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9th Circuit En Banc Panel Revives Gay Mexican’s Asylum Claim

Posted on: March 12th, 2017 by Art Leonard No Comments

An eleven-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit revived an HIV-positive gay Mexican man’s claim for refugee status to remain in the United States on March 8, reversing rulings by a three-judge panel of the court, the Board of Immigration Appeals, and an Immigration Judge.  The opinion for the court in Bringas-Rodriguez v. Sessions, 2017 U.S. App. LEXIS 4077, 2017 WL 908546, was written by Judge Kim McLane Wardlaw, a Clinton appointee.  One member of the court, Judge Richard R. Clifton, filed a concurring opinion, and two members, Judges Carlos T. Bea and Diarmuid O’Scannlain, dissented in an opinion by Judge Bea.  Bea, appointed by George W. Bush, and O’Scannlain, appointed by Ronald Reagan, are among the most conservative judges on the 9th Circuit.  The reversed three-judge panel consisted of two George W. Bush appointees and a dissenting Clinton appointee, William Fletcher.

Carlos Alberto Bringas-Rodriguez, born in Tres Valles, Veracruz State, was, according to Judge Wardlaw’s summary of his testimony, which was deemed credible by the Immigration Judge, “horrifically abused by his father, an uncle, cousins, and a neighbor, all of whom perceived him to be gay or to exhibit effeminate characteristics.”  Bringas testified that his uncle raped him when he was four, and that three of his cousins and a male neighbor “physically and sexually abused him on a regular basis while he lived in Mexico.”  He also suffered regular beatings from his father, who told him, “Act like a boy.  You are not a woman.”  He claims his uncle told him when he was eight that he was being abused because he was gay.  “His uncle, cousins, and neighbor never called him by his name,” wrote Wardlaw, “referring to him only as ‘fag, fucking faggot, queer,’ and they ‘laughed about it.’”

Bringas lived briefly with his mother in the U.S. when he was twelve, but he returned to Mexico because he missed his grandmother, who had been raising him since he was nine.  The abuse intensified when he returned.  “On one occasion, when Bringas refused to comply with his neighbor’s demand for oral copulation, the neighbor beat and raped him, leaving Bringas with black eyes and bruises,” and his abusers “also threatened to hurt his grandmother, with whom he was close, if he ever reported what was happening,” wrote Wardlaw.  “Fearing that they would follow through on their threats, Bringas did not tell his mother, teachers, or anyone else about the sexual abuse.”  He fled back to the U.S. in 2004 when he was fourteen.

Entering the country illegally at El Paso, he made his way to Kansas where he lived with his mother for the next three years.  Then he moved out of his mother’s home, living elsewhere in Kansas and in Colorado, holding several jobs.  In August 2010 he pled guilty to “attempted contributing to the delinquency of a minor” in Colorado.  According to his account, as related by Wardlaw, “he had been at home drinking with some friends when another friend brought over a minor who became drunk.”  Bringas served 90 days in jail, “during which time he attempted suicide and was hospitalized, which precipitated his finally telling a doctor and then his mother about his childhood abused.”  His conviction triggered a notice to the Department of Homeland Security, which immediately issued him a “Notice to Appear.”

The next year, at age 20, he applied for asylum, withholding of removal, and protection under the Convention against Torture (CAT).  Asylum claims normally have to be filed within a year of arrival in the U.S., but he claimed he had been “unaware” at age 14 that he could apply for asylum, and only learned of this when he “spoke with an ICE officer in Colorado in September 2010” when he responded to the Notice to Appear.  In his application, he described the abuse he had suffered in Mexico and “explained that he feared persecution if he returned because he was gay and that the Mexican police would not protect him.  Bringas also credibly testified about his gay friends’ experiences with police in Veracruz.  Those friends went to the police to report that they had been raped, but the officers ignored their reports and ‘laughed [on] their faces.’”  He also submitted State Department country human rights reports on Mexico from 2009 and 2010, as well as newspaper articles documenting violence against gays in Mexico, which showed that violence was rising even as “Mexican laws were becoming increasingly tolerant of gay rights.”  In a footnote, Judge Wardlaw cited guidelines issued by the United Nations High Commissioner for Refugees, explaining that “legal improvements and widespread persecution are not mutually exclusive.”

