F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C A R L O S A L B E R

T O B R I N G A S

R O D R I G U E Z , AKA Patricio I ron-Rodrig u ez , Petitioner
,

v.

J E F F E R S O N B

. S E S S I O N S I I I *

, Attorney General, R e

spondent

. No. 13-72682

Ag ency No. A200-821-303

OPI N I ON

* O n Petition for Review of an Order of the

B oard of I

mmig ration Appeals

Arg ued and Submitted En B anc September 7, 2016

San F rancisco, California

F iled March 8, 2017

B efore: Sidney

R. Thomas, Chief J udg e, and Diarmuid F

. O ’Scannlain, B arry

G. Silverman, Kim McL ane W ardlaw, W illiam A. F letcher, Richard R. Clifton, Carlos T. B ea, Milan D. Smith, J r., Morg a n B . Christen, J ohn B . Owens and Michelle T. F riedland, Circuit J udg es.

* J ef f erso n B

. Se s s i o n s III is su b stitu t ed f o r h is p red ecesso r as A tto rn ey Gen eral o f th e Un ited States
, p u rsu an t to Fed eral Ru le of A p pellate P ro ced u re 4 3 (c).B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 2

Opinion by J udg e W a

rdlaw; Concurrence by

J u dg e Clifton; Dissent by

J udg e B ea

SUMMARY * *

Im m igration

The en b a n c c ourt g ranted a p etition for review of the B oard of I mmig ratio n A

p p e a l s ’ denial of asy lum, withholding of removal, a

nd protection u n der the Convention Ag ainst Torture to a c itiz en of Mex ico who a sse r t e d that Mex ican officials w e r e unable or unwilling to protect h im from harm by private individuals due to his sex ual orientation.

Th e en banc c o urt held that the evidence B ring asRodrig uez adduced before the ag ency —credible written and oral testimony that reporting h is abuse would have been futile and potentia l l y dang erous, that other y oung g ay men h ad reported their abuse to the Mex ican p olice to no a vail, a nd country reports and news articles documenting official a nd private persecution of individuals on account of their sex ual orientation—satisfied long standing e v identiary standards for establishing past persecution and compelled the conclusion that Bring as-Rodrig uez suffered past p ersecution that the Mex ican g overnment was unable or unwilling to control.

The court overruled Castro-Martinez v. Holder

, 674 F .3d 1073 ( 9th Cir. 2 011), and other circuit precedent, to the ex tent

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.B R I N G A S

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. S E S S I O N S 3

they introduced the construct that the failure to report private persecution t o government authorities creates a “g ap” in the evidence or imposed a heig htened evidentiary requirement to establish g overnmental inability or unwilling ness to protect.

The en banc court held that Bring as-Rodrig uez was entitled to a p resumption of future persecution a nd remanded for the Bo a r d to consider whether the presumption was rebutted, a n d to consider B ring a s-Rodrig uez ’s claims for withholding o f removal and CAT protect i o n , taking into
account new evidence of B r ing as-Rodrig uez ’s HI V d i a g n o s i s

. Concurring in the judg ment, J udg e Clifton a g reed that the petition should be g ranted a nd remanded for f

urther proceeding s, but would not dictate to the B oard that B ring asRodrig uez established past persecution.

Dissenting

, J udg e B ea, joined by J udg e 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 Me x ican g overnment is unwilling or unable to protect homosex uals from persecution.B R I N G A S

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COUNSEL

Erwin Chemerinsky (arg ued)

, K athry

n M. Davis, a

nd Munmeeth Soni, Pro B ono Counsel, University of California, I rvine School of L aw, Appellate L itig ation Clinic, I r v i n e, Califor n i a; A ndrea Ring er a nd Marco Pulido Marquez
, Cer t ified L aw Students, University of California, I rvine School o f L a

w , A p p ellate L itig ation Clinic, I rvine, California; Mary -Christine Sung a ila, Pro B o n o Attorney
, Sn e ll & W ilmer L L P and Hay

n e s and B oone L L P, Costa Mesa, California, for Petitioner.

J ohn W

. B lakely (arg

ued), A ssist ant D irector, B e njamin C. Miz er, Principal Deputy A ssistant A ttorney General, Civil Division, Donald E. Keener, Deputy Director, Stuart F

. Delery

, Assistant Attorney General, Civil D ivision, Kohsei Ug umori and J e si J

. Carlson, Sen i or L itig ation Counsel, United States Department of J ustice, O ffice of I mmig r ation L itig ation, W ashing ton, D.C., for Respondent.

Peter E. Perkowski, Perkowski L eg al, PC, L os Ang eles, California, f

or Amici Curiae The Public L aw Center, L ambda L eg al Defense and Education F und, the National I mmi gr a nt J ustice Center, the Center for HI V L aw and Policy ; HI V L aw Project; I mmig ration Equality ; Disa bility Rig h ts L eg al Center; the Asian & Pacific I slander W ellness Center, National Center for L esbi an Rig hts, L GB T Center OC, Transge n d er L aw Center, F lorence I mmig rant & Refug ee Rig hts Project, and Centro L eg al De L a Raz a.

Charany a Krishnaswami, Cortely ou C. Kenney (Vol u n teer), and L isa J askol, Public Counsel, L os A ng eles, California, for Amici Curiae Kids I n N e ed of Defense, Tahirih J u stice Center, and W omen’s Refug ee Commission.B R I N G A S

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L aurie W ebb Daniel, Charles L

. Coleman I I I
, Ky ong M. Kim, and Garrett S. Garfield, Pro B ono Counsel, Holland & Knig ht L L P, San F rancisco, California; Eunice L ee, K aren Musalo, and B laine B ookey

, Cou n s e l, Center for Gender & Refug ee Studies, San F rancisco, California; for Amicus Curiae of Center for Gender &

Refug ee Studies.

Alice F armer, United Nations Hig h Commissioner for Refuge es, W ashing ton, D.C.; A na C. Rey es, Counsel o f Record, W illiams & Connolly L L P, W ashi ng ton, D.C.; for Amicus Curiae Uni t e d Nations Hig h Commissioner for Refug ees.B R I N G A S

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OP INION

W A RDL AW , Circuit J udg e:

Carlos Alberto B ring as-Rodrig uez ( Bring as), a g ay man who is a native and citiz en of Mex ico, petitions for review o f the B oard of I mmig ration Appeals’ (B I A) denial of his applications for asy lum, withholding of r emova l

, a nd Convention Ag ainst Torture (CAT) protection. B ring as was phy sically a n d sex ually a bused a s a child on account of his

sex ual orientation, and he sub m i t t ed evidence that Mex ico

was unable or unwilling to control his persecutors. B oth the I mmig r a tion J udg e (I J ) and the B I A found B ring a s’s testimony c r e dible, and both acknowledg ed that sex ual orientation and ide n t ity can e stablish membership in a “particular so cial g roup.” Nevertheless, both the I J a nd the B I A denied B ring as r elief, in part based on a conclusion that his evidence was insufficient to demonstrate that the Mex ican
g overnment was unable or unwilling to c o n t rol the private individuals who attacked h im. I n so do i n g , both the I J a nd the B I A failed to address B ring as’s p lausible

, u n r efuted testimony that Mex ican police laug hed at his g ay friends w ho attempted to report rape and other abuse.

A divided panel of our court ag reed, relying primarily on

our d ecision 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 u nwilling to control the sex ual a buse of children g enerally

. Bringas-Rodriguez v. Lynch

, 805 F .3d 1171, 1 1 7 8–79 (9th Cir. 2015) (now withdrawn). The panel majority adopted the I J ’s conclus i o n that it was unlikely that the Mex ican
g overnment would take no a ction to control the “abuse o f children.” Id. at 1 181–82. W e g ranted rehearing en banc a ndB R I N G A S

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n o w h old that the evidence B ring as a dduced before t h e ag ency —credible w ritt e n and oral testimony that reporting

was futile and potentially dang erous, that other y oung gay

men had reported their abuse to the Mex ican p olice to no

a v a il, a nd country reports and news articles document i n g official and private pe rsecution of individuals on account o f
t h e i r s e x u a l o r i e n t a t i o n

— s a t i s f i e s o u r l o n gs t a n d i n g evidentiary stan d a rds for establishing past persecution a nd compels the conclusion that B r ing as suffered past persecution that the Mex ican g overnment was unable or unwilling to control. 1 W e overrule Castro-Martinez to the ex tent it mig ht
sug g est otherwise and remand th i s petition to the B I A for further proceeding s.

I.

B o rn in T res Valles, Veracruz
, Mex ico, B r ing as was horrifically abused by his father, an uncle, c o u s i n s, and a neig hbor, all of w hom perceived him to be ga y o r to ex hibit effeminate characteristics. His uncle first raped him when he

was f our y ears old, and in a d dition to his un c l e , t h r e e of his cousins a nd a male neig h

bor phy sically and sex ually abused him on a reg ular basis while h e l i ved in Mex ico. B ring as’s father also beat h i m a s a child, telling him, “Act like a b oy

. You are not a woman.” When he was eig ht, B ring as’s uncle told him that the abu se was because he was g ay

. H is uncle, cousins, and neig hbor n ever called him by his name, referring

1 Co n trary to th e dissen t’ s s u g g estio n , Brin g as su b m i tted su

b stan tial

co rro b o ratin g ev id en ce af ter th e IJ reco m

m en d ed h e d o so

. T h at ev id en ce i n c l u d ed a 2 0 1 0 U.S. Dep artm en t o f State Co u n try Rep o rt f o r Mex ico

, sev eral n ew sp ap er a r t i cles, an d a p sy ch o lo g ical ev alu atio n describ in g B rin g as’ s p ast h isto ry

o f ab u se.B R I N G A S

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t o h im only as “ fag

, fucking fag g ot, queer,” a nd th e y “laug hed about it.”

B r ing as lived with his mother in the United States for a b r i e f p eriod when he was twelve y ears old. He r eturn e d t o Mex ico, however, b ecause he miss e d his g randmother, w ho had raised h im since he was nine. T he abuse intensified upon his return. Ag ain he was repeatedly raped by his uncle, cousins, and neig hbor.

On one occasion, w hen B ringa s r e f used to comply with his neig hbor’s demand for oral copulation, the neig hbor beat and r aped him, leaving B ring as w ith black ey es and b ruises. B ring as’s abusers also threatened to hurt hi s g randmother, with whom he was cl o s e , if he ever reported w hat was happening

. F earing that they would follow throug h on their threats

, B ring as did not tell his mother, teachers, or any o ne else about the sex ual abuse.

B r ing as fled Mex ico in 2004 a t ag e fourteen to g et away from his abusers. H e entered the United States with o u t inspection at El Paso, Tex as, and lived with his mother in Kansas for three y ears. He then mo v e d out of his mother’s home, living elsewhere in K ansas and in Colora d o

. H e worked several di f

ferent jobs, including positions at a supermarket, a piz z eria, and a chocolate shop

. I n Aug ust 2010, B ring as pleaded g uilty to a ttempted contributing to the delinquency of a minor in Colora do; h e had been at home drinking with some friends when another friend broug ht over

a minor w ho became drunk. B r ing as spent ninety day s in jail, during which time he attempted suicide a nd w as hospitaliz ed, which precipitated his finally telling a d o c t o r a nd then his mother ab out his childhood abuse. The Department o fB R I N G A S

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Homeland Security ( DH S ) issued a Notice to Appear in Aug ust 2010.

I n 2011, at ag e twenty , B ring a s a p plied for asy lum, withholding of removal, and CAT protection. He h ad previously b een unaware “that the [ U.S.] g overnment could protect [ him] ,” and only f o und out when he “ spoke with an I CE officer in Colorado in Septem b e r 2010.” I n his application, B ring as described the sex ual abuse he endured in Mex ico and ex plained that h e f e ared persecution if he

re t u rned because h e was g ay and that the Mex ican police would not protect him. B r ing as also c redibly testified about his g ay friends’ ex periences with police in Veracruz

. Those friends went to the police to report that they had been raped, but the officers ig n ored their reports and “laug h[ e d] on [ sic] their faces.” Additionally

, he submitted 2009 and 2010 U.S. Department of State Country Reports for Mex ico and several

n e wspaper articles that documented violence a g ainst, including murders of, g ay s and lesbians. The reports showed that the violence rose even as—and p e r h a p s because— Mex ican laws were b ecoming increasing ly tolerant of ga y rig hts. 2

2 T h e Un i ted Natio n s Hig h Co m m issio n er f

o r Ref u g ees (UNHCR ) h as issu ed g u i d elin es f

or ref u g ee claim s based o n sex u al orien tatio n , w h ich ex p l ain th at leg al im

p ro v em en t s an d w id esp read p ersecu tio n are n o t

m u tu ally ex clu siv e. UNHCR, Gu id elin es on In tern a tio n a l Pro t ectio n No

. 9 : Cla ims to Refu g ee S t

a tu s Ba sed o n S

exu a l Orien ta tio n a n d

/o r Gen der Id en tity W

ith i n th e Co n text o

f Article 1 A (

2 ) o f th e 1 9 5 1 Co n ven tio n

a n d /o r I t s 1 9 6 7 Pro to co l Rela tin g to th e Sta tu s o f Refu gees , ¶ 3 7
, U

. N

. D o c

. H C R / G I P / 1 2 / 0 9 ( O c t

. 2 3
, 2 0 1 2 )

, a v a i l a b l e a t h ttp ://w w w .u n h cr.o rg /5 0 9 1 3 6 ca9 .p d f

.B R I N G A S

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The B I A, reviewing the I J ’s denial o f B ring as’s claims for relief, rejected his claims on the merits. 3 The B I A recog niz ed “the serious abuse that [ B ring as] endured as a child.” I t found, however, that, as in Castro-Martinez
, B ring as did not demonstrate that the “abuse was inflicted by g overnment

a c t o rs or that the g o vernment was unwilling o r unable to control his abus ers.” Concluding that B ring as thus failed to establish past persecuti o n , the B I A denied B ring as the concomitant presumption of future persecution. I t then rejected Br ing as’s arg ument that he had a well-founded fear of future p ersecution because he had failed to show a pattern

or practice of persecution of g ay m en i n Mex ico, disting uishing Bromfield v. Mukasey

, 543 F .3d 1071 ( 9th Cir. 2008), becau s e “ t h e record

. . . d[ id] not demonstrate widespread brutality ag ainst homosex uals or that there [was]
any criminaliz ation of homosex u al conduct in Mex ico.” The B I A a lso concluded that B ring as had failed to sh o w t h at the Mex ican g overnment had b een unable or unwilling to control private ind ividuals who perpetuated violence ag ainst homosex uals, finding t h a t Mex ico “has taken numerous positive steps to address the rig hts of h o mosex uals.” F inally

, the B I A rejected B ring as’s withholding of removal and CAT claims and denied a remand to consider his HI V-positive diag nosis.

The m a j o r i t y of a divided three-judg e panel of our court ag reed that B ring a s h ad failed to meet the heig htened

3 T h e IJ d en ied B rin g as’ s asy lu m claim as u n tim ely u n d er t h e o n ey ear f ilin g ru le af

ter so m e scu f

f lin g ab o u t w

h eth er B rin g as h ad en tered th e Un i ted States as an u

n acco m p an ied m i n o r. T h e B IA , h ow ev er, assu m ed th at th e asy lu m ap p licatio n w as tim ely

, electin g to d eterm in e B r i n g as’ s asy lu m claim o n its m erits. W e m u st do th e sam e. S

ee Ab eb e v. Go n za les , 4 3 2 F.3 d 1 0 3 7 , 1 0 4 1 (9 t h Cir. 2 0 0 5 ) (en b an c).B R I N G A S

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evidentiary burden for past persecuti o n that it and the B I A determined applicable to B ring as’s claim based on their reading of Castro

- Martinez

. Acknowledg ing that nothing requires an a

buse victim, “let alone a child,” to r eport persecution to the police

, t h e panel majority reasoned that where a victim fails to report abuse, e v en as a child, “ there is

a ‘g a p in p roof abou t h o w the g overnment would have responded,’ and the p etitioner bears the burden to ‘fill in the
g aps’ by showing how the g overnment 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, u ncontrolled persecution of g ay men in either B ring as’s home s t a t e or town. Id. at 1178–80. Rather, the panel majority found t h a t t h e country reports demonstrated that Mex ico permi t t e d g ay pride marches a nd had ex panded marriag e equality

. Id. at 1179. T he panel majority also cited a United Nations r e port stating that Mex i c o had e stablished a “‘specializ ed hate crime prosecution unit[ ] ,’ developed a ‘new judicial protocol to g uide adjudication of cases involving human rig hts violations

on g rounds of sex u al orientation,’ i m p lemented specializ ed training for police officers, and officially desig nated May 17

as ‘National D a y Ag ainst Homophobia.’” Id. at 1179 n.5 (alteration in orig inal) (quoting U

. N. Hig h Comm’r for Human Rig hts, Discrimination & Violence Against Individuals Based on Their Sexual O rientation & G e n der Identity

, ¶ ¶ 40, 74, 75 U.N. D o c. A/HRC/29/23 (May 4, 2015) 4 )

. F urthermore, the panel m a j o rity found insufficient

4 A v a i l a b l e a t h t t p : / / w w w

. u n

. o r g / e n / g a / s e a r c h /

v iew

_ d o c.asp ? sy

m b o l=A / HRC/2 9 / 2 3

. On e o f th e eig h teen am ici th at

su b m itted brief

s su p p o rtin g B rin g as i s t

h e UNHCR. T h e UNHCR d i d so to “ co rrect[] an y m isu

n d erstan d in g o r lack o f clarity ” in its assessm en t ofB R I N G A S

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Br i n ga s’s testimony that his g ay male friends had suffere d persecution and r eported it to the police in Veracruz , only to have the officers laug

h at them. Id. at 1180–81. Even if the friends’ reports were credited, the p a n e l majority ex plained, tho s e reports failed to establish that police practices in the city or state of Veracruz could b e linked to police practices in Tres Valles, B ring as’s hometown. Id.

F urther i n s u pport of its conclusion, the panel majority noted the a b s e nce of evidence in the record sug g esting that Mex ican police refuse to protect sex u ally abuse d children. S t ating that “B ring as’s alleg ations are not just abo u t discrimination ag ains t g ay and lesbian Mex icans—they a re about child molestation,” the panel majority found B ring as’s evidence lacking because he “ha[ d] put f orward no evidence that Mex ico tolerates the sex ual abuse of children, o r that Mex ican officials w ould refuse to protect an abused child based on the g ender of his o r her abu s e r s

. ” Id. at 1182. B ecause B ring as had not described “how o l d h is ‘friends’

were w ho reported abuse to the police,” B ring a s’s testimony about those reports was insufficient. Id. at 1181.

F inally

, the panel majority interpreted Castro-Martinez to foreclose it from finding t h a t B ring as’s subjective fear o f future persecution was o b j ectively reasonable, ag ain citing the “ improving ” situation for g ay men in Mex ico. Id. at 1182–83.

th e ex p erien ces o f lesb ian

, g ay , b isex u al, tran sg en der an d in tersex (L GB T I) in d iv id u als in

Mex ico

. B rief f

o r UNHCR as A m icu s Cu riae at 3

. In particu l ar, th e UNHCR states th at it “ h as n o t tak en th e p o sitio n th at LG B T I i n div id u als f

leein g Mex ico can n o t h av e a w ell- f o u n ded f ear of
p ersecu tio n ,” id

. at 5
, co n trad ictin g th e p an el m aj o rity ’ s co n clu sio n to th e

co n trary , see Brin g a s-Ro d rig uez , 8 0 5 F.3 d at 1 17 9 n .5

.B R I N G A S

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J udg e W. F letcher dissented, writing that he h ad developed misg iving s a

bout Castro-Martinez

—an opinion in which he h ad joined—but also ex plaining that even if CastroMartinez controlled, he “part[ e d] way s with the majority ” on its reading of the decision to r e ject B r ing as’s asy lum c laim. Id. at 1186–87 (F letche r , J
., dissenting ). J udg e W

. F letcher pointed to our ample precedent that does not require v ictims of p rivate persecution, especially child v icti m s , to contemporaneously report their abuse t o g overnment authorities in order to b ecom e e l ig ible for asy lum in the Un i t e d States. Id. at 1192. “Yet,” he wrote, “ CastroMartinez and today ’s decision effectively re q u i re just that.” Id.

