Carlos Bringas-Rodriguez v. Jefferson Sessions

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS ALBERTO BRINGAS- No. 13-72682

RODRIGUEZ, AKA Patricio

Iron-Rodriguez, Agency No.

Petitioner, A200-821-303

v.

OPINION

JEFFERSON B. SESSIONS III*,

Attorney General,

Respondent.

*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted En Banc September 7, 2016

San Francisco, California

Filed March 8, 2017

Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.

O’Scannlain, Barry G. Silverman, Kim McLane Wardlaw,

William A. Fletcher, Richard R. Clifton, Carlos T. Bea,

Milan D. Smith, Jr., Morgan B. Christen, John B. Owens

and Michelle T. Friedland, Circuit Judges.

*

Jefferson B. Sessions III is substituted for his predecessor as

Attorney General of the United States, pursuant to Federal Rule of

Appellate Procedure 43(c).

2 BRINGAS-RODRIGUEZ V. SESSIONS

Opinion by Judge Wardlaw;

Concurrence by Judge Clifton;

Dissent by Judge Bea

SUMMARY**

Immigration

The en banc court granted a petition for review of the

Board of Immigration Appeals’ denial of asylum, withholding

of removal, and protection under the Convention Against

Torture to a citizen of Mexico who asserted that Mexican

officials were unable or unwilling to protect him from harm

by private individuals due to his sexual orientation.

The en banc court held that the evidence Bringas-

Rodriguez adduced before the agency—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—satisfied longstanding evidentiary standards for

establishing past persecution and compelled the conclusion

that Bringas-Rodriguez suffered past persecution that the

Mexican government was unable or unwilling to control.

The court overruled Castro-Martinez v. Holder, 674 F.3d

1073 (9th Cir. 2011), and other circuit precedent, to the extent

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BRINGAS-RODRIGUEZ V. SESSIONS 3

they introduced the construct that the failure to report private

persecution to government authorities creates a “gap” in the

evidence or imposed a heightened evidentiary requirement to

establish governmental inability or unwillingness to protect.

The en banc court held that Bringas-Rodriguez was

entitled to a presumption of future persecution and remanded

for the Board to consider whether the presumption was

rebutted, and to consider Bringas-Rodriguez’s claims for

withholding of removal and CAT protection, taking into

account new evidence of Bringas-Rodriguez’s HIV diagnosis.

Concurring in the judgment, Judge Clifton agreed that the

petition should be granted and remanded for further

proceedings, but would not dictate to the Board that Bringas-

Rodriguez established past persecution.

Dissenting, Judge Bea, joined by Judge O’Scannlain,

wrote that 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.

4 BRINGAS-RODRIGUEZ V. SESSIONS

COUNSEL

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, Irvine

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.

John W. Blakely (argued), Assistant Director, Benjamin C.

Mizer, Principal Deputy Assistant Attorney General, Civil

Division, Donald E. Keener, Deputy Director, Stuart F.

Delery, Assistant Attorney General, Civil Division, Kohsei

Ugumori and Jesi J. Carlson, Senior Litigation Counsel,

United States Department of Justice, Office of Immigration

Litigation, Washington, D.C., for Respondent.

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.

BRINGAS-RODRIGUEZ V. SESSIONS 5

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.

6 BRINGAS-RODRIGUEZ V. SESSIONS

OPINION

WARDLAW, Circuit Judge:

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

BRINGAS-RODRIGUEZ V. SESSIONS 7

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.1 We overrule Castro-Martinez to the extent it might

suggest otherwise and remand this petition to the BIA for

further proceedings.

I.

Born in Tres Valles, Veracruz, Mexico, Bringas was

horrifically abused by his father, an uncle, cousins, and a

neighbor, all of whom perceived him to be gay or to exhibit

effeminate characteristics. His uncle first raped him when he

was four years old, and in addition to his uncle, three of his

cousins and a male neighbor physically and sexually abused

him on a regular basis while he lived in Mexico. Bringas’s

father also beat him as a child, telling him, “Act like a boy.

You are not a woman.” When he was eight, Bringas’s uncle

told him that the abuse was because he was gay. His uncle,

cousins, and neighbor never called him by his name, referring

1

Contrary to the dissent’s suggestion, Bringas submitted substantial

corroborating evidence after the IJ recommended he do so. That evidence

included a 2010 U.S. Department of State Country Report for Mexico,

several newspaper articles, and a psychological evaluation describing

Bringas’s past history of abuse.

8 BRINGAS-RODRIGUEZ V. SESSIONS

to him only as “fag, fucking faggot, queer,” and they

“laughed about it.”

Bringas lived with his mother in the United States for a

brief period when he was twelve years old. He returned to

Mexico, however, because he missed his grandmother, who

had raised him since he was nine. The abuse intensified upon

his return. Again he was repeatedly raped by his uncle,

cousins, and neighbor.

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.

Bringas’s abusers also threatened to hurt his grandmother,

with whom he was close, if he ever reported what was

happening. Fearing that they would follow through on their

threats, Bringas did not tell his mother, teachers, or anyone

else about the sexual abuse.

Bringas fled Mexico in 2004 at age fourteen to get away

from his abusers. He entered the United States without

inspection at El Paso, Texas, and lived with his mother in

Kansas for three years. He then moved out of his mother’s

home, living elsewhere in Kansas and in Colorado. He

worked several different jobs, including positions at a

supermarket, a pizzeria, and a chocolate shop. In August

2010, Bringas pleaded guilty to attempted contributing to the

delinquency of a minor in Colorado; he had been at home

drinking with some friends when another friend brought over

a minor who became drunk. Bringas spent ninety 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 abuse. The Department of

BRINGAS-RODRIGUEZ V. SESSIONS 9

Homeland Security (DHS) issued a Notice to Appear in

August 2010.

In 2011, at age twenty, Bringas applied for asylum,

withholding of removal, and CAT protection. He had

previously been unaware “that the [U.S.] government could

protect [him],” and only found out when he “spoke with an

ICE officer in Colorado in September 2010.” In his

application, Bringas described the sexual abuse he endured 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 “laugh[ed] on [sic]

their faces.” Additionally, he submitted 2009 and 2010 U.S.

Department of State Country Reports for Mexico and several

newspaper articles that documented violence against,

including murders of, gays and lesbians. The reports showed

that the violence rose even as—and perhaps because—

Mexican laws were becoming increasingly tolerant of gay

rights.2

2

The United Nations High Commissioner for Refugees (UNHCR)

has issued guidelines for refugee claims based on sexual orientation,

which explain that legal improvements and widespread persecution are not

mutually exclusive. UNHCR, Guidelines on International Protection No.

9: Claims to Refugee Status Based on Sexual Orientation and/or Gender

Identity Within the Context of Article 1A(2) of the 1951 Convention

and/or Its 1967 Protocol Relating to the Status of Refugees, ¶ 37,

U.N. Doc. HCR/GIP/12/09 (Oct. 23, 2012), available at

http://www.unhcr.org/509136ca9.pdf.

10 BRINGAS-RODRIGUEZ V. SESSIONS

The BIA, reviewing the IJ’s denial of Bringas’s claims for

relief, rejected his claims on the merits.3 The BIA recognized

“the serious abuse that [Bringas] endured as a child.” It

found, however, that, as in Castro-Martinez, Bringas did not

demonstrate that the “abuse was inflicted by government

actors or that the government was unwilling or unable to

control his abusers.” Concluding that Bringas thus failed to

establish past persecution, the BIA denied Bringas the

concomitant presumption of future persecution. It then

rejected Bringas’s argument that he had a well-founded fear

of future persecution because he had failed to show a pattern

or practice of persecution of gay men in Mexico,

distinguishing Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir.

2008), because “the record . . . d[id] not demonstrate

widespread brutality against homosexuals or that there [was]

any criminalization of homosexual conduct in Mexico.” The

BIA also concluded that Bringas had failed to show that the

Mexican government had been unable or unwilling to control

private individuals who perpetuated violence against

homosexuals, finding that Mexico “has taken numerous

positive steps to address the rights of homosexuals.” Finally,

the BIA rejected Bringas’s withholding of removal and CAT

claims and denied a remand to consider his HIV-positive

diagnosis.

The majority of a divided three-judge panel of our court

agreed that Bringas had failed to meet the heightened

3

The IJ denied Bringas’s asylum claim as untimely under the one-

year filing rule after some scuffling about whether Bringas had entered the

United States as an unaccompanied minor. The BIA, however, assumed

that the asylum application was timely, electing to determine Bringas’s

asylum claim on its merits. We must do the same. See Abebe v.

Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en banc).

BRINGAS-RODRIGUEZ V. SESSIONS 11

evidentiary burden for past persecution that it and the BIA

determined applicable to Bringas’s claim based on their

reading of Castro-Martinez. Acknowledging that nothing

requires an abuse victim, “let alone a child,” to report

persecution to the police, 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 the petitioner bears the burden to ‘fill in the

gaps’ by showing how the government would have responded

had he reported the abuse.” Bringas-Rodriguez, 805 F.3d at

1178 (quoting Castro-Martinez, 674 F.3d at 1081). The panel

majority found the 2009 and 2010 country reports inadequate

to establish widespread, uncontrolled persecution of gay men

in either Bringas’s home state or town. Id. at 1178–80.

Rather, the panel majority found that the country reports

demonstrated that Mexico permitted gay pride marches and

had expanded marriage equality. Id. at 1179. The panel

majority also cited a United Nations report stating that

Mexico had established a “‘specialized hate crime

prosecution unit[],’ developed a ‘new judicial protocol to

guide adjudication of cases involving human rights violations

on grounds of sexual orientation,’ implemented specialized

training for police officers, and officially designated May 17

as ‘National Day Against Homophobia.’” Id. at 1179 n.5

(alteration in original) (quoting U.N. High Comm’r for

Human Rights, Discrimination & Violence Against

Individuals Based on Their Sexual Orientation & Gender

Identity, ¶¶ 40, 74, 75 U.N. Doc. A/HRC/29/23 (May 4,

2015)4). Furthermore, the panel majority found insufficient

4

Ava ila b le a t http ://www.un.o r g/en/ga/search/

view_doc.asp?symbol=A/HRC/29/23. One of the eighteen amici that

submitted briefs supporting Bringas is the UNHCR. The UNHCR did so

to “correct[] any misunderstanding or lack of clarity” in its assessment of

12 BRINGAS-RODRIGUEZ V. SESSIONS

Bringas’s testimony that his gay male friends had suffered

persecution and reported it to the police in Veracruz, only to

have the officers laugh at them. Id. at 1180–81. 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. Id.

Further in support of its conclusion, the panel majority

noted the absence of evidence in the record suggesting that

Mexican police refuse to protect sexually abused children.

Stating that “Bringas’s allegations are not just about

discrimination against gay and lesbian Mexicans—they are

about child molestation,” the panel majority found Bringas’s

evidence lacking because he “ha[d] put forward no evidence

that Mexico tolerates the sexual abuse of children, or that

Mexican officials would refuse to protect an abused child

based on the gender of his or her abusers.” Id. at 1182.

Because Bringas had not described “how old his ‘friends’

were who reported abuse to the police,” Bringas’s testimony

about those reports was insufficient. Id. at 1181.

Finally, the panel majority interpreted Castro-Martinez to

foreclose it from finding that Bringas’s subjective fear of

future persecution was objectively reasonable, again citing

the “improving” situation for gay men in Mexico. Id. at

1182–83.

the experiences of lesbian, gay, bisexual, transgender and intersex

(LGBTI) individuals in Mexico. Brief for UNHCR as Amicus Curiae at

3. In particular, the UNHCR states that it “has not taken the position that

LGBTI individuals fleeing Mexico cannot have a well-founded fear of

persecution,” id. at 5, contradicting the panel majority’s conclusion to the

contrary, see Bringas-Rodriguez, 805 F.3d at 1179 n.5.

BRINGAS-RODRIGUEZ V. SESSIONS 13

Judge W. Fletcher dissented, writing that he had

developed misgivings about Castro-Martinez—an opinion in

which he had joined—but also explaining that even if Castro-

Martinez controlled, he “part[ed] ways with the majority” on

its reading of the decision to reject Bringas’s asylum claim.

Id. at 1186–87 (Fletcher, J., dissenting). Judge W. Fletcher

pointed to our 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. Id. at 1192. “Yet,” he wrote, “Castro-

Martinez and today’s decision effectively require just that.”

Id.

II.

We have jurisdiction under 8 U.S.C. § 1252(a). Because

the BIA conducted its own review and did not adopt the IJ’s

decision, our review “is limited to the BIA’s decision.”

Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)

(internal quotation mark omitted) (quoting Cordon-Garcia v.

INS, 204 F.3d 985, 990 (9th Cir. 2000)). We review the

Board’s legal conclusions de novo, Romero-Mendoza v.

Holder, 665 F.3d 1105, 1107 (9th Cir. 2011), and its factual

findings for substantial evidence, Zhi v. Holder, 751 F.3d

1088, 1091 (9th Cir. 2014). A finding by the IJ is not

supported by substantial evidence when “‘any reasonable

adjudicator would be compelled to conclude to the contrary’

based on the evidence in the record.” Id. (quoting 8 U.S.C.

§ 1252(b)(4)(B)).

14 BRINGAS-RODRIGUEZ V. SESSIONS

III.

A. Evolution of U.S. Refugee Law

Because this case ultimately turns on whether Bringas has

adduced compelling evidence that he is a refugee who is

presumptively eligible for asylum based on past persecution

by nongovernmental actors, it is helpful to our analysis to

review the development of our refugee laws generally.

Beginning with the persons displaced by World War II,

the United States has struggled to define its approach to

refugees. See Stephen H. Legomsky & Cristina M.

Rodríguez, Immigration and Refugee Law and Policy 874–76,

878 (5th ed. 2009). The Immigration and Nationality Act

(INA) of 1952, Pub. L. No. 82-414, 66 Stat. 163, and its

predecessor, the Immigration Act of 1924, Pub. L. No. 68-

139, 43 Stat. 153, “contained no special provision exempting

[refugees] from the restrictions generally applicable to

immigrants.” Id. at 876, 881; see also Deborah E. Anker &

Michael H. Posner, The Forty Year Crisis: A Legislative

History of the Refugee Act of 1980, 19 San Diego L. Rev. 9,

14 (1981). As a result, until Congress passed comprehensive

legislation concerning refugees in 1980, the United States

largely responded to refugee crises on an ad hoc basis and

with temporary measures. Legomsky & Rodríguez, supra, at

881. The Displaced Persons Act of 1948, Pub. L. No. 80-774,

62 Stat. 1009, was the first such measure, and provided

sanctuary for certain refugees fleeing Nazi, Soviet, or fascist

persecution, as well as “displaced[] forced laborers from

states conquered by Germany.” Anker & Posner, supra, at

13. Later legislative efforts included the Refugee Relief Act

of 1953, Pub. L. No. 83-203, 67 Stat. 400, and its extension

in 1957, which assisted “victims of natural calamities” and

BRINGAS-RODRIGUEZ V. SESSIONS 15

refugees from “communist-dominated parts of Europe and the

Middle East.” Anker & Posner, supra, at 14.

