and
written testimony that his friends had reported similar sexual
abuse to police in Veracruz, and the police refused to take
action.
Despite this evidence, the panel majority rejects Bringas-
Rodriguez’s asylum claim. To rebut Bringas-Rodriguez’s
country reports, the majority asserts that governmental
discrimination on the basis of sexual orientation in Mexico
has lessened in recent years. Op. at 13. Although the
relevant time period for purposes of Bringas-Rodriguez’s
claim is before 2004, the majority cites evidence from the
past few years, even citing a report published only this year.
Op. at 14 n.5. This evidence has limited utility. We
recognized in a recently published opinion that while Mexico
has made some advances in its treatment of homosexuals,
there has actually been “an increase in violence against gay,
lesbian, and transgender individuals during the years in which
36 BRINGAS-RODRIGUEZ V. LYNCH
greater legal protections have been extended to these
communities” and that “there is a continued failure to
prosecute the perpetrators of homophobic hate crimes
throughout Mexico.” Avendano-Hernandez v. Lynch,
800 F.3d 1072, 1081–82 (9th Cir. 2015) (emphasis in
original).
The panel majority then concludes that Bringas-
Rodriguez’s additional evidence — the statements of his
friends — is also not sufficient. The majority’s primary
complaint is that the evidence lacks specificity. Op. at 15.
To support this conclusion, the majority lists a number of
details that, in its view, are crucially absent from Bringas-
Rodriguez’s testimony. These details include the names of
his two friends, their ages, “the nature of their relationship to
Bringas,” “how or to whom they reported their abuse,” or
“any evidence showing that these nameless friends actually
reported any abuse to the Mexican authorities.” Op. at 15.
But Bringas-Rodriguez did provide a number of these details.
Bringas-Rodriguez explained the nature of the relationship:
they were his Mexican friends who had recounted to him in
Kansas their experience in Veracruz. While he did not state
their exact ages, a reasonable inference, given that they were
his friends, is that they were his age contemporaries. He also
testified as to whom the friends had reported their abuse:
Mexican police in Veracruz. Finally, he provided evidence
that the friends had made the reports: his credible testimony
about what they had told him.
The panel majority also partially discounts the statements
of Bringas-Rodriguez’s friends because they are hearsay. Op.
at 12, 16–17. However, it is well established in our case law
that hearsay — even hearsay upon hearsay — is proper
evidence in asylum proceedings. Ramirez-Alejandre v.
BRINGAS-RODRIGUEZ V. LYNCH 37
Ashcroft, 319 F.3d 365, 370 (9th Cir. 2003) (en banc).
Hearsay is sometimes (though only sometimes) less probative
and reliable than direct evidence. But because of the
particular difficulties asylum seekers have in obtaining direct
evidence, we are more willing to credit hearsay in asylum
cases than in conventional litigation. See, e.g., Cordon-
Garcia v. I.N.S., 204 F.3d 985, 992–93 (9th Cir. 2000)
(holding “Petitioner’s testimonial evidence,” which consisted
of “hearsay, and, at times, hearsay upon hearsay,” sufficient
to support the presumption that petitioner had a well-founded
fear of future persecution).
The majority also suggests that Bringas-Rodriguez’s
testimony is suspect because much, perhaps all, of the abuse
Bringas-Rodriguez suffered had already taken place by the
time he talked to his friends in Kansas. See Op. at 12 n.4.
But this is irrelevant. The question at issue is not what
Bringas-Rodriguez knew about the police when he was a
child. Rather, the question is whether the Mexican police
would have helped Bringas-Rodriguez if he had reported his
abuse to them. An asylum seeker can present probative
evidence that he or she obtained only after escaping from
persecution. See, e.g., Cordon-Garcia, 204 F.3d at 992–93
(relying upon petitioner’s evidence, obtained only after the
petitioner departed her home country, to find that petitioner
established a well-founded fear of future persecution);
Gjerazi v. Gonzales, 435 F.3d 800, 809 (7th Cir. 2006)
(holding the IJ erred in excluding documentary evidence of
persecution solely because the evidence was only acquired
after the petitioner arrived in the United States).