II.

W e have jurisdiction under 8 U.S.C. § 1252(a). B ecause the B I A conducted its own review and did not adopt the I J ’s decision, our review “is limited to the B I A’s decision.” Hosseini v. Gonzales

, 471 F

. 3d 953, 957 (9th Ci r. 2 006) (internal quotation mark omitted) (quoting Cordon-Garcia v

. IN S
, 204 F .3d 985, 9 90 (9th Cir. 2 000)). W e review the B oa r d ’ s leg al conclusions de novo, R omero-Mendoza v

. Holder , 665 F

. 3d 1 1 05, 1107 (9th Cir. 2011), and its factual finding s for substantial evidence

, Z h i v. Holder

, 751 F .3d 1088, 1091 ( 9th Cir. 2 0 1 4 )

. A finding by the I J is not supported by substantial e v i d ence 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 )).B R I N G A S

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III.

A. Evolution of U.S. Refugee Law

B e cause this case ultimately turns on whether B ring a s has adduced c ompelling evidence that h e is a refug ee who is presumptively elig ible for asy lum based on past persecution by nong o vernment a l actors, it is h elpful to our analy sis to review the development of our refug ee laws g e nerally

.

B e g inning with the persons displace d by W orld W ar I I
, the United States h as strug g led t o define its approach to refuge e s

. See Stephen H. L eg o msky & Cristina M. Rodríg uez , Immigration a nd Refuge e L a w a n d P o l i c y 8 7 4

– 7 6
, 878 (5th ed. 2009). The I m mig ration and Nationality A ct (I NA) of 1952, Pub. L

. No. 82- 4 1 4
, 6 6 Stat. 163, and its predecessor, the I mmig ration Act of 1924, Pub. L

. N o. 68- 139, 4 3 Stat. 1 53, “contained no special provision ex empting [ refug ees] from the restrictions g e nera l l y applicable to immig rants.” Id. at 876, 881; see als o D e b o r ah E. Anker & Michael H. Posner, The Forty Y e a r Crisis: A Legislative History of the Refugee Act of 1980 , 19 San Dieg o L

. Rev. 9, 14 (1981). As a result, u ntil Cong ress passed comprehensive leg islation c oncerning refug ees in 1 9 80, the United States larg e ly responded to refug ee cris e s o n an ad hoc basis a nd with temporary measures. L eg omsky & Rodríg uez , supra , at 881. The Displaced Persons A ct of 1948, Pub. L

. No. 8 0-774, 62 Stat. 1 009, was the first suc h measure, and provided sanctuary for certain refug ees fleeing Naz i, Soviet, or fascist persecution, as well as “displaced[ ] forced labor e r s from
states conquered by Germany .” Anker & Posner, supra , at 13. L ater leg islative efforts included the Refug ee Relief A ct of 1953, Pub. L

. No. 83-203, 6 7 Stat. 4 0 0
, and its ex tension in 1957, which a ssisted “victims of natural calamities” andB R I N G A S

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r e f u g e e s f rom “ communist-dominated parts of E urope and th e Middle East.” Anker & Posner, supra , at 14.

F inding these narrow p olicies in a d equate, President Eisenhower decided after th e Soviets invaded Hung ary in 1956—causing some 200,000 H ung arians to flee—to request that the Attorney General temporarily parole 15,000 Hung arian refug ees into the United States. Id. at 14–15. At that time, under the I

NA, the A t torney General had the discretion to parole, b ut n ot to formally admit, p e rsons i n to th e country “for emerg ent reasons or for reasons deemed strictly in the public interest.” Id. at 1 5 (quoting 8 U .S.C. § 1182(d)(5) (1952)). Parole was orig inally intended to benefit individual noncitiz ens in emerg ency situations; the Hung arian crisis represented the first time i t w a s used to admit refug ees en masse. Id.

I n lig ht o f t h e president’s e x panded use of parole, Cong r ess d ecided to reassert itself into r e f u gee policy a

nd
create a more structured reg ime. L eg omsky & Rodríg uez , supra , a t 8 81–82. T he first p ermanen t s t a t u tory basis for admitting r efug ees was enacted in 1965 as part of a g roup o f amendments to the I

N A. I d

. a t 881. Under the 1965 amendments, a new admissions c a teg ory was crea t e d for “those who feared p e r secution and were fleeing either a ‘Communist-dominated’ country or a country ‘ w i thin the
g eneral area of the Middle East.’” Id. at 881 (quoting Pub. L

. No. 89-236 § 3
, 79 Stat. 911, 913 (1965)). However, the
g eog raphic a n d ideolog ical restrictions of the categ ory , a s well as the “ painfully inadequate” ceiling of 17,400 entries
per y ear, limited the categ ory ’s reach. Id. at 8 8 1 –82. Presidents therefore continued to rely o n parole when refug ee crises arose, g ranting e n t r y to hundreds of thousands o f refug ees from Cuba, I ndochina, a n d Soviet and EasternB R I N G A S

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. S E S S I O N S 16

European countries. Id. at 882. I n other words, refug ee admissions remained ad h o c, spurring policy proposals for overhauling the s y s t e m that were debated throug hout the 1970s. Anker & Posner, supra , at 20–42.

I n 1980, to limit the parole power, create a p redictable and permanent admissions sy stem, and fulfill intern a t ional oblig ations, Cong ress passe d the Refug ee Act of 1 980 (the “Act”), Pub. L

. N o. 96-212, 94 Stat. 102. L eg omsky & Rodríg uez , supra , at 882–83. T h e final v ersion of the bill set qu o t a s for refug ee a dmissions and limited the e x ecutive branch’s parole authority

. A nker & Posner, supra , a t 60–62. I t ad o pted the nondiscriminatory definition of refug ee included in the 1951 United Nations Convention Relating to the Status o f Refug ees, but amended it by including not only
persons who feared future pers ecution but also those w ho

were victims of past persecution. 5 D eborah An k e r , Law of Asylum in the United States § 1:2 (2016). F u rthermore, the Act p rovided a statutory basis for asy l u m , the g ranting o f
status to refug ees who arrive or have been phy sically present in the United States. Id. ; see also L e g omsky & Rodríg uez , supra , at 893

. The Act also b roug h t the United States into conformity with the 1951 C o n v ention with respect to

w i t h h olding of removal, the remedy b y which a n applica n t

can p revent forci b le return to a country w here he fears persecution. L eg omsky & Rodríg u ez , supra , a t 893. To this day

, the Act is the principal statute g overning the admission of refug ees, g r ants of asy lum, and withholding of removal. L eg omsky

& Rodríg uez , supra , at 883.

5 In 1 9 6 8
, th e Un ited States ratif ied th e Un ited Natio n s Pro to co l Relatin g t o t h e Statu s o f Ref u g ees, w h ich in co rp o rated th e 1 9 5 1 Co n v en t io n

.B R I N G A S

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. S E S S I O N S 17

The c oncept of persecution b y n on-state a ct o r s is “inherent” in the definitions of persecution i n t h e 1951 Convention a

nd the Ref

u ge e Act o f 1980. Anker, supra , at § 4:8. I ndeed, the 1979 U NHCR Handbook on Procedures and Criteria f

or D etermining Refug ee Status Under the 1951 Convention and the 1967 Protocol Relating to the Sta tus o f Refug ee s s t a t e d t h a t p e rsecution included “serious discrimin at o ry or other offensive acts

. . . committed b y the local populac e

. . . i f they are knowing ly tolerated b y the authorities, o r if t h e authorities refuse, or prove unable, to offer effective protection.” Anker & Posner, s u p r a , a t 67 (quoting UNHCR, Handbook o n Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol R elating to the Status of Refugees (1979)). Even under U.S. sta t u t o ry definitions of persecution pre-dating the Refug ee A ct o f 1980, a F irst Circuit o p i nion and a published, p recedential B I A opinion sug g e sted that persecution by non-state a c tors was cog n iz able a s a predicate for relief. See Rosa v. INS
, 440 F

. 2 d 100, 102 (1st Cir. 1 971); Matter of Eusaph , 10 I . & N. Dec. 453, 454 (B I A 1964).

Our circuit first determined that the appropriate standard of review for B I A d ecisions under the Refu gee Act of 1980 is the n ow familiar “substa n tial evidence” test in McMullen

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

v. I NS
, 767 F

. 2 d 645, 649 (9th Cir. 1985). M c M u l l en also provided our first occasion to address “[ p] ersecution by

. . . a g roup which the g overnment is unable to control” u nder the Act. McMullen , 658 F .2d at 1315.

McM u l l e n, a Catholic of I rish descent, had joined the B ritish Army and b e e n deploy ed to Northern I reland in 1969

a s p a r t of B ritish peacekeeping efforts. Id. at 1314. As th e B ritish soldiers became more v i o lently anti-Catholic,B R I N G A S

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. S E S S I O N S 18

torturing prisoners and p lotting to u s e armed force ag ainst nonviolent civilian demonstrators, McMullen deserted them
to join the Provi sional I rish Republican Army (PI RA), a nong overnmental g roup t hat purported to protect Catholics fro m the B ritish army , but w hich e ventually became, in McMullen’s view, ex tremist and terroristic. Id. He quit the PI RA, but was jailed by the Republic of I reland police for his earlier activities as p art o f the PI RA. Id. W hen he was released, the PI RA pressured him to p articipate in a plan to kidnap an American, but McMullen refused. Id.

Upon learning

that the PI RA intended to murder him for that refusal, McMullen fled to the United States, cooperated with U.S. au thorities, and soug ht withholding of removal. 6 Id. at 1 313–14. The B I A reversed the I J ’s determination that “McMullen was not d eportable because ‘the Government of the Republic of I re l a n d is unable to control the activities o f the PI RA and that if [ McMullen] w ere to be returned to that country he would suffer persecution wi t hin the meaning o f
t h e ( United Nations) Convention, Protocol, and section

6 McMu llen co n cern ed an ap p licatio n f o r w ith h o ld in g o f rem o v al, n o t asy lu m , b u t th e an aly sis of “ p ersecu tio n ” is th e sam e f o r b o t h

. T o o b tain

w ith h o ld in g of rem o v al, th e R ef u g e e Ac t o f 1 9 8 0 req u ires th at an ap p lican t sh o w th at h is “ l if e o r f reed o m w o u ld b e th reaten ed ” if retu rn ed
to h is h o m e co u n try

. S

ee 8 U.S.C. § 1 2 3 1 (b )(3 ). T h o u g h sem an tically d if f eren t f ro m th e req u ired sh o w in g o f “ persecu tio n ” to p ro v e th at on e is

a ref u g ee elig i ble f

o r asy l u m , a th reat to lif

e o r f reed o m h as b een eq u ated

w ith p ersecu t io n b y t

h e B IA an d co u rts, in clu d i n g th e Su p rem e Co u

rt. S ee INS v. S tevic
, 4 6 7 U .S. 4 0 7
, 4 2 9

– 3 0 (1 9 84 ). In d eed

, th e cu rren t reg u latio n s g ov ern in g w i t h h o ld in g of rem o v al u se th e term s in terch an g eab ly

, 8 C.F.R. § 1 2 0 8 .1 6, as d i d w e in McMu llen

. Fu rth erm o re, alth o u g h th e sp ecif i c statu to ry p ro v isio n at issu e in McMu l len

, 8 U .S.C. § 1 2 5 3 (h ), w as th e p red ecesso r to th e cu rren t

w ith h o ld in g o f rem o v al statu t e , 8 U.S.C. § 1 2 3 1(b )(3 ), th e relev an t statu to ry lan g u ag e is id en tical.B R I N G A S

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. S E S S I O N S 19

243(h) ( of 8 U.S.C. § 1253(h)).’” Id

. a t 1315. B e fore our

c ourt, the g overnment “concede[ d ] that p e rsecution w i t h i n t h e meaning of [ section] 243(h) includes p ersecutio n b y nong overnmental g roups such a s the PI RA, where it is shown that the g overnment o f the proposed country o f deportation is unwilling or unable to control that g roup.” Id. at 1315 n.2.

B. Refugee Law Today

The Attorney General may , in his discretion, g r ant asy lum to applicants in the United States who meet the d efinition o f “refug ee” u nder 8 U .S.C. § 1101(a)(42) ( A ). 8 U .S.C. § 1158(b)(1). An a p p l i c ant qualifies as a refug ee if he “ is unable or unwilling to r eturn to his home country because o f

a well-founded fear of future p e r secution on account of race, relig ion, nationality

, membership in a particular social g roup,

o r p olitical opinion.” Navas v. I NS
, 217 F .3d 646, 654 ( 9 t h Cir. 2 000). An applicant may establish a “well-founded fear of future persecution” i n t w o way s: by proving past persecution, or by demonstrating that he h as a “subjectively
g enuine a

nd objec t i vely reasonable” fear of future persecution. Id. at 654–56, 656 n.11.

B e cause B rin gas applied for asy lum after the passag e o f the REAL I D Act of 2005, Pub. L

. No. 109-13, 119 Stat. 231, he must show that his sex ual orientation was “ o n e c entral reason” for his persecution. 8 U.S.C. § 1158(b)(1)(B )(I ). However, h i s “persecution may be c aused by more than o ne central reaso n , and [he] need not prove which reason was dominant.” Parussimova v. Mukasey

, 555 F .3d 734, 741 (9th Cir. 2009). I f B ring as is able t o s how that he was subjected
to past persecution, he is entitled to a rebuttable presumption of a w ell-founded fear of f u t u re persecution. Tawadrus v

.B R I N G A S

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. S E S S I O N S 20

Ashcrof t , 3 6 4 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 alleg ing past persecution has the burden o f establishing that (1) h is t r e at m e nt rises to the level o f persecution; (2) the persec u t i o n was on account of one o r

more protected g rounds; and (3) the persecutio n was

co m m i t ted by the g o vernment, or by forces that the
g overnment was un a b l e o r unwilling to control.” Baghdasaryan v. Holder

, 592 F .3d 1018, 1023 ( 9 th Cir. 2010).

1. Early decisions dis cussing the “unable or unwilling ” standard in the contex t of private persecution

F or several y e ars following passag e of the Refug ee Act o f 1980, decisions considering whether a g overnment was unable or unwilling to control private p ersecution almost

ex c lusively involved a fear o f future persecution by org a niz ed
g r o u p s , such as anti-g overnment g uerillas. S ee., e.g. , Arteaga v. INS
, 836 F .2d 1227, 1231 (9th Cir. 1 988) (remanding f

or the B I A to consider whether t h e p etitioner established a well-found e d fear o f persecution by g u erillas that the El S alvadoran g o vernment could not control), abrogat e d o n other grounds by INS v. Elias-Zacarias

, 502 U.S. 478 ( 1 9 9 2 ) ; Sangha v. INS
, 103 F .3d 1482, 1487 (9th Cir. 1997) (holding that the petitioner h ad been persecuted b y

a terrorist g rou p that the g overnment of I ndia c ould not control). I n such decisions, either it was undisputed that the
g overnment was unable o r unwilling to control the powerful

o rg aniz ations at issue, or the inability to control was prove d throug h documentary e v idence

, s uch as country conditionsB R I N G A S

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reports. See, e.g. , G omez-Saballos v. IN S
, 7 9 F

. 3d 912, 916–17 (9th Cir. 1996) (concludi n g t hat “documentary evidence about g eneral conditions in Nicarag ua” was enoug h to show that the g overnment was “unable to control” former National Guard members); A r t e a ga , 836 F .2d at 1231 (analy z ing elig ibility for asy lum under the assumption that
g uerillas were not controlled by the g overnment).

L ater pet itions f

or r eview, however, involved claims for relief based o n past p ersecution by unorg aniz ed g r o u ps a nd individuals. See, e.g. , Si ngh v. INS
, 94 F .3d 1353, 1357–60 (9th Cir. 1 996) (stating t h a t the p etitioner’s assailants “need
not [ have] file[ d] articles of incorporation before they can be capable of persec u t i o n ”). I n such instances, where the petitioner was required to show that previo u s a ttacks were committed in the shadow of an acquiescent g overnment, we looked to evidence of how the police r es p onded to the
p etitioner’s r equests for protection. I n Singh

, for ex a mple, the petitioner—an ethnic I ndian citiz en of F iji—received death threats from ethnic F ijians and was a s s a u l ted at work. Id. at 1357–58. He and h is f amily w ere also attacked twice
at their home. Id. We looked to record e v idence showing that “the g overnment h a[ d ] encourag ed and condoned the discrimination, harassment, and violence by ethnic F ijians
ag ainst I ndo

- Fijians.” Id. at 1360. B ut we also hig hlig h ted
t h a t “Sing h testified that he reported each assault and threat
to the police and that

. . . the police failed t o respond to any of h i s c r i me reports.” Id. W e therefore concluded that the
g overnment of F iji “could n ot or woul d not control” the persecutors. Id. ; see also Andriasian v. INS , 180 F .3d 1033, 1042–43 (9th Cir. 1 9 9 9 ) ( “[ T] he widespread nature of the persecution of ethnic A rmenians documented by the St a te D e p artment Country Report, combined with the police officer’s response [ advising M r

. Andriasian to leave theB R I N G A S

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country ] when Mr. Andriasian turned to him for help, clearly establishes that the g overnment of Az erbaijan e ither could not

or would not control A z eris who soug ht to threaten a nd harm ethnic Armenians living in their country .”).

I n a p u bli s h ed, precedential opinion, the B I A reasoned similarly

. I n I

n re O-Z & I-Z

, 22 I

. & N. D ec. 23 ( B I A 1998),

a father and son, natives of Russia and ci t i z ens of U kraine,

were beaten and threatened with death on several occasions because th e y w e re J e wish. I d. a t 23–24. They r eported the attacks three times, b ut the police “ took no ac t i o n b ey ond writing a report.” Id

. a t 26. F rom that, the B I A concluded that “the Ukrainian [ g ] overnment was unable or unwilling to control the respondent’s attackers and protect him o r his son from the anti-Semitic acts of violence.” Id.

I n such instances of p olice failure to re s p o n d t o a report of persecution, we have held that a p e t i tioner need not provide evidence that a g overnment is “u n a b le o r u nwilling
to control [ persecution] ‘on a c ountry w ide b asis.’” Mashiri

v. Ashcroft

, 3 8 3 F .3d 1112, 1122 (9t h C i r. 2004) (rejecting th e g o vernment’s reliance o n a U.S. Department of State country report to counter t h e petitioner’s evidence of local police u nwilling n ess to protect her and her family ). “I nstead,

an asy lum applicant may meet her burden with evidence that the g overnment was u nable or unwilling to control the persecution in the applicant’s home city or area.” 7 Id.

