Erwin Chemerinsky, dean of the University of California (Irvine) School of Law, argued Carlos Alberto Bringas-Rodriguez’s appeal. | UNIVERSITY OF CALIFORNIA (IRVINE) LAW SCHOOL
Reviving an HIV-positive gay Mexican man’s claim for refugee status to remain in the US, an 11-judge panel of the San Francisco-based federal Ninth Circuit Court of Appeals, on March 8, reversed rulings by a three-judge panel of that court as well as from the Board of Immigration Appeals and an Immigration Judge.
Carlos Alberto Bringas-Rodriguez, born in Veracruz State, was, according to Judge Kim McLane Wardlaw’s summary of his testimony — deemed credible by the Immigration Judge — “horrifically abused by his father, an uncle, cousins, and a neighbor, all of whom perceived him to be gay or to exhibit effeminate characteristics.”
Bringas testified that his uncle raped him when he was four, and that three of his cousins and a male neighbor “physically and sexually abused him on a regular basis while he lived in Mexico.” He also suffered regular beatings from his father, who told him, “Act like a boy. You are not a woman.” He claims his uncle told him when he was eight that he was being abused because he was gay. “His uncle, cousins, and neighbor never called him by his name,” wrote Wardlaw, “referring to him only as ‘fag, fucking faggot, queer,’ and they ‘laughed about it.’”
Ninth Circuit panel finds conditions on the ground can contravene formal legal advances
Bringas lived briefly with his mother in the US when he was 12, but returned to Mexico because he missed his grandmother, who had been raising him since he was nine. The abuse intensified when he returned.
“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,” and his abusers “also threatened to hurt his grandmother, with whom he was close, if he ever reported what was happening,” wrote Wardlaw. “Fearing that they would follow through on their threats, Bringas did not tell his mother, teachers, or anyone else about the sexual abuse.” He fled back to the US in 2004 when he was 14.
Entering the country illegally at El Paso, he made his way to Kansas where he lived with his mother for the next three years. Then he moved out of his mother’s home, moving elsewhere in Kansas and then to Colorado, holding several jobs. In August 2010 he pled guilty to “attempted contributing to the delinquency of a minor” in Colorado. According to his account, as related by Wardlaw, “he had been at home drinking with some friends when another friend brought over a minor who became drunk.” Bringas served 90 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.”
His conviction triggered a flag at the Department of Homeland Security, which immediately issued him a “Notice to Appear.”
The next year, at age 20, he applied for asylum as well as two other statuses that would keep him in the US — withholding of removal and protection under the international Convention against Torture. Asylum claims normally have to be filed within a year of arrival in the US, but he claimed he was “unaware” at age 14 that he could apply for asylum and only learned of this when he spoke with an Immigration and Customs Enforcement officer in connection with the 2010 Notice to Appear.
Bringas’ asylum claim described the abuse he suffered in Mexico and “explained that he feared persecution if he returned because he was gay and that the Mexican police would not protect him,” Wardlaw wrote. “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 ‘laughed [on] their faces.’”
Bringas also submitted US State Department country human rights reports on Mexico from 2009 and 2010, as well as newspaper articles documenting violence against gays in Mexico, which showed that violence was rising even as “Mexican laws were becoming increasingly tolerant of gay rights.” Wardlaw cited guidelines issued by the United Nations High Commissioner for Refugees, explaining that “legal improvements and widespread persecution are not mutually exclusive.”
An Immigration Judge found Bringas’ factual testimony to be credible, but denied his application, as the Board of Immigration Appeals (BIA) did as well. Though the Immigration Judge found that his asylum claim was untimely under the one-year rule, the BIA ignored that, considering his asylum claim on the merits. The BIA concluded that although Bringas suffered “serious abuse” as a child, he did not show that the “abuse was inflicted by government actors or that the government was unwilling or unable to control his abusers.” This was a critical finding, because the basis for establishing refugee status is to show persecution at the hands of the government or private actors the government is unwilling or unable to control. Purely private abuse is not considered to be “persecution” under relevant statutes and treaties.
Having found that Bringas had not established “past persecution,” the BIA approved the Immigration Judge’s finding there should be no presumption he had a reasonable fear of future persecution in Mexico, because he had “failed to show a pattern or practice of persecution of gay men in Mexico.” The BIA wrote that “the record did not demonstrate widespread brutality against homosexuals or that there was any criminalization of homosexual conduct in Mexico.” The BIA, instead, credited the Mexican government for having taken “numerous positive steps to address the rights of homosexuals.”