Finally, the majority makes geographic objections to
Bringas-Rodriguez’s evidence. For example, it discounts
Bringas-Rodriguez’s country reports because neither report
38 BRINGAS-RODRIGUEZ V. LYNCH
“mentions any instances of discrimination or persecution in
his home state of Veracruz.” Op. at 13. This objection
ignores the fact that Bringas-Rodriguez’s additional evidence
— the statements of his friends about their experiences in
Veracruz — corroborates the country reports and
demonstrates that discrimination against homosexuals
extends to Bringas-Rodriguez’s home state. Similarly, the
majority objects that Bringas-Rodriguez’s evidence does not
discuss “the specific police practices in Bringas’s town of
Tres Valles.” Op. at 15. But Tres Valles is in the state of
Veracruz. Our Court has “adjusted the evidentiary
requirements” for asylum seekers in light of “the serious
difficulty with which asylum applicants are faced in their
attempts to prove persecution.” Malty v. Ashcroft, 381 F.3d
942, 947 (9th Cir. 2004) (quoting Cordon-Garcia, 204 F.3d
at 993). Accordingly, we do not require a petitioner to
provide evidence of the specific practices of his hometown
when he presents evidence of statewide or even countrywide
persecution. See, e.g., Yan Rong Zhao v. Holder, 728 F.3d
1144, 1147–48 (9th Cir. 2013) (finding the BIA erred in
requiring a Chinese petitioner to provide evidence of the
government policy in her town and noting that “[n]either the
BIA nor this court has previously required municipal-level
proof when the petitioner presents province-level proof”).
In sum, we wrote in Castro-Martinez that a gay petitioner
qualifies for asylum when he provides country reports
documenting official persecution on account of sexual
orientation, supplemented by evidence that “others have made
reports of similar incidents to no avail.” 674 F.3d at 1081.
We denied relief in Castro-Martinez because the petitioner
had not, in the view of the panel, provided such supplemental
evidence. In this case, Bringas-Rodriguez has provided the
additional evidence that was lacking in Castro-Martinez. He
BRINGAS-RODRIGUEZ V. LYNCH 39
testified that his Mexican friends (“others”) had told police in
his home state of Veracruz that they were abused because of
their sexuality (“had made reports of similar incidents”) and
that the police did nothing (“to no avail”).
III. Revisiting Castro-Martinez
As noted above, I have growing doubts about our decision
in Castro-Martinez. As the panel majority writes, the facts of
Castro-Martinez resemble this case. In both cases, a gay,
HIV-positive man sought asylum based on a long history of
childhood abuse suffered in Mexico because of his sexuality.
Id. at 1078–79. Both victims failed to report their abuse to
Mexican officials. Id. at 1080. And both victims provided
country reports describing anti-gay sentiments and
persecution by Mexican authorities. The BIA denied asylum
in both cases, on the ground that the victims failed to show
that the Mexican government was unable or unwilling to
control the abusers. Id. at 1081.
We denied Castro-Martinez’s petition for review. We
concluded that there was “no evidence in the record that
Mexican authorities would have ignored the rape of a young
child or that authorities were unable to provide a child
protection against rape.” Id. We wrote that Castro-Martinez
offered nothing more than his belief that “the police would
not have helped him.” Id. “[S]uch a statement, without
more, is not sufficient to fill the gaps in the record regarding
how the Mexican government would have responded had
Castro reported his attacks.” Id.
If the only evidence Castro-Martinez offered had been his
unsupported belief, I would continue to think our decision in
that case was correct. Asylum seekers must show that “the
40 BRINGAS-RODRIGUEZ V. LYNCH
government concerned was either unwilling or unable to
control the persecuting individual or group.” Matter of
Pierre, 15 I. & N. Dec. 461, 462 (BIA 1975).