7 T h o u g h w e e x p lain ed i n M a sh iri t h at an ap p lican t can p ro v e g o v ern m en tal in ab ility

o r u n w illin g n ess th ro u g h ev id en ce sp ecif ic to h er

“ h o m e city o r area,” w e d id n o t h o ld th at ap plican ts are req u ired to d o so

.B R I N G A S

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2. Decisions discussing t h e “unable or unwilling ” standard where private persecution was unreported

As early a s 2000, the B I A conclu d ed 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 g overnment officials. I n re S–A–
, 22 I

. & N. Dec. 1328, 13 3 5 (BI A 2000). There, the B I A addressed t h e plig ht of a native and citiz en of Morocco, S–A–, who at ag e fourteen beg a n to suffer reg ula r b eating s and was burned, kicked, and punched by her orthodox Muslim father on account of h er more liberal Muslim beliefs. Id. at 1329–30. B oth S–A– and her U.S. citiz en aunt credibly testified that g oing to the police would have been futile, because, “in Morocc an society

, such a ction would [ have be e n ] not only unproductive but potentially dang e rous.” Id.
at 1330, 1333. T he B I A c onsidered t h a t testimony and the U.S. Department of State Country Reports on Human Rig hts Practices for 1997, which corroborated t h a t few Moroccan

women report abuse to the authorities “ b e c a u se the judicial procedure is skewed a ga inst them,” and that women w ho reported were often returned to their abusers. Id. a t 1333.

The B I A found that the credible testimony and c o u n t ry report e vidence s ufficiently established the “unable o r unwilling ” standard, reasoning :

[ T] he source o f the respondent’s repeated phy sical assaults, imp osed isolation, a nd deprivation of education was n o t the
g overn m e n t, but her o wn father. Althoug h she did not request protection from the
g overnment, the evidence convinces us that

even if the respondent had turned to theB R I N G A S

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g overnment for help, Moroccan authorities

w o uld have been unable or unwilling t o control her father’s conduct. The respondent would have bee n c o m p elled to return to her domestic situation and h er circumstances may well have worsened.

Id. at 1335. The B I A co n cl u d e d that, because S–A– h ad suffered p e r s ecution at the hands of her father that the
g overnment was unable o r unwilling to control, and because the g overnment f

a i l ed to rebut the presumption of future persecution, S–A– w as entitled to asy lum. Id. ; see also In re Jose L u is G arcia-Gonzalez

, A201 063 604, 2011 W L 7327341, at *1 (B I A Nov. 10, 2011 ) (unpublished) (finding that Mex ico was unable or u n w i l l ing to control the applicant’s a

busive father because “the record r eflects that the police did not have a presence in t h e respondent’s small town” and b ecause “the respondent wa s u n d er 14 y ears old when the harm occurred”).

W e have similarly long held that a victim of a buse n e e d
not report it to g overnment authorities to e stab l i s h the
g overnment’s inability or unwi l ling ness to protect him. I n Korablina v. I

N S
, 1 5 8 F .3d 1 038 (9th Cir. 1998), the
p e t i t i oner, a J ewish n ative of Russia and citiz en of the Ukraine, was the victim of h arassment and b eating s perpetrated ag ainst J ewish citiz ens. Id. a t 1041–42. Korablina was fired from the job she h ad held f o r t w e n ty

eig ht y ears by a new boss who was a m e m b e r o f an ultranationalist a

nd anti-Semitic g r oup. Id. at 1041. After search ing for six months f or a new job, she found work as a clerical s e cr etary to a J ewish man. Id. a t 1042. I n that new position, she saw three m e n attack her boss and thereafter
return monthly to the office to ex tort money

. Id. Thoug h sheB R I N G A S

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. S E S S I O N S 25

and h er fellow employ e es reported the beating to the police, the officers n ever appeared, and w hen Korablina soug ht h elp from a friend at the municipal city hall, the friend disappeared. Id. Korablina then beg an receiving anti-Semitic d e a th threats that warned of r etaliation if she r eported t h e threats to a

ny one. Id

. Soon thereafter, two men violently attacked Korabli n a and left h er barely b reathing

, telling her she “could not . . . conceal her J ewish orig in.” Id.

Thoug h Korablina never reported the threats or the attack, she credibl y t estified that “ the police were not interested in protecting J ews,” that reporting “would be fruitless,” a nd that

s h e was frig h tened that if she reported she w ould share the

same fate as her friend i n t h e municipal c ity hall. Id. Korablina’s daug hter a lso credibly testified that “telling the authorities w as useless,” which was why neither she nor her father reported the violent anti-Semitic a ttacks that they had suffered. Id. a t 1042–43. F urthermore, K o r ablina offered “articles detailing the authorities’ unresponsiveness to complaints made b y J ewish victims in Ki e v

. ” Id. at 1043. W e determined that the credible testimony and corroborating articles were enoug h to establish that th e go v e rnment was unable and unwilling to co n t rol the private acts of violence, and noted that “[ c] onspicuou s b y i ts absence [ was] any

a u t horitative evidence from the g overnment disputing the thrust of her evidenc e a

nd of the g overnment’s c omplicity

. ” Id. at 1045.

I n R eyes-Reyes v. Ashcroft

, 384 F .3d 782 (9th Cir. 2004),

we f irst ex pressly sug g e sted t hat a per se reporting requirement w as unt e n a b l e

. Id. a t 7 89 & n.3. I n ReyesReyes
, we considered the past pe r secution of an El Salvadoran “homosex ual male with a female sex ual identity ” who had been b eaten and raped at ag e thirteen because of hisB R I N G A S

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sex ual orientation and identity

. Id. at 7 8 5

. T houg h we “decline[ d ] to reach” Rey e s’s arg ume n t t hat the I J h ad incorrectly imposed a per se reporting requ i r e m ent, we nevertheless stated that such a brig ht-line rule “would indeed be troubling

, e specially in lig ht o f evidence in the record that
rape v ictims in El Salvador reg u larly underreport such crimes due to the poor response of the authorities,” as well as circuit precedent documenting p h y sical attacks ag ainst homosex uals by national police in L atin America. Id. at 789 & n.3.

Two y ears later, we squarely held:

[ A] n ap p l icant who seeks to establish elig ibility f

or with h o lding of removal under section 1 2 3 1 (b)(3) on the basis of past persecution at the hands of private parties the
g overnment is unwilling or u nable to c ontrol need not have reported that persecution to the authorities if he can c o n vincing ly establish that d o ing so would have b een futile or have subjected him to further abuse.

Ornelas-Chavez v. Gonzales

, 4 58 F

. 3d 1052, 1058 (9th Cir. 2006). W e thus “ma[ d] e ex plicit” what may have been only implicit in Korab l i n a , R eyes-Reyes
, and In re S–A–

. Id. I n Ornelas-Chavez

, we considered a w ithholdin g of removal claim b y a Mex ican g ay male who “suffered a g reat deal o f abuse

. . . because of his hom o s e x uality and female sex ual identity ”: he wa s b eaten by h is parents and raped b y his father’s f riend, his c ousins, and a worker at his g randfather’s h a cienda. Id. at 1054. The B I A denied his r eq u e s t f o r withholding of removal despite finding his testimo n y credible, c oncluding that Ornelas-Cha vez failed to establish the g overnment’s inability or unwilling ness to protect h im.B R I N G A S

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. S E S S I O N S 27

Id. at 1055. I n d o i n g s o , the B I A cited “only two pieces o f evidence: backg round country c o n d itions and OrnelasChavez ’s failure to report the incident to the authorities.” 8 Id.
at 1056. W e held this w as l e ga l e r r o r in lig ht of OrnelasChavez ’s credible testimony that he did not report the abuse
to the p olice “[ b] e cause the sam e p o l ice mistreated a nd harasse[ d] [ him] ”; that “two o f [ his homosex u al] friends were assassinated,” presumably on account of their s ex ual orientation; and that others had reacted with ind i f ference when he told them about the attacks he suffered. Id. at 1057 (second a lteration in orig inal). W e reasoned that disreg arding Ornelas-Chavez ’s credible testimony about w hy he failed to report his abuse to p o l i c e “was tantamount to making the reporting of private persecution a sine qua non for the success of [ h is] withholding of removal claim.” 9 Id. at 1057.

8 T h e B IA co u ld n ot h av e relied so lely o n th e co u n try co n d itio n s rep o rts “ u

n less i t sp eci fi c ally h eld th at so m e o r all o f Orn elas- Ch av ez’ s testim o n y w as n o t cred ib le in lig h t o f th e b ack g ro u n d co n d itio n s .” Id

.

9 In Orn ela s-Ch a vez , w e d i stin g u ish ed o u r d ecisio n in Ca s tro -Perez

v. Go nza les

, 40 9 F.3 d 1 0 6 9 (9 th C i r. 2 0 0 5), w h ich co n clu d ed th at th e p etitio n er f

ailed to estab lish th at th e Ho n d u ran g o v ern m en t w as u n ab le or

u n w illin g to co n tro l th e m an w h o h ad rap ed h er, in p art b ecau se sh e h ad

n o t rep orted th e attack

. Id

. at 10 70

– 7 2

. A ssu m in g th at sh e w as a m em

ber

o f a p articu lar so cial g ro u p , w e fo u n d th e petitio n er’ s reaso n s f o r n o t rep o rtin g in su f

f i cien t. Id

. at 1 0 7 2 . T h e p etitio n er h ad testif ied o n ly th at th e p o lice “ w ere n o t w i l l i n g to d o an y th i n g ” an d th at sh e w as af raid h er f ath er w o u l d b eat h er. I

d

. W e a l s o f

o u n d th at th e co u n try rep o rt in

ev id en ce d id n o t co n clu siv ely sh o w th at th e Ho n d u ran g o v ern m en t w ou ld h av e ig n o red th e rep o rt o f rap e. Id

. In O rn ela s-Ch a vez , w e ex p lain ed th at Ca stro -Perez w as n o t co n trary to o u r ru le th at rep o r t i n g i s n o t req u ired ;

w e sim p l y f o u n d th e p etitio n er’ s reaso n s f o r n o t rep o rtin g in Ca s tro -Perez in su f f icien t to estab lish g o v ern m en tal in ab ility o r u n w illin g n ess t o p ro t ect h er. Orn ela s-Ch a vez , 4 5 8 F.3 d at 1 05 7– 5 8

.B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 28

W e nex t took up the “unable or unwilling ” standard in a pair o f c ase s a r gu e d, submitted, and f iled on the same dates by the same panel. I n one, Rahimzadeh v. Holder

, 613 F .3d 916 (9th Cir. 2 010), the petitioner, who had received death threats and suffered phy sical attacks by ex tremist Muslims in the Netherlands because he was Christian, did not report the violence because h i s persecutors threatened to k ill him a nd his sister if he did so. I n the other

, Afriyie v

. Holder

, 613 F .3d 924 (9th Cir. 2010), the petitioner, who was violently attacked on the basis of his Christian relig ion by Muslims in Ghana, did file a written r eport with the police and requested protection, but to no avail. Bo t h R a himz adeh and Afriy ie

were deemed credible by the ag ency , b ut we denied Rahmiz adeh’s petition and g ranted Afriy ie’s.

W e b e g an o ur a

naly sis in both cases by citing our precedent, Ornelas-Chavez

, and that of the B I A
, In re S–A–
, to correctly recog niz e that “ r eporting persec ution to g overnment authorities is not essential to demonstrating that the g o vernment 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 re p o r t i n g and police inaction is one m e a ns of establishing g overnmental inability or unwil l ing ness to c ontrol the attackers or protect the attacked. Afriyie

, 613 F .3d at 931; Rahimzadeh

, 613 F .3d
at 9 2 1. W e also introduced a new construct for analy z ing the situation where no report has been made:

The absence of a report to p o l ice does not reveal any

th i n g about a g overnment’s ability

or willing ness to control private attac k e rs; instead, it leaves a gap in proof about how the
g overnment would respond if asked, wh ichB R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 29

the petitioner may attempt to fill by other methods.

Rahimzadeh

, 613 F .3d at 922 ( emphasis added); see a l so Afriyie

, 613 F .3d at 931. W e summariz ed several avenues for filling this “g ap,” based on a survey o f prior case l a w. W e stated that a petit ioner could fill the evidentiary g ap by : 1) “demonstrating that a c ountry ’ s laws or customs effectively deprive the petitioner of any meaning ful recourse to g overnmen t a l protection,” R ahimzadeh

, 613 F

. 3d at 921 (citing I n re S -A
, 22 I

. & N. Dec. at 1328, 133 0
, 1 3 3 2

– 33, 1335); 2) describing “[ p ] r ior inte r a c t ions with the authorities,” id. ( c i t ing Ornelas-Chavez

, 458 F .3d at 1 054); 3) “show i n g that others have made reports of similar incidents to n o avail,” id. at 922 (citing Afriyie

, 613 F. 3 d at 932–33); 4) “ establishing t hat private p ersecution of a particular sort is widespread and well-kn own but not controlled by the g overnment,” id. (citing Av etova-Elisseva

v. INS
, 213 F .3d 1192, 1 1 9 8 ( 9 th Cir. 2000)); o r 5) “convincing ly establish[ ing ] that [ r e p orting ] would have been futile or [ would] have subjected [ the ap p licant] to further abuse,” id. (third alteratio n in orig inal) (citing Ornelas-Chavez , 458 F .3d at 1058).

W e s t r essed that the “B I A was entitled to rely on all relevant evidence in the record, including [ country ] r eports,”
to determine whether the “unable or unwilling ” standard was met, Afriyie

, 6 13 F .3d at 933, a n d in both decisions we

ex a mined all the record evidence to de t e r m ine whether substantial evidence supported the ag e ncy ’s denial o f relief. I ndeed

, the different outcomes in the cases did not turn on whether the attacks were reported to the p o l i ce; rather, our d ecisions turned on the nature a nd quality of the evidence,B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 30

including credible testimony and country reports and all other evidence in the record.

I n Rahimzadeh

, we concluded that the I J properly treated the absence of a r eport to authorities as “merely one f actor in the assessment o f the Dutch g overnment’s willing ness a nd ability to contr o l p r ivate ex tremists, not as a per se bar to asy lum.” 613 F .3d a t 92 2

. W e c o ncluded that the I J ’s finding that “ t h e D utch authorities in fact would have been willing and able to control Rahimz adeh ’s attackers was supported by substantial evidence.” Id. at 923

. T h e 2006 U.S. Department of State Country Report on Human Rig hts Practices in the Netherlands noted not o nly that “ [ Dutch] law provides f

o r freedom of relig ion,” but also that “the
g overnment g enerally respect[ s] this rig ht in practice.” Id

. (alterations i n orig inal). Specifically

, the judicial sy stem provided “ effective means” for ad d r essing human rig hts abuse, and the g overnment had taken “firm action ag ainst
g roups e spousing violence in support o f an I slamic e x tremist
ag enda,” id.

, the very g roups that Rahimz adeh described a s his persecutors. A second g o vernment report, the 2006 U.S. Department o f State I nternational Relig ious F reedom Report, also indicated that the “ [ g] overnment at all levels soug ht to protect [ the freedom of relig ion] in full and did not tolerate its abuse, either by g o v ernmental o r private actors.” 1 0 Id. (second alteration in orig inal).

B y contrast, in Afriyie

, we c oncluded that the I J ’s finding that Afriy

ie failed to establish Ghana ’ s inability o r unwillingn e ss to control his attackers or protect him while

10 W e n o t e d th at “ [a]lth ou g h g en eral co u n try

- lev el in f orm atio n is

o rd in arily i n su f

f i cien t to co n trad ict d i rect, sp ecif ic, cred i ted testim on y , th e IJ d id n o t u se th e co u

n try rep o rts f

o r th at p u rp o se.” Id

. (citatio n s o m itted ).B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 31

preaching was not sup ported by substantial evidence. Althoug h Afr i y i e w as able to file a police report, that said little a bout whether t h e p o l ice were able to protect him. Afriyie

, 613 F .3d at 931. Afriy ie’s credible testimony “indicate[ d] [ that] the G hanaian p o lice forces lacked the

resources necessary to protect him.” Id. at 931–32. Afriy ie testified that his g roup h ad r equested protection, but that “the police h ad only one g un for the entire station.” Id. a t 928. He al s o testified that police relied o n the individuals who were attacked to track down and bring in the perpetrators, and that
two murders of his g roup’s members were reported but remained unsolved. Id. Afriy ie further testified that even if the p olice could protect him, they r equired bribes, sug g esting their unwilling ness to do so. Id. Moreover, the country report on which the I J relied did not state t hat claims o f persecution ag ainst Christians w ere investig ated a nd prosecuted; it only noted that claims o f corruption ag ainst the police were p u rsued. I

d. at 933. T h ere was no evidence in the report that Christians were able to obtain protection, and
g eneral statements in the report could n o t , i n any event, contradict A friy ie’s specific, direct c redible testimony

. Id. at 933–34.

I n the nex t “u n able or unwilling ” decision involving

n o n r e p o r t i n g , C a s t r o

- M a r t i n e z , w e i n t e r p r e t e d t h e Rahimzadeh and Afriyie “g ap” con struct in the c ontex t of a g ay , HI V -positive man seeking asy lum based on the childhood phy sical and sex ual abuse he suffered “because o f his homosex uality and f

eminine c h aracteristics.” 674 F .3d at 1079. Castro credibly testified that he never told his parents about the repeated, brutal rapes he suffered between the ag e s of six and ten because the abusers threatened that if he did so, they would b e at him and kill his p arents. Id. He f urther credibly testified that “g iven t h e s e t hreats, and the stig maB R I N G A S

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. S E S S I O N S 32

associated with homosex uality in Mex ico, it would have been

u n r e asonably dang erous for him to have reported the sex u al abuse to his teachers, neig hbors, or parents.” Id. Moreover, because the Mex ican p o lice mig h t themselves abuse him on account of his sex ual orientation and were ineffective in dealing w ith the persecution of h omosex uals, it woul d h a v e been futile and dang erous to g o to the police. Id. at 1079, 1081. Castro backed u

p this c r edible testimony by presenting “country reports documenting p olice c o rruption a nd participation in torture, abuse, a nd trafficking

, as w ell a s incidents of police harassment of g ay men.” Id. at 1081.

W e stated that “[ w] e have never held that a ny victim, let alone a child, is oblig ated t o r eport a sex ual assault to the authorities, and we d o not do so now.” Id. W e also acknowledg ed that, with respect to Castro’ s petition, “the
matter is complicated by the fact that Castro was between the
ag es of six and ten y ears 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 p etitioner is a child, the I J must assess the allege d p ersecution from a child’s perspective.” Castro-Martinez
, 674 F .3d a t 1081 (emphasis in orig inal).

Nevertheless, thoug h the credible testimony and country report evidence met the ty pes o f evidence tha t w e held in Rahimzadeh and Afriyie woul d f ill the evidentiary “g ap” created by n o t reporting

, we determined the evidence was insufficient. W e stated that “Castro’s p rimary reason for not contacting a

uthorities w as that he believed the poli c e would
not have helped him.” Id. This, we held, “withou t m ore, [ was] no t s u f

ficient to f

ill the g aps in the record.” Id. I n deny ing Castro relief, we also relied on the lack of evidence in the record that “Mex i c a n a uthorities would have ig noredB R I N G A S

- R O D R

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. S E S S I O N S 33

the rape of a y ou ng child o r that authorities were unable to provide a child protection ag ainst r ape.” Id. F urther, we dismissed country report evidence o f p olice harassment o f
g ay men, stating that “ n o n e of these reports compel the conclusion that the police would have disreg arded or harmed

a m ale child who reported being the victim of homosex ual rape by another male.” Id.

W e ag ain addressed a p e t i t i oner’s claim of past persecution on account of his sex ual orientation w h ere the violence was not reported in Vitug v. Holder

, 723 F .3d 1056 (9th Cir. 2013). Thirty -seven-year-old Vitug credibly testified that h e was “ beaten five times on the street, and two

o f these beating s w ere ‘severe’”; that he was “harassed a n d threatened by the police b e c a u se of his perceived sex ual orientation”; and that he was “unable to o btain employ ment in the Philippines.” Id. at 1064. He also credibly testified
t h at the “police [ in the Philippines] will not do any thing to help g ay men who report abuse,” and tha t “ i t i s well known in the Philippines that police harass g ay men and turn a blind
ey e to h a t e crimes committed ag ainst g ay men.” Id. at 1064–65 (alteration in orig inal). H e b olstered this credible testimony with “documentary evidenc e of a police raid on a g ay theater d

uring which police b eat and robbed the patrons.” Id. at 1065.