Finding these narrow policies inadequate, President

Eisenhower decided after the Soviets invaded Hungary in

1956—causing some 200,000 Hungarians to flee—to request

that the Attorney General temporarily parole 15,000

Hungarian refugees into the United States. Id. at 14–15. At

that time, under the INA, the Attorney General had the

discretion to parole, but not to formally admit, persons into

the country “for emergent reasons or for reasons deemed

strictly in the public interest.” Id. at 15 (quoting 8 U.S.C.

§ 1182(d)(5) (1952)). Parole was originally intended to

benefit individual noncitizens in emergency situations; the

Hungarian crisis represented the first time it was used to

admit refugees en masse. Id.

In light of the president’s expanded use of parole,

Congress decided to reassert itself into refugee policy and

create a more structured regime. Legomsky & Rodríguez,

supra, at 881–82. The first permanent statutory basis for

admitting refugees was enacted in 1965 as part of a group of

amendments to the INA. Id. at 881. Under the 1965

amendments, a new admissions category was created for

“those who feared persecution and were fleeing either a

‘Communist-dominated’ country or a country ‘within the

general area of the Middle East.’” Id. at 881 (quoting Pub. L.

No. 89-236 § 3, 79 Stat. 911, 913 (1965)). However, the

geographic and ideological restrictions of the category, as

well as the “painfully inadequate” ceiling of 17,400 entries

per year, limited the category’s reach. Id. at 881–82.

Presidents therefore continued to rely on parole when refugee

crises arose, granting entry to hundreds of thousands of

refugees from Cuba, Indochina, and Soviet and Eastern

16 BRINGAS-RODRIGUEZ V. SESSIONS

European countries. Id. at 882. In other words, refugee

admissions remained ad hoc, spurring policy proposals for

overhauling the system that were debated throughout the

1970s. Anker & Posner, supra, at 20–42.

In 1980, to limit the parole power, create a predictable

and permanent admissions system, and fulfill international

obligations, Congress passed the Refugee Act of 1980 (the

“Act”), Pub. L. No. 96-212, 94 Stat. 102. Legomsky &

Rodríguez, supra, at 882–83. The final version of the bill set

quotas for refugee admissions and limited the executive

branch’s parole authority. Anker & Posner, supra, at 60–62.

It adopted the nondiscriminatory definition of refugee

included in the 1951 United Nations Convention Relating to

the Status of Refugees, but amended it by including not only

persons who feared future persecution but also those who

were victims of past persecution.5 Deborah Anker, Law of

Asylum in the United States § 1:2 (2016). Furthermore, the

Act provided a statutory basis for asylum, the granting of

status to refugees who arrive or have been physically present

in the United States. Id.; see also Legomsky & Rodríguez,

supra, at 893. The Act also brought the United States into

conformity with the 1951 Convention with respect to

withholding of removal, the remedy by which an applicant

can prevent forcible return to a country where he fears

persecution. Legomsky & Rodríguez, supra, at 893. To this

day, the Act is the principal statute governing the admission

of refugees, grants of asylum, and withholding of removal.

Legomsky & Rodríguez, supra, at 883.

5

In 1968, the United States ratified the United Nations Protocol

Relating to the Status of Refugees, which incorporated the 1951

Convention.

BRINGAS-RODRIGUEZ V. SESSIONS 17

The concept of persecution by non-state actors is

“inherent” in the definitions of persecution in the 1951

Convention and the Refugee Act of 1980. Anker, supra, at

§ 4:8. Indeed, the 1979 UNHCR Handbook on Procedures

and Criteria for Determining Refugee Status Under the 1951

Convention and the 1967 Protocol Relating to the Status of

Refugees stated that persecution included “serious

discriminatory or other offensive acts . . . committed by the

local populace . . . if they are knowingly tolerated by the

authorities, or if the authorities refuse, or prove unable, to

offer effective protection.” Anker & Posner, supra, at 67

(quoting UNHCR, Handbook on Procedures and Criteria for

Determining Refugee Status Under the 1951 Convention and

the 1967 Protocol Relating to the Status of Refugees (1979)).

Even under U.S. statutory definitions of persecution

pre-dating the Refugee Act of 1980, a First Circuit opinion

and a published, precedential BIA opinion suggested that

persecution by non-state actors was cognizable as a predicate

for relief. See Rosa v. INS, 440 F.2d 100, 102 (1st Cir. 1971);

Matter of Eusaph, 10 I. & N. Dec. 453, 454 (BIA 1964).

Our circuit first determined that the appropriate standard

of review for BIA decisions under the Refugee Act of 1980

is the now familiar “substantial evidence” test in McMullen

v. INS, 658 F.2d 1312, 1316 (9th Cir. 1981). See Sagermark

v. INS, 767 F.2d 645, 649 (9th Cir. 1985). McMullen also

provided our first occasion to address “[p]ersecution by . . .

a group which the government is unable to control” under the

Act. McMullen, 658 F.2d at 1315.

McMullen, a Catholic of Irish descent, had joined the

British Army and been deployed to Northern Ireland in 1969

as part of British peacekeeping efforts. Id. at 1314. As the

British soldiers became more violently anti-Catholic,

18 BRINGAS-RODRIGUEZ V. SESSIONS

torturing prisoners and plotting to use armed force against

nonviolent civilian demonstrators, McMullen deserted them

to join the Provisional Irish Republican Army (PIRA), a

nongovernmental group that purported to protect Catholics

from the British army, but which eventually became, in

McMullen’s view, extremist and terroristic. Id. He quit the

PIRA, but was jailed by the Republic of Ireland police for his

earlier activities as part of the PIRA. Id. When he was

released, the PIRA pressured him to participate in a plan to

kidnap an American, but McMullen refused. Id.

Upon learning that the PIRA intended to murder him for

that refusal, McMullen fled to the United States, cooperated

with U.S. authorities, and sought withholding of removal.6

Id. at 1313–14. The BIA reversed the IJ’s determination that

“McMullen was not deportable because ‘the Government of

the Republic of Ireland is unable to control the activities of

the PIRA and that if [McMullen] were to be returned to that

country he would suffer persecution within the meaning of

the (United Nations) Convention, Protocol, and section

6

McMullen concerned an application for withholding of removal, not

asylum, but the analysis of “persecution” is the same for both. To obtain

withholding of removal, the Refugee Act of 1980 requires that an

applicant show that his “life or freedom would be threatened” if returned

to his home country. See 8 U.S.C. § 1231(b)(3). Though semantically

different from the required showing of “persecution” to prove that one is

a refugee eligible for asylum, a threat to life or freedom has been equated

with persecution by the BIA and courts, including the Supreme Court. See

INS v. Stevic, 467 U.S. 407, 429–30 (1984). Indeed, the current

regulations governing withholding of removal use the terms

interchangeably, 8 C.F.R. § 1208.16, as did we in McMullen.

Furthermore, although the specific statutory provision at issue in

McMullen, 8 U.S.C. § 1253(h), was the predecessor to the current

withholding of removal statute, 8 U.S.C. § 1231(b)(3), the relevant

statutory language is identical.

BRINGAS-RODRIGUEZ V. SESSIONS 19

243(h) (of 8 U.S.C. § 1253(h)).’” Id. at 1315. Before our

court, the government “concede[d] that persecution within the

meaning of [section] 243(h) includes persecution by non-

governmental groups such as the PIRA, where it is shown

that the government of the proposed country of deportation is

unwilling or unable to control that group.” Id. at 1315 n.2.

B. Refugee Law Today

The Attorney General may, in his discretion, grant asylum

to applicants in the United States who meet the definition of

“refugee” under 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C.

§ 1158(b)(1). An applicant qualifies as a refugee if he “is

unable or unwilling to return to his home country because of

a well-founded fear of future persecution on account of race,

religion, nationality, membership in a particular social group,

or political opinion.” Navas v. INS, 217 F.3d 646, 654 (9th

Cir. 2000). An applicant may establish a “well-founded fear

of future persecution” in two ways: by proving past

persecution, or by demonstrating that he has a “subjectively

genuine and objectively reasonable” fear of future

persecution. Id. at 654–56, 656 n.11.

Because Bringas applied for asylum after the passage of

the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231,

he must show that his sexual orientation was “one central

reason” for his persecution. 8 U.S.C. § 1158(b)(1)(B)(I).

However, his “persecution may be caused by more than one

central reason, and [he] need not prove which reason was

dominant.” Parussimova v. Mukasey, 555 F.3d 734, 741 (9th

Cir. 2009). If Bringas is able to show that he was subjected

to past persecution, he is entitled to a rebuttable presumption

of a well-founded fear of future persecution. Tawadrus v.

20 BRINGAS-RODRIGUEZ V. SESSIONS

Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004); see also

8 C.F.R. § 1208.13(b)(1).

C. The “Unable or Unwilling” Standard

“An applicant alleging past persecution has the burden of

establishing that (1) his treatment rises to the level of

persecution; (2) the persecution was on account of one or

more protected grounds; and (3) the persecution was

committed by the government, or by forces that the

government was unable or unwilling to control.”

Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.

2010).

1. Early decisions discussing the “unable or unwilling”

standard in the context of private persecution

For several years following passage of the Refugee Act of

1980, decisions considering whether a government was

unable or unwilling to control private persecution almost

exclusively involved a fear of future persecution by organized

groups, such as anti-government guerillas. See., e.g.,

Arteaga v. INS, 836 F.2d 1227, 1231 (9th Cir. 1988)

(remanding for the BIA to consider whether the petitioner

established a well-founded fear of persecution by guerillas

that the El Salvadoran government could not control),

abrogated on other grounds by INS v. Elias-Zacarias, 502

U.S. 478 (1992); Sangha v. INS, 103 F.3d 1482, 1487 (9th

Cir. 1997) (holding that the petitioner had been persecuted by

a terrorist group that the government of India could not

control). In such decisions, either it was undisputed that the

government was unable or unwilling to control the powerful

organizations at issue, or the inability to control was proved

through documentary evidence, such as country conditions

BRINGAS-RODRIGUEZ V. SESSIONS 21

reports. See, e.g., Gomez-Saballos v. INS, 79 F.3d 912,

916–17 (9th Cir. 1996) (concluding that “documentary

evidence about general conditions in Nicaragua” was enough

to show that the government was “unable to control” former

National Guard members); Arteaga, 836 F.2d at 1231

(analyzing eligibility for asylum under the assumption that

guerillas were not controlled by the government).

Later petitions for review, however, involved claims for

relief based on past persecution by unorganized groups and

individuals. See, e.g., Singh v. INS, 94 F.3d 1353, 1357–60

(9th Cir. 1996) (stating that the petitioner’s assailants “need

not [have] file[d] articles of incorporation before they can be

capable of persecution”). In such instances, where the

petitioner was required to show that previous attacks were

committed in the shadow of an acquiescent government, we

looked to evidence of how the police responded to the

petitioner’s requests for protection. In Singh, for example,

the petitioner—an ethnic Indian citizen of Fiji—received

death threats from ethnic Fijians and was assaulted at work.

Id. at 1357–58. He and his family were also attacked twice

at their home. Id. We looked to record evidence showing

that “the government ha[d] encouraged and condoned the

discrimination, harassment, and violence by ethnic Fijians

against Indo-Fijians.” Id. at 1360. But we also highlighted

that “Singh testified that he reported each assault and threat

to the police and that . . . the police failed to respond to any

of his crime reports.” Id. We therefore concluded that the

government of Fiji “could not or would not control” the

persecutors. Id.; see also Andriasian v. INS, 180 F.3d 1033,

1042–43 (9th Cir. 1999) (“[T]he widespread nature of the

persecution of ethnic Armenians documented by the State

Department Country Report, combined with the police

officer’s response [advising Mr. Andriasian to leave the

22 BRINGAS-RODRIGUEZ V. SESSIONS

country] when Mr. Andriasian turned to him for help, clearly

establishes that the government of Azerbaijan either could not

or would not control Azeris who sought to threaten and harm

ethnic Armenians living in their country.”).

In a published, precedential opinion, the BIA reasoned

similarly. In In re O-Z & I-Z, 22 I. & N. Dec. 23 (BIA 1998),

a father and son, natives of Russia and citizens of Ukraine,

were beaten and threatened with death on several occasions

because they were Jewish. Id. at 23–24. They reported the

attacks three times, but the police “took no action beyond

writing a report.” Id. at 26. From that, the BIA concluded

that “the Ukrainian [g]overnment was unable or unwilling to

control the respondent’s attackers and protect him or his son

from the anti-Semitic acts of violence.” Id.

In such instances of police failure to respond to a report

of persecution, we have held that a petitioner need not

provide evidence that a government is “unable or unwilling

to control [persecution] ‘on a countrywide basis.’” Mashiri

v. Ashcroft, 383 F.3d 1112, 1122 (9th Cir. 2004) (rejecting

the government’s reliance on a U.S. Department of State

country report to counter the petitioner’s evidence of local

police unwillingness to protect her and her family). “Instead,

an asylum applicant may meet her burden with evidence that

the government was unable or unwilling to control the

persecution in the applicant’s home city or area.”7 Id.

7

Though we explained in Mashiri that an applicant can prove

governmental inability or unwillingness through evidence specific to her

“home city or area,” we did not hold that applicants are required to do so.

BRINGAS-RODRIGUEZ V. SESSIONS 23

2. Decisions discussing the “unable or unwilling”

standard where private persecution was unreported

As early as 2000, the BIA concluded in a published,

precedential opinion that the “unable or unwilling” standard

could be established in the absence of a report of the violence

or threatened violence to government officials. In re S–A–,

22 I. & N. Dec. 1328, 1335 (BIA 2000). There, the BIA

addressed the plight of a native and citizen of Morocco,

S–A–, who at age fourteen began to suffer regular beatings

and was burned, kicked, and punched by her orthodox

Muslim father on account of her more liberal Muslim beliefs.

Id. at 1329–30. Both S–A– and her U.S. citizen aunt credibly

testified that going to the police would have been futile,

because, “in Moroccan society, such action would [have

been] not only unproductive but potentially dangerous.” Id.

at 1330, 1333. The BIA considered that testimony and the

U.S. Department of State Country Reports on Human Rights

Practices for 1997, which corroborated that few Moroccan

women report abuse to the authorities “because the judicial

procedure is skewed against them,” and that women who

reported were often returned to their abusers. Id. at 1333.

