FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAFAEL CASTRO-MARTINEZ, 

Petitioner, No. 08-70343

v. Agency No.  A088-515-684 ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted January 12, 2011*

Pasadena, California

Filed April 15, 2011

Before: M. Margaret McKeown, William A. Fletcher, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

5111
COUNSEL

Judith Marty, Fullerton, California, for the petitioner.

Gregory G. Katsas, Assistant Attorney General, Civil Division, Mary Jane Candaux, Assistant Director, Aimee J.

Frederickson, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington,

D.C., for the respondent. 

OPINION

CLIFTON, Circuit Judge:

Rafael Castro-Martinez (“Castro”), a native and