I n Vitug
, we did not apply

, or e v e n m ention, the Rahimzadeh and Afriyie “g ap” construct. Rather, we h eld that V itug ’s c redible testimony and documentary e vidence o f
p o l ice abuse of homosex uals “‘convinci n g l y e s t a b l i s h [e d ] t h a t [ reporting the attacks] w o uld have b een futile or have sub j e c t e d h im to further abuse,’ thereby demonstrating that the g overnment w as unwilling to contr o l t h e attackers.” Id.B R I N G A S

- R O D R

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. S E S S I O N S 34

( a lterations in orig inal) (citing O rnelas-Chavez

, 458 F .3d at 1058).

D. Castro-Martinez

1. I ntroduction of a heig htened evidentiary standard for children

To determine whether private persecutors are individuals whom the g overnment is unable o r u n w illing to control, we must ex amine “all relevant evidence in the record, including [ country ] reports.” Afriyie

, 6 13 F .3d at 933. The useful
survey from Rahimzade h of the ty pes of evidence that may establish the “ unable or unwilling ” p rong of the test for past persecution is not, and never was, an ex haustive list. L ike all other circuits to consider the question, we do not d e e m t he failure to report to authorities outcome determinative, and we consider all e vidence in the record. Se e Castillo-Diaz v

. Holder

, 562 F .3d 2 3, 27–28 (1st Cir. 20 0 9 ) (holding that where petitioner failed to report her rape to authorities, the I J properly relied on evidence in a State Department report that El Salvador enforces its rape laws with sig nificant penalties
to conc l u d e the country was able and willing to protect petitioner); Cardozo v. A tt’y G en. , 505 F

. App’x 1 3 5, 138–39 (3d Cir. 2 012) (unpublished) (citing Ornelas-Chavez for the proposition t h a t “ an applicant ‘need not have reported th[ e] persecution to the authorities if he can convincing ly establish that d o i n g so would have been futile or [ would] have subjected him to further abuse’” (alteration in o r i g inal) (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 Ci r. 2008) (holding that substantial e vide n c e did not support the I J ’s finding that Cameroon was able and willing to protect aB R I N G A S

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. S E S S I O N S 35

nonreporting petitioner, where petition e r ’ s c r e d ible testimony

ex p laining that the police do no t p r otect women from domestic violence, the State Department country reports, a nd

a relative’s a ffidavit evidenced that Cameroon would “not do
any thing ” to protect her, ci t i n g In re S–A– ) ; Lopez v. U .S. Att’y Gen.
, 5 04 F .3d 1341
, 1 345 (11th Cir. 2007) (holding that the B I A erred b y reasoning “that the failure to seek protection without more is enoug h to defea t a c l a im for
asy lum,” and r emanding to the B I A to consider in t h e f i r s t instance petitioner’s testimony a nd country r eports, a

pply ing In re S–A– ).

W hether a victim has reported or attempted to rep o r t violence o r a

buse to the authorities is a factor that may be considered, as is credible testimony or documentary evidence

ex p laining why a victim did n ot report. Rahimzadeh a nd Afriyie u nnecessarily introduced the construct that the failure
t o r e p o r t creates a “g ap” in the e vidence, because o ur law is clear that the ag ency , and we, upon review, must ex amine all the evidence in the record that bears on t h e q u estion o f whether the g overnment is unable o r u n w i l l i ng to control a private persecutor. F raming the question of nonreporting a s

a “failure” that creates a n e videntia ry “g ap” had the inadvertent effect of heig htening t he evidentiary standard bey ond the traditional ty

pes of proof, a ccepted in every prior
prec edent, that we have d eemed sufficient to demonstrate
g overnmental inability or unwilling ness to protect victims o f persecution. To the ex tent that o ur c ases’ discussi o n o f g ap filling sug g ested that the bu r d e n of proof on g overnmental inability or unwilling ness t o p rotect was something bey ond the standard w e u se for other elements—proof by a preponderance of the evidence, c onsidering all the evidence in the r ecord—we supersede those cases by clarify ing t h atB R I N G A S

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. S E S S I O N S 36

there is no heig h t e n e d proof requirement. 1 1 The very nex t petition for r eview that we c onsidered in th e c o n t e x t o f nonreporting was Castro-Martinez
, which transformed the “g ap” into a “g ulf,” never to be quit e f i lled, especially for those who were victimiz ed as c hildren, the least likely persons to report their abuse to authorities.

I n Castr o -Martinez
, Castro adduced credible testimony detailing the rapes he suffered as a c h i l d o n account of his

sex ual orientation and feminine c h a r acteristics, the r isk o f retaliation from both h is a busers and the police if he r eported his abuse, and country reports documenting private and police harassment of a

nd violence a g ainst h o mosex uals. Despite all this evidence, we held that Castro failed to meet his burden to “fill in the g aps” because he had not shown that Mex ican officials were unable or u nwilling to intervene specifically in the abuse of g ay children, as o pp osed to g ay individuals
g enerally

. Castro-Martinez
, 674 F

. 3d a t 1 081–82. Yet the
nature and quality of Castro’s evidence fell within several o f the categ o ries of proof that we said in Ra h i mzadeh would suffice, and which should have b een suff i c i e nt to satisfy the “unable o r unwilling ” standard under t he correctly a pplied law.

B y effectively defining C a s t r o’s social g r oup as g ay children and rejecting Castro’s evidence, we “demand[ ed] an unwarranted level of specificity ” and “effectively eliminated

11 T h u s th e lin ch

p i n o f th e d issen t—th at t

h is o p in io n dep arts f

ro m th e

su b stan tial ev id en ce stan d ard

— is m i sg u id ed

. T h is o p in io n m erely clarif ies th at th e leg al stan d ard

, s u bstan tial ev i d en ce, is n o t h eig h ten ed or

m ad e m o re strin g en t w

h en th e p ersecu tio n is d irected to a ch ild

, as

o p p o sed to an ad u lt, w

h o d o es n o t rep o rt th e p ersecu tio n to th e au th o rities. T h e B IA ap p lied th e w ro n g leg al stan dard

, w

h ich it d rew f

ro m t h e stan d ard w e in co rrectly

ap p lied in Ca stro -Ma rtin ez

.B R I N G A S

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. S E S S I O N S 37

[ country r eports] a s a method of showing a foreig n g overnment’s inabilit y o r unwilling ness to prevent sex ual abuse o f g a

y children.” Bringas-Rodriguez

, 805 F .3d at 1192 (F letcher, J
., dissenting ). Castro’s evidence demonstrated the fut i l i t y and potential dang er of reporting to the authorities, Ornelas-Chavez

, 4 58 F .3d at 1058, and the widespread tolerance o f priv a t e persecution of homosex uals by the authorities, Rahimzadeh

, 613 F .3d at 922, but we h e l d that evidence insufficient. We imposed a hig her bur d e n that required Cas t ro to demonstrate that “Mex ican authorities would have ig nored the rape o f a y o ung child or that authorities were unable to provide a child protection ag ainst rape.” 674 F .3d at 1081. The result of this holding was to

carve out a sub-g roup of “ g ay children” with in the broader

s o c ial g roup of “g a

y individuals.” I t also necessaril y a n d erroneously assumed that where g ove rnment authorities a re able and willing to p rotect heterosex ual children, they will be equally able and willing to protect chil d r e n w ho ex hibit a d i f f e r e nt sex ual orientation or are “different” in other way s. However, our immig ration laws recog niz e th a t persons w ho fall within the enumerated, protected r e fug e e categ ories a re often treated more harshly by the authorities than those w ho do not, precisely because of the c haracteristics that provided them with statutory protection under our refug ee laws in the first place.

F urthermore, adult and child victims of phy sica l a nd

sex ual abuse alike face sig nificant barriers to reporting their abuse a nd seeking the protection of authorities. Sex ual abuse commonly r e sults in “severe and long -lasting ” effects, including “avoidance of situations that trig g er memories o f the v i o l ation, profound feeling s of shame, [ and] d ifficulty remembering events.” Lop ez

- G a larza v. INS
, 99 F .3d 954, 962 (9th Cir. 1996) ( quo t ing Shana Swiss & J oan E. Giller,B R I N G A S

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. S E S S I O N S 38

Rape As a Crime of W

a r: A Medical Perspective
, 2 70 J

. Am. Med. A ss’n 612, 614 (1993)). As was the case with B ring as,

a victim may also fea r r e t a l iation, not just from his abusers, but from “police, society

, even family members.”

The barrie r s t o reporting become even g reater when the victim is a c hild. As J udg e W

. F letcher noted i n h is dissent from the panel-majority

opinion:

Many children will not report these crimes for some of the same reasons B ring as-Rodrig uez did n ot. A busers ofte n t h r eaten their v ictims with harm i f they tell a ny o ne, and they sometimes make g ood on those threats. C h i l d r en a l s o h a v e d i f f i c u l t y g e t t i n g information to the p olice, especially if family

m e m b e r s or neig hbors—the people who m i g h t report the abuse—are the abusers.

Br i n g as-Rodriguez

, 805 F .3d at 1192 (F letcher, J
., dissenting ). Children may lack the cog nitive a b ility to understand that they are being abused, and that beating s and
rapes by adults they should be able to trust are crimes. B rief for Kids in Need of Defense et al. as A mici Curiae a t 11. Even if they do have that cog nitive ability

, child victims may not o nly fear retaliation for reporting to authorities, but may also be practically unable to do so because their day -to-day

ac t i ons are controlled by their abusers, especially if their abusers a re family members. C h i ld victims of sex ual abuse frequently “lack the information to navig ate officia l

, often complex

, channels required to report abuse” a nd are likely to be unaware o f shelters or a ge n c i es that mig ht provide them protection. Id. at 9–10. Asy lum officers’ training g uidelines specifical l y require them to consider the difficulty childrenB R I N G A S

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. S E S S I O N S 39

may ex perience in reporting abuse: “ The fact that a child did
not seek p ro t e c t i o n i n his or h er country of orig in does not

n e c e ssarily undermine his or h er case. The asy lum offi c e r must ex plore what, if any , means the c hild had of seeking protection.” U.S. Citiz e nship a nd I mmig r. Servs., A sylum O f f icer B asic Training Course: Guidelines for Children’s Asylum Claims 40 (2009). 1 2

Even if a child is able to report the abuse, he may not be able to ar t i cu l ate 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: Ch ild Asylum Claims U

nder Articles 1(

A) 2 and 1(

F ) of the 1951 Convention and/or 1967 Protocol Re l a t ing to the Status of Refugees

, ¶ 39, U.N. Doc HCR/GI P/09/08 (Dec. 22, 2009). 1 3

F or all o f these reasons, we r ecog ni z e t hat children w ho suffer sex ual abuse are g e nerally unlikely to report that abuse
to authorities. B ecause they are unlik e l y to report, it is similarly unlikely

that country

reports or other evidence will be able to document the police r e s p onse, or lack thereof, to the sex ual abuse of children. Placing on Castro the added burden of demonstrating g overnmental ina b i l i t y o r unwilling ness to control child sex ual abuse ge n er ally was thus tantamount to imposing a r eporting re q u i r e ment on

sex ually abused children: either the petitioner must have

1 2 A v a i l a b l e a t h t t p : / / w w w

. u s c i s

. g o v / s i t e s / d e f a u l t / fi l e s / U S C I S / H u m a ni t a r i a n / R e fu g e e s %2 0 % 2 6 %2 0 As y l u m / As y l u m / A O B T C % 2 0 Le s s o n % 2 0 P l a ns / Gu id elin es- f o r -C hi l d r e n s -As y l u m -C l a i m s -3 1 au g 1 0 .p d f

.

13 Ava i l a b le a t h ttp ://w

w w .u n h cr.o rg /5 0 ae4 6 3 0 9 .p d f

.B R I N G A S

- R O D R

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. S E S S I O N S 40

reported in his own case, or other children must have r eported
to create th e b as i s for a country report on the g eneral
response. 1 4 That added burden w as inappropriate, both because it reflected a heig htened g ap-filling proof requirement and because it focused on evidence reg arding the
treatment of g ay children rather than the treatment o f gay Mex icans g enerally

.

2. Overemphasis on laws as opposed to practices

I n Castro-Martine

z , we also failed to consider the difference between a country ’s en a ctment of remedial laws and the eradication of persecutory practices, often long ing rained in a country ’ s culture. Rejecting Castro’s c la im that, in Mex ico, a s y stematic pattern or practice o f persecution ag ainst homosex uals remained, we f ound Castro’s evidence unpersuasive “in lig h t of recent country reports,” which showed that the “ Mex ican g ove r n ment’s efforts to prevent violence and discrimination ag ainst homosex uals

. . . ha[ d] increased in recen t y ears.” CastroMartinez , 674 F .3d at 1082.

Mex ico is to b e lauded for its efforts. B ut it is w ell
recog niz ed that a c o untry ’s laws are not alway s reflective of actual co u n t r y conditions. I t is not unusual that a country ’s

“ de jure c ommitments to L GB TI protection do not a lig n with the de facto reality o f whether the State is able and w illing to provide protection.” B rief for UNHCR as Amicus Curiae at 4. And we have recently recog niz ed that Mex ico h as

14 W e h av e im

p o sed su ch a h eig h ten ed b u rd en in tw o d ecisio n s o n ly

, C a s t r o

- M a r t i n ez an d th e Brin g a s-Ro d rig u ez p an el- m aj o rity o p in i o n

. Bo t h in v o lv ed p ast p ersecu tio n o f a ch ild

. W e h av e n ev er im po sed s u ch a stan d ard in a p etitio n

in v olv in g an ad u lt’ s claim o f p ast p ersecu t i o n

.B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 41

ex p erienced “an increase in violence ag ainst g ay , lesbian, a nd transg ender individua l s during the y ears in which g reater leg al protections have been ex tended to these communities.” Avendano-Hernandez v. Lynch

, 800 F .3d 1072, 1081 (9th Cir. 2015) (emphasis in orig inal).

Moreover, the ant i

- discrimination efforts discussed in Castro-Martinez seem to h av e been made by the n ational
g overnment, and thus do not necessarily reveal a ny thing about the practices w ithin state or municipal jurisdictions. See Madrigal v. Holder

, 716 F

. 3 d 4 99, 507 ( 9th Cir. 2 013) (noting that while Mex ico’s national g overnment was willing
to control the drug cartel that attacked the petitioner, it was not necessarily able to do so, in part because s t a t e and local officials were involved with drug traffickers). 1 5

IV.

Substantial evidence c o mpels the conclusion that B ring a s has established past persecution.

15 It b ears n o tin g , h o w ev er, th at—co n trary to th e p a n e l m aj o rity ’ s p u tativ e req u irem en t th at B rin g as sh o w th at h e w o u ld b e p ersecu t ed in h is h o m eto w n —ev en th o u g h actio n s at th e n atio n al an d lo cal lev els m ay n o t alw ay s alig n , an ap p lican t is n o t r e q u ired to p resen t ev i d en ce of l o cal
p ractices to estab lish th at th e g o v ern m en t w as u n ab le o r u n w illin g to p ro tect h im

. W e h av e rej ected su ch a req u irem en t in th e pa s t

. S ee Kro to va v. Go nza les

, 4 1 6 F.3 d 1 0 8 0, 1 08 3
, 1 0 8 7 ( 9 t h Cir. 20 0 5) (ex am in i n g co u n t

ry rep o rt ev id en ce of p o l ice f ailu re to arrest an ti- Sem itic attack ers th ro u g h o u t Ru ssia); Ya n Ro n g Zh a o v. Ho ld

er , 7 2 8 F.3 d 1 1 4 4
, 1 1 4 8 (9 th C ir. 2 0 1 3 ) (m

u n icip al- l ev el p ro o f o f g o v e r n m e n t p e r s e cu t io n n o t req u ired w

h ere th e p etitio n er p resen t ed p ro v in ce- lev el p ro o f ). Rath er, w e

m u st assess t

h e en t i r e ev id en tiary reco rd in each ap p licatio n , an d w e d o

n o t d eem th e p resen ce o r lack o f an y sp ecif ic ty p e o f ev id en ce co n clu siv e.B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 42

A. Persecution on Account of a Protected Ground

There is no dispute that the brutal beating s and rapes that B ring as suffered as a child r ise to the level of persecution. “I t is well established that phy sical violence is persecution under 8 U.S.C. § 1101(a)(42)(A) .” Li v. Holder

, 559 F

. 3d 1096, 1107 (9th Cir. 2009).

L ikewise, t h e r e is no real dispute that B ring a s’s sex ual orientation was at least one central reason for his persecution. As t h e B I A acknowledg ed, “sex u al orientation and sex ual id e n tity c an be the basis for establishing a particular social
g roup.” See Boer-Sedano v. Gonzales

, 418 F .3d 10 8 2
, 1087–88 ( 9th Cir. 2 005) ( h o l ding that “ homosex ual men in Mex ico” constitute a particular social g roup for purposes o f
asy lum); Karouni v

. Gonzales

, 399 F .3d 1163, 1171–73 (9th Cir. 2005) (concluding that the petitioner was e lig ible for
asy lum because of a w ell-founded fear o f p e r secution on account of h is “membership in the particular social g roup of homosex uals”).

The g overnment arg u es that t h e BI A rejected B ring as’s claim because he f

ailed to e s t a

blish that the sex ual abuse he suffered was o n a ccount o f h is homosex uality

. The
g overnment reads the B I A’s decision as affir m i n g the I J ’s finding that the sex ual predators who attacked B ring as were pedophiles motivated by perverse sex ual urg e s. B ut the B I A di d n o t adopt the I J ’s decision, and nothing about the B I A ’s decision sug g ests that it denied B ring as’s claim on nex us g rounds. Rather, by acknowl edg ing the abuse B ring a s suffered as a child, a

n d then immediately pivoting to CastroMartinez
, the B I A’s r easoning could only have been that, a s in Castro-Martinez
, B ring as’s claim failed for want of proof that the g overnment was u n a b l e o r unwilling to control hisB R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 43

abusers. I ndeed, the B I A decision’s f ollowing three
parag raphs discuss homosex uals as “a particular social
g roup” and acknowledg e that B ring a s is a g ay man.

F inally

, even if we r ead th e BI A’s d ecision to conclude that the I J ’s “perverse desire” f i nding was not clearly
erroneous, the enti r e r ecord compels the conclusion that at least o ne central r eason for B ring as’s persecution was his

sex ual orientation. I ndeed, there is no evidence in the record
sug g esting B ring as’s abusers were motivated by any th ing else; to find otherwise would b e t o e ffectively rule that children can never be victims of abuse on the basis of sex ual identity

, as such a

b use will alway s be subsumed b y a presumption of abuse on g rounds unrelated to their protected social g roup. This cannot be the case. B ri n ga s n eed only demonstrate that his sex ual orienta t i o n was “at least o ne central reason” for the abuse; he need no t s h o w it was the only reason. Parussimova, 555 F .3d at 7 4 1

. T h e record is replete with statements by B ring a s’s ab users as to ex actly why they targ eted h im. His father chastised him as a child for being effeminate and beat him b ecause he w as “different.” W h en B ring as was eig ht, his uncle told him the reason f or the
ong oing phy sical and sex ual abuse was his sex uality

. B ring a s

e x p l a ined that his uncle, h is c ousins, and his neig hbo rs “called [ him] f

ag , f ucking fag g o t , q

ueer and laug hed about it.” A f ull reading of the record leaves no doubt that B ring a s was persecuted on account of his sex ual orientation.

