(CN) - Though the court denied asylum to a gay man with HIV, a Ninth Circuit judge fought against requiring the immigrant to show proof that Mexico will not protect him.
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 on Thursday 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.
"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," Fletcher wrote.
Fletcher 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.
Fletcher questioned whether the precedent holds up, as Rafael Castro-Martinez did offer evidence that Mexican officials would not have helped him.
"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," Fletcher wrote. "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."
Mary-Christine Sungaila, an attorney for Bringas with the Costa Mesa, Calif., firm Snell & Wilmer, declined to comment.
The Office of Immigration Litigation was not immediately available for comment Thursday.Follow @@jamierossCNS
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