Unsubstantiated assertions that the government is unwilling
or unable to control a persecutor do not suffice to carry that
burden.
Castro-Martinez, however, did offer evidence to show
Mexican officials would not have helped him. As we wrote
in our opinion, “Castro also stated that he was afraid of
contacting the police because they would likely abuse him on
account of his homosexuality. Castro presented country
reports documenting police corruption and participation in
torture, abuse, and trafficking, as well as incidents of police
harassment of gay men.” Castro-Martinez, 674 F.3d at 1081.
Despite this, we held that Castro-Martinez still had not
carried his burden because “none of these reports compel the
conclusion that the police would have disregarded or harmed
a male child who reported being the victim of homosexual
rape by another male.” Id.
I have come to believe that Castro-Martinez demands an
unwarranted level of specificity from country reports. In
rejecting Castro-Martinez’s claim, we held that statements in
country reports that Mexican police harassed homosexuals
and ignored their claims of abuse was not enough. We
required, instead, a statement in the report focusing
specifically on gay children — a statement that Mexican
police ignored reports by gay male children who were abused
by other males. The panel majority here does the same. It
discounts Bringas-Rodriguez’s evidence of governmental
discrimination against homosexuals generally, and instead
affirms the IJ’s conclusion that Bringas-Rodriguez failed to
provide evidence showing that the Mexican government
BRINGAS-RODRIGUEZ V. LYNCH 41
would not have responded to “the abuse of children.” Op. at
13–14, 18 (emphasis in original).
Given the nature of crimes of sexual violence against
children and the difficulty children face in reporting them,
Castro-Martinez and the panel majority require evidence that
few victims can supply. Many children will not report these
crimes for some of the same reasons Bringas-Rodriguez did
not. Abusers often threaten their victims with harm if they
tell anyone, and they sometimes make good on those threats.
Children also have difficulty getting information to the
police, especially if family members or neighbors — the
people who might report the abuse — are the abusers. By
discounting country reports that describe discrimination
against homosexuals generally and instead requiring reports
specifically addressing gay children, Castro-Martinez
effectively requires abused children to report to the police,
either to provide relevant evidence for the country reports or
to establish the requisites for asylum in their own cases.
Conclusion
We have repeatedly held that victims, especially child
victims, of private persecution need not report their abuse to
obtain asylum. Castro-Martinez, 674 F.3d at 1081 (“We have
never held that any victim, let alone a child, is obligated to
report a sexual assault to the authorities, and we do not do so
now.”); Rahimzadeh, 613 F.3d at 921 (“The reporting of
private persecution to the authorities is not . . . an essential
requirement for establishing government unwillingness or
inability to control attackers.”); Ornelas-Chavez v. Gonzales,
458 F.3d 1052, 1057 (9th Cir. 2006). Yet, Castro-Martinez
and today’s decision effectively require just that. In Castro-
Martinez, by demanding unrealistic specificity from country
42 BRINGAS-RODRIGUEZ V. LYNCH
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.
In Castro-Martinez, we wrote that evidence that “others have
made reports of similar incidents to no avail” could be used
to show a government’s inability or unwillingness to prevent
private harm. Bringas-Rodriguez presented precisely such
evidence, and he presented it in the only form — hearsay —
likely to be available to someone in his position.
Bringas-Rodriguez, like most abused children, did not
report to the police the sexual abuse he suffered. Thus, when
seeking aslyum, Bringas-Rodriguez had to rely on other
evidence of the Mexican government’s inability or
unwillingness to protect him. He provided 2009 and 2010
country reports describing police indifference to, and
participation in, discrimination and violence against
homosexuals. He also testified that his gay friends told him
that when they reported to the Mexican police in his home
state of Veracruz similar abuse they had suffered, the police
laughed in their faces and told them that they deserved the
abuse they were receiving. That should be enough.
I respectfully dissent.