B. Unable or Unwilling to Control Private Persecutors

Althoug h B ring as’s persecutors were private, not g overnment, actors, the record e v idence compels the

c onclusion that the g overnment was unable or unwilli n g t o control them. B ring as w as not required to report his abuse toB R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 44

the authorities because ample evidence de m onstrates that reporting would have been futile and dang ero u s

. Bring a s volunteered in his asy lum application the reason he believed he would be harmed if returned to Mex ico:

I f I went to the police they wou l d n ’ t do
any thin g. They w ill take a r eport and never follow-up on it or they would simply laug h at

me and tell me tha t I g ot w hat I deserved b e cause I am g a

y

. My g ay friend fro m Veracruz living in Kansas City told me this is what happened to him.

I n his sworn affidavit, B rin ga s s t ated: “I was a fraid to tell
anyone about my abuse because my uncle threatened to hurt

me and my family .” B ring as f urther ex plained that when his neig hbor sex u ally assaulted him, “ [ h] e laug hed a t [ B ring as] and said that if [ B ring as] told anyone , he would do something [ B ring as] would be sorry for.” T he I J recog niz ed that B ring as’s abusers acted like pedophilic abusers, who “usually manipulate their victims in such a way a s to terrify them, a nd prevent them from g oing to an adult and reporting the abuse because they want to continue p erpetrating their abuse on the victim.” F inally , B ring as stated in his affidavit: “The police

are no help and cannot p rotect me. They wouldn’t do
any thing to my abusers. T h ey would laug h at me and tell me I d eserved what I g ot b ecause I w a s ga y

. This happened to friends of mine in Veracruz .”

At his removal hearing

, B ring as testified that he d id 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. B ring a s further testified that he was afraid to return to Mex ico because he w ould g et “ b e a t up by police, society

,B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 45

even family members.” The I J and B ring as then had the following ex chang e:

I J : Okay

, y ou’re older now. Yo u c a n g o tell police if y ou return to Mex ico and suffer abuse, y ou could tell the police.

. . . Couldn’t
y ou do that?

B r ing as: They will do no t h i n g.

. . . I know that because when I was living i n K ansas, 1 6 couple of my f

riends t o l d me that they g ot raped, they g o t beat up, like abuse, a n d they
went to the p o l i ce and they didn’t do
any thing

. They eve n l a u g h on [ sic] their faces.

Thus, e ven the I J understood the improbability o f a y oung er B ring as reporting his abuse to the a utho rities; by stating “y ou’re older now

. . . y ou could tell t h e p o l i c e

. . . . [ c] ouldn’t y o u do that,” the I J recog ni z ed the difference between a minor’s ability to report and an adult’s. Moreover, both the I J and the B I A found thi s t e s timony credible under the heig htened standards of the Real I D Act. 1 7

16 T h e pan el- m aj o rity o p in i o n f au lts th is ev id en ce as n o t b ein g

su f f icien tly ag e- sp ecif

ic. Ho w ev er, o n h is asy lu m ap p licatio n , B rin g as states th at h e liv ed in Kan sas f ro m 2 0 0 4 to 2 0 0 7, th at is, f

ro m th e ag e o f f o u rteen to sev en teen

. Fro m t h at, w e can d raw th e in f eren ce th at h is f rien d s w ere also m in o rs w h en th ey attem p ted to rep o rt in Veracru z.

17 T h o u g h

B rin g as’ s rep o rt o f

h is f rien d s’ ex p erien ces w as h earsay , w e h av e m ad e clear t

h at h earsay , o r ev en h ea r s a y u p o n h earsay , can estab lish asy lu m elig ib ility

. Ra mirez-Aleja n d re v. Ash cro

ft

, 3 19 F.3 d 3 6 5
, 3 7 0 (9 th Cir. 2 0 0 3 ) (en b an c); Co rd o n

- G a rcia v. INS
, 2 0 4 F.3 d 9 8 5
, 9 9 2

– 9 3 (9 th

Cir. 2 0 00 ). B rin g as’ s testim o n y w as su f f icien tly sp ecif ic toB R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 46

I n addition to his sworn asy lum application, affidavit, a nd credible tes t i m o ny , B ring a s submitted the 2009 and 2010 U.S. Department of State Human Rig hts Reports f o r Mex ico and several newspaper articles d escribing the treatment of g ay

men in Mex ico. The 2009 a n d 2 010 reports show official discrimination and violence by p olice ag ainst homose x u als, and show that persecution of g ay men remained a serious problem in Mex ico five and six y ears after B ring a s f l e d in 2004. Th e 2 0 0 9 report states, “W h ile homosex ual conduct

ex p erienced g r owing social acceptance, the Natio n a l Center
to Prevent and Control HI V/AI DS stated that discrimination persisted.” The 2 010 report includes an identical observation from the National Human Rig hts Commission. Additionally

, the 2009 report describes a particularly sev e r e ex ample o f discrimination by

Mex ican officials:

One of the most prominent cases o f discrimination and violence ag a i nst g ay men

was that of Ag ustin Hum b erto Estrada Neg rete, a teacher and gay a ctivist f rom Ecatepec, Mex ico State. I n 2007 he participated in a g ay rig hts march wearing a dress and hig h heels. According to the NGO Asileg al, soon after the march, Estrada beg an receiving thr e a tening telephone calls a nd

b e d eem ed cred ib le. Brin g as ex p lain ed t h ro u g h h i s ap plicatio n an d h is
test i m o n y w

h ere h e learn ed ab o u t h is f rien d s’ ex p erien ces (Kan sas), to

w h o m an d w

h ere th ese fr i e n d s rep o rted th e v io len ce ag ain st th em (th e Mex ican p o lice in Veracru z), an d th e t y pes o f attack s th ey h a d s u ffe r ed (rap e an d battery ). In ex p licab ly

, n eith er th e B IA n o r th e IJ d iscu ssed th is testim o n y , an d th e p an el m aj o rity f o u n d i t in su f

f i cien t. W h ile th e ag en cy is n o t req u ired to d iscu ss ev ery p iece o f ev i d en ce, th is p articu lar p iece w as

cru cial, b ecau se it ex p lain s w h y an y rep o rtin g w o u ld h av e b een f u tile an d d an g ero u s.B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 47

verbal and p hy sical a t t a c ks. I n 2008 he was fired f rom the school for children with disabilities where he worked. After his dismissal, he and a g roup of supporters beg an lobby ing the g overnment to reinstate him; when they went to the g overnor’s p a l a c e to at t e n d a meeting with state o fficials in May
, police beat him and his supporters. The nex t day he was taken to prison, t h r e a tened, a nd raped. Al t houg h he w as released, Estrada

con t i n ued to face harassment by state authorities.

The 2010 country report states that “ some pu b l i c officials continued to perpet r ate bureaucratic abuses and some criminal acts with impunity .” I t also notes that “ rape v ictims rarely filed complaints with the police, in part because of the authorities’ ineffective and unsupportiv e responses to victims.”

B r ing as additionally offered several newspape r articles, including one in which the Associ a t e d P r ess reported that a “review of more than 70 newspapers in 11 Mex ican st a t e s ” revealed an increase f

rom “an averag e of nearly 30 killing s a y ear motivated by homophobia betwee n 1 9 95 and 2000” to “nearly 60 a y ear between 2 001 and 2009.” Thus, the totality of B ring as’s e vidence c o mpels the conclusion that reporting his abuse would have been futile and dang e rous.

F rom B ring as’ s reports, we do see increasing social acceptance of homosex uals i n Mex ico, especially in c ertain parts o f Mex ico, such as Mex ico City

, where same-s e x marriag e h as been leg aliz ed. B ut the panel-majority opinion, like the Castro-Martinez decision and the B I A decision h ere,B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 48

falsely equated leg is lative and ex ecutive enactments prohibiting persecution with on- t he-g round prog ress. Moreover, the new laws depicted in the coun t ry reports include a 2010 law leg a liz ing g a y marriag e in Mex ico C ity

, a Supreme Court decision requiring other states to r ecog niz e those marriag es, and a 2 010 law a l l o w i n g g ay couples to adopt children in Mex ico City

. The question w e address h ere, however, is w hether B ring a s suffered past persecution in the
y ears preceding 2004. Therefo re, these important developments bear little r elevance to B ring as’s abuse, which ended in 2004.

V

.

Ex amining all the e v idence in the record, and a pply ing long -standing precedent, substantia l evidence compels the conclusion that B ring as has proven past p e r s e c u tion due to his identification as a g a y individua l

, and h e need not additionally

provide evidence specific to him as a g ay child. He is therefore entitled to the presumption of a w ell-founded fear of f uture persecution. 1 8 According ly

, we remand to the

18 T h e d issen t arg u es t

h at Br i n g a s ’s fe ar o f f

u tu re p ersecu tio n as a g ay Mex ican m an is “ u n related ” to h i s p as t p ersecu tio n b ased o n h is

se x u a l o rien tatio n as a ch ild an d th u s w e can n o t p resu m e f u tu re p ersecu tio n u n d er 8 C.F.R. § 1 2 08 .1 3 (b )(1 ). Ho w ev er, it is n o t th e n atu re

o f th e p ersecu to ry acts th at m u st b e related f

o r t h e p resu m

p tio n to arise. Rath er, i t is th e en u m erated s t a t u to ry g ro u n d th at m o tiv ates th e p ersecu tio n th at m

u st b e related

—in o t h er w o rd s, th e reaso n f

o r th e f ear

o f f u tu re p ersecu tio n m

u st b e related to th e reaso n f o r th e p ast p ersecu tio n

. Cf. Ma tter o

f A– T– , 2 4 I. & N. Dec. 6 1 7 , 6 22 (A .G. 20 0 8) (reco g n i zin g , in th e co n tex t o f a related p ro v i sio n f o r w ith h o ld in g o f rem o v al, t h at th e p resu m p tio n arises w

h ere th e f ear o f f u tu re p ersecu tio n is “ o n acco u n t of th e sa me sta tu to ry gro u n d ” as th e p ast p ers e c u t io n an d th at th e f earedB R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 49

ag ency for consideration in the first instance of whether t he presumption h a s b een r ebutted, and for c onsideration o f B ring as’s withholding of r emoval and CAT c laims. 1 9 The respondent, Attorney General J efferson B

. Sessions I I I
, shall bear the costs on appeal.

G RANTED; REMANDED.

h arm n eed n o t tak e a f

o rm “ id en tical” to th e p ast h arm ). Here, th e reaso n s f o r B rin g as’ s p ast p ersecu tio n an d h is f e a r o f fu tu re p ersecu tio n are th e

sam e—h is sex u al o rien tatio n

.

19 B rin g as ask ed t

h e ag en cy to co n sid er h is HIV d iag n o sis, o f w h ich h e learn ed af

ter f ilin g h i s n o t ice o f ap p eal to th e B IA

. T h e B IA d en ied th is req u est, statin g th at B rin g as f ailed to sh o w “ h o w h is statu s as an H IV
p o sitiv e h o m o sex u al ch an g es th e o u tco m e o f h is case.” Up o n rem an d

, th e ag en cy s h o u l d co n sid er th is n ew in f o rm atio n , w

h ich is “ m aterial” an d

“ co u ld n o t h av e b een d isco v ered or presen ted ” to th e IJ

. Ali v. Ho ld er , 6 3 7 F.3 d 1 0 2 5
, 1 0 3 1

– 3 2 (9 th C i r

. 2 0 1 1 ) (q u o tin g 8 C.F.R. § 1 0 0 3 .2 (c)(1 ));

see a lso An g o v v. Lyn ch

, 7 8 8 F.3 d 8 9 3
, 8 9 7 (9 th Cir. 2 0 1 5 ). B rin g as’ s HIV diag n o sis m ay also b e relev an t to th e q u estio n o f relo catio n , w hi c h th e ag en cy m

u s t co n sid er u

p o n r e m an d. S

ee Bo er-S ed a n o , 41 8 F.3 d at 1 0 9 0

– 9 1

.B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 50

CL I F TON, Circuit J udg e , concurring in the judg ment:

I ag r ee with the conclusion o f the majority opi n i o n that the petition for review filed by Carlos Alberto B r i n ga sRodrig uez should be g ranted and the matter remanded to the B I A for further proceeding s. The basis for my conclusion is

muc h n a r r ower than that adopted by the majority opinion, however. I

n my view, the majority

opinion does not respect the proper standard for our c o u rt’s review of an order o f removal. That standard is supposed to be hig hly deferential, and I a g ree w i t h t h e dissent that it has n ot been applied that
way in this case.

The majority opinion acknowledg es that a finding by the I J is not supported b y substantial evidence when “‘any reasonable a djudicator would be c o mpelled to conclude to the contrary ’ based on the evidence in the record.” Majority Op.
at 13 (quoting Zhi v. Holder

, 7 51 F .3d 1088, 1 0 91 (9th Cir. 2014)). The majority opinion also ag rees that B ring a s had the burden of e stablishing that the persecution suf f ered b y B ring as, in the form of the sex ual attac k s o n h im when he

was a child, “was committed b y

. . . forces t hat the
g overnment was unable or unwilling t o c o n trol.” Id

. at 20 (quoting Baghdasaryan v. Holder

, 592 F .3d 1 018, 1023 (9th Cir. 2010)).

The evidence offered by B ring a s in support of the proposition that the Mex ican g o v e r nment was u nable o r

u n w i lling to control sex ual attacks a g ainst children was n o t

so overwhelming

. That evide n c e , described in the majority opinio n a t 4 3

– 45 and in the dissent at 72 n.15, amounted in the end to an unspecific hearsay report by B ring as of what he

w a s t old by one or two o ther persons about what h ad happened when a report was m a d e to p olice in a differentB R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 51

town. That evidence would h ave been sufficient to support a conclusion t h a t a r eport by a child to the police would have b een futile, but it was not so powerful that no reasona b l e

a d j udicator could have found to the contrary

. The sam e i s true about the more g e neral evidence offered by B ring a s from country reports and ne wspaper articles about discrimination
ag ainst g ay men and homophobic violence in Mex ico. That
g eneral evidence did not speak directly to the kind of violence

s u ffered by B r ing as. I t did n ot say so much abou t h o w t h e Mex ican g overnment would have r eacted that it would have compelled any reasonable adjudicator to ag r ee w i t h the majority opinion’s own assessment.

The reason that I c o n c lude that the petition for r eview should be g ranted is that the ag ency a ppeared to disreg ard the evidence that B ring as o ffered on the subject. The I J stated in his oral decision that

[ W ] e c ertainly do n ot have any evidence what s o ever that the police in Mex ico or the authorities do not take any action whatsoever
to o ffer some ty

p e o f protection ag ainst the abuse o f c hildren, sex ually

, w hether the

sex ually a bused c hild is a male or f emale, o r whether the a buser is a male or a female. There is no evidence o f that, so I cannot really conclude that t h e g overnment was unwilling

or unable to offer [ B ring as] protection f rom the sex ual abuse perpetrated u pon h i m as a child.

T he B I A ’s conclusion was more g eneral, stating that t h e “evidence does not establish” that the Mex ican g over n m ent is unwilling or u n able t o co n t rol p rivate violence ag ainstB R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 52

h omosex uals. B ut the B I A did not correct the I J ’s findin g that there was “no evidence w hatsoever” to support B ring as’s contention that a police report would have been futile, and it did not reflect any awareness of the e vidence to that effect. I n my view, the failure t o recog niz e that evidence and to account f o r it in the d ecision justifies remand to the ag ency for further proceeding s, including further consideration of the question of whether B ring as suffered past persecution. I would g rant the petition for review, b u t I would not dictate the answer to that past persecution question.B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 53

B EA, Circuit J udge

, w ith whom O’SCANNL AI N, Circuit J udg e , joins, dissenting :

I respectfully dissent from the majority opinion b e ca use it u surps the power of the Bo a r d of I mmig ration Appeals (B I A) to determine f

acts. I t doe s this by reciting

, but

u l t i mately d eparting

, from the “substantial evi d e n c e ” s t a n d a r d which states that ag ency “f i n ding s of fact are conclusive unless any reasonable adjudicator would be c omp elled to conclude t o the contrary

. ” 8 U.S.C. § 1252(b)(4)(B ) (emphasis added). 1

Here, the B I A found unpersuasive B ring as’s evidence o f the Mex ican go vernment’s inability or unwilling ness to

1 See Lia n hu a Jia n g v

. H o l d e r , 7 5 4 F.3 d 7 3 3
, 7 4 0 (9 th Cir. 20 1 4) (“ Giv en th e ex trem ely def eren tial [su

b s t an tia l e v i d en ce] stan d ard of

rev iew

, an y

th in g ap p ro ach i ng a d e n o v o rev i ew is im pro p er.”); Co l e v. Ho ld er , 6 59 F.3 d 7 6 2
, 7 8 0 (9 th Cir. 20 1 1 ) (“ W e h av e h e l d t h at ‘ [t]h is strict [su b stan tial ev id en ce] stan dard b ars th e rev iew in g c o u rt f ro m in d ep en den tly w eig h in g th e ev id en ce an d h o ld i n g th at th e p e t itio n er is elig ib l e f or asy lu m , ex cep t in cases w h ere co m p ellin g ev id en ce i s sh o w

n .’ Ko ta sz v. INS
, 3 1 F.3 d 8 4 7
, 8 5 1 (9 th Cir. 1 9 9 4). ‘ W e are n o t f ree to l o ok

an ew at th e testim o n y an d th en m e a s u r e th e so u n d n ess o f t h e ag en cy ’ s d ecisio n b y w

h at w e w o u ld h av e f

o u n d

. No r d o es ev id en ce co m p el th e

o p p o site co n clu s io n j u st b ecau se it w o u ld also su p p o rt a d i f

f eren t resu lt.’ Do n ch ev v. Mu ka sey , 5 5 3 F.3 d 1 2 0 6
, 1 2 1 3 ( 9 t h C i r

. 2 00 9 ).”); Qu o n v. G o n za les

, 4 2 8 F.3 d 8 8 3, 8 9 0

– 9 1 (9 th C ir. 20 0 5 ) (O’ Scan n lain

, J

. , d issen tin g ) (“ [W ]e m

u st accep t th e IJ ’ s f

i n d i n g o f f

act u n less th e ev id en ce

co mp els a co n trary

co n clu sio n

. T h is is an

ex trem ely

d ef eren tial stan d ard

o f rev i ew : it is n ot en o u g h th at th e ev id en ce su p p orts a co n trary

co n clu sio n , th at th e p an el w o u ld h av e w eig h ed th e ev id en ce d i ff eren t ly

, o r ev en t h a t t h e p an el is persu ad ed th at th e f in d in g is in co rrect; th e

ev id en ce m

u st b e so o v erw

h elm i n g th at n o t j u st th e p a nel b u t ‘ an y

r e a s o n a b l e a d j u d ica to r w o u ld b e co mp elled to co n clu d e th e co n trary .’ Th e law an d th e Su

p rem e Co u rt are u n e q u i v ocal on th is p o in t .” (in tern al citatio n s o m i tted )).B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 54

control and prevent the abuse of homosex u a l s

. T h e record evidence—uncorroborated hearsay test i mony by B ring as’s friends that police in Veracruz failed to respond to r eports o f h omosex ual abuse; newspaper a r ticles which documen t a n averag e of fewer than six ty murders per y ear of homosex uals in Mex ico, w ith n o e v idence at all reg arding how the Mex ican g overnment responded to those m u r d ers; a single instance of the persecution of a homosex ual man by Mex ican
g overnment of

f i c ials; and strong evidence o f efforts by the Mex ican g overnment to protect homosex u al citiz ens—does
not compel us to reverse the B I A’s finding

. 2 W e should deny the petition for review.