An Immigration Judge found Bringas’ factual testimony to be credible, but denied his application, as did the Board of Immigration Appeals (BIA) on his appeal.  The IJ found that his asylum claim was untimely under the one-year rule, a point that the BIA ignored, treating his asylum claim on the merits.  Next, the IJ found, and the BIA recognized, that although Bringas had suffered “serious abuse” as a child, he did not show that the “abuse was inflicted by government actors or that the government was unwilling or unable to control his abusers.”  This was a critical finding, because the basis for establishing refugee status is to show persecution at the hands of the government or private actors whom the government is unwilling or unable to control.  Purely private abuse, as such, is not considered to be “persecution” under relevant statutes and treaties.  Having found that Bringas had not established “past persecution,” the BIA approved the IJ’s finding that there was no presumption that he had a reasonable fear of future persecution in Mexico, because he had “failed to show a pattern or practice of persecution of gay men in Mexico.”  The BIA wrote that “the record did not demonstrate widespread brutality against homosexuals or that there was any criminalization of homosexual conduct in Mexico.”  Indeed, the BIA found that the Mexican government “has taken numerous positive steps to address the rights of homosexuals.”  The IJ and BIA found no evidence that Bringas was likely to be tortured by the government if he were removed back to Mexico.

The three-judge panel of the 9th Circuit considering his appeal focused on a prior circuit ruling, Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), concerning cases where the applicant’s abusers were all private citizens, which held that in order to establish that the government was unwilling or unable to control the abusers, the victim had to have reported the abuse to the government.  Wrote Wardlow, “the panel majority reasoned that where a victim fails to report abuse, even as a child, ‘there is a “gap in proof about how the government would have responded,”’ and that petitioner bears the burden to ‘fill in the gaps’ by showing how the government would have responded had he reported the abuse.”  The 3-judge panel emphasized the part of the State Department country reports that discussed how Mexican law had improved for gay people, including the government’s establish of a “specialized hate crimes prosecution unit” and the proclamation of a “national day against homophobia.”  The panel found “insufficient” Bringas’s testimony about the comments by his gay friends in the U.S. about how the police had failed to respond to their reports of abuse.  “Even if the friends’ reports were credited, the panel majority explained, those reports failed to establish that police practices in the city or state of Veracruz could be linked to police practices in Tres Valles, Bringas’s hometown.”

The panel majority, in common with the IJ in this case, also suggested that the issue here was not narrowly sexual abuse because of homosexuality, but rather the more general phenomenon of sexual abuse of children, and suggested that there was no evidence that the Mexican law enforcement authorities would be indifferent to reports of child sexual abuse.  In this connection, they noted that Bringas’s testimony did not specify how old his friends were when they unsuccessfully reported their abuse to the police.

Judge William Fletcher, the dissenting member of the 3-judge panel, expressed growing discomfort about the prior precedent upon which the majority of that panel was relying, pointing to the circuit’s “ample precedent that does not require victims of private persecution, especially child victims, to contemporaneously report their abuse to government authorities in order to become eligible for asylum in the United States.”

The en banc panel majority, reversing the 3-judge panel, embraced Judge Fletcher’s criticism, citing extensive evidence about the psychological and practical problems a child victim of sexual abuse would have in reporting the abuse to authorities, especially if they or their loved ones were threatened with retribution if they made any report, as had happened in Bringas’s case with threats to harm his grandmother.  Going further, the en banc panel overruled the prior precedent to the extent that it had been relied on as requiring reporting to the authorities in a case founded on abuse by non-governmental actors in order to establish “persecution” for purposes of asylum or withholding of removal.

While it was clear in this case that the asylum claim was filed too late, the court determined that Bringas’s claims for withholding of removal and protection under the CAT must be reconsidered by the Board.  The court found Bringas’ testimony, which had been deemed credible by the IJ and the BIA, sufficient to establish that he had been subjected to past persecution, and based on that testimony he was entitled to a presumption of further persecution.  Sending the case back to the BIA, the court said the remaining issue was whether that presumption had been rebutted by the government’s evidence of changed conditions in Mexico.