The BIA found that the credible testimony and country

report evidence sufficiently established the “unable or

unwilling” standard, reasoning:

[T]he source of the respondent’s repeated

physical assaults, imposed isolation, and

deprivation of education was not the

government, but her own father. Although

she did not request protection from the

government, the evidence convinces us that

even if the respondent had turned to the

24 BRINGAS-RODRIGUEZ V. SESSIONS

government for help, Moroccan authorities

would have been unable or unwilling to

control her father’s conduct. The respondent

would have been compelled to return to her

domestic situation and her circumstances may

well have worsened.

Id. at 1335. The BIA concluded that, because S–A– had

suffered persecution at the hands of her father that the

government was unable or unwilling to control, and because

the government failed to rebut the presumption of future

persecution, S–A– was entitled to asylum. Id.; see also In re

Jose Luis Garcia-Gonzalez, A201 063 604, 2011 WL

7327341, at *1 (BIA Nov. 10, 2011) (unpublished) (finding

that Mexico was unable or unwilling to control the

applicant’s abusive father because “the record reflects that the

police did not have a presence in the respondent’s small

town” and because “the respondent was under 14 years old

when the harm occurred”).

We have similarly long held that a victim of abuse need

not report it to government authorities to establish the

government’s inability or unwillingness to protect him. In

Korablina v. INS, 158 F.3d 1038 (9th Cir. 1998), the

petitioner, a Jewish native of Russia and citizen of the

Ukraine, was the victim of harassment and beatings

perpetrated against Jewish citizens. Id. at 1041–42.

Korablina was fired from the job she had held for twenty-

eight years by a new boss who was a member of an ultra-

nationalist and anti-Semitic group. Id. at 1041. After

searching for six months for a new job, she found work as a

clerical secretary to a Jewish man. Id. at 1042. In that new

position, she saw three men attack her boss and thereafter

return monthly to the office to extort money. Id. Though she

BRINGAS-RODRIGUEZ V. SESSIONS 25

and her fellow employees reported the beating to the police,

the officers never appeared, and when Korablina sought help

from a friend at the municipal city hall, the friend

disappeared. Id. Korablina then began receiving anti-Semitic

death threats that warned of retaliation if she reported the

threats to anyone. Id. Soon thereafter, two men violently

attacked Korablina and left her barely breathing, telling her

she “could not . . . conceal her Jewish origin.” Id.

Though Korablina never reported the threats or the attack,

she credibly testified that “the police were not interested in

protecting Jews,” that reporting “would be fruitless,” and that

she was frightened that if she reported she would share the

same fate as her friend in the municipal city hall. Id.

Korablina’s daughter also credibly testified that “telling the

authorities was useless,” which was why neither she nor her

father reported the violent anti-Semitic attacks that they had

suffered. Id. at 1042–43. Furthermore, Korablina offered

“articles detailing the authorities’ unresponsiveness to

complaints made by Jewish victims in Kiev.” Id. at 1043.

We determined that the credible testimony and corroborating

articles were enough to establish that the government was

unable and unwilling to control the private acts of violence,

and noted that “[c]onspicuous by its absence [was] any

authoritative evidence from the government disputing the

thrust of her evidence and of the government’s complicity.”

Id. at 1045.

In Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004),

we first expressly suggested that a per se reporting

requirement was untenable. Id. at 789 & n.3. In Reyes-

Reyes, we considered the past persecution of an El

Salvadoran “homosexual male with a female sexual identity”

who had been beaten and raped at age thirteen because of his

26 BRINGAS-RODRIGUEZ V. SESSIONS

sexual orientation and identity. Id. at 785. Though we

“decline[d] to reach” Reyes’s argument that the IJ had

incorrectly imposed a per se reporting requirement, we

nevertheless stated that such a bright-line rule “would indeed

be troubling, especially in light of evidence in the record that

rape victims in El Salvador regularly underreport such crimes

due to the poor response of the authorities,” as well as circuit

precedent documenting physical attacks against homosexuals

by national police in Latin America. Id. at 789 & n.3.

Two years later, we squarely held:

[A]n applicant who seeks to establish

eligibility for withholding of removal under

section 1231(b)(3) on the basis of past

persecution at the hands of private parties the

government is unwilling or unable to control

need not have reported that persecution to the

authorities if he can convincingly establish

that doing so would have been futile or have

subjected him to further abuse.

Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir.

2006). We thus “ma[d]e explicit” what may have been only

implicit in Korablina, Reyes-Reyes, and In re S–A–. Id. In

Ornelas-Chavez, we considered a withholding of removal

claim by a Mexican gay male who “suffered a great deal of

abuse . . . because of his homosexuality and female sexual

identity”: he was beaten by his parents and raped by his

father’s friend, his cousins, and a worker at his grandfather’s

hacienda. Id. at 1054. The BIA denied his request for

withholding of removal despite finding his testimony

credible, concluding that Ornelas-Chavez failed to establish

the government’s inability or unwillingness to protect him.

BRINGAS-RODRIGUEZ V. SESSIONS 27

Id. at 1055. In doing so, the BIA cited “only two pieces of

evidence: background country conditions and Ornelas-

Chavez’s failure to report the incident to the authorities.”8 Id.

at 1056. We held this was legal error in light of Ornelas-

Chavez’s credible testimony that he did not report the abuse

to the police “[b]ecause the same police mistreated and

harasse[d] [him]”; that “two of [his homosexual] friends were

assassinated,” presumably on account of their sexual

orientation; and that others had reacted with indifference

when he told them about the attacks he suffered. Id. at 1057

(second alteration in original). We reasoned that disregarding

Ornelas-Chavez’s credible testimony about why he failed to

report his abuse to police “was tantamount to making the

reporting of private persecution a sine qua non for the success

of [his] withholding of removal claim.”9 Id. at 1057.

8

The BIA could not have relied solely on the country conditions

reports “unless it specifically held that some or all of Ornelas-Chavez’s

testimony was not credible in light of the background conditions.” Id.

9

In Ornelas-Chavez, we distinguished our decision in Castro-Perez

v. Gonzales, 409 F.3d 1069 (9th Cir. 2005), which concluded that the

petitioner failed to establish that the Honduran government was unable or

unwilling to control the man who had raped her, in part because she had

not reported the attack. Id. at 1070–72. Assuming that she was a member

of a particular social group, we found the petitioner’s reasons for not

reporting insufficient. Id. at 1072. The petitioner had testified only that

the police “were not willing to do anything” and that she was afraid her

father would beat her. Id. We also found that the country report in

evidence did not conclusively show that the Honduran government would

have ignored the report of rape. Id. In Ornelas-Chavez, we explained that

Castro-Perez was not contrary to our rule that reporting is not required;

we simply found the petitioner’s reasons for not reporting in Castro-Perez

insufficient to establish governmental inability or unwillingness to protect

her. Ornelas-Chavez, 458 F.3d at 1057–58.

28 BRINGAS-RODRIGUEZ V. SESSIONS

We next took up the “unable or unwilling” standard in a

pair of cases argued, submitted, and filed on the same dates

by the same panel. In one, Rahimzadeh v. Holder, 613 F.3d

916 (9th Cir. 2010), the petitioner, who had received death

threats and suffered physical attacks by extremist Muslims in

the Netherlands because he was Christian, did not report the

violence because his persecutors threatened to kill him and

his sister if he did so. In the other, Afriyie v. Holder, 613

F.3d 924 (9th Cir. 2010), the petitioner, who was violently

attacked on the basis of his Christian religion by Muslims in

Ghana, did file a written report with the police and requested

protection, but to no avail. Both Rahimzadeh and Afriyie

were deemed credible by the agency, but we denied

Rahmizadeh’s petition and granted Afriyie’s.

We began our analysis in both cases by citing our

precedent, Ornelas-Chavez, and that of the BIA, In re S–A–,

to correctly recognize that “reporting persecution to

government authorities is not essential to demonstrating that

the government is unable or unwilling to protect [a petitioner]

from private actors.” Afriyie, 613 F.3d at 931; see also

Rahimzadeh, 613 F.3d at 921–22. We noted that reporting

and police inaction is one means of establishing governmental

inability or unwillingness to control the attackers or protect

the attacked. Afriyie, 613 F.3d at 931; Rahimzadeh, 613 F.3d

at 921. We also introduced a new construct for analyzing the

situation where no report has been made:

The absence of a report to police does not

reveal anything about a government’s ability

or willingness to control private attackers;

instead, it leaves a gap in proof about how the

government would respond if asked, which

BRINGAS-RODRIGUEZ V. SESSIONS 29

the petitioner may attempt to fill by other

methods.

Rahimzadeh, 613 F.3d at 922 (emphasis added); see also

Afriyie, 613 F.3d at 931. We summarized several avenues for

filling this “gap,” based on a survey of prior case law. We

stated that a petitioner could fill the evidentiary gap by:

1) “demonstrating that a country’s laws or customs

effectively deprive the petitioner of any meaningful recourse

to governmental protection,” Rahimzadeh, 613 F.3d at 921

(citing In re S-A, 22 I. & N. Dec. at 1328, 1330, 1332–33,

1335); 2) describing “[p]rior interactions with the

authorities,” id. (citing Ornelas-Chavez, 458 F.3d at 1054);

3) “showing that others have made reports of similar

incidents to no avail,” id. at 922 (citing Afriyie, 613 F.3d at

932–33); 4) “establishing that private persecution of a

particular sort is widespread and well-known but not

controlled by the government,” id. (citing Avetova-Elisseva

v. INS, 213 F.3d 1192, 1198 (9th Cir. 2000)); or

5) “convincingly establish[ing] that [reporting] would have

been futile or [would] have subjected [the applicant] to

further abuse,” id. (third alteration in original) (citing

Ornelas-Chavez, 458 F.3d at 1058).

We stressed that the “BIA was entitled to rely on all

relevant evidence in the record, including [country] reports,”

to determine whether the “unable or unwilling” standard was

met, Afriyie, 613 F.3d at 933, and in both decisions we

examined all the record evidence to determine whether

substantial evidence supported the agency’s denial of relief.

Indeed, the different outcomes in the cases did not turn on

whether the attacks were reported to the police; rather, our

decisions turned on the nature and quality of the evidence,

30 BRINGAS-RODRIGUEZ V. SESSIONS

including credible testimony and country reports and all other

evidence in the record.

In Rahimzadeh, we concluded that the IJ properly treated

the absence of a report to authorities as “merely one factor in

the assessment of the Dutch government’s willingness and

ability to control private extremists, not as a per se bar to

asylum.” 613 F.3d at 922. We concluded that the IJ’s

finding that “the Dutch authorities in fact would have been

willing and able to control Rahimzadeh’s attackers was

supported by substantial evidence.” Id. at 923. The 2006

U.S. Department of State Country Report on Human Rights

Practices in the Netherlands noted not only that “[Dutch] law

provides for freedom of religion,” but also that “the

government generally respect[s] this right in practice.” Id.

(alterations in original). Specifically, the judicial system

provided “effective means” for addressing human rights

abuse, and the government had taken “firm action against

groups espousing violence in support of an Islamic extremist

agenda,” id., the very groups that Rahimzadeh described as

his persecutors. A second government report, the 2006 U.S.

Department of State International Religious Freedom Report,

also indicated that the “[g]overnment at all levels sought to

protect [the freedom of religion] in full and did not tolerate its

abuse, either by governmental or private actors.”10 Id.

(second alteration in original).

By contrast, in Afriyie, we concluded that the IJ’s finding

that Afriyie failed to establish Ghana’s inability or

unwillingness to control his attackers or protect him while

10

We noted that “[a]lthough general country-level information is

ordinarily insufficient to contradict direct, specific, credited testimony, the

IJ did not use the country reports for that purpose.” Id. (citations omitted).

BRINGAS-RODRIGUEZ V. SESSIONS 31

preaching was not supported by substantial evidence.

Although Afriyie was able to file a police report, that said

little about whether the police were able to protect him.

Afriyie, 613 F.3d at 931. Afriyie’s credible testimony

“indicate[d] [that] the Ghanaian police forces lacked the

resources necessary to protect him.” Id. at 931–32. Afriyie

testified that his group had requested protection, but that “the

police had only one gun for the entire station.” Id. at 928. He

also testified that police relied on the individuals who were

attacked to track down and bring in the perpetrators, and that

two murders of his group’s members were reported but

remained unsolved. Id. Afriyie further testified that even if

the police could protect him, they required bribes, suggesting

their unwillingness to do so. Id. Moreover, the country

report on which the IJ relied did not state that claims of

persecution against Christians were investigated and

prosecuted; it only noted that claims of corruption against the

police were pursued. Id. at 933. There was no evidence in

the report that Christians were able to obtain protection, and

general statements in the report could not, in any event,

contradict Afriyie’s specific, direct credible testimony. Id. at

933–34.

In the next “unable or unwilling” decision involving

nonreporting, Castro-Martinez, we interpreted the

Rahimzadeh and Afriyie “gap” construct in the context of a

gay, HIV-positive man seeking asylum based on the

childhood physical and sexual abuse he suffered “because of

his homosexuality and feminine characteristics.” 674 F.3d at

1079. Castro credibly testified that he never told his parents

about the repeated, brutal rapes he suffered between the ages

of six and ten because the abusers threatened that if he did so,

they would beat him and kill his parents. Id. He further

credibly testified that “given these threats, and the stigma

32 BRINGAS-RODRIGUEZ V. SESSIONS

associated with homosexuality in Mexico, it would have been

unreasonably dangerous for him to have reported the sexual

abuse to his teachers, neighbors, or parents.” Id. Moreover,

because the Mexican police might themselves abuse him on

account of his sexual orientation and were ineffective in

dealing with the persecution of homosexuals, it would have

been futile and dangerous to go to the police. Id. at 1079,

1081. Castro backed up this credible testimony by presenting

“country reports documenting police corruption and

participation in torture, abuse, and trafficking, as well as

incidents of police harassment of gay men.” Id. at 1081.

We stated that “[w]e have never held that any victim, let

alone a child, is obligated to report a sexual assault to the

authorities, and we do not do so now.” Id. We also

acknowledged that, with respect to Castro’s petition, “the

matter is complicated by the fact that Castro was between the

ages of six and ten years when the attacks occurred,” and we

cited Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1046

(9th Cir. 2007), for the proposition that “when the petitioner

is a child, the IJ must assess the alleged persecution from a

child’s perspective.” Castro-Martinez, 674 F.3d at 1081

(emphasis in original).

Nevertheless, though the credible testimony and country

report evidence met the types of evidence that we held in

Rahimzadeh and Afriyie would fill the evidentiary “gap”

created by not reporting, we determined the evidence was

insufficient. We stated that “Castro’s primary reason for not

contacting authorities was that he believed the police would

not have helped him.” Id. This, we held, “without more,

[was] not sufficient to fill the gaps in the record.” Id. In

denying Castro relief, we also relied on the lack of evidence

in the record that “Mexican authorities would have ignored

BRINGAS-RODRIGUEZ V. SESSIONS 33

the rape of a young child or that authorities were unable to

provide a child protection against rape.” Id. Further, we

dismissed country report evidence of police harassment of

gay men, stating that “none of these reports compel the

conclusion that the police would have disregarded or harmed

a male child who reported being the victim of homosexual

rape by another male.” Id.

