HIV-Positive Immigrant Faces En Banc Hearing

     SAN FRANCISCO (CN) — The Ninth Circuit agreed Tuesday to hold an en banc rehearing on the gay Mexican immigrant with HIV whom a panel of the court denied asylum.
     Carlos Bringas Rodriguez, also known as Patricio Iron-Rodriguez, was born and raised in Tres Valles, Veracruz, Mexico, where he was sexually abused by an uncle, cousins and a neighbor.
     The abuse the uncle began when Bringas was 4 and continued until he was 12 years old. During those years, Bringas realized he was gay.
     Bringas said he never reported his abusers to the police, waiting years to even tell a family member for fear that his uncle and cousins would hurt his mother or grandmother.
     Bringas joined his mother and stepfather in Kansas in 2004, but he was convicted six years later of contributing to the delinquency of a minor in Colorado.
     During a 90-day stint in jail, Bringas tried to kill himself. In February 2012, he applied for asylum, withholding of removal and relief under the Convention Against Torture, claiming that he would be persecuted because he is gay if he returned to Mexico, and that the police would ignore his complaints.
     An immigration judge found that “perverse sexual urges,” and not Bringas’ sexual orientation, motivated his abusers. The judge also noted Bringas never reported his abuse to an adult or to the Mexican police.
     Not long after that decision, Bringas learned that he is HIV-positive. The Board of Immigration Appeals nevertheless refused to revive his case.
     The Ninth Circuit was divided 2-1 last year in refusing to grant Bringas asylum
     Citing the 2011 holding in Castro-Martinez v. Holder, Judge Jay Bybee wrote for the majority that Bringas was required under show “that the government was unable or unwilling to control his attackers.”
     In Castro-Martinez, the circuit denied asylum to a gay, HIV-positive Mexican man because he failed to show Mexican authorities were unwilling to help gay victims of abuse.
     For his part, Bringas said he thought the police would ignore his complaints because his gay Mexican friends in Kansas 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.”
     Bringas produced two reports by the U.S. Department of State on sexual-orientation discrimination in Mexico, but the reports note only one example of government persecution on the basis of sexual orientation in a country of 122 million.
     “There is no doubt that Bringas did not offer any evidence suggesting that Mexican police refused to protect abused children,” Bybee wrote. “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.”
     Judge William Fletcher penned the dissent in Bringas’ case Thursday, though Fletcher had joined the unanimous Castro-Martinez opinion when it was issued.
     He noted that the two reports Bringas presented were from 2009 and 2010, years after he left Mexico.
     “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,” Fletcher found. “But they also state that discrimination and persecution remained serious problems, five and six years after Bringas-Rodriguez left the country.”
     The reports both cite concerns about the persistence of discrimination, establishing “that government discrimination on the basis of sexuality in Mexico persisted, even years after he fled the country,” Fletcher wrote.
     With the Ninth Circuit agreeing to rehear Bringas’ case en banc, the court vacated the panel holding.
     Bringas is represented by Mary-Christine Sungaila with Snell & Wilmer in Costa Mesa, Calif.

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