To reach its c onclusion that the r ecord evidence compels the conclusion that B ring as established past p ersecution, the majority holds that if the r e is any e vidence—including

u n c o r r o b o r a t e d h e a r s a y t e s t i m o n y

— t h a t a f

o r e i g n g overnment is unable or unwilling to c o ntrol p ersecution b y private, not public, individuals, the administrative trier of fact
must disdain evidence to the contrary , a n d must ig nore the alien’s failure to produce any of the ag ency -requested corrob o r a ting evidence, w hich our immig ration law specifically requires. 3 The effect of this new standard: h aving

2 S ee INS v. Elia s-Za ca ria s , 5 0 2 U.S. 4 78
, 4 8 1 n .1 (1 9 9 2 ) (“ T o

rev erse th e B IA f

in d in g w e m

u st f in d th at th e ev id en ce n o t on ly su pp o rts th at co n clu sio n , b u t co m

p els it—an d also co m

p els th e f u rth er co n clu sio n th at [th e p etitio n er] h ad a w ell- f o u n d ed f ear t h at th e g u errillas w ou ld
p ersecu te h im b eca u se o

f th at p o litical o p in io n .” (em ph ases in o rig in al)).

3 S ee 8 U.S.C. § 1 1 5 8(b )(1 )(B )(i)- (ii) (“ T h e b u rd en o f p ro o f i s o n th e ap p lican t to estab lish th at th e ap p lican t is a ref u g ee . .

. . W h ere th e trier

o f f act d e t e r m i n es th a t th e a p p lica n t sh o u ld p ro vid

e evid en ce th a t

co rro b o ra tes o th erwise cred ib le testimo n y , su ch ev id en ce m

u s t b e

co rro b o rated u n less th e ap p lican t d o es n o t h av e th e ev id en ce an d can n o tB R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 55

carried his burde n o f p r esentation o f evidence, the a lien is

reaso n ab ly ob tain th e ev id en ce.”). T h e Im m ig ratio n J u d g e (IJ ) ask ed B rin g as’ s co u n sel f

o r co rro b o ratin g details to su pp o rt B rin g as’ s claim th at th e Mex ican g o v ern m en t w a s u n ab le o r u n w illin g to co n tro l B rin g as’ s p riv ate persecu t o r s , a n d ev en g ran t ed B rin g as a 1 2 0

- d ay ex t en sio n to p ro v id e su ch co rro b o ratin g d etails. Du rin g on e of th e h earin g s bef o re th e IJ
, th e IJ m ad e th e f

o llo w in g co m

m en ts to B rin g as’ s atto rn ey : “ If I w ere

an atto rn ey , I’ d g o f

o r th e co rro b o ratio n b ecau se, I m ean , to m e, i t ’ s a lo t

m o re im p o rtan t to m ak e su

re y o u r case is p resen ted w ith all th e ad eq u ate p ro o f

, rath er th an risk th at in o rd er to see if y ou are ab le to b eat th e clo ck

an d g et a w ork card .” B rin g as’ s atto rn ey at t h e IJ h earin g resp o n d ed w i th th e f o llo w in g : “ W ell, let’ s j u s t g o ah ead an d set it o v er so th at w e can p ro v id e co rro bo ratin g ev id en ce. I d o n ’ t k n o w h o w su ccessf

u l w e’ re g o in g to b e, th at’ s th e o n ly p ro b lem .” In d eed

, ev en af ter th e 1 2 0

- d ay ex ten sio n p ro v id ed b y th e IJ
, B rin g as d i d n o t su pp lem en t th e h earsay testim o n y o f h is f rien d o r f rien d s—w

h ich w as th e co re o f h i s claim o f g o v er n m e n t al lassitu d e b ef

o re, o r co n tem

p t to , pleas f

o r g o v ern m en t h elp —w ith an y af f id av its f ro m h is f rien d s o r co rro b oratin g d etails th ro u g h h is t estim on y , n o r w ith an y p ro o f

s th at h e co u l d n o t “r e aso n ab ly o b tain ” th e ev id en ce. T h e ev id en ce th e m aj o rity p o i n ts to as co rro b o ratin g ev id en ce to ref u te th is d issen t h as n o th in g to d o w i th th e co rro b o ratio n actu ally req u ested b y th e IJ
, u n d er 8 U.S.C. § 1 1 5 8 (b )(1 ) ( B ) ( i i). T h e IJ req u ired ev i d en ce to

co rro b o rate B rin g as’ s claim th e M e x i c an g ov ern m en t w as u n ab le or

u n w illin g to co n tro l B rin g as’ s p riv ate p ersecu to rs. T h e State Dep artm en t 2 0 1 0 Co u n try Rep o rt is silen t o n th at sco re, as are th e n ew s p ap er articles. T h ey co n tain rep o rts o f in cid en ts, b u t say n oth in g ab o u t th e Mex ican
g o v ern m en t’ s i n v o l v em en t or reactio n to th o se in cid en t s. Of co u rse, th e p sy ch o lo g ical ev alu atio n o f B rin g as q u ite p ro p erly tells u s ab o u t h im an d h is claim s, b u

t tells u s n o th in g to co rro b o rate h is claim s of M e x ican
g o v ern m en t in v o lv em e n

t o r r e a ctio n to in cid en ts of p ersecu t io n co m m i tted b y o th er p erso n s

.B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 56

discharg ed from h i s burden of p ersuasion. 4 This is not a nd cannot be the law.

I.

Carlos Alberto B ring as-Ro d r i g u e z i s t wenty -six y ears old, homosex ual, and a citiz en of Mex ico. F rom the ag es of four
to twe l v e , B r ing as was repeatedly sex ually abused by his uncle, cousins, and neig hbor in Tres Valles, a to w n i n the Mex ican stat e of V eracruz

. At the ag e of twelve, B ring a s moved t o K a n s a s with his stepfather to live with his mother for several months, but within that same y ear returned to Tres Valle s to live with his g randmother. Once back in Tres Valles, the sex ual abuse continued. B ring as n e ver r eported the abuse to the police. At the ag e of fourteen, he returned to Kansas with his mother “to escape [ his] a busers.” He entered the United States without inspection or authoriz ation.

Six y ears later, at the ag e of twenty a n d w hile living in Colorado, B ring as pleaded g uilty to and wa s convicted o f attempted “Contributing to the Delinq u ency of a Minor.” 5

4 S ee 8 U.S.C. § 1 1 5 8 (b )(1 )(B )(ii) (“ T h e testim o n y o f th e [asy lu m ]
ap p lican t m ay be su f

f icien t to su stain th e ap p lican t’ s b u rd en w ith o u t

co rro b o ratio n , b u t o n l

y i f t h e a p p lican t s atisf

ies th e trier o f f

act th at th e ap p lican t’ s testim o n y is cred ib le, is p ersu a sive, a n d refers to sp ecific fa cts

su f f icien t to d em o n strate th e ap p lican t is a ref u g ee.” (em

p h ases ad d ed )); Mejia -Pa iz v. INS
, 11 1 F.3 d 7 2 0
, 7 2 2 (9 th Cir. 19 9 7 ) ( “[ T ] h e p etitio n er b ears th e b u rd en o f p ersu ad in g th e IJ th at h is ev id en ce is cred ib l e, an d th e IJ is en titled to ev alu ate assertio n s o f p ast p ersecu t io n in l ig h t o f th e stren g th o r w eak

n ess o f su ch o t

h er ev id en ce as th e p e t itio n er m ay p resen t .” (in tern al citatio n s o m itted )).

5 C OL O

. R E V

. S T A T

. § 1 8

- 6

- 7 0 1 (“ (1 ) A n y p erso n w h o i n d u ces, aid s,

o r en co u rag es a c h i l d to v io late an y f ed eral o r state law

, m

u n i cip al or

co u n ty o rd in an ce, o r co u rt ord er co m m its co n t rib u tin g to th e d elin q u en cyB R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 57

Shortly thereafter, immig ration authorities issued him a Notice t o Appear. B ring as conceded removability but

r e quested a sy lum, w ithholding of removal, and relief un d e r the Convention Ag ainst Torture (CAT). He claimed t h at he h a d suffered sex ual abuse a s a minor and that this ab u s e amounted to past persecution on account of his sex ual orientation.

T h e I J denied B ring as’s asy lum claim because i t w a s untimely f

iled. W ith respect to withholding of r emoval, the I J found B ring as credible but ruled th at B ring as had not established past persecution on account of a protected g r ound for two reasons: (1) The evidence established that the “central

r e a s o n s for the abuse were the perverse sex ual u rg es o f t h e abusers,” not B ring as’s sex ual orientation, and (2) there was

no evidence that the police in M ex ico would n ot have protected B ring as “from the sex ual a b u s e perpetrated upon him as a child.” As to B ring as’s fear of future persecution, the I J noted that country reports included a f ew instances o f persecution of homosex uals in Mex ico, but not any “pattern

or practice” of g overnment participa t i o n or a cquiescence in such persecution. Moreover, the country reports showed that the country a s a whole—and Mex ico City in particular—had made sig nifica n t a d vances with respect to rig hts for homosex uals, such that B ring as could potentially relocate to

a part of the country where h e would be safe. T h e I J also denied relief under the CAT o n the g rounds that B ring a s offered insufficient evidence that “torture in the future by the
g overnment, or with the acquiescence of the g overnment” was more likely

than not.

o f a m in o r. Fo r th e p u rp o ses o f th is sectio n , th e term ‘ ch ild ’ m ean s a n y p erso n u n d e r th e ag e o f eig h teen y ears. (2 ) Co n trib u tin g t o th e d elin q u en cy

o f a m in o r is a class 4 f

elo n y .”).B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 58

The B I A dismissed B ring as’s appeal. The B I A denied B ring as’s as y lum claim on the merits, assuming a rg uendo that the application was timely filed. The B I A concluded that B ring as failed to establish p a s t persecution because h e h ad
not proved that the g ove r n ment was unable or unwilling to control his abusers, avoiding the question whether Br i n gas established that he w as abused because h e was homosex ual. The B I A also found that B ring as did not have a w ell-founded fear of future p ersecution because h e failed to p rove a “pattern o r practice” of persecution ag ainst homosex uals in Mex ico. Citing this court’s op i n i on in Castro-Martinez v

. Holder

, 674 F

. 3d 1073, 1082 (9th Cir. 2011), and comparing
t h e e x perience of homosex u al men in Mex ico to the

ex p erience of h omosex u a l men in J amaica, 6 the B I A

ex p lained that no “widespread brutality ag ainst homosex uals

or

. . . c riminaliz ation of homosex ual conduct [ e x ists] in Mex ico.” W ith respect to withholding of removal, because B ring as f a iled to satisfy the lower burden of proof r equired for asy lum, the B I A f

ound that he failed to satisfy the hig her standard for withholding of removal. W ith r e spect to CAT relief, the B I A found no clear error in the I J ’s determination that B ring as failed to prove that torture by or w i th the acquiescence of the Mex ican g overnment was more likely than not.

6 In Bro mfield v. Mu ka s ey , 5 4 3 F.3 d 1 0 7 1
, 1 0 7 8 (9 th Cir. 20 0 8 ), th e Nin th Circu it g ran ted a p etitio n f o r rev iew an d r e m an d ed af t er f i n d in g a p attern o r p ractice of p ersecu tio n o f h o m o sex u al m en in J am aica. T h e

ev id en ce co m

pelled su ch a f

in d in g b ased o n a cu ltu r e of sev ere d iscrim in atio n ag ain st h o m o sex u als, n u m ero u s cases o f

v io len ce ag ain st p erso n s b ased o n th eir sex u al o rien tatio n b y p o lice an d v ig ilan te g ro u p s, b ru tality ag ain s t h o m o s ex u als, as w ell as J am aican law crim in alizin g h o m o s ex u al co n d u ct, resu ltin g in sev eral p ro secu tio n s.B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 59

F inally

, the B I A rejected B r ing as’s r equest to remand his

c ase to the I J in lig ht of B r ing as’s r ecent HI V diag n osi s

. B ring as’s brief to the B I A ex p lained his recent diag nosis a nd
arg ued that “this fact is si gnificant because it now places [ him] in a more vulnerable position should h e be r eturned to Mex ico.” Th e BI A declined to remand B ring a s’s case for further consideration b e c ause B ring as had not provi d e d any additional c ountry conditions evidence or specific arg uments reg arding how his status as an H I V p ositive homosex ual would chang e the outcome of his case.

B r ing as petitioned this court for review of t h e BI A ’s decision. T he three-judg e panel denied B ring as’s petition for review. The panel first n o ted that it could not “ resolve B ring as’s asy lum claim on t i meliness g rounds because the B I A ig nored this procedural defect

. . . .” Bringas-Rodriguez

v. Lync h

, 8 0 5 F .3d 1171, 1177 ( 9th Cir. 2015) (now withdrawn); see also A b ebe v. Gonzales

, 432 F

. 3d 1037, 1041 (9th Cir. 2005) (en banc) (“W hen the B I A has ign o r ed a procedural d efect and elected to consid e r an issue on its substantive merits, we cannot then de c l i n e to c onsider the issue based upon this procedural defect.”). I n r e v iewing B ring as’s asy lum claim on the merits, the panel concluded the evidence did not compel reversal of the B I A’s determination that B ring a s failed to establish past persecution or a wellfounded fear of future persecuti o n

. Bringas-Rodriguez

, 805 F .3d at 1177. The p anel followed the B I A and analy z ed only wh e ther B r ing as failed to establish that his abuse was inflicted by individuals the g overnmen t was unable o r unwilling to control, thereby a voiding the question whether B ring as suffered a

buse because he is homosex ual

. I d

. at 1177–78.B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 60

The panel ag reed with the I J and B I A that B r ing as failed
to establish that the Mex ican g overn m ent was unable o r unwilling to control h i s ab u sers, and therefore failed to

es tablish past persecution. Id. at 1178. The country reports and h earsay evidence introd uced by B ring as did not sufficiently

close the g ap in proof as to how the g overnment would have respon d e d to r eports of his abuse, h ad such reports been made. Id. a t 1 1 8 0–82. W ith respect to the country conditions evidence, the panel stated that the country reports noted no instances of discrimination or p ersecution in Veracruz and “ only one specific e x a mple of g overnment persecution on the basis of sex u al o rientation in Mex ico.” Id.
at 11 7 9

. The panel hig hlig hted portions of the reports describing “g ay pride” marches ac r o s s Mex ico as well a s a Mex ican Supreme Court decision “requiring Mex ico’s states to recog niz e leg ally performed [same-sex ] marriag e s performed e lsewhere,” a decision tha t w as made five y ears before the United States Supreme Cou r t reached a similar conclusion. Id. Turning to B r ing as’s te stimony about his friends’ ex periences in Veracruz
, the pane l f i rst recog niz ed that B ring as credibly testified that a “couple” of his friends told h im “that they g ot raped, they g ot beat up, like abuse, and they went to the police [ in Ver a c r u z, Mex ico] and they didn’t do any

thing ” ex cept “ l aug h [ in] their faces.” I d. at 1178. Nonetheless

, the panel concluded that the lack o f corroborating details about B ring as’s f riends’ e x periences— including the n ames of his frie n d s , how old they were when they were a

bused and when they r e p o r t e d their abuse, b y whom they were abused, to whom they reported their abuse,

or where the abuse occurred—justified the B I A’s conclusion that B ring as failed to establish that the g overnment would beB R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 61

unable or unwilling t o c o ntrol his abusers. 7 Id. at 1 180. The panel theref

o r e held that B r ing as was not entitled to a presumption of a w ell- fo u nded fear of persecution. Id. at 1182.

The panel also c o n c luded that B ring as’s evidence

s u p p orted the B I A’s conclusion that B ring as f a iled t o establish a well-founded fear of future pe r s e cution. I d

. The panel r ec o g niz ed two avenues for B ring as to establish an objectively reasonab l e fear of future persecution: (1) that he

was a member of a disfavored g roup ag ainst which there was a sy stematic pattern or practice of persecution, or (2) that he belong s to a disfavored g roup and has an individualiz ed risk of being sing led out f

o r persecution. Id. B ring as forfeited the second a rg ument by f

a iling to raise it before the B I A

. Therefore, the panel focused o n l y on whether B ring a s established a pattern or practice of persecution o f homosex ual

men in Mex i c o

. I

d. The panel concluded that B ring a s adduced no evidence establishing a chan ge of conditions in Mex ico since the court decided Castro-M a r t i nez v. H

older

, 674 F .3d 1073, 1082 (9th Cir. 2011). 8 Therefore, the panel held that substantial evidence supported the B I A ’s finding o f

no pattern or practice of persecution. Bringas-Rodriguez

, 805 F .3d at 1183.

7 T h ese d etails w ere req u ested of B rin g as’ s co u n sel, t o g eth er w i t h a p ro v isio n o f tim e f o r th eir p ro d u ctio n

. S

ee su p ra n o te 3

.

8 In Ca stro -Ma rtin ez , th is co u rt rej ected t

h e claim th at “ th e Mex ican
g o v ern m en t sy stem atically h arm ed g ay m en an d f ail e d t o p ro t ect th em f ro m v io len ce.” 6 7 4 F. 3 d a t 1 0 8 2. A lth o u g h th e co u rt ack n ow led g ed

ev id en ce o f so cietal d iscrim in atio n an d iso lated attack s, as to th e req u ired elem en t o f g o v ern m en tal lassitu d e o r in cap acity

, it ex p lain ed t ha t “ th e Mex ican g ov ern m en t’ s ef f o rts t o p rev en t v io l en ce an d d iscrim in atio n ag ain st h o m osex u als . . . h a[d ] in creased in recen t y ears.” Id

.B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 62

W ith respect to B ring as’s CAT claim, the panel h e ld that the same e vidence that supported the B I A’s dismissal of the pattern-or-practice cl a i m also supported the I J and B I A ’s conclusion that B ring a s failed to establish a likelihood o f
torture. Id. at 1184. As the panel stated, conditions in Mex ico

are “insufficiently dang e rous for g ay people to cons t i t u t e a likelihood of g over nment-initiated or -sanctioned torture.” Id .; Castro-Martinez
, 674 F .3d at 1 082. The p anel noted that the likelihood of future torture was especially low g iven that B ring as is now a “selfsufficient [ sic] homosex ual adult” w ho could “ relocate t o a different part o f Mex ico.” BringasRodriguez , 805 F .3d at 1184.

F inally

, the p a n e l held that the B I A did n o t abuse its discretion in declining to remand based on B ring as’s HI V diag nosis. A ccording to the panel, the B I A offered a reasoned

ex p lanation that was neither arbitrary nor irrational: B ring a s did n ot provide “any additional c ountry conditions evidence

or specific arg u ments reg a r ding how his [ HI V] status chang e s the outcome of his case.” Id. at 1185.

B r ing as filed a petition for rehearing en banc, w h i c h we gr anted. A majority of the en b anc panel today over r u l e s several of our prior immig r at i o n cases in two respects, but only by misreading those cases. F irst, the majority holds that Rahimzadeh and Afriyie “unnecessaril y introduced the
constru ct that the f

ailure to report [ p rivate persecution to g overnment authorities] creates a ‘g ap’ in the evidence, because o u r l a w is clear that the ag ency , and we, upon review, must ex amine a ll the evidence in the record that bears

on the question of w het h e r t h e g o vernment is unable o rB R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 63

u n w i lling to control a private persecutor.” 9 O p. at 35. T h e majority overrules Rahimzadeh and Afriyie “[ t] o the e x te n t that [the] discussion of g ap filling sug g ested that the burden of proof o n g overnmental inability or unwilling ness to protect

was something bey ond the st a n d ard we use for other elements—proof by a preponderance of the ev i d ence, considering all the evidence in the r e c o r d .” Op. at 35. Howeve r , neither case held that any “g ap” created by the failure to r ep o r t c o uld not be filled by other evidence. At most, the “g ap” lang uag e commented o n the lack of one k ind of evidence

, w hich could be su p planted by another k ind o f evid e n c e

. I t did not increase the e videntiary burden on the petitioner. F o r instance, there is n o “g ap” in establishing the date o f a fire loss when the homeowner does not file a report with the F ire Departme nt, if he produces a d a te-stamped video of his house burning

. Similarly

, there is no “g ap” when

an asy lum p etitioner does not re p o r t his persecution b y private individuals to g o vernment officials, i f h e produces alternative, compelling evidence that the foreig n g overnment at issue is unable or unwilling to control his persecutors.