We again addressed a petitioner’s claim of past

persecution on account of his sexual orientation where the

violence was not reported in Vitug v. Holder, 723 F.3d 1056

(9th Cir. 2013). Thirty-seven-year-old Vitug credibly

testified that he was “beaten five times on the street, and two

of these beatings were ‘severe’”; that he was “harassed and

threatened by the police because of his perceived sexual

orientation”; and that he was “unable to obtain employment

in the Philippines.” Id. at 1064. He also credibly testified

that the “police [in the Philippines] will not do anything to

help gay men who report abuse,” and that “it is well known

in the Philippines that police harass gay men and turn a blind

eye to hate crimes committed against gay men.” Id. at

1064–65 (alteration in original). He bolstered this credible

testimony with “documentary evidence of a police raid on a

gay theater during which police beat and robbed the patrons.”

Id. at 1065.

In Vitug, we did not apply, or even mention, the

Rahimzadeh and Afriyie “gap” construct. Rather, we held

that Vitug’s credible testimony and documentary evidence of

police abuse of homosexuals “‘convincingly establish[ed] that

[reporting the attacks] would have been futile or have

subjected him to further abuse,’ thereby demonstrating that

the government was unwilling to control the attackers.” Id.

34 BRINGAS-RODRIGUEZ V. SESSIONS

(alterations in original) (citing Ornelas-Chavez, 458 F.3d at

1058).

D. Castro-Martinez

1. Introduction of a heightened evidentiary standard for

children

To determine whether private persecutors are individuals

whom the government is unable or unwilling to control, we

must examine “all relevant evidence in the record, including

[country] reports.” Afriyie, 613 F.3d at 933. The useful

survey from Rahimzadeh of the types of evidence that may

establish the “unable or unwilling” prong of the test for past

persecution is not, and never was, an exhaustive list. Like all

other circuits to consider the question, we do not deem the

failure to report to authorities outcome determinative, and we

consider all evidence in the record. See Castillo-Diaz v.

Holder, 562 F.3d 23, 27–28 (1st Cir. 2009) (holding that

where petitioner failed to report her rape to authorities, the IJ

properly relied on evidence in a State Department report that

El Salvador enforces its rape laws with significant penalties

to conclude the country was able and willing to protect

petitioner); Cardozo v. Att’y Gen., 505 F. App’x 135, 138–39

(3d Cir. 2012) (unpublished) (citing Ornelas-Chavez for the

proposition that “an applicant ‘need not have reported th[e]

persecution to the authorities if he can convincingly establish

that doing so would have been futile or [would] have

subjected him to further abuse’” (alteration in original)

(quoting Ornelas-Chavez, 458 F.3d at 1058)); Vahora v.

Holder, 707 F.3d 904, 908–10 (7th Cir. 2013) (same);

Ngengwe v. Mukasey, 543 F.3d 1029, 1035–36 (8th Cir.

2008) (holding that substantial evidence did not support the

IJ’s finding that Cameroon was able and willing to protect a

BRINGAS-RODRIGUEZ V. SESSIONS 35

nonreporting petitioner, where petitioner’s credible testimony

explaining that the police do not protect women from

domestic violence, the State Department country reports, and

a relative’s affidavit evidenced that Cameroon would “not do

anything” to protect her, citing In re S–A–); Lopez v. U.S.

Att’y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007) (holding

that the BIA erred by reasoning “that the failure to seek

protection without more is enough to defeat a claim for

asylum,” and remanding to the BIA to consider in the first

instance petitioner’s testimony and country reports, applying

In re S–A–).

Whether a victim has reported or attempted to report

violence or abuse to the authorities is a factor that may be

considered, as is credible testimony or documentary evidence

explaining why a victim did not report. Rahimzadeh and

Afriyie unnecessarily introduced the construct that the failure

to report creates a “gap” in the evidence, because our law is

clear that the agency, and we, upon review, must examine all

the evidence in the record that bears on the question of

whether the government is unable or unwilling to control a

private persecutor. Framing the question of nonreporting as

a “failure” that creates an evidentiary “gap” had the

inadvertent effect of heightening the evidentiary standard

beyond the traditional types of proof, accepted in every prior

precedent, that we have deemed sufficient to demonstrate

governmental inability or unwillingness to protect victims of

persecution. To the extent that our cases’ discussion of gap

filling suggested that the burden of proof on governmental

inability or unwillingness to protect was something beyond

the standard we use for other elements—proof by a

preponderance of the evidence, considering all the evidence

in the record—we supersede those cases by clarifying that

36 BRINGAS-RODRIGUEZ V. SESSIONS

there is no heightened proof requirement.11 The very next

petition for review that we considered in the context of

nonreporting was Castro-Martinez, which transformed the

“gap” into a “gulf,” never to be quite filled, especially for

those who were victimized as children, the least likely

persons to report their abuse to authorities.

In Castro-Martinez, Castro adduced credible testimony

detailing the rapes he suffered as a child on account of his

sexual orientation and feminine characteristics, the risk of

retaliation from both his abusers and the police if he reported

his abuse, and country reports documenting private and police

harassment of and violence against homosexuals. Despite all

this evidence, we held that Castro failed to meet his burden to

“fill in the gaps” because he had not shown that Mexican

officials were unable or unwilling to intervene specifically in

the abuse of gay children, as opposed to gay individuals

generally. Castro-Martinez, 674 F.3d at 1081–82. Yet the

nature and quality of Castro’s evidence fell within several of

the categories of proof that we said in Rahimzadeh would

suffice, and which should have been sufficient to satisfy the

“unable or unwilling” standard under the correctly applied

law.

By effectively defining Castro’s social group as gay

children and rejecting Castro’s evidence, we “demand[ed] an

unwarranted level of specificity” and “effectively eliminated

11

Thus the linchpin of the dissent—that this opinion departs from the

substantial evidence standard—is misguided. This opinion merely

clarifies that the legal standard, substantial evidence, is not heightened or

made more stringent when the persecution is directed to a child, as

opposed to an adult, who does not report the persecution to the authorities.

The BIA applied the wrong legal standard, which it drew from the

standard we incorrectly applied in Castro-Martinez.

BRINGAS-RODRIGUEZ V. SESSIONS 37

[country reports] as a method of showing a foreign

government’s inability or unwillingness to prevent sexual

abuse of gay children.” Bringas-Rodriguez, 805 F.3d at 1192

(Fletcher, J., dissenting). Castro’s evidence demonstrated the

futility and potential danger of reporting to the authorities,

Ornelas-Chavez, 458 F.3d at 1058, and the widespread

tolerance of private persecution of homosexuals by the

authorities, Rahimzadeh, 613 F.3d at 922, but we held that

evidence insufficient. We imposed a higher burden that

required Castro to demonstrate that “Mexican authorities

would have ignored the rape of a young child or that

authorities were unable to provide a child protection against

rape.” 674 F.3d at 1081. The result of this holding was to

carve out a sub-group of “gay children” within the broader

social group of “gay individuals.” It also necessarily and

erroneously assumed that where government authorities are

able and willing to protect heterosexual children, they will be

equally able and willing to protect children who exhibit a

different sexual orientation or are “different” in other ways.

However, our immigration laws recognize that persons who

fall within the enumerated, protected refugee categories are

often treated more harshly by the authorities than those who

do not, precisely because of the characteristics that provided

them with statutory protection under our refugee laws in the

first place.

Furthermore, adult and child victims of physical and

sexual abuse alike face significant barriers to reporting their

abuse and seeking the protection of authorities. Sexual abuse

commonly results in “severe and long-lasting” effects,

including “avoidance of situations that trigger memories of

the violation, profound feelings of shame, [and] difficulty

remembering events.” Lopez-Galarza v. INS, 99 F.3d 954,

962 (9th Cir. 1996) (quoting Shana Swiss & Joan E. Giller,

38 BRINGAS-RODRIGUEZ V. SESSIONS

Rape As a Crime of War: A Medical Perspective, 270 J. Am.

Med. Ass’n 612, 614 (1993)). As was the case with Bringas,

a victim may also fear retaliation, not just from his abusers,

but from “police, society, even family members.”

The barriers to reporting become even greater when the

victim is a child. As Judge W. Fletcher noted in his dissent

from the panel-majority opinion:

Many children will not report these crimes for

some of the same reasons Bringas-Rodriguez

did not. Abusers often threaten their victims

with harm if they tell anyone, and they

sometimes make good on those threats.

Children also have difficulty getting

information to the police, especially if family

members or neighbors—the people who might

report the abuse—are the abusers.

Bringas-Rodriguez, 805 F.3d at 1192 (Fletcher, J.,

dissenting). Children may lack the cognitive ability to

understand that they are being abused, and that beatings and

rapes by adults they should be able to trust are crimes. Brief

for Kids in Need of Defense et al. as Amici Curiae at 11.

Even if they do have that cognitive ability, child victims may

not only fear retaliation for reporting to authorities, but may

also be practically unable to do so because their day-to-day

actions are controlled by their abusers, especially if their

abusers are family members. Child victims of sexual abuse

frequently “lack the information to navigate official, often

complex, channels required to report abuse” and are likely to

be unaware of shelters or agencies that might provide them

protection. Id. at 9–10. Asylum officers’ training guidelines

specifically require them to consider the difficulty children

BRINGAS-RODRIGUEZ V. SESSIONS 39

may experience in reporting abuse: “The fact that a child did

not seek protection in his or her country of origin does not

necessarily undermine his or her case. The asylum officer

must explore what, if any, means the child had of seeking

protection.” U.S. Citizenship and Immigr. Servs., Asylum

Officer Basic Training Course: Guidelines for Children’s

Asylum Claims 40 (2009).12

Even if a child is able to report the abuse, he may not be

able to articulate what happened to the police “in the same

way as adults,” and, as a result, “may be more easily

dismissed or not taken seriously by the officials concerned.”

UNHCR, Guidelines on International Protection: Child

Asylum Claims Under Articles 1(A)2 and 1(F) of the 1951

Convention and/or 1967 Protocol Relating to the Status of

Refugees, ¶ 39, U.N. Doc HCR/GIP/09/08 (Dec. 22, 2009).13

For all of these reasons, we recognize that children who

suffer sexual abuse are generally unlikely to report that abuse

to authorities. Because they are unlikely to report, it is

similarly unlikely that country reports or other evidence will

be able to document the police response, or lack thereof, to

the sexual abuse of children. Placing on Castro the added

burden of demonstrating governmental inability or

unwillingness to control child sexual abuse generally was

thus tantamount to imposing a reporting requirement on

sexually abused children: either the petitioner must have

12

Available at http://www.uscis.gov/sites/default/

files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/AO

BTC%20Lesson%20Plans/Guidelines-for-Childrens-Asylum-Claims-3

1aug10.pdf.

13

Available at http://www.unhcr.org/50ae46309.pdf.

40 BRINGAS-RODRIGUEZ V. SESSIONS

reported in his own case, or other children must have reported

to create the basis for a country report on the general

response.14 That added burden was inappropriate, both

because it reflected a heightened gap-filling proof

requirement and because it focused on evidence regarding the

treatment of gay children rather than the treatment of gay

Mexicans generally.

2. Overemphasis on laws as opposed to practices

In Castro-Martinez, we also failed to consider the

difference between a country’s enactment of remedial laws

and the eradication of persecutory practices, often long

ingrained in a country’s culture. Rejecting Castro’s claim

that, in Mexico, a systematic pattern or practice of

persecution against homosexuals remained, we found

Castro’s evidence unpersuasive “in light of recent country

reports,” which showed that the “Mexican government’s

efforts to prevent violence and discrimination against

homosexuals . . . ha[d] increased in recent years.” Castro-

Martinez, 674 F.3d at 1082.

Mexico is to be lauded for its efforts. But it is well

recognized that a country’s laws are not always reflective of

actual country conditions. It is not unusual that a country’s

“de jure commitments to LGBTI protection do not align with

the de facto reality of whether the State is able and willing to

provide protection.” Brief for UNHCR as Amicus Curiae at

4. And we have recently recognized that Mexico has

14

We have imposed such a heightened burden in two decisions only,

Castro-Martinez and the Bringas-Rodriguez panel-majority opinion. Both

involved past persecution of a child. We have never imposed such a

standard in a petition involving an adult’s claim of past persecution.

BRINGAS-RODRIGUEZ V. SESSIONS 41

experienced “an increase in violence against gay, lesbian, and

transgender individuals during the years in which greater

legal protections have been extended to these communities.”

Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1081 (9th Cir.

2015) (emphasis in original).

Moreover, the anti-discrimination efforts discussed in

Castro-Martinez seem to have been made by the national

government, and thus do not necessarily reveal anything

about the practices within state or municipal jurisdictions.

See Madrigal v. Holder, 716 F.3d 499, 507 (9th Cir. 2013)

(noting that while Mexico’s national government was willing

to control the drug cartel that attacked the petitioner, it was

not necessarily able to do so, in part because state and local

officials were involved with drug traffickers).15

IV.

Substantial evidence compels the conclusion that Bringas

has established past persecution.

15

It bears noting, however, that—contrary to the panel majority’s

putative requirement that Bringas show that he would be persecuted in his

hometown—even though actions at the national and local levels may not

always align, an applicant is not required to present evidence of local

practices to establish that the government was unable or unwilling to

protect him. We have rejected such a requirement in the past. See

Krotova v. Gonzales, 416 F.3d 1080, 1083, 1087 (9th Cir. 2005)

(examining country report evidence of police failure to arrest anti-Semitic

attackers throughout Russia); Yan Rong Zhao v. Holder, 728 F.3d 1144,

1148 (9th Cir. 2013) (municipal-level proof of government persecution not

required where the petitioner presented province-level proof). Rather, we

must assess the entire evidentiary record in each application, and we do

not deem the presence or lack of any specific type of evidence conclusive.

42 BRINGAS-RODRIGUEZ V. SESSIONS

A. Persecution on Account of a Protected Ground

There is no dispute that the brutal beatings and rapes that

Bringas suffered as a child rise to the level of persecution. “It

is well established that physical violence is persecution under

8 U.S.C. § 1101(a)(42)(A).” Li v. Holder, 559 F.3d 1096,

1107 (9th Cir. 2009).

Likewise, there is no real dispute that Bringas’s sexual

orientation was at least one central reason for his persecution.

As the BIA acknowledged, “sexual orientation and sexual

identity can be the basis for establishing a particular social

group.” See Boer-Sedano v. Gonzales, 418 F.3d 1082,

1087–88 (9th Cir. 2005) (holding that “homosexual men in

Mexico” constitute a particular social group for purposes of

asylum); Karouni v. Gonzales, 399 F.3d 1163, 1171–73 (9th

Cir. 2005) (concluding that the petitioner was eligible for

asylum because of a well-founded fear of persecution on

account of his “membership in the particular social group of

homosexuals”).

