CA9 on 'Particular Social Group' - Bringas-Rodriguez II (en banc)

Bringas-Rodriguez v. Sessions, Mar. 8, 2017 - "Carlos Alberto Bringas-Rodriguez (Bringas), a gay man who is a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) denial of his applications for asylum, withholding of removal, and Convention Against Torture (CAT) protection. Bringas was physically and sexually abused as a child on account of his sexual orientation, and he submitted evidence that Mexico was unable or unwilling to control his persecutors. Both the Immigration Judge (IJ) and the BIA found Bringas’s testimony credible, and both acknowledged that sexual orientation and identity can establish membership in a “particular social group.” Nevertheless, both the IJ and the BIA denied Bringas relief, in part based on a conclusion that his evidence was insufficient to demonstrate that the Mexican government was unable or unwilling to control the private individuals who attacked him. In so doing, both the IJ and the BIA failed to address Bringas’s plausible, unrefuted testimony that Mexican police laughed at his gay friends who attempted to report rape and other abuse.

A divided panel of our court agreed, relying primarily on our decision in Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), which interpreted the “unable or unwilling to control” standard as requiring proof that the police are unable or unwilling to control the sexual abuse of children generally. Bringas-Rodriguez v. Lynch, 805 F.3d 1171, 1178–79 (9th Cir. 2015) (now withdrawn). The panel majority adopted the IJ’s conclusion that it was unlikely that the Mexican government would take no action to control the “abuse of children.” Id. at 1181–82. We granted rehearing en banc and now hold that the evidence Bringas adduced before the agency — credible written and oral testimony that reporting was 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 — satisfies our longstanding evidentiary standards for establishing past persecution and compels the conclusion that Bringas suffered past persecution that the Mexican government was unable or unwilling to control. We overrule Castro-Martinez to the extent it might suggest otherwise and remand this petition to the BIA for further proceedings."

[Hats way off to Erwin Chemerinsky (argued), Kathryn M. Davis, and Munmeeth Soni, Pro Bono Counsel, University of California, Irvine School of Law, Appellate Litigation Clinic, Irvine, California; Andrea Ringer and Marco Pulido Marquez, Certified Law Students, University of California, Irvin; School of Law,Appellate Litigation Clinic, Irvine, California; Mary-Christine Sungaila, Pro Bono Attorney, Snell & Wilmer LLP and Haynes and Boone LLP, Costa Mesa, California, for Petitioner, Peter E. Perkowski, Perkowski Legal, PC, 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; the Asian & Pacific Islander Wellness Center, National Center for Lesbian Rights, LGBT Center OC, Transgender Law Center, Florence Immigrant & Refugee Rights Project, and Centro Legal De La Raza; Charanya Krishnaswami, Cortelyou C. Kenney (Volunteer), and Lisa Jaskol, Public Counsel, Los Angeles, California, for Amici Curiae Kids In Need of Defense, Tahirih Justice Center, and Women’s Refugee Commission, Laurie Webb Daniel, Charles L. Coleman III, Kyong M. Kim, and Garrett S. Garfield, Pro Bono Counsel, Holland & Knight LLP, San Francisco, California; Eunice Lee, Karen Musalo, and Blaine Bookey, Counsel, Center for Gender & Refugee Studies, San Francisco, California; for Amicus Curiae of Center for Gender & Refugee Studies; Alice Farmer, United Nations High Commissioner for Refugees, Washington, D.C.; Ana C. Reyes, Counsel of Record, Williams & Connolly LLP, Washington, D.C.; for Amicus Curiae United Nations High Commissioner for Refugees!]