Second, the majority overrules Castro-Martinez because, in that case, “[ w] e imposed a hig her burden [ on Castro, w ho

was persecuted by private individuals as a child] that r equired Castro to demonstrate that ‘Mex ican authorities would have ig nored the rape of a y oung chil d or that authorities were unable to provide a child protection ag ainst rape.’” Op. a t 37 (citing Ca s t ro-Martinez
, 6 74 F .3d at 1081). The majority holds that this lang uag e effectively imposed “a reporting requirement on sex u ally abused c hildren: either the p etitioner
must have reported in his o w n case, or other children must

9 Ra himza d

eh v. Ho ld

er , 6 13 F.3 d 9 16 (9 th Cir. 2 0 1 0 ); Afriyie v. Ho ld er , 6 13 F.3 d 9 2 4 (9 t

h Cir. 2 0 1 0 ).B R I N G A S

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have r eported to create the b asis for a country r eport on t he
g eneral response.” Op. at 39–40. However, Castro-Martinez stated u nequivocally that asy lum petitioners, especially children, n eed not rep o r t t h eir abuse to establish past persecution. S

ee Castro-Mar tinez
, 674 F .3d at 1081 (“W e have never held that any victim, let alone a child, is oblig ated
to r eport a sex u al assault to the authorities, and we do not do

so now.”). I nstead of accur ately reading Castro-Martinez
, which n eeded no clarification with respect to w h et h er a reporting requirement ex ists for asy lum petition er s of any ag e, the majority removes the requirement imposed by the Supreme Court and Cong ress o n asy l u m petitioners to produce evidence sufficient to compel the conclusion that the foreig n go v e rnment was unable or unwilling to protect ag ainst private persecution. I a d d r e ss the majority ’ s two issues in turn.

II.

A. The majority rejects our substantial e vidence standard by holding that merely proffer ing traditional “types of proof” categorically suffices t o establish an “unable or unwilling” claim.

The majority take s issue with the commonsense conclusion reached in Rahimzadeh and Afriyie that a petitioner who does not r eport his private per s e c ution to g overnment officials leaves an ev i dentiary “g ap” reg arding how those officials would react to such a report

. 1 0 The

1 0 S ee Ra h imza d

eh

, 6 1 3 F .3 d at 9 2 2 (“ T h e ab sen ce o f a rep o r t t o p o lice d o es n o t rev eal an y th in g ab o u

t a g o v e r n m en t’ s ab ility or

w illin g n ess to co n tro l p riv ate attack ers; in s tead

, it leav es a g ap in p ro of ab o u t h o w th e g o v ern m en t w o u ld resp on d if ask e d

, w h i c h th e p etitio n erB R I N G A S

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. S E S S I O N S 65

majority “supersedes” R a himzadeh and Afriyie because “[ f] raming the question of nonrepo r t i n g as a ‘failure’ that

c r e a tes an evidentiary ‘g ap’ h ad the inadvertent effect o f heig htening the evidentiary s tandard bey ond the traditional types o f proof

, accepted in every prior precedent, that we have deemed sufficient to demonstrate g overnmental inabil i t y o r unwilling ness to protect victims of persecution.” Op. at 35 (emphasis added).

The asse r t i o n that Rahimzadeh and Afriyie created a heig hte n ed e v identiary standard for petitioners who f ail to report their private persecution to g overnment authorities ig nores clear lang u ag e to the contrary f rom b o t h o pinions. Rahimzadeh and Afriyie m a de clear that reporting private persecution to g overnment a u thorities is not required to establish p ast persecution. 1 1 Rahimzadeh a nd Afri y i e also provided clear g uidance reg arding h ow evidence o ther than

m ay attem

p t to f ill b y o th er m eth o d s.”); Afriyie

, 6 1 3 F.3 d at 93 1 (“ ‘ [T ]h e

a b s e n c e o f a r ep o rt to p o lice

. . . leav es a g ap in p ro o f ab o u t h o w th e g o v ern m en t w o u ld resp o n d

, w h ich t h e p etitio n er m ay attem

p t t o f ill b y

o t h e r m eth o ds.’ ” (q u o tin g Ra h imza d eh

, 6 1 3 F.3 d at 92 2 )). Reco g n izin g th at a “ g ap ” ex ists is n ot to m ak e i t d eterm in an t o r ch an g e th e s tan dard of
p r o o f w h ich req u ires all ev id en ce on th e m atter to b e co n sid ered

. S e e Vitu g v. Ho ld

er , 7 2 3 F.3 d 1 0 5 6
, 1 0 6 4 (9 th Cir. 2 0 1 3 ) (“ [T ]h e B IA ab u ses its d iscretio n

w h ere it ig n o res arg u m en t s o r ev id en ce.”).

11 See Ra h imza d

eh

, 6 1 3 F .3 d at 92 1 (“ T h e r ep o rtin g o f p riv ate p ersecu tio n to th e au th o rities is n o t, h ow ev er, an essen tial req u irem en t f or estab lish in g g o v ern m en t u n w i llin g n ess or in ab ility to co n tro l attack ers.”); id

. a t 92 2 (“ [I]t is clear th at th e IJ treated th e f ailu re to rep o rt as m erely

o n e f acto r i n t h e assessm en t o f t h e D u t ch g o v ern m en t’ s w illin g n ess an d ab ility to co n tro l p riv ate ex trem ists, n o t a s a p e r s e b ar to asy lu m .”); Afriyie

, 6 1 3 F .3 d at 9 3 1 (“ W e b eg in b y n otin g th at rep o rtin g persecu tio n to g o v ern m en t au th o riti e s is n o t essen tial to d em o n s tratin g th at th e g o v ern m en t is u n ab l e o r u n w i llin g to p ro tect h im

f ro m p riv ate acto rs.”).B R I N G A S

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. S E S S I O N S 66

reports to the police c a n compel the conclusion that
g overnment officials were unable or unwillin g to protect petitioners from private persec u t ion. 1 2 The lang uag e from those opinions needed no further clarification.

B u t the majority does no t o v e r rule those cases in an attempt to clarify how this court reviews evidence o f past persecution. I ns t e a d

, the majority recites, y et ig nores the standard o f review for past persecution claims involving private persecutors. 1 3 The majority holds that “[ f

] raming the
qu estion of nonreporting as a ‘failure’ that creates an evidentiary ‘g a

p’ had the inadvertent effect o f heig htening the

e videntiary standard bey ond the traditional types of proof

, accepted in every p r ior p recedent, that we have deemed sufficient to d emonstrate g overnmental inability o r

12 In Ra h imza d

eh an d Afriyie , w e ex p lain ed th at p etitio n ers w h o d o

n o t rep o rt t

h eir p riv ate p ersecu tio n to g o v ern m en t au th o rities can estab lish th at g o v ern m en t au th orities w ere u n ab le or u n w illin g to p ro tect th em th ro u g h sev eral ev id en tiary ch an n els. Fo r ex am p le, p etitio n ers co u ld estab lish t h at oth ers h av e m ad e rep o rts of sim ilar in cid en ts to n o av ail—as B rin g as d id h ere in p ro f

f erin g th e h earsay statem en ts o f h is f rien d s as to th eir in so u cian t an d co n tem p tu o u s recep tio n b y th e Mex ican p olice, see Afriyie

, 6 1 3 F.3 d at 9 3 2

– 3 3
, o r th at “ p ri v a t e p e r s ecu tio n o f a p articu lar

so rt is w id esp read an d w ell- k n o w n bu t n o t co n tro lled b y th e g ov ern m en t.” Ra h imza deh , 6 1 3 F.3 d at 9 2 2

.

13 T h e m aj o rity ch aracterizes i ts o p in io n as m erely clarif y in g th at “ th e leg al stan d ard

, su

b stan tial ev id en c e , i s n o t h eig h ten ed o r m ad e m ore strin g en t w

h e n t h e p e rsecu t io n is d irected to a ch ild

, as o p p o sed to an ad u lt

. . . .” Op

. at 3 6
, n .1 1

. B u t th e m aj o ri t y d o es n ot ap p ly th e tru e

su b stan tial ev id e nce test to eith er ch ild ren o r ad u lt p etitio n ers. On th is
p o in t, th e co n cu rren ce ag rees. S ee C o n cu rrin g Op

. at 5 0 (“ In m y v iew

, th e

m aj o rity o p in io n d o es n o t resp ect t h e p ro p er stan d ard f o r o u r co u rt’ s

rev iew o f an o rd er o f rem o v al. T h at stan d ard is su p p o sed t o b e h ig h ly d ef eren tial, an d I ag ree w ith t h e d is s e nt t h at i t h as n o t b een ap p lied th at

w ay in th is case.”).B R I N G A S

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. S E S S I O N S 67

unwilling ness to protect victims of persecution.” Op. at 35 (emphasis added). Neither we, nor an y other court, has accepted the n otion that presentation o f a t y p e of proof used in other cases, reg ardless of its probative value, is categ orically sufficient to establish that g overnment officials

were u nable or unwilling to control private persecution. The
nature and quality of the evidence adduced alway s mattered. However, under the majority ’s view, the probative v a l ue o f that p r oo f becomes irrelevant w hen petitioners provide a

“ type [ ] of proof

, accepted in ev e r y p rior precedent, that we have deemed sufficient to d e m o n s t r a t e g o v e r nmental inability

or unwilling ness to protect victims of persecution.” O p. at 35 (emphases added). The majority i gn o r e s that a n inadequate
response by g overnment officials t o a petitioner’s direct report of private p ersecution will sometimes provide strong er evidence that g overnment officials are unable or unwilling to protect a g ainst private persecut i on than other ty pes o f evidence. Our prior cases recog niz ed this uncontroversial
statement reg arding the nature of e vidence. See, e.g. , Afriyie

, 613 F .3d at 9 31 (“[ W ] hen a n applicant atte m p t s t o report persecution to the police or request protection from them, the authorities’ response (or lack t h e r eof) to such requests may provide powerful evidence with resp ect to the g overnment’s willing ness or ability to protect the requestor.” (emphasis added)). Rahimzadeh and Afriyie did n ot create a heig htened evidentiary burden for petitione r s wh o do not report their persecution. Those cases simply r ecog n iz ed that a petitioner’s direct report to g overnment officials, followed by an inadequate or n onex istent r esponse by those officials, provides “powerful” proof that indirect, vag ue, or hearsay evidence may lack. My colleag u es fundamentally a lter our long standing substantial evidence standard o f review b y

su gg e sting that evidence other than a failure to report persecution to t h e police—such as B ring as’s hearsayB R I N G A S

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I G U E Z V

. S E S S I O N S 68

testimony from friends—categ orically s u f fices to constitute compelling evidence that g overnment officials are unable or unwilling to control p erse c u t i o n b y p r i vate, nong overnmental individuals.

B. The majority sets aside substantial evidence review by excusing a dult p etitioners who were persecuted a s children from adducing suff i cient, a lternative evidence that the g overnment w a s unable or unwilling to protect them.

My colleag ues take issue with the following lang uag e in Castro-Martinez :

As the B I A ob s erved, there w as no evidence in the record that Mex ican authorities would have ig nored the r ape o f a y oung child or that authorities were unable to p r o v ide a child
p r o t ection ag ainst rape.

. . . [ N] one of [ the ] reports comp el the conclusion that the police would have disreg arded or harmed a male child who reported being the victim o f homosex ual rape by another male.

Castro-Martinez
, 674 F

. 3d a t 1081. According to my colleag ues, this lang uag e effectively requires child v ictims o f private p ersecution to report their abuse to the authorities based on the followingreasoning :

[ C] hildren who suffer sex ual a b u s e a re g enerally u nlikely to report that abuse to

a u thorities. B ecause they are unlikely t o report, it is similarl

y u n likely that country reports or other eviden c e will be able toB R I N G A S

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I G U E Z V

. S E S S I O N S 69

document the police response, o r lack thereof

, to the sex ual abuse of children.

. . . That added burden was inappropriate, both because it reflected a heig htened gap-filling proof requirement and b e cause it focused on evidence reg arding the tr e a t ment of g ay children rather than the treatment o f g ay Mex icans g enerally

. Op. at 39–40 (emphasis added). Castro-Martinez addressed this ex act issue: whether the victim’s report of t h e ab use to the p o l i c e was a requirement, e lse an evidentiary g a p would make the rest of the victim’s proof insufficient, and whether this requirement obtained on ly as to homosex ual children. See Castro-Martinez
, 6 74 F .3d at 1081 (“W e have never held that
any victim, let alone a chil d

, i s o b lig ated to report a sex ual assault to the authorities, and we do not do so now.”). CastroMartinez ’s ex press lang u a g e does n ot permit of a reading that

a reporting requirement ex ists for p ers ecuted children a nd only for such children rather than similar adults. Nonetheless, the majority conclu d e s that Castro-Martinez created a reporting requirement for persecuted children.

The majority is undoubtedly correct that child r e n w ho suffer sex u al abuse are unlikely to report t h e ir abuse to g overnment officials o f t h e i r own a ccord. The fact that victims of private persecution—young o r old—are unlikely
to report their abuse to authorities ex plains w h y w e have

never held that victims of p rivate persecutio n n eed to report their abuse to establish past persecution for asy lum purposes. See

, e. g

. , Rahimzadeh

, 613 F .3d at 922 (“None of [ the immig ration cases surv ey ed]

, or any other we h ave found,
creates a freestanding reporting requirement to qualify for
asy lum.”). B ut the majority g oes much further than restatingB R I N G A S

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that child victims of private persecuti o n , like all victims o f private persecution, need not report their persecut ion to the authorities. The majority concludes that, because children a re unlikely to report, “ it is similarly unlikely that cou n try reports or o ther e vidence will b e able to document the police
response, or lack thereof

, to the sex ual abuse of ch i l d r e n

. ” Op. at 39 (emphasis added). I n other words, this court should

ex c u se the absence of any “country report[ ] or o t her evidence” that g overnment officials w ere unable or u nwilling
to protect adult petitioners who suffered persec u tion as a child because children are unlikely to report their private persecution to the authorities.

The major i ty fails to ex plain why adults who suffer private p ersecution at the hands of their family

, neig hbors, o r community are any less like l y t o report their private persecution to g ove r

n m e n t a u t h o r i ties, and thus less d eserving of the majority ’s lack-of-evidence-be-damned approach. W e do n ot require victims of private perse c u tion to report to g overnment authorities to establish past p ersecution for
asy lum purposes b e c ause, no matter their a ge , victims a re unlikely to report private persec u t i o n g iven that reporting
may be futile or dang erous. See Afriyie

, 6 1 3 F. 3 d at 931. N o netheless, our nation’s immig r ation law still requir e s asy lum petitioners to a dduce sufficient evidence other than their o r others’ reports to g o v ernmental authorities to prove that those authorities were una ble or u nwilling to protect asy lum p etitioners from private p ersecution. Th e m a jority dismisses th at r equirement for a petitioner who e x p erienced persecution when he w as a child—even thoug h the petitioner,

as an adult, can reasonably identify other docu m e n tary , anecdotal, or statistical e vidence to supp o rt his “unable o r

un wi lling ” claim—because the petitioner was u nlikely to report his persecution w hen he was a child. B ut adultB R I N G A S

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. S E S S I O N S 71

petitioners are also unlikely to report their private persecution
to authorities, and thus simil a r l y unlikely to obtain “ country reports or other evidence” d ocumenting the “police response,

or lack ther e o f

” t o reports of private persecution. I fear our court will soon ex cuse t he a b sence o f “country reports o r other e vidence” from asy lum peti tioners who e x p erienced private persecuti on as adults under the same r easoning adopted by the majority today

. W e lack the authority to make such a dramatic shift in our nation’s immig ration and asy lum law. I f there is to b e a relax in g o f our asy lum requirements for vic t i ms of private persecution, the authority lies with Cong r ess, not this court, to enact it.

III.

B r ing as’s evidence does no t compel the conclusion that Mex ican authorities were u nable o r u n willing to control B ring as’s private persecutors. After r e c iting

, b ut then lowering o ur standard o f review bey ond the bounds set by the Supreme Court in Elias-Zacarias and Cong r e s s i n 8 U .S.C. 1252(b)(4)(B ), the majority easily r eaches the conclusion that B ring as adduced evidence suffici e n t to compel the conclusion that Mex ican authorities were unable or unwilling to protect him. The majority reaches this conclusion by comparing B ring as’s evidence to th e e vidence presented in o ther cases in our circuit involving petitioners who suff e r e d private persecution a

nd never repor ted their persecution to the authorities. Op

. at 24–34. However, a careful review of the evidence presented in those cases ex plains why t h e n a t ure and quality of the evidence adduced b y B ri n ga s does not

come close to compellin g the conclusion reached by theB R I N G A S

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majority

. 1 4 Compared to the evidence in our prior cases , Br i ng a s’s evidence included only vag ue, unspecific hears a y testimony describing h is friend[ s] ’ ex periences w ith the police in Veracruz
, 1 5 news p a per articles which documented

14 S ee Ko ra b l in a v. INS
, 1 5 8 F.3 d 1 0 3 8, 1 0 4 2 (9 th Cir. 19 9 8) (g ran tin g th e p etitio n f

o r rev iew b a s e d o n ev id en ce th at th e p etitio n er

w itn essed th e b eatin g o f

h er J ew ish bo ss, w

h o se b eatin g w as rep o rted to th e p o lice to n o av ail, an d rep o rted th e b eatin g to a f rien d at t h e m u n icip al city h all, w

h o so on th ereaf

ter “ d isap p eared ”); Orn ela s-Ch a vez v. Go n za lez

, 4 58 F.3 d 1 0 5 2
, 1 0 5 7 (9 th Cir. 2 0 0 6) (g ran tin g i n p a r t th e p etitio n f o r rev iew b ased o n cred ib le testim o n y th at (1 ) th e p etitio n er w as p erso n ally m istreated an d h arassed b y p o lice of f icers, w h o j ailed h i m an d th reaten ed t o d o so ag ain if h e co n tin u e d d a t i n g m en , an d (2 ) p olice

o f f icers b ru tally

m aim ed an d k illed th e p etitio n er’ s g ay f rien d s); Afriyie

, 6 1 3 F.3 d at 92 8

– 2 9 (9 t

h Cir. 2 01 0 ) (g ran tin g in p art th e p etitio n f or rev iew b ased o n cred ib l e testim o n y

th at (1 ) th e petitio n er an d o th ers rep orted to th e p o lice, to n o av ail, th e p etitio n er’ s b eatin g b y p riv ate acto rs, th e

m u rd er o f m em

b ers o f h is relig io u s g ro u p b y p riv ate acto rs, an d th e

m u rd er o f th e p etitio n er’ s sister an d d estru ctio n o f h er h o m e, an d (2 ) th e p o lice h ad o n ly on e g u n a t t h e p o lice statio n w ith w h ich to p ro tect th e p etitio n er’ s relig io u s g r o u p ); Vitu g , 7 2 3 F.3 d at 1 0 6 4 (9 th Cir. 20 1 3) (g ran tin g in p a r t th e p etitio n f o r rev iew b ased o n ev i d en ce th at th e p etitio n er w as p erso n ally h arassed an d th reaten ed b y p o l ice o f f icers on

acco u n t o f

h is sex u al o rien t atio n ).

