SAN FRANCISCO (CN) – An en banc Ninth Circuit on Wednesday ordered immigration officials reconsider granting asylum to a Mexican national, citing concerns that the Mexican government would not protect him from persecution because he’s gay.
In a 49-page opinion written by Circuit Judge Kim McLane Wardlaw, the court found sufficient evidence to support Carlos Alberto Bringas-Rodriguez’s claim that Mexico would not protect him from persecution and potential abuse related to his sexual orientation and remanded his case back to the Board of Immigration Appeals.
Despite findings of the immigration board and – after Bringas appealed, three Ninth Circuit judges – Wardlaw said the man’s lawyers presented “credible written and oral testimony that reporting his abuse would have been futile and potentially dangerous, that other young gay men had reported their abuse to the Mexican police to no avail, and country reports and news articles documenting official and private persecution of individuals on account of their sexual orientation.”
The decision does not mean Bringas automatically receives asylum, only that the immigration court must now consider his case in the context of evidence suggesting the government of Mexico is either unable or unwilling to protect him from discrimination and abuse.
Both the immigration court and a three-judge panel had previously held that Bringas did not establish credible evidence that the Mexican government would fail to protect him, but the 11-judge en banc panel overturned those rulings.
Circuit Judge Richard Clifton concurred with the majority opinion, but said Bringas failed to establish past persecution because he never contacted authorities in Mexico regarding his abuse.
Meanwhile, Circuit Judges Carlos Bea and Diarmuid O’Scannlian dissented, writing, “The majority failed to properly apply the substantial-evidence standard and would hold that the evidence does not compel the conclusion that the Mexican government is unwilling or unable to protect homosexuals from persecution.”
Bringas, 27, grew up in Tres Valles, Veracruz, where he suffered frequent and outrageous abuse due to his sexual orientation.
His uncle, three cousins and a male neighbor repeatedly raped him as a child, beginning when he was as young as 4 years old.
His father verbally abused him, denigrating for being effeminate, beating him and telling him to “act like a boy. You are not a woman.”
Bringas’ uncle told him the abuse was a direct result of his being gay, and he and the cousins never referred to Bringas by his name, instead using an array of derogatory epithets.
Bringas fled Mexico in 2004, entering without documentation at El Paso, Texas. He lived with his mother in Kansas for three years before moving to Colorado, where he worked a series of restaurant jobs.
In August 2010, he pleaded guilty to contributing the delinquency of a minor, after attending a party where a minor became intoxicated. He attempted suicide during a 90-day jail stint, at which point he disclosed his long history of abuse to a jail doctor.
The Department of Homeland Security issued a notice to appear in 2010, and Bringas promptly sought asylum and protection under the Convention Against Torture, an international human-rights treaty.
Bringas attempted to prove that if he was deported back to Mexico, he would be in proximity to his former assailants and abusers and the Mexican government would do little to shield him.
“Bringas also credibly testified about his gay friends’ experiences with police in Veracruz,” Wardlaw wrote in the majority opinion. “Those friends went to the police to report that they had been raped, but the officers ignored their reports and ‘laugh[ed] on [sic] their faces.’”
The three-judge panel held that there was a gap in proof of his claims, because Bringas never reported the crimes against him so there was no way to judge the government’s response.
However, Wardlaw said this finding was unfair, as Bringas was a child at the time of his abuse and “children who suffer sexual abuse are generally unlikely to report that abuse to authorities.”
The en banc panel also overturned the immigration court’s finding that Bringas had failed to establish the link between his abuse and his status as a gay man.
“There is no evidence in the record suggesting Bringas’ abusers were motivated by anything else,” Wardlaw wrote.
Finally, en banc panel found both the immigration court and its three-judge panel conflated the passage of anti-discrimination laws by the Mexican government in 2010 and 2011 with actual progress in terms of how the LGBT community is treated in Mexico.
“The panel-majority opinion, like the Castro-Martinez decision and the BIA decision here falsely equated legislative and executive enactments prohibiting persecution with on-the-ground progress,” Wardlaw wrote.
In his concurrence, Clifton agreed that substantial evidence exists that Mexico is unwilling or unable to protect Bringas. But he said Bringas failed to establish his abuse was predicated on his status as a gay man.
Bea and O’Scannlian disagreed that Bringas successfully proved the potential indifference of the Mexican government.
Bringas was represented at the en banc hearing by Erwin Chemerinsky, the dean of the University of California, Irvine School of Law.
John Blakely, assistant director of the Justice Department’s Office of Immigration Litigation, argued on behalf of the government.