Furthermore, while this case was in progress, but after the BIA issued its opinion, Bringas learned for the first time that he was HIV-positive.  He had asked to reopen the case in order for the BIA to take this new information into account, but the BIA refused his request, observing that he had failed to show “how his status as an HIV positive homosexual changes the outcome of his case.”  The court ordered that BIA allow Bringas to supplement the record and to take account of new evidence about his HIV diagnosis.

Judge Clifton concurred on narrower grounds.  He felt, along with Judge Bea’s dissent, that the court’s opinion was insufficiently deferential to the BIA, which as a matter of administrative law is entitled to substantial deference by the courts and should not be reversed unless “any reasonable adjudicator would be compelled to conclude to the contrary based on evidence in the record.”  To Clifton, the evidence presented by Bringas about the unwillingness or inability of the government to address sexual abuse of gay children was not overwhelming, relying on “an unspecific hearsay report by Bringas of what he was told by one or two other persons about what had happened when a report was made to police in a different town.  That evidence would have been sufficient to support a conclusion that a report by a child to the police would have been futile, but it was not so powerful that no reasonable adjudicator could have found to the contrary,” he wrote.  He also noted that much of Bringas’ evidence was rather general and did not necessarily compel the conclusions reached by the majority of the court as to his persecution case.

On the other hand, Clifton found that the BIA “appeared to disregard the evidence that Bringas offered on the subject,” so it was appropriate to remand for reconsideration.  The IJ had written that there “was ‘no evidence whatsoever’ to support Bringas’s contention that a police report would have been futile, and it did not reflect any awareness of the evidence to that effect,” and the BIA’s opinion did not correct that misstatement.  While Clifton agreed the case should be sent back, he, unlike the majority, “would not dictate the answer to that past persecution question” but rather allow the BIA to reweigh the evidence.

Judge Bea’s dissent, as mentioned by Judge Clifton, focused on the court’s failure to accord sufficient deference to the BIA’s decision, emphasized the weak points in Bringas’s testimony, and accused the majority of mischaracterizing the precedent that it was overruling.  He also argued that the situation facing Bringas at age 14 was very different from the situation he would face today as an adult if returned to Mexico, pointing out further that the record showed that conditions for gay men in Mexico varied.  If returned to Mexico, Bringas would not have to live in Veracruz, but could instead locate in Mexico City, a jurisdiction that has legislated for same-sex marriage, supports gay pride marches, and is notably gay-friendly.

It will be interesting to see whether the government will seek Supreme Court review of this en banc ruling from the 9th Circuit.  The new Attorney General, Jeff Sessions, was substituted as Respondent for his predecessor, Loretta Lynch, upon taking office.  As this ruling may make it easier for Mexican asylum applicants to win the right to remain in the United States, the Trump Administration may seize upon it as a vehicle to tighten up on the asylum process by winning a reversal.  Certainly the Administration would have an interest in establishing deference for the BIA, given the ability of the President and Attorney General to influence the policies of that agency through appoints to the Board. In light of the timing, any review would take place after Trump’s nominee to fill the vacant seat on the Court takes the bench, re-establishing a majority of Republican appointees on the Court.

This en banc reconsideration of Bringas’s case was considered a big deal by the immigrants’ rights and civil liberties communities.  Dean Erwin Chemerinsky of the University of California (Irving) School of Law argued the appeal, with the Appellate Litigation Clinic at his school representing Bringas together with pro bono attorneys from major California law firms.  The government’s case was argued by relatively high level attorneys from the Justice Department in Washington.  Several amicus briefs were filed in support of Bringas’s appeal, including a wide variety of public interest groups, including Lambda Legal, National Center for Lesbian Rigths, the National Immigrant Justice Center, the HIV Law Project, the Transgender Law Center.  An amicus brief was submitted on behalf of Alice Farmer, the United Nations High Commissioner for Refugees, by Williams & Connolly LLP, a major national law firm that frequently appears before the Supreme Court.