The government argues that the BIA rejected Bringas’s

claim because he failed to establish that the sexual abuse he

suffered was on account of his homosexuality. The

government reads the BIA’s decision as affirming the IJ’s

finding that the sexual predators who attacked Bringas were

pedophiles motivated by perverse sexual urges. But the BIA

did not adopt the IJ’s decision, and nothing about the BIA’s

decision suggests that it denied Bringas’s claim on nexus

grounds. Rather, by acknowledging the abuse Bringas

suffered as a child, and then immediately pivoting to Castro-

Martinez, the BIA’s reasoning could only have been that, as

in Castro-Martinez, Bringas’s claim failed for want of proof

that the government was unable or unwilling to control his

BRINGAS-RODRIGUEZ V. SESSIONS 43

abusers. Indeed, the BIA decision’s following three

paragraphs discuss homosexuals as “a particular social

group” and acknowledge that Bringas is a gay man.

Finally, even if we read the BIA’s decision to conclude

that the IJ’s “perverse desire” finding was not clearly

erroneous, the entire record compels the conclusion that at

least one central reason for Bringas’s persecution was his

sexual orientation. Indeed, there is no evidence in the record

suggesting Bringas’s abusers were motivated by anything

else; to find otherwise would be to effectively rule that

children can never be victims of abuse on the basis of sexual

identity, as such abuse will always be subsumed by a

presumption of abuse on grounds unrelated to their protected

social group. This cannot be the case. Bringas need only

demonstrate that his sexual orientation was “at least one

central reason” for the abuse; he need not show it was the

only reason. Parussimova, 555 F.3d at 741. The record is

replete with statements by Bringas’s abusers as to exactly

why they targeted him. His father chastised him as a child for

being effeminate and beat him because he was “different.”

When Bringas was eight, his uncle told him the reason for the

ongoing physical and sexual abuse was his sexuality. Bringas

explained that his uncle, his cousins, and his neighbors

“called [him] fag, fucking faggot, queer and laughed about

it.” A full reading of the record leaves no doubt that Bringas

was persecuted on account of his sexual orientation.

B. Unable or Unwilling to Control Private Persecutors

Although Bringas’s persecutors were private, not

government, actors, the record evidence compels the

conclusion that the government was unable or unwilling to

control them. Bringas was not required to report his abuse to

44 BRINGAS-RODRIGUEZ V. SESSIONS

the authorities because ample evidence demonstrates that

reporting would have been futile and dangerous. Bringas

volunteered in his asylum application the reason he believed

he would be harmed if returned to Mexico:

If I went to the police they wouldn’t do

anything. They will take a report and never

follow-up on it or they would simply laugh at

me and tell me that I got what I deserved

because I am gay. My gay friend from

Veracruz living in Kansas City told me this is

what happened to him.

In his sworn affidavit, Bringas stated: “I was afraid to tell

anyone about my abuse because my uncle threatened to hurt

me and my family.” Bringas further explained that when his

neighbor sexually assaulted him, “[h]e laughed at [Bringas]

and said that if [Bringas] told anyone, he would do something

[Bringas] would be sorry for.” The IJ recognized that

Bringas’s abusers acted like pedophilic abusers, who “usually

manipulate their victims in such a way as to terrify them, and

prevent them from going to an adult and reporting the abuse

because they want to continue perpetrating their abuse on the

victim.” Finally, Bringas stated in his affidavit: “The police

are no help and cannot protect me. They wouldn’t do

anything to my abusers. They would laugh at me and tell me

I deserved what I got because I was gay. This happened to

friends of mine in Veracruz.”

At his removal hearing, Bringas testified that he did not

tell anybody about the abuse because he was afraid that his

abusers would hurt him, his family, and the person he chose

to tell. Bringas further testified that he was afraid to return to

Mexico because he would get “beat up by police, society,

BRINGAS-RODRIGUEZ V. SESSIONS 45

even family members.” The IJ and Bringas then had the

following exchange:

IJ: Okay, you’re older now. You can go tell

police if you return to Mexico and suffer

abuse, you could tell the police. . . . Couldn’t

you do that?

Bringas: They will do nothing. . . . I know

that because when I was living in Kansas,16

couple of my friends told me that they got

raped, they got beat up, like abuse, and they

went to the police and they didn’t do

anything. They even laugh on [sic] their

faces.

Thus, even the IJ understood the improbability of a younger

Bringas reporting his abuse to the authorities; by stating

“you’re older now . . . you could tell the police . . . .

[c]ouldn’t you do that,” the IJ recognized the difference

between a minor’s ability to report and an adult’s. Moreover,

both the IJ and the BIA found this testimony credible under

the heightened standards of the Real ID Act.17

16

The panel-majority opinion faults this evidence as not being

sufficiently age-specific. However, on his asylum application, Bringas

states that he lived in Kansas from 2004 to 2007, that is, from the age of

fourteen to seventeen. From that, we can draw the inference that his

friends were also minors when they attempted to report in Veracruz.

17

Though Bringas’s report of his friends’ experiences was hearsay,

we have made clear that hearsay, or even hearsay upon hearsay, can

establish asylum eligibility. Ramirez-Alejandre v. Ashcroft, 319 F.3d 365,

370 (9th Cir. 2003) (en banc); Cordon-Garcia v. INS, 204 F.3d 985,

992–93 (9th Cir. 2000). Bringas’s testimony was sufficiently specific to

46 BRINGAS-RODRIGUEZ V. SESSIONS

In addition to his sworn asylum application, affidavit, and

credible testimony, Bringas submitted the 2009 and 2010

U.S. Department of State Human Rights Reports for Mexico

and several newspaper articles describing the treatment of gay

men in Mexico. The 2009 and 2010 reports show official

discrimination and violence by police against homosexuals,

and show that persecution of gay men remained a serious

problem in Mexico five and six years after Bringas fled in

2004. The 2009 report states, “While homosexual conduct

experienced growing social acceptance, the National Center

to Prevent and Control HIV/AIDS stated that discrimination

persisted.” The 2010 report includes an identical observation

from the National Human Rights Commission. Additionally,

the 2009 report describes a particularly severe example of

discrimination by Mexican officials:

One of the most prominent cases of

discrimination and violence against gay men

was that of Agustin Humberto Estrada

Negrete, a teacher and gay activist from

Ecatepec, Mexico State. In 2007 he

participated in a gay rights march wearing a

dress and high heels. According to the NGO

Asilegal, soon after the march, Estrada began

receiving threatening telephone calls and

be deemed credible. Bringas explained through his application and his

testimony where he learned about his friends’ experiences (Kansas), to

whom and where these friends reported the violence against them (the

Mexican police in Veracruz), and the types of attacks they had suffered

(rape and battery). Inexplicably, neither the BIA nor the IJ discussed this

testimony, and the panel majority found it insufficient. While the agency

is not required to discuss every piece of evidence, this particular piece was

crucial, because it explains why any reporting would have been futile and

dangerous.

BRINGAS-RODRIGUEZ V. SESSIONS 47

verbal and physical attacks. In 2008 he was

fired from the school for children with

disabilities where he worked. After his

dismissal, he and a group of supporters began

lobbying the government to reinstate him;

when they went to the governor’s palace to

attend a meeting with state officials in May,

police beat him and his supporters. The next

day he was taken to prison, threatened, and

raped. Although he was released, Estrada

continued to face harassment by state

authorities.

The 2010 country report states that “some public officials

continued to perpetrate bureaucratic abuses and some

criminal acts with impunity.” It also notes that “rape victims

rarely filed complaints with the police, in part because of the

authorities’ ineffective and unsupportive responses to

victims.”

Bringas additionally offered several newspaper articles,

including one in which the Associated Press reported that a

“review of more than 70 newspapers in 11 Mexican states”

revealed an increase from “an average of nearly 30 killings a

year motivated by homophobia between 1995 and 2000” to

“nearly 60 a year between 2001 and 2009.” Thus, the totality

of Bringas’s evidence compels the conclusion that reporting

his abuse would have been futile and dangerous.

From Bringas’s reports, we do see increasing social

acceptance of homosexuals in Mexico, especially in certain

parts of Mexico, such as Mexico City, where same-sex

marriage has been legalized. But the panel-majority opinion,

like the Castro-Martinez decision and the BIA decision here,

48 BRINGAS-RODRIGUEZ V. SESSIONS

falsely equated legislative and executive enactments

prohibiting persecution with on-the-ground progress.

Moreover, the new laws depicted in the country reports

include a 2010 law legalizing gay marriage in Mexico City,

a Supreme Court decision requiring other states to recognize

those marriages, and a 2010 law allowing gay couples to

adopt children in Mexico City. The question we address here,

however, is whether Bringas suffered past persecution in the

years preceding 2004. Therefore, these important

developments bear little relevance to Bringas’s abuse, which

ended in 2004.

V.

Examining all the evidence in the record, and applying

long-standing precedent, substantial evidence compels the

conclusion that Bringas has proven past persecution due to

his identification as a gay individual, and he need not

additionally provide evidence specific to him as a gay child.

He is therefore entitled to the presumption of a well-founded

fear of future persecution.18 Accordingly, we remand to the

18

The dissent argues that Bringas’s fear of future persecution as a

gay Mexican man is “unrelated” to his past persecution based on his

sexual orientation as a child and thus we cannot presume future

persecution under 8 C.F.R. § 1208.13(b)(1). However, it is not the nature

of the persecutory acts that must be related for the presumption to arise.

Rather, it is the enumerated statutory ground that motivates the

persecution that must be related—in other words, the reason for the fear

of future persecution must be related to the reason for the past persecution.

Cf. Matter of A–T–, 24 I. & N. Dec. 617, 622 (A.G. 2008) (recognizing,

in the context of a related provision for withholding of removal, that the

presumption arises where the fear of future persecution is “on account of

the same statutory ground” as the past persecution and that the feared

BRINGAS-RODRIGUEZ V. SESSIONS 49

agency for consideration in the first instance of whether the

presumption has been rebutted, and for consideration of

Bringas’s withholding of removal and CAT claims.19 The

respondent, Attorney General Jefferson B. Sessions III, shall

bear the costs on appeal.

GRANTED; REMANDED.

harm need not take a form “identical” to the past harm). Here, the reasons

for Bringas’s past persecution and his fear of future persecution are the

same—his sexual orientation.

19

Bringas asked the agency to consider his HIV diagnosis, of which

he learned after filing his notice of appeal to the BIA. The BIA denied

this request, stating that Bringas failed to show “how his status as an HIV

positive homosexual changes the outcome of his case.” Upon remand, the

agency should consider this new information, which is “material” and

“could not have been discovered or presented” to the IJ. Ali v. Holder,

637 F.3d 1025, 1031–32 (9th Cir. 2011) (quoting 8 C.F.R. § 1003.2(c)(1));

see also Angov v. Lynch, 788 F.3d 893, 897 (9th Cir. 2015). Bringas’s

HIV diagnosis may also be relevant to the question of relocation, which

the agency must consider upon remand. See Boer-Sedano, 418 F.3d at

1090–91.

50 BRINGAS-RODRIGUEZ V. SESSIONS

CLIFTON, Circuit Judge, concurring in the judgment:

I agree with the conclusion of the majority opinion that

the petition for review filed by Carlos Alberto Bringas-

Rodriguez should be granted and the matter remanded to the

BIA for further proceedings. The basis for my conclusion is

much narrower than that adopted by the majority opinion,

however. In my view, the majority opinion does not respect

the proper standard for our court’s review of an order of

removal. That standard is supposed to be highly deferential,

and I agree with the dissent that it has not been applied that

way in this case.

The majority opinion acknowledges that a finding by the

IJ is not supported by substantial evidence when “‘any

reasonable adjudicator would be compelled to conclude to the

contrary’ based on the evidence in the record.” Majority Op.

at 13 (quoting Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir.

2014)). The majority opinion also agrees that Bringas had the

burden of establishing that the persecution suffered by

Bringas, in the form of the sexual attacks on him when he

was a child, “was committed by . . . forces that the

government was unable or unwilling to control.” Id. at 20

(quoting Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th

Cir. 2010)).

The evidence offered by Bringas in support of the

proposition that the Mexican government was unable or

unwilling to control sexual attacks against children was not

so overwhelming. That evidence, described in the majority

opinion at 43–45 and in the dissent at 72 n.15, amounted in

the end to 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

BRINGAS-RODRIGUEZ V. SESSIONS 51

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. The same is

true about the more general evidence offered by Bringas from

country reports and newspaper articles about discrimination

against gay men and homophobic violence in Mexico. That

general evidence did not speak directly to the kind of violence

suffered by Bringas. It did not say so much about how the

Mexican government would have reacted that it would have

compelled any reasonable adjudicator to agree with the

majority opinion’s own assessment.

The reason that I conclude that the petition for review

should be granted is that the agency appeared to disregard the

evidence that Bringas offered on the subject. The IJ stated in

his oral decision that

[W]e certainly do not have any evidence

whatsoever that the police in Mexico or the

authorities do not take any action whatsoever

to offer some type of protection against the

abuse of children, sexually, whether the

sexually abused child is a male or female, or

whether the abuser is a male or a female.

There is no evidence of that, so I cannot really

conclude that the government was unwilling

or unable to offer [Bringas] protection from

the sexual abuse perpetrated upon him as a

child.

The BIA’s conclusion was more general, stating that the

“evidence does not establish” that the Mexican government

is unwilling or unable to control private violence against

52 BRINGAS-RODRIGUEZ V. SESSIONS

homosexuals. But the BIA did not correct the IJ’s finding

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.

In my view, the failure to recognize that evidence and to

account for it in the decision justifies remand to the agency

for further proceedings, including further consideration of the

question of whether Bringas suffered past persecution. I

would grant the petition for review, but I would not dictate

the answer to that past persecution question.

BRINGAS-RODRIGUEZ V. SESSIONS 53

BEA, Circuit Judge, with whom O’SCANNLAIN, Circuit

Judge, joins, dissenting:

I respectfully dissent from the majority opinion because

it usurps the power of the Board of Immigration Appeals

(BIA) to determine facts. It does this by reciting, but

ultimately departing, from the “substantial evidence” standard

which states that agency “findings of fact are conclusive

unless any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B)

(emphasis added).1

Here, the BIA found unpersuasive Bringas’s evidence of

the Mexican government’s inability or unwillingness to

1

See Lianhua Jiang v. Holder, 754 F.3d 733, 740 (9th Cir. 2014)

(“Given the extremely deferential [substantial evidence] standard of

review, anything approaching a de novo review is improper.”); Cole v.

Holder, 659 F.3d 762, 780 (9th Cir. 2011) (“We have held that ‘[t]his

strict [substantial evidence] standard bars the reviewing court from

independently weighing the evidence and holding that the petitioner is

eligible for asylum, except in cases where compelling evidence is shown.’

Kotasz v. INS, 31 F.3d 847, 851 (9th Cir. 1994). ‘We are not free to look

anew at the testimony and then measure the soundness of the agency’s

decision by what we would have found. Nor does evidence compel the

opposite conclusion just because it would also support a different result.’

Donchev v. Mukasey, 553 F.3d 1206, 1213 (9th Cir. 2009).”); Quon v.

Gonzales, 428 F.3d 883, 890–91 (9th Cir. 2005) (O’Scannlain, J.,

dissenting) (“[W]e must accept the IJ’s finding of fact unless the evidence

compels a contrary conclusion. This is an extremely deferential standard

of review: it is not enough that the evidence supports a contrary

conclusion, that the panel would have weighed the evidence differently,

or even that the panel is persuaded that the finding is incorrect; the

evidence must be so overwhelming that not just the panel but ‘any

reasonable adjudicator would be compelled to conclude the contrary.’ The

law and the Supreme Court are unequivocal on this point.” (internal

citations omitted)).

54 BRINGAS-RODRIGUEZ V. SESSIONS

control and prevent the abuse of homosexuals. The record

evidence—uncorroborated hearsay testimony by Bringas’s

friends that police in Veracruz failed to respond to reports of

homosexual abuse; newspaper articles which document an

average of fewer than sixty murders per year of homosexuals

in Mexico, with no evidence at all regarding how the

Mexican government responded to those murders; a single

instance of the persecution of a homosexual man by Mexican

government officials; and strong evidence of efforts by the

Mexican government to protect homosexual citizens—does

not compel us to reverse the BIA’s finding.2 We should deny

the petition for review.

To reach its conclusion that the record evidence compels

the conclusion that Bringas established past persecution, the

majority holds that if there is any evidence—including

uncorroborated hearsay testimony—that a foreign

government is unable or unwilling to control persecution by

private, not public, individuals, the administrative trier of fact

must disdain evidence to the contrary, and must ignore the

alien’s failure to produce any of the agency-requested

corroborating evidence, which our immigration law

specifically requires.3 The effect of this new standard: having

2

See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (“To

reverse the BIA finding we must find that the evidence not only supports

that conclusion, but compels it—and also compels the further conclusion

that [the petitioner] had a well-founded fear that the guerrillas would

persecute him because of that political opinion.” (emphases in original)).

3

See 8 U.S.C. § 1158(b)(1)(B)(i)-(ii) (“The burden of proof is on the

applicant to establish that the applicant is a refugee . . . . Where the trier

of fact determines that the applicant should provide evidence that

corroborates otherwise credible testimony, such evidence must be

corroborated unless the applicant does not have the evidence and cannot

BRINGAS-RODRIGUEZ V. SESSIONS 55

carried his burden of presentation of evidence, the alien is

reasonably obtain the evidence.”). The Immigration Judge (IJ) asked

Bringas’s counsel for corroborating details to support Bringas’s claim that

the Mexican government was unable or unwilling to control Bringas’s

private persecutors, and even granted Bringas a 120-day extension to

provide such corroborating details. During one of the hearings before the

IJ, the IJ made the following comments to Bringas’s attorney: “If I were

an attorney, I’d go for the corroboration because, I mean, to me, it’s a lot

more important to make sure your case is presented with all the adequate

proof, rather than risk that in order to see if you are able to beat the clock

and get a work card.” Bringas’s attorney at the IJ hearing responded with

the following: “Well, let’s just go ahead and set it over so that we can

provide corroborating evidence. I don’t know how successful we’re going

to be, that’s the only problem.” Indeed, even after the 120-day extension

provided by the IJ, Bringas did not supplement the hearsay testimony of

his friend or friends—which was the core of his claim of governmental

lassitude before, or contempt to, pleas for government help—with any

affidavits from his friends or corroborating details through his testimony,

nor with any proofs that he could not “reasonably obtain” the evidence.

The evidence the majority points to as corroborating evidence to refute

this dissent has nothing to do with the corroboration actually requested by

the IJ, under 8 U.S.C. § 1158(b)(1)(B)(ii). The IJ required evidence to

corroborate Bringas’s claim the Mexican government was unable or

unwilling to control Bringas’s private persecutors. The State Department

2010 Country Report is silent on that score, as are the newspaper articles.

They contain reports of incidents, but say nothing about the Mexican

government’s involvement or reaction to those incidents. Of course, the

psychological evaluation of Bringas quite properly tells us about him and

his claims, but tells us nothing to corroborate his claims of Mexican

government involvement or reaction to incidents of persecution committed

by other persons.

56 BRINGAS-RODRIGUEZ V. SESSIONS

discharged from his burden of persuasion.4 This is not and

cannot be the law.

I.

Carlos Alberto Bringas-Rodriguez is twenty-six years old,

homosexual, and a citizen of Mexico. From the ages of four

to twelve, Bringas was repeatedly sexually abused by his

uncle, cousins, and neighbor in Tres Valles, a town in the

Mexican state of Veracruz. At the age of twelve, Bringas

moved to Kansas with his stepfather to live with his mother

for several months, but within that same year returned to Tres

Valles to live with his grandmother. Once back in Tres

Valles, the sexual abuse continued. Bringas never reported

the abuse to the police. At the age of fourteen, he returned to

Kansas with his mother “to escape [his] abusers.” He entered

the United States without inspection or authorization.

Six years later, at the age of twenty and while living in

Colorado, Bringas pleaded guilty to and was convicted of

attempted “Contributing to the Delinquency of a Minor.”5

4

See 8 U.S.C. § 1158(b)(1)(B)(ii) (“The testimony of the [asylum]

applicant may be sufficient to sustain the applicant’s burden without

corroboration, but only if the applicant satisfies the trier of fact that the

applicant’s testimony is credible, is persuasive, and refers to specific facts

sufficient to demonstrate the applicant is a refugee.” (emphases added));

Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir. 1997) (“[T]he petitioner

bears the burden of persuading the IJ that his evidence is credible, and the

IJ is entitled to evaluate assertions of past persecution in light of the

strength or weakness of such other evidence as the petitioner may

present.” (internal citations omitted)).

5

COLO. REV. STAT. § 18-6-701 (“(1) Any person who induces, aids,

or encourages a child to violate any federal or state law, municipal or

county ordinance, or court order commits contributing to the delinquency

BRINGAS-RODRIGUEZ V. SESSIONS 57

Shortly thereafter, immigration authorities issued him a

Notice to Appear. Bringas conceded removability but

requested asylum, withholding of removal, and relief under

the Convention Against Torture (CAT). He claimed that he

had suffered sexual abuse as a minor and that this abuse

amounted to past persecution on account of his sexual

orientation.

The IJ denied Bringas’s asylum claim because it was

untimely filed. With respect to withholding of removal, the IJ

found Bringas credible but ruled that Bringas had not

established past persecution on account of a protected ground

for two reasons: (1) The evidence established that the “central

reasons for the abuse were the perverse sexual urges of the

abusers,” not Bringas’s sexual orientation, and (2) there was

no evidence that the police in Mexico would not have

protected Bringas “from the sexual abuse perpetrated upon

him as a child.” As to Bringas’s fear of future persecution, the

IJ noted that country reports included a few instances of

persecution of homosexuals in Mexico, but not any “pattern

or practice” of government participation or acquiescence in

such persecution. Moreover, the country reports showed that

the country as a whole—and Mexico City in particular—had

made significant advances with respect to rights for

homosexuals, such that Bringas could potentially relocate to

a part of the country where he would be safe. The IJ also

denied relief under the CAT on the grounds that Bringas

offered insufficient evidence that “torture in the future by the

government, or with the acquiescence of the government”

was more likely than not.

of a minor. For the purposes of this section, the term ‘child’ means any

person under the age of eighteen years. (2) Contributing to the

delinquency of a minor is a class 4 felony.”).

58 BRINGAS-RODRIGUEZ V. SESSIONS

The BIA dismissed Bringas’s appeal. The BIA denied

Bringas’s asylum claim on the merits, assuming arguendo

that the application was timely filed. The BIA concluded that

Bringas failed to establish past persecution because he had

not proved that the government was unable or unwilling to

control his abusers, avoiding the question whether Bringas

established that he was abused because he was homosexual.

The BIA also found that Bringas did not have a well-founded

fear of future persecution because he failed to prove a

“pattern or practice” of persecution against homosexuals in

Mexico. Citing this court’s opinion in Castro-Martinez v.

Holder, 674 F.3d 1073, 1082 (9th Cir. 2011), and comparing

the experience of homosexual men in Mexico to the

experience of homosexual men in Jamaica,6 the BIA

explained that no “widespread brutality against homosexuals

or . . . criminalization of homosexual conduct [exists] in

Mexico.” With respect to withholding of removal, because

Bringas failed to satisfy the lower burden of proof required

for asylum, the BIA found that he failed to satisfy the higher

standard for withholding of removal. With respect to CAT

relief, the BIA found no clear error in the IJ’s determination

that Bringas failed to prove that torture by or with the

acquiescence of the Mexican government was more likely

than not.

6

In Bromfield v. Mukasey, 543 F.3d 1071, 1078 (9th Cir. 2008), the

Ninth Circuit granted a petition for review and remanded after finding a

pattern or practice of persecution of homosexual men in Jamaica. The

evidence compelled such a finding based on a culture of severe

discrimination against homosexuals, numerous cases of violence against

persons based on their sexual orientation by police and vigilante groups,

brutality against homosexuals, as well as Jamaican law criminalizing

homosexual conduct, resulting in several prosecutions.

BRINGAS-RODRIGUEZ V. SESSIONS 59

Finally, the BIA rejected Bringas’s request to remand his

case to the IJ in light of Bringas’s recent HIV diagnosis.

Bringas’s brief to the BIA explained his recent diagnosis and

argued that “this fact is significant because it now places

[him] in a more vulnerable position should he be returned to

Mexico.” The BIA declined to remand Bringas’s case for

further consideration because Bringas had not provided any

additional country conditions evidence or specific arguments

regarding how his status as an HIV positive homosexual

would change the outcome of his case.

Bringas petitioned this court for review of the BIA’s

decision. The three-judge panel denied Bringas’s petition for

review. The panel first noted that it could not “resolve

Bringas’s asylum claim on timeliness grounds because the

BIA ignored this procedural defect . . . .” Bringas-Rodriguez

v. Lynch, 805 F.3d 1171, 1177 (9th Cir. 2015) (now

withdrawn); see also Abebe v. Gonzales, 432 F.3d 1037, 1041

(9th Cir. 2005) (en banc) (“When the BIA has ignored a

procedural defect and elected to consider an issue on its

substantive merits, we cannot then decline to consider the

issue based upon this procedural defect.”). In reviewing

Bringas’s asylum claim on the merits, the panel concluded the

evidence did not compel reversal of the BIA’s determination

that Bringas failed to establish past persecution or a well-

founded fear of future persecution. Bringas-Rodriguez, 805

F.3d at 1177. The panel followed the BIA and analyzed only

whether Bringas failed to establish that his abuse was

inflicted by individuals the government was unable or

unwilling to control, thereby avoiding the question whether

Bringas suffered abuse because he is homosexual. Id. at

1177–78.

60 BRINGAS-RODRIGUEZ V. SESSIONS

The panel agreed with the IJ and BIA that Bringas failed

to establish that the Mexican government was unable or

unwilling to control his abusers, and therefore failed to

establish past persecution. Id. at 1178. The country reports

and hearsay evidence introduced by Bringas did not

sufficiently close the gap in proof as to how the government

would have responded to reports of his abuse, had such

reports been made. Id. at 1180–82. With respect to the

country conditions evidence, the panel stated that the country

reports noted no instances of discrimination or persecution in

Veracruz and “only one specific example of government

persecution on the basis of sexual orientation in Mexico.” Id.

at 1179. The panel highlighted portions of the reports

describing “gay pride” marches across Mexico as well as a

Mexican Supreme Court decision “requiring Mexico’s states

to recognize legally performed [same-sex] marriages

performed elsewhere,” a decision that was made five years

before the United States Supreme Court reached a similar

conclusion. Id. Turning to Bringas’s testimony about his

friends’ experiences in Veracruz, the panel first recognized

that Bringas credibly testified that a “couple” of his friends

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.” Id. at

1178. Nonetheless, the panel concluded that the lack of

corroborating details about Bringas’s friends’ experiences—

including the names of his friends, how old they were when

they were abused and when they reported their abuse, by

whom they were abused, to whom they reported their abuse,

or where the abuse occurred—justified the BIA’s conclusion

that Bringas failed to establish that the government would be

BRINGAS-RODRIGUEZ V. SESSIONS 61

unable or unwilling to control his abusers.7 Id. at 1180. The

panel therefore held that Bringas was not entitled to a

presumption of a well-founded fear of persecution. Id. at

1182.

The panel also concluded that Bringas’s evidence

supported the BIA’s conclusion that Bringas failed to

establish a well-founded fear of future persecution. Id. The

panel recognized two avenues for Bringas to establish an

objectively reasonable fear of future persecution: (1) that he

was a member of a disfavored group against which there was

a systematic pattern or practice of persecution, or (2) that he

belongs to a disfavored group and has an individualized risk

of being singled out for persecution. Id. Bringas forfeited the

second argument by failing to raise it before the BIA.

Therefore, the panel focused only on whether Bringas

established a pattern or practice of persecution of homosexual

men in Mexico. Id. The panel concluded that Bringas

adduced no evidence establishing a change of conditions in

Mexico since the court decided Castro-Martinez v. Holder,

674 F.3d 1073, 1082 (9th Cir. 2011).8 Therefore, the panel

held that substantial evidence supported the BIA’s finding of

no pattern or practice of persecution. Bringas-Rodriguez, 805

F.3d at 1183.

7

These details were requested of Bringas’s counsel, together with a

provision of time for their production. See supra note 3.

8

In Castro-Martinez, this court rejected the claim that “the Mexican

government systematically harmed gay men and failed to protect them

from violence.” 674 F.3d at 1082. Although the court acknowledged

evidence of societal discrimination and isolated attacks, as to the required

element of governmental lassitude or incapacity, it explained that “the

Mexican government’s efforts to prevent violence and discrimination

against homosexuals . . . ha[d] increased in recent years.” Id.

62 BRINGAS-RODRIGUEZ V. SESSIONS

With respect to Bringas’s CAT claim, the panel held that

the same evidence that supported the BIA’s dismissal of the

pattern-or-practice claim also supported the IJ and BIA’s

conclusion that Bringas failed to establish a likelihood of

torture. Id. at 1184. As the panel stated, conditions in Mexico

are “insufficiently dangerous for gay people to constitute a

likelihood of government-initiated or -sanctioned torture.”