The three-judge Ninth Circuit panel that first heard the case focused on a 2011 circuit ruling about applicants whose abusers were all private citizens, which held that in establishing the government was unwilling or unable to control the abusers, the victim had to have reported the abuse to officials.
“The panel majority reasoned,” Wardlaw wrote, “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 that petitioner bears the burden to ‘fill in the gaps’ by showing how the government would have responded had he reported the abuse.”
The three-judge panel emphasized the part of the State Department country reports that discussed how Mexican law had improved for gay people, and highlighted both a new “specialized hate crimes prosecution unit” and an official “national day against homophobia.” Bringas’ testimony about his gay friends having reported their abuse to police but getting no help was “insufficient,” the panel found.
“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’ hometown,” Wardlaw wrote.
As had the Immigration Judge, the three-judge panel also suggested that the issue here was not narrowly sexual abuse because of homosexuality, but rather the more general phenomenon of sexual abuse of children. There was no evidence, the panel found, that Mexican law enforcement authorities would be indifferent to reports of child sexual abuse.
Judge William Fletcher, the dissenter on the three-judge panel, expressed discomfort about the 2011 precedent the majority relied on, pointing to the circuit’s “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.”
The 11-judge panel majority, reversing the three-judge panel, embraced Fletcher’s criticism, citing extensive evidence about the psychological and practical problems a child victim of sexual abuse would have in reporting abuse to authorities, especially if they or their loved ones were threatened with retribution, as happened in Bringas’ case. Going further, the larger panel overruled the 2011 precedent regarding the requirement that abuse must have been reported to authorities in order to establish “persecution” for purposes of asylum or withholding of removal.
While it was clear that Bingas’ asylum claim was filed too late, the court determined that his claims for withholding of removal and protection under the Convention Against Torture must be reconsidered by the Board of Immigration Appeals. Bringas’ testimony — found credible by both the Immigration Judge and the BIA — was sufficient to establish he had been subjected to past persecution and was entitled to a presumption of further persecution, the panel found.
The court sent the case back to the BIA, saying the remaining issue was whether that presumption of future persecution was rebutted by the government’s evidence that conditions have changed in Mexico.
Since the BIA issued its opinion, Bringas learned he is HIV-positive, and he had asked the Board to reopen his case based on that factor, but was refused. The Ninth Circuit panel ordered the BIA to allow Bringas to supplement the record to include his HIV diagnosis.
A dissent by Judge Carlos T. Bea, joined by Judge Diarmuid O’Scannlain, focused on the court’s failure to accord sufficient deference to the BIA’s decision, emphasized the weak points in Bringas’ testimony, and accused the majority of mischaracterizing the 2011 precedent it was overruling. He also argued that the situation facing Bringas at age 14 was very different from the situation he would face today as an adult if returned to Mexico, pointing out further that the record showed that conditions for gay men in Mexico varied. If returned to Mexico, Bringas would not have to live in Veracruz, but could instead locate in Mexico City, a jurisdiction that has legalized same-sex marriage, supports gay pride marches, and is notably gay-friendly.
Bea was appointed to Ninth Circuit by President George W. Bush, while O’Scannlain is a Ronald Reagan appointee. Wardlaw was named to the court by Bill Clinton. The majority in the three-panel ruling were George W. Bush appointees, while Judge Fletcher, the dissenter, was a Clinton appointee.
It will be interesting to see whether the Trump administration seeks Supreme Court review of this ruling. Since this ruling may make it easier for Mexican asylum applicants to win the right to remain in the US, the administration may seize on an appeal as a vehicle to tighten up on the asylum process. Assuming Judge Neil Gorsuch or an alternative right-leaning nominee wins approval by the Senate, this case, if it goes to the Supreme Court, would arrive after its conservative majority is restored.
The Bringas case was considered a big deal by immigrant rights and civil liberties advocates. Dean Erwin Chemerinsky of the University of California (Irvine) School of Law argued the appeal, working with pro bono attorneys from major California law firms. Several amicus briefs were filed in support of Bringas, including by Lambda Legal, the National Center for Lesbian Rights, the National Immigrant Justice Center, the HIV Law Project, and the Transgender Law Center. Williams & Connolly LLP filed an amicus brief on behalf of Alice Farmer, the United Nations High Commissioner for Refugees.