15 B rin g as g av e th e f

o llo w in g cred ib le, h earsay testim on y : “ [W ]h en I w as liv in g in Kan sas, co u p l e o f m y f rien d s to ld m e th at th ey

g ot rap ed

, th ey g o t b eat u p , lik e ab u se, an d th ey

w en t to th e p o lice [in Mex i co ] an d th ey d id n ’ t d o an y

th in g

. T h ey ev en l a u g h o n [sic] th eir f aces.” B rin g as also stated th e f

o llo w in g in h is asy lu m ap p licatio n : “ If I w en t to t h e p olice [in Mex ico ] th ey w o u ld n ’ t do an y th in g

. T h ey w ill tak e a rep o rt an d n ev er f o llo w

- u p o n it or th ey w o u ld sim p ly l a ug h at m e an d tell m e t h at I g o t

w h at I d eserv ed b ecau se I am g ay

. My g ay f rien d f ro m Veracru z liv in g in Kan sas Ci t y to ld m e th is is w h at h ap p en ed t o h im .” B rin g as p resen ted in co n sisten t statem en ts reg ard in g w h eth er a s in g le “ f

rien d ” or m

u ltip le

“ f rien d s” rep o rted to th e Mex ican p o lice th ey h ad b een v i ctim s o f ab u se, all to n o av ail. C r e d i b l e h earsay ev id en ce, su ch as Brin g as’ s f rien d s ’
statem en ts, m ay b e ad m issib le in im m ig ratio n p ro ceed in g s. Ro ja s-Ga r ciaB R I N G A S

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. S E S S I O N S 73

isolated incidents o f private discrimination and persecution

a ga i nst homosex ual individuals in Mex ico, 1 6 and a sing l e instance of persecu t i o n ag ainst a homosex ual man b y

v. Ash cro ft

, 3 39 F.3 d 8 1 4
, 8 2 3 (9 th C ir. 2 00 3 ). T h e m aj o rity p laces g reat

w eig h t o n th e f

act th at “ B rin g as’ s testim on y w a s su f f icien t l y sp ecif

ic to b e d eem ed cred ib le.” Op

. at 4 5

– 4 6 n .1 7

. Here, th e m aj o rity g i v es u s a

co n crete ex am

p le o f its u su

rp a tio n of f

act- f i n d in g p o w er f

ro m th e ad m i n istrativ e ag en cy to itself

. W h eth er th e ev id en ce w as “ s u f f i cien tly ”
sp ecif ic w as n o t th e m aj o rity ’ s c a l l. W h eth er h earsay testim o n y w as so sp ecif ic as t o co mp el it be ad

j u dg ed cred i b le is t h e p ro p er stan d ard f or j u d g m en t. Mo reo v er, th e m ere ab s en ce o f an ad v erse cred ib ility f in d in g d o es n o t co m

p el o u r co u rt t o m ak e a f in d in g co n trary to th e B IA

. T h at

w o u ld m ak e a h ash o u t o f th e REA L ID Ac t of 2 0 0 5
, w h ich a ssu mes n o

a d v e r se cred ib ility f

in d in g , bu t au th o rizes th e trier o f f act t o req u ire

co rro b o ratin g ev id en ce, an d in th e ab sen ce o f su ch co rro b o ratin g

ev id en ce, allo w s th e trier o f f act to rej ect th e o th erw ise cred ib l e ev id en ce

as o f i n su f

f i cien t w eig h t

— w h i c h i s p recisely w h at h ap p en ed to B rin g as. He w as g iv en 1 2 0 d ay s to b u ttress h is testim on y w ith co rro bo ratin g d etails

an d o th er ev id en ce. He rej ected th at o p p o rtu n i ty

. He g av e n o ex p lan atio n

as to w h y h e co u ld n o t p ro d u c e an y of th e co rro b oratin g ev id en ce req u ested

, ev en th ou g h th e st a t u t e sp ecif ically p ro v id es f

o r g ro u n d s

av ailab le to ex cu se f

ailu re to p ro d u ce t

h e c o r r o b o ratio n

. S

ee 8 U.S.C. § 1 1 5 8 (B )(i)- (ii) (“ T h e bu rd en of p ro o f i s o n th e ap p lican t to estab lish th at th e ap p lican t is a ref

u g ee

. . . . W h ere t

h e trier o f f

act d etermin es th a t th e

a p p lica nt s h o uld p ro vid

e evid en ce th a t co rro b ora tes o th erwise cred ib le testimo n y , su ch ev id en ce m

u s t be co rro b o rated u n less th e ap p lican t d oes

n o t h av e th e ev id en ce an d can n o t reaso n ab ly o b tain th e e v id en ce.” (em p h asis ad d ed )); see a lso su p ra n o te 3

.

16 “ Brin g as ad d itio n ally o f f ered sev eral n ew s p ap er articles, i n clu d in g

o n e in w h ich th e A sso ciated P ress rep o rted th at a ‘ rev iew o f m o re th an 7 0

n ew sp ap ers in 1 1 Mex ican states’ rev ealed an in crease f ro m ‘ an av erag e

o f n early 3 0 k illin g s a y ear m otiv ated by h om o p h o b ia b etw een 1 9 9 5 an d 2 0 0 0 ’ to ‘ n early

6 0 a y ear b etw een 2 0 0 1 an d 2 0 0 9 .’ ” Op . at 4 7

.B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 74

Mex ican officials. 1 7 Our prior cases in v o l v ing private persecution ex plain why I cannot join the majority in holding
t h a t the evidence here compels the conclusion that Mex i c a n authorities were unable or u nwilling to protect B ring as. W e have never r eached such a conclusion o n evidence as w eak a s that which B ring as presents.

B u t the majority does not err only by overweig hing B ring as’s scant evidence that the Mex ican authori t i e s were unable o r unwilling to protect him. The majority also undervalues evidence of social prog ress in Mex ico reg arding rig hts for homosex ual individua l s i n a manner that defies log ic. T he majority first summariz es the relevant evidence o f social prog ress in Mex ico identified by the panel in BringasRodriguez v. Lynch

, 805 F .3d 1171 (9th Cir. 2015) (now withdrawn):

[ T] he [ three-judg e] panel majority f ound that the country reports demonstrated that Mex ico permitted g ay pride marches and h ad

ex p and ed marriag e equality

. The panel majority also c ited a United Nations report stating that M ex ico h ad established a

17 “ In 2 0 0 7
, [A g u stin Hu m b erto Estr a d a N eg rete] p articip ated in a g ay rig h ts m arch w earin g a d ress an d h ig h h eels. A cco rd in g to th e NGO A sileg al, s o o n af

ter th e m arch

, E strad a b eg an receiv in g th reaten in g telep h o n e calls an d v erb al an d p h y s ical attack s. In 2 0 08 h e w as f ired f ro m th e sch o ol f

o r ch ild ren w i th disab i lities w h ere h e w o rk ed

. A f

t er h is d ism issal, h e an d a g ro u

p o f su p p o rters b eg an lo b b y in g th e g ov ern m en t to rein state h im ; w

h en t h ey w en t to t

h e g o v ern o r’ s palace to atten d a m eetin g

w ith state o f

f icials i n May
, p o lice beat h im an d h i s s u p po rters. T h e n ex t d ay h e w a s t a ke n to priso n , t h reaten ed

, an d rap ed

. A lth o u g h h e w as released

, Estrad a co n tin

u ed to f ace h arassm en t b y

state au th o rities.” Op

. at 4 6

– 4 7

.B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 75

“‘specializ e d hate crime prosecu t ion unit[ ] ,’ d e v e loped a ‘new judicial protocol to g ui d e adjudication of cases involving human rig hts violations on g ro u n d s of sex ual orientation,’ implemented specializ ed training for police officers, and official ly desig nated May 17 a s ‘National Day Ag ainst Homophobia.’”

Op. at 11 ( internal c itations omitted). T he majority holds that, despite th i s evidence of prog ress, as countries like Mex ico successfully improve condit ions for particular social g roups eligi b l e for a sy lum, any private backlash that results from such government-sponsored improvements should be interpreted b y t his court as evidence that the foreig n go v ernment is in fact “unable or unwilling ” to protect t h at particular social g roup. See Op. a t 9 (“Th e reports showed
t h a t the violence rose even as—and perhaps becau s e— Mex ican laws were b ecoming increasingl y tolerant o f g ay rig hts.”). I n other words, as countries b ecome more able a nd

w i l l i n g to protect a particular social g roup, the trier of fact
must d isreg ard that evidence of social p rog ress and conclude that countries are in fact less a b l e a n d willing to protect particular social g roups when isolated incidents of private persecution o ccur. The majority does not provide any limiting principle reg a

rding w hen our court should be gi n to accept evidence of t h e sig nificant prog ress of foreig n countries in protecting its most vulnera ble citiz ens, or ex plain why evidence of an averag e of less than 6 0 homophobia-motivated murders a y ear co m m i t ted by p rivate actors in Mex ico between 2001 a n d 2009 permits a conclusion that the Mex ican g o v ernment, overseeing a country o f more than 120B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 76

million people, is unable or unwilling to p rotect i t s homosex ual citiz ens. 1 8

The majority alternativel y s et s a side the evidence o f M e x i co ’ s social p rog ress advancing the rig hts o f homosex ual s b e cause the evidence reflects chang es made after the period during which B ring a s w a s a bused, which ended in 2004. O p. at 48. O f c o u r s e , the same can be said about most of t h e evidence B r ing as relies on to support his claim that Mex ican police were unable or unwilling to protect him before 2004. T h e country reports are from 2 009 a nd 2010. The sing le ex ample of police violence a ga inst a homosex ual man occurred in 2008. The newspaper articles

w e r e p ublished in 2010. Using the majority ’s reasoning

, t h e only relevant evid e n ce adduced by B ring as was hearsay testimony reg arding his homosex ual f r iend[ s] ’ ex periences with the police in Mex ico, and a sing le article d o c u m e n ting the number of murders c o mmitted by private actors e ach y e ar between 1995 and 2009 that w ere motivated by homophobia, with no discussion whatsoever of how Mex ican police

r esponded to those private acts. E ven under the rela x e d

18 S ee CIA
, T HE W ORL D F A CT B OOK (2 0 1 6 )

, a v a ila b l e a t h t t p s : / / w w w

. c i a

. g o v / l i b r a r y / p u b l i c a t i o n s /

t h e

- w o r l d

- f

a c t b o o k / g e o s / m x

. h t m l (estim atin g Mex ico ’ s p o pu latio n to b e 12 3 ,1 6 6 ,7 4 9 as o f J u l y 2 01 6 ). T h e

m a j o rity ’ s co n clu sio n th at an av erag e o f f ew er th an 6 0 h o m o p h ob ia

m o tiv ated a m

u rd ers a y ear i n a co u n try o f 1 2 0 m illio n p eo p le co m p els th e

co n clu sio n th at th e Mex i can g o v ern m en t is u n ab le o r u n w illin g to p ro t ect its h o m o s ex u al citizen s i s e s p e c i ally co n f ou n d in g g iv en th at th e sa m e

a rticle w h ich d o cu m en ts th o se m

u rd ers g o es o n to d i s c u s s th e Mex ican
g o v ern m en t’ s “ rad io c a m p a i g n in 2 0 0 5 to p ro m o te to leran ce of h o m o s ex u als,” t

h e l a w s p assed in Mex i co City w h ich elev ated h o m o sex u al m arriag e t o th e sam e statu s as h etero sex u al m arriag e an d allo w ed sam e- sex co u

p le s t o ad o p t ch ild ren , an d Mex ico City ’ s an n u al

“ g ay p rid e p arad e.”B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 77

standard of review a d o p t ed today

, B r ing as’s e vidence does not compel the conclusion reached by the majority

.

IV.

Even if I ag reed w ith the majority that the evidence here compelled the conclu s i o n that B ring as suffered past persecution, I would still dissent on the basis that the past persecution purportedly esta blished here does not entitle B ring as 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 app l i c a

nt’s fear of future persecution is unrelated to the past persecution, the applic a n t b e ars the burden of establishing that the fear is well-founded.” (emphasis added). T he majority responds by noting that B ring as’s fear of future p ersecution on account of h is sex ual orientation is clearly related to hi s p a st persecution on account o f his sex ual orientation. B u t the only private persecution B ring as e v e r ex perienced i n Mex ico on account of his sex ual orientation was when h e was a child to ag e fourteen, and at the hands of his u ncle, cousins, and neig hbor, all of whom lived (and presumably still live) in T r es Valles, Veracruz
, Mex ico. Given the isolate d l o c ation o f B ring as’s abuse, and g iven the fact t h a t B ring a s is no long er a child subject to the oversig ht and c o ntro l o f his family a nd neig hbors in Tres V alles, I woul d h o l d that B ring as’s past persecution is unrelated within the meaning of 8 C.F .R. § 1208.13(a)(1), and d oes n ot entitle him to the presumption of a well-founded fear of future persecution. I would f urther deny B ring as’s petition for review because he has not carried his burden to establish that the evidence compels a finding o f

a well-founded fear of future persecution, as e x plained in the well-reasoned opinion of the three-judg e panel. See Bringas-B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 78

Rodriguez, 805 F .3d 1171, 118 2

– 84 (9th Cir. 2015) (now withdrawn). 1 9

Assuming

, a s the majority does, that B ring a s’s past persecution entitles him t o a presumption of a w ell-founded fear of future persecu t i o n , the majority acted correctly in remanding to the ag ency “for c onsider a t i o n in the first instance of whether the presumption [ of a well-founded fear of future persecution] has b een rebutted.” Op. at 49. See INS

v. O rlando Ventura
, 537 U.S. 1 2, 1 6–17 (2002). On remand, the ag ency may well conclude that Mex ico’s sig nificant
prog r ess reg arding rig hts for homosex uals constitute chang ed conditions sufficient to rebut t h e presumption of a wellfounded fear of future p e r secution. See 8 C.F .R. § 1208.13(b)(1)(A) ( stating that a “fundamental chang e in circumstances such that the a p plicant no long e r has a we l l

founded fear of persecution in the a pplicant’s country o f nationality ” may rebut the p resumption of a well-founded fear of future persecution). Or the ag ency may c onclude that

19 In Ma tter o

f A

– T–
, 2 4 I. & N

. Dec. 6 1 7
, 6 2 1 (A .G. 2 0 0 8 ), th e B IA h eld th at a f

em ale a s y l u m petitio n er w h o h ad u n d erg o n e f

em ale g en ital

m u tilatio n ag ain st h er w ill in Mali w as n o t en titled to th e p resu m ptio n o f

a w ell- f o u n d ed f ear o f f u tu re p ersecu t io n becau se th ere w as n o ch an ce th at sh e w o u ld b e p erso n ally p ersecu ted ag ain b y th e p ro ced u re. T h e A tto rn ey Gen eral v acated th e B IA d ecisio n , a n d s tated th at “ w h ere an alien d em on strates th at sh e su f f ered p ast p ersecu t io n o n acco u n t o f o n e o f th e statu to ry b ases, it is ‘ p resu m ed ’ t h at h er lif

e o r f reed o m w o u l d b e th re a t e n e d in th e f

u tu re ‘ o n th e b asis o f th e o rig in al claim ’ —in o th er

w o rd s , o n acco u n t o f th e sa m e sta tu to ry g ro un d .” Id

. at 6 2 2

. Ho w ev er, th e A tto rn ey Gen eral b ased h is d ecisio n o n th e f act t h a t “ f

em ale g en ital

m u tilatio n is in d eed cap ab le o f rep etitio n ,” an d th at th e p etitio n er’ s f ear

o f f u tu re p ersecu t io n w as th eref o re related to h er p ast p ersecu tio n

. Id

. at 6 2 1

– 2 2

. Here, Brin g as h as n o t ad d u ced ev id en ce th at h is p ast persecu tio n is related to a f

ear o f f u t u re p ersecu tio n , g iv en th e n atu re o f h is ab u se an d th e id en tity

o f h is p ersecu to rs.B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 79

B ring as, now a financially self-sufficient adult, who has been employ e d in the United States n ot only in entry -level positions in the food service i n d u s t r y , but in at least o ne supervisory

position, can reasonably and safely relocate to a

new area within Mex ico, such as Mex ico City

, where he would be safe from the on l y private individuals in Mex ico

w h o h a ve ever persecuted him on account of h is sex ua l orientation. Id. § 1208.13( b)(1)(i)(B ). Assuming a rg uendo that B ring as’s past persecution e n titles him t o the presumption of a well-founded fear of future persecution, however

, I ag r ee with the majority that we must leave these questions to the ag ency

in the first instance on remand. 2 0

20 In a f o o tn o te at th e en d o f i ts o p in io n , th e m aj o rity s t a t e s t h at

“ [u ]p o n rem an d

, th e ag en cy sh o u ld co n sid e r [ B rin g as’ s H IV d iag n o sis],

w h ich is ‘ m aterial’ an d ‘ co u ld n o t h av e b een d isco v ered o r p resen ted ’ to th e IJ .” Op

. at 4 9 n .1 9 (in tern al citatio n s o m itted ). A f ter B rin g as f

iled h is

n o tice o f ap p eal o f th e IJ ’ s decisio n , h e claim s th at h e w as d i ag n o sed w i th HIV

. B rin g as req u ested th at th e B IA rem an d to th e IJ to co n s id er B rin g as’ s HIV- p o sitiv e statu s in h is ap plicatio n s f o r relief

. B rin g as’ s b rief
to th e B IA in clu d ed o n ly o n e l in e statin g th at h is HIV statu s i s sig n if ican t b ecau se i t places B r i n g as i n a “ m o re v u ln erab l e p o sitio n sh o u ld h e b e retu rn ed to Mex ico .” T h e B IA d eclin ed to rem an d to th e IJ

. T h is d ecisio n

w as n o t an ab u s e o f d i scretio n

. S ee Ta g g ar v. Ho ld

er , 73 6 F.3 d 8 8 6
, 8 8 9 (9 th Cir. 2 0 1 3 ) (“ W e rev i ew th e [B IA ’ s] den ial of m o tio n s to rem an d f or ab u se o f d iscretio n .” (citin g Va rg a s-Her n a n d e z v

. G o n z a l

e s , 49 7 F.3 d 9 1 9
, 9 2 3 (9 th Cir. 2 0 0 7)). B rin g as f ailed to p ro v id e ad d itio n al co u n tr y

co n d itio n s ev id en ce or arg u m e n t s t o s u p po rt th e claim th at h is H IV d iag n o sis w o u l d p u t h im in a m o re v u ln erab le p o sitio n sh o u l d h e b e retu rn ed t o Mex ico

. A lso

, t h e r e c o rd d o es n ot co n tain ev id en ce o f an y d iscrep an cy b etw een m en an d w o m en o r betw een h o m o sex u als an d h etero sex u als in access to HIV dru g s in Mex ico

. T h e B IA p ro v id ed a

reaso n ed ex p lan atio n f

or d eclin in g to rem an d th at w as n eith er arb itrary n or i rratio n al. S

ee Ro mero -Ru iz v. Mu ka sey , 5 3 8 F.3 d 1 0 5 7, 1 0 6 2 (9 t h C i r

. 2 0 0 8 ). T h eref

o re, I a l s o d i sag ree w ith th e m aj o rity th at th e ag en cy m u st

co n sid er th e ev id en ce o f

B rin g as’ s HIV d iag n o s is o n rem an d

.B R I N G A S

- R O D R

I G U E Z V

. S E S S I O N S 80

V.

Despite my c olleag ues’ faithful recitation of the proper standard of review, they eff e c t i v e ly replace it with a much lower standard in violation of Supreme Court p recedent a nd

our nation’s immig ration law. Therefore, I respectfully dissent.