Id.; Castro-Martinez, 674 F.3d at 1082. The panel noted that

the likelihood of future torture was especially low given that

Bringas is now a “selfsufficient [sic] homosexual adult” who

could “relocate to a different part of Mexico.” Bringas-

Rodriguez, 805 F.3d at 1184.

Finally, the panel held that the BIA did not abuse its

discretion in declining to remand based on Bringas’s HIV

diagnosis. According to the panel, the BIA offered a reasoned

explanation that was neither arbitrary nor irrational: Bringas

did not provide “any additional country conditions evidence

or specific arguments regarding how his [HIV] status changes

the outcome of his case.” Id. at 1185.

Bringas filed a petition for rehearing en banc, which we

granted. A majority of the en banc panel today overrules

several of our prior immigration cases in two respects, but

only by misreading those cases. First, the majority holds that

Rahimzadeh and Afriyie “unnecessarily introduced the

construct that the failure to report [private persecution to

government authorities] creates a ‘gap’ in the evidence,

because our law is clear that the agency, and we, upon

review, must examine all the evidence in the record that bears

on the question of whether the government is unable or

BRINGAS-RODRIGUEZ V. SESSIONS 63

unwilling to control a private persecutor.”9 Op. at 35. The

majority overrules Rahimzadeh and Afriyie “[t]o the extent

that [the] discussion of gap filling suggested that the burden

of proof on governmental inability or unwillingness to protect

was something beyond the standard we use for other

elements—proof by a preponderance of the evidence,

considering all the evidence in the record.” Op. at 35.

However, neither case held that any “gap” created by the

failure to report could not be filled by other evidence. At

most, the “gap” language commented on the lack of one kind

of evidence, which could be supplanted by another kind of

evidence. It did not increase the evidentiary burden on the

petitioner. For instance, there is no “gap” in establishing the

date of a fire loss when the homeowner does not file a report

with the Fire Department, if he produces a date-stamped

video of his house burning. Similarly, there is no “gap” when

an asylum petitioner does not report his persecution by

private individuals to government officials, if he produces

alternative, compelling evidence that the foreign government

at issue is unable or unwilling to control his persecutors.

Second, the majority overrules Castro-Martinez because,

in that case, “[w]e imposed a higher burden [on Castro, who

was persecuted by private individuals as a child] that required

Castro to demonstrate that ‘Mexican authorities would have

ignored the rape of a young child or that authorities were

unable to provide a child protection against rape.’” Op. at 37

(citing Castro-Martinez, 674 F.3d at 1081). The majority

holds that this language effectively imposed “a reporting

requirement on sexually abused children: either the petitioner

must have reported in his own case, or other children must

9

Rahimzadeh v. Holder, 613 F.3d 916 (9th Cir. 2010); Afriyie v.

Holder, 613 F.3d 924 (9th Cir. 2010).

64 BRINGAS-RODRIGUEZ V. SESSIONS

have reported to create the basis for a country report on the

general response.” Op. at 39–40. However, Castro-Martinez

stated unequivocally that asylum petitioners, especially

children, need not report their abuse to establish past

persecution. See Castro-Martinez, 674 F.3d at 1081 (“We

have never held that any victim, let alone a child, is obligated

to report a sexual assault to the authorities, and we do not do

so now.”). Instead of accurately reading Castro-Martinez,

which needed no clarification with respect to whether a

reporting requirement exists for asylum petitioners of any

age, the majority removes the requirement imposed by the

Supreme Court and Congress on asylum petitioners to

produce evidence sufficient to compel the conclusion that the

foreign government was unable or unwilling to protect

against private persecution. I address the majority’s two

issues in turn.

II.

A. The majority rejects our substantial evidence standard by

holding that merely proffering traditional “types of

proof” categorically suffices to establish an “unable or

unwilling” claim.

The majority takes issue with the commonsense

conclusion reached in Rahimzadeh and Afriyie that a

petitioner who does not report his private persecution to

government officials leaves an evidentiary “gap” regarding

how those officials would react to such a report.10 The

10

See Rahimzadeh, 613 F.3d at 922 (“The absence of a report to

police does not reveal anything about a government’s ability or

willingness to control private attackers; instead, it leaves a gap in proof

about how the government would respond if asked, which the petitioner

BRINGAS-RODRIGUEZ V. SESSIONS 65

majority “supersedes” Rahimzadeh and Afriyie because

“[f]raming the question of nonreporting as a ‘failure’ that

creates an evidentiary ‘gap’ had the inadvertent effect of

heightening the evidentiary standard beyond the traditional

types of proof, accepted in every prior precedent, that we have

deemed sufficient to demonstrate governmental inability or

unwillingness to protect victims of persecution.” Op. at 35

(emphasis added).

The assertion that Rahimzadeh and Afriyie created a

heightened evidentiary standard for petitioners who fail to

report their private persecution to government authorities

ignores clear language to the contrary from both opinions.

Rahimzadeh and Afriyie made clear that reporting private

persecution to government authorities is not required to

establish past persecution.11 Rahimzadeh and Afriyie also

provided clear guidance regarding how evidence other than

may attempt to fill by other methods.”); Afriyie, 613 F.3d at 931 (“‘[T]he

absence of a report to police . . . leaves a gap in proof about how the

government would respond, which the petitioner may attempt to fill by

other methods.’” (quoting Rahimzadeh, 613 F.3d at 922)). Recognizing

that a “gap” exists is not to make it determinant or change the standard of

proof which requires all evidence on the matter to be considered. See

Vitug v. Holder, 723 F.3d 1056, 1064 (9th Cir. 2013) (“[T]he BIA abuses

its discretion where it ignores arguments or evidence.”).

11

See Rahimzadeh, 613 F.3d at 921 (“The reporting of private

persecution to the authorities is not, however, an essential requirement for

establishing government unwillingness or inability to control attackers.”);

id. at 922 (“[I]t is clear that the IJ treated the failure to report as merely

one factor in the assessment of the Dutch government’s willingness and

ability to control private extremists, not as a per se bar to asylum.”);

Afriyie, 613 F.3d at 931 (“We begin by noting that reporting persecution

to government authorities is not essential to demonstrating that the

government is unable or unwilling to protect him from private actors.”).

66 BRINGAS-RODRIGUEZ V. SESSIONS

reports to the police can compel the conclusion that

government officials were unable or unwilling to protect

petitioners from private persecution.12 The language from

those opinions needed no further clarification.

But the majority does not overrule those cases in an

attempt to clarify how this court reviews evidence of past

persecution. Instead, the majority recites, yet ignores the

standard of review for past persecution claims involving

private persecutors.13 The majority holds that “[f]raming the

question of nonreporting as a ‘failure’ that creates an

evidentiary ‘gap’ had the inadvertent effect of heightening the

evidentiary standard beyond the traditional types of proof,

accepted in every prior precedent, that we have deemed

sufficient to demonstrate governmental inability or

12

In Rahimzadeh and Afriyie, we explained that petitioners who do

not report their private persecution to government authorities can establish

that government authorities were unable or unwilling to protect them

through several evidentiary channels. For example, petitioners could

establish that others have made reports of similar incidents to no avail—as

Bringas did here in proffering the hearsay statements of his friends as to

their insouciant and contemptuous reception by the Mexican police, see

Afriyie, 613 F.3d at 932–33, or that “private persecution of a particular

sort is widespread and well-known but not controlled by the government.”

Rahimzadeh, 613 F.3d at 922.

13

The majority characterizes its opinion as merely clarifying that “the

legal standard, substantial evidence, is not heightened or made more

stringent when the persecution is directed to a child, as opposed to an

adult . . . .” Op. at 36, n.11. But the majority does not apply the true

substantial evidence test to either children or adult petitioners. On this

point, the concurrence agrees. See Concurring Op. at 50 (“In my view, the

majority opinion does not respect the proper standard for our court’s

review of an order of removal. That standard is supposed to be highly

deferential, and I agree with the dissent that it has not been applied that

way in this case.”).

BRINGAS-RODRIGUEZ V. SESSIONS 67

unwillingness to protect victims of persecution.” Op. at 35

(emphasis added). Neither we, nor any other court, has

accepted the notion that presentation of a type of proof used

in other cases, regardless of its probative value, is

categorically sufficient to establish that government officials

were unable or unwilling to control private persecution. The

nature and quality of the evidence adduced always mattered.

However, under the majority’s view, the probative value of

that proof becomes irrelevant when petitioners provide a

“type[] of proof, accepted in every prior precedent, that we

have deemed sufficient to demonstrate governmental inability

or unwillingness to protect victims of persecution.” Op. at 35

(emphases added). The majority ignores that an inadequate

response by government officials to a petitioner’s direct

report of private persecution will sometimes provide stronger

evidence that government officials are unable or unwilling to

protect against private persecution than other types of

evidence. Our prior cases recognized this uncontroversial

statement regarding the nature of evidence. See, e.g., Afriyie,

613 F.3d at 931 (“[W]hen an applicant attempts to report

persecution to the police or request protection from them, the

authorities’ response (or lack thereof) to such requests may

provide powerful evidence with respect to the government’s

willingness or ability to protect the requestor.” (emphasis

added)). Rahimzadeh and Afriyie did not create a heightened

evidentiary burden for petitioners who do not report their

persecution. Those cases simply recognized that a petitioner’s

direct report to government officials, followed by an

inadequate or nonexistent response by those officials,

provides “powerful” proof that indirect, vague, or hearsay

evidence may lack. My colleagues fundamentally alter our

longstanding substantial evidence standard of review by

suggesting that evidence other than a failure to report

persecution to the police—such as Bringas’s hearsay

68 BRINGAS-RODRIGUEZ V. SESSIONS

testimony from friends—categorically suffices to constitute

compelling evidence that government officials are unable or

unwilling to control persecution by private, non-

governmental individuals.

B. The majority sets aside substantial evidence review by

excusing adult petitioners who were persecuted as

children from adducing sufficient, alternative evidence

that the government was unable or unwilling to protect

them.

My colleagues take issue with the following language in

Castro-Martinez:

As the BIA observed, there was no evidence

in the record that Mexican authorities would

have ignored the rape of a young child or that

authorities were unable to provide a child

protection against rape. . . . [N]one of [the]

reports compel the conclusion that the police

would have disregarded or harmed a male

child who reported being the victim of

homosexual rape by another male.

Castro-Martinez, 674 F.3d at 1081. According to my

colleagues, this language effectively requires child victims of

private persecution to report their abuse to the authorities

based on the following reasoning:

[C]hildren who suffer sexual abuse are

generally unlikely to report that abuse to

authorities. Because they are unlikely to

report, it is similarly unlikely that country

reports or other evidence will be able to

BRINGAS-RODRIGUEZ V. SESSIONS 69

document the police response, or lack thereof,

to the sexual abuse of children. . . . That added

burden was inappropriate, both because it

reflected a heightened gap-filling proof

requirement and because it focused on

evidence regarding the treatment of gay

children rather than the treatment of gay

Mexicans generally.

Op. at 39–40 (emphasis added). Castro-Martinez addressed

this exact issue: whether the victim’s report of the abuse to

the police was a requirement, else an evidentiary gap would

make the rest of the victim’s proof insufficient, and whether

this requirement obtained only as to homosexual children. See

Castro-Martinez, 674 F.3d at 1081 (“We have never held that

any victim, let alone a child, is obligated to report a sexual

assault to the authorities, and we do not do so now.”). Castro-

Martinez’s express language does not permit of a reading that

a reporting requirement exists for persecuted children and

only for such children rather than similar adults. Nonetheless,

the majority concludes that Castro-Martinez created a

reporting requirement for persecuted children.

The majority is undoubtedly correct that children who

suffer sexual abuse are unlikely to report their abuse to

government officials of their own accord. The fact that

victims of private persecution—young or old—are unlikely

to report their abuse to authorities explains why we have

never held that victims of private persecution need to report

their abuse to establish past persecution for asylum purposes.

See, e.g., Rahimzadeh, 613 F.3d at 922 (“None of [the

immigration cases surveyed], or any other we have found,

creates a freestanding reporting requirement to qualify for

asylum.”). But the majority goes much further than restating

70 BRINGAS-RODRIGUEZ V. SESSIONS

that child victims of private persecution, like all victims of

private persecution, need not report their persecution to the

authorities. The majority concludes that, because children are

unlikely to report, “it is similarly unlikely that country

reports or other evidence will be able to document the police

response, or lack thereof, to the sexual abuse of children.”

Op. at 39 (emphasis added). In other words, this court should

excuse the absence of any “country report[] or other

evidence” that government officials were unable or unwilling

to protect adult petitioners who suffered persecution as a

child because children are unlikely to report their private

persecution to the authorities.

The majority fails to explain why adults who suffer

private persecution at the hands of their family, neighbors, or

community are any less likely to report their private

persecution to government authorities, and thus less deserving

of the majority’s lack-of-evidence-be-damned approach. We

do not require victims of private persecution to report to

government authorities to establish past persecution for

asylum purposes because, no matter their age, victims are

unlikely to report private persecution given that reporting

may be futile or dangerous. See Afriyie, 613 F.3d at 931.

Nonetheless, our nation’s immigration law still requires

asylum petitioners to adduce sufficient evidence other than

their or others’ reports to governmental authorities to prove

that those authorities were unable or unwilling to protect

asylum petitioners from private persecution. The majority

dismisses that requirement for a petitioner who experienced

persecution when he was a child—even though the petitioner,

as an adult, can reasonably identify other documentary,

anecdotal, or statistical evidence to support his “unable or

unwilling” claim—because the petitioner was unlikely to

report his persecution when he was a child. But adult

BRINGAS-RODRIGUEZ V. SESSIONS 71

petitioners are also unlikely to report their private persecution

to authorities, and thus similarly unlikely to obtain “country

reports or other evidence” documenting the “police response,

or lack thereof” to reports of private persecution. I fear our

court will soon excuse the absence of “country reports or

other evidence” from asylum petitioners who experienced

private persecution as adults under the same reasoning

adopted by the majority today. We lack the authority to make

such a dramatic shift in our nation’s immigration and asylum

law. If there is to be a relaxing of our asylum requirements

for victims of private persecution, the authority lies with

Congress, not this court, to enact it.

III.

Bringas’s evidence does not compel the conclusion that

Mexican authorities were unable or unwilling to control

Bringas’s private persecutors. After reciting, but then

lowering our standard of review beyond the bounds set by the

Supreme Court in Elias-Zacarias and Congress in 8 U.S.C.

1252(b)(4)(B), the majority easily reaches the conclusion that

Bringas adduced evidence sufficient to compel the conclusion

that Mexican authorities were unable or unwilling to protect

him. The majority reaches this conclusion by comparing

Bringas’s evidence to the evidence presented in other cases

in our circuit involving petitioners who suffered private

persecution and never reported their persecution to the

authorities. Op. at 24–34. However, a careful review of the

evidence presented in those cases explains why the nature

and quality of the evidence adduced by Bringas does not

come close to compelling the conclusion reached by the

72 BRINGAS-RODRIGUEZ V. SESSIONS

majority.14 Compared to the evidence in our prior cases,

Bringas’s evidence included only vague, unspecific hearsay

testimony describing his friend[s]’ experiences with the

police in Veracruz,15 newspaper articles which documented

14

See Korablina v. INS, 158 F.3d 1038, 1042 (9th Cir. 1998)

(granting the petition for review based on evidence that the petitioner

witnessed the beating of her Jewish boss, whose beating was reported to

the police to no avail, and reported the beating to a friend at the municipal

city hall, who soon thereafter “disappeared”); Ornelas-Chavez v.

Gonzalez, 458 F.3d 1052, 1057 (9th Cir. 2006) (granting in part the

petition for review based on credible testimony that (1) the petitioner was

personally mistreated and harassed by police officers, who jailed him and

threatened to do so again if he continued dating men, and (2) police

officers brutally maimed and killed the petitioner’s gay friends); Afriyie,

613 F.3d at 928–29 (9th Cir. 2010) (granting in part the petition for review

based on credible testimony that (1) the petitioner and others reported to

the police, to no avail, the petitioner’s beating by private actors, the

murder of members of his religious group by private actors, and the

murder of the petitioner’s sister and destruction of her home, and (2) the

police had only one gun at the police station with which to protect the

petitioner’s religious group); Vitug, 723 F.3d at 1064 (9th Cir. 2013)

(granting in part the petition for review based on evidence that the

petitioner was personally harassed and threatened by police officers on

account of his sexual orientation).

15

Bringas gave the following credible, hearsay testimony: “[W]hen

I was living in Kansas, couple of my friends told me that they got raped,

they got beat up, like abuse, and they went to the police [in Mexico] and

they didn’t do anything. They even laugh on [sic] their faces.” Bringas

also stated the following in his asylum application: “If I went to the police

[in Mexico] they wouldn’t do anything. They will take a report and never

follow-up on it or they would simply laugh at me and tell me that I got

what I deserved because I am gay. My gay friend from Veracruz living in

Kansas City told me this is what happened to him.” Bringas presented

inconsistent statements regarding whether a single “friend” or multiple

“friends” reported to the Mexican police they had been victims of abuse,

all to no avail. Credible hearsay evidence, such as Bringas’s friends’

statements, may be admissible in immigration proceedings. Rojas-Garcia

BRINGAS-RODRIGUEZ V. SESSIONS 73

isolated incidents of private discrimination and persecution

against homosexual individuals in Mexico,16 and a single

instance of persecution against a homosexual man by

v. Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003). The majority places great

weight on the fact that “Bringas’s testimony was sufficiently specific to

be deemed credible.” Op. at 45–46 n.17. Here, the majority gives us a

concrete example of its usurpation of fact-finding power from the

administrative agency to itself. Whether the evidence was “sufficiently”

specific was not the majority’s call. Whether hearsay testimony was so

specific as to compel it be adjudged credible is the proper standard for

judgment. Moreover, the mere absence of an adverse credibility finding

does not compel our court to make a finding contrary to the BIA. That

would make a hash out of the REAL ID Act of 2005, which assumes no

adverse credibility finding, but authorizes the trier of fact to require

corroborating evidence, and in the absence of such corroborating

evidence, allows the trier of fact to reject the otherwise credible evidence

as of insufficient weight—which is precisely what happened to Bringas.

He was given 120 days to buttress his testimony with corroborating details

and other evidence. He rejected that opportunity. He gave no explanation

as to why he could not produce any of the corroborating evidence

requested, even though the statute specifically provides for grounds

available to excuse failure to produce the corroboration. See 8 U.S.C. §

1158(B)(i)-(ii) (“The burden of proof is on the applicant to establish that

the applicant is a refugee . . . . Where the trier of fact determines that the

applicant should provide evidence that corroborates otherwise credible

testimony, such evidence must be corroborated unless the applicant does

not have the evidence and cannot reasonably obtain the evidence.”

(emphasis added)); see also supra note 3.

16

“Bringas additionally offered several newspaper articles, including

one in which the Associated Press reported that a ‘review of more than 70

newspapers in 11 Mexican states’ revealed an increase from ‘an average

of nearly 30 killings a year motivated by homophobia between 1995 and

2000’ to ‘nearly 60 a year between 2001 and 2009.’” Op. at 47.

74 BRINGAS-RODRIGUEZ V. SESSIONS

Mexican officials.17 Our prior cases involving private

persecution explain why I cannot join the majority in holding

that the evidence here compels the conclusion that Mexican

authorities were unable or unwilling to protect Bringas. We

have never reached such a conclusion on evidence as weak as

that which Bringas presents.

But the majority does not err only by overweighing

Bringas’s scant evidence that the Mexican authorities were

unable or unwilling to protect him. The majority also

undervalues evidence of social progress in Mexico regarding

rights for homosexual individuals in a manner that defies

logic. The majority first summarizes the relevant evidence of

social progress in Mexico identified by the panel in Bringas-

Rodriguez v. Lynch, 805 F.3d 1171 (9th Cir. 2015) (now

withdrawn):

[T]he [three-judge] panel majority found that

the country reports demonstrated that Mexico

permitted gay pride marches and had

expanded marriage equality. The panel

majority also cited a United Nations report

stating that Mexico had established a

17

“In 2007, [Agustin Humberto Estrada Negrete] participated in a

gay rights march wearing a dress and high heels. According to the NGO

Asilegal, soon after the march, Estrada began receiving threatening

telephone calls and verbal and physical attacks. In 2008 he was fired from

the school for children with disabilities where he worked. After his

dismissal, he and a group of supporters began lobbying the government to

reinstate him; when they went to the governor’s palace to attend a meeting

with state officials in May, police beat him and his supporters. The next

day he was taken to prison, threatened, and raped. Although he was

released, Estrada continued to face harassment by state authorities.” Op.

at 46–47.

BRINGAS-RODRIGUEZ V. SESSIONS 75

“‘specialized hate crime prosecution unit[],’

developed a ‘new judicial protocol to guide

adjudication of cases involving human rights

violations on grounds of sexual orientation,’

implemented specialized training for police

officers, and officially designated May 17 as

‘National Day Against Homophobia.’”

Op. at 11 (internal citations omitted). The majority holds that,

despite this evidence of progress, as countries like Mexico

successfully improve conditions for particular social groups

eligible for asylum, any private backlash that results from

such government-sponsored improvements should be

interpreted by this court as evidence that the foreign

government is in fact “unable or unwilling” to protect that

particular social group. See Op. at 9 (“The reports showed

that the violence rose even as—and perhaps because—

Mexican laws were becoming increasingly tolerant of gay

rights.”). In other words, as countries become more able and

willing to protect a particular social group, the trier of fact

must disregard that evidence of social progress and conclude

that countries are in fact less able and willing to protect

particular social groups when isolated incidents of private

persecution occur. The majority does not provide any limiting

principle regarding when our court should begin to accept

evidence of the significant progress of foreign countries in

protecting its most vulnerable citizens, or explain why

evidence of an average of less than 60 homophobia-motivated

murders a year committed by private actors in Mexico

between 2001 and 2009 permits a conclusion that the

Mexican government, overseeing a country of more than 120

76 BRINGAS-RODRIGUEZ V. SESSIONS

million people, is unable or unwilling to protect its

homosexual citizens.18

The majority alternatively sets aside the evidence of

Mexico’s social progress advancing the rights of

homosexuals because the evidence reflects changes made

after the period during which Bringas was abused, which

ended in 2004. Op. at 48. Of course, the same can be said

about most of the evidence Bringas relies on to support his

claim that Mexican police were unable or unwilling to protect

him before 2004. The country reports are from 2009 and

2010. The single example of police violence against a

homosexual man occurred in 2008. The newspaper articles

were published in 2010. Using the majority’s reasoning, the

only relevant evidence adduced by Bringas was hearsay

testimony regarding his homosexual friend[s]’ experiences

with the police in Mexico, and a single article documenting

the number of murders committed by private actors each year

between 1995 and 2009 that were motivated by homophobia,

with no discussion whatsoever of how Mexican police

responded to those private acts. Even under the relaxed

18

See CIA, THE WORLD FACTBOOK (2016), available at

https://www.cia.gov/library/publications/the-world-factbook/geos/mx.html

(estimating Mexico’s population to be 123,166,749 as of July 2016). The

majority’s conclusion that an average of fewer than 60 homophobia-

motivated a murders a year in a country of 120 million people compels the

conclusion that the Mexican government is unable or unwilling to protect

its homosexual citizens is especially confounding given that the same

article which documents those murders goes on to discuss the Mexican

government’s “radio campaign in 2005 to promote tolerance of

homosexuals,” the laws passed in Mexico City which elevated

homosexual marriage to the same status as heterosexual marriage and

allowed same-sex couples to adopt children, and Mexico City’s annual

“gay pride parade.”

BRINGAS-RODRIGUEZ V. SESSIONS 77

standard of review adopted today, Bringas’s evidence does

not compel the conclusion reached by the majority.

IV.

Even if I agreed with the majority that the evidence here

compelled the conclusion that Bringas suffered past

persecution, I would still dissent on the basis that the past

persecution purportedly established here does not entitle

Bringas to a presumption of a well-founded fear of future

persecution. 8 C.F.R. § 1208.13(a)(1) states, in relevant part,

that “[i]f the applicant’s fear of future persecution is

unrelated to the past persecution, the applicant bears the

burden of establishing that the fear is well-founded.”

(emphasis added). The majority responds by noting that

Bringas’s fear of future persecution on account of his sexual

orientation is clearly related to his past persecution on

account of his sexual orientation. But the only private

persecution Bringas ever experienced in Mexico on account

of his sexual orientation was when he was a child to age

fourteen, and at the hands of his uncle, cousins, and neighbor,

all of whom lived (and presumably still live) in Tres Valles,

Veracruz, Mexico. Given the isolated location of Bringas’s

abuse, and given the fact that Bringas is no longer a child

subject to the oversight and control of his family and

neighbors in Tres Valles, I would hold that Bringas’s past

persecution is unrelated within the meaning of 8 C.F.R.

§ 1208.13(a)(1), and does not entitle him to the presumption

of a well-founded fear of future persecution. I would further

deny Bringas’s petition for review because he has not carried

his burden to establish that the evidence compels a finding of

a well-founded fear of future persecution, as explained in the

well-reasoned opinion of the three-judge panel. See Bringas-

78 BRINGAS-RODRIGUEZ V. SESSIONS

Rodriguez, 805 F.3d 1171, 1182–84 (9th Cir. 2015) (now

withdrawn).19

Assuming, as the majority does, that Bringas’s past

persecution entitles him to a presumption of a well-founded

fear of future persecution, the majority acted correctly in

remanding to the agency “for consideration in the first

instance of whether the presumption [of a well-founded fear

of future persecution] has been rebutted.” Op. at 49. See INS

v. Orlando Ventura, 537 U.S. 12, 16–17 (2002). On remand,

the agency may well conclude that Mexico’s significant

progress regarding rights for homosexuals constitute changed

conditions sufficient to rebut the presumption of a well-

founded fear of future persecution. See 8 C.F.R.

§ 1208.13(b)(1)(A) (stating that a “fundamental change in

circumstances such that the applicant no longer has a well-

founded fear of persecution in the applicant’s country of

nationality” may rebut the presumption of a well-founded fear

of future persecution). Or the agency may conclude that

19

In Matter of A –T–, 24 I. & N. Dec. 617, 621 (A.G. 2008), the BIA

held that a female asylum petitioner who had undergone female genital

mutilation against her will in Mali was not entitled to the presumption of

a well-founded fear of future persecution because there was no chance that

she would be personally persecuted again by the procedure. The Attorney

General vacated the BIA decision, and stated that “where an alien

demonstrates that she suffered past persecution on account of one of the

statutory bases, it is ‘presumed’ that her life or freedom would be

threatened in the future ‘on the basis of the original claim’—in other

words, on account of the same statutory ground.” Id. at 622. However, the

Attorney General based his decision on the fact that “female genital

mutilation is indeed capable of repetition,” and that the petitioner’s fear

of future persecution was therefore related to her past persecution. Id. at

621–22. Here, Bringas has not adduced evidence that his past persecution

is related to a fear of future persecution, given the nature of his abuse and

the identity of his persecutors.

BRINGAS-RODRIGUEZ V. SESSIONS 79

Bringas, now a financially self-sufficient adult, who has been

employed in the United States not only in entry-level

positions in the food service industry, but in at least one

supervisory position, can reasonably and safely relocate to a

new area within Mexico, such as Mexico City, where he

would be safe from the only private individuals in Mexico

who have ever persecuted him on account of his sexual

orientation. Id. § 1208.13(b)(1)(i)(B). Assuming arguendo

that Bringas’s past persecution entitles him to the

presumption of a well-founded fear of future persecution,

however, I agree with the majority that we must leave these

questions to the agency in the first instance on remand.20

20

In a footnote at the end of its opinion, the majority states that

“[u]pon remand, the agency should consider [Bringas’s HIV diagnosis],

which is ‘material’ and ‘could not have been discovered or presented’ to

the IJ.” Op. at 49 n.19 (internal citations omitted). After Bringas filed his

notice of appeal of the IJ’s decision, he claims that he was diagnosed with

HIV. Bringas requested that the BIA remand to the IJ to consider

Bringas’s HIV-positive status in his applications for relief. Bringas’s brief

to the BIA included only one line stating that his HIV status is significant

because it places Bringas in a “more vulnerable position should he be

returned to Mexico.” The BIA declined to remand to the IJ. This decision

was not an abuse of discretion. See Taggar v. Holder, 736 F.3d 886, 889

(9th Cir. 2013) (“We review the [BIA’s] denial of motions to remand for

abuse of discretion.” (citing Vargas-Hernandez v. Gonzales, 497 F.3d 919,

923 (9th Cir. 2007)). Bringas failed to provide additional country

conditions evidence or arguments to support the claim that his HIV

diagnosis would put him in a more vulnerable position should he be

returned to Mexico. Also, the record does not contain evidence of any

discrepancy between men and women or between homosexuals and

heterosexuals in access to HIV drugs in Mexico. The BIA provided a

reasoned explanation for declining to remand that was neither arbitrary nor

irrational. See Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir.

2008). Therefore, I also disagree with the majority that the agency must

consider the evidence of Bringas’s HIV diagnosis on remand.

80 BRINGAS-RODRIGUEZ V. SESSIONS

V.

Despite my colleagues’ faithful recitation of the proper

standard of review, they effectively replace it with a much

lower standard in violation of Supreme Court precedent and

our nation’s immigration law. Therefore, I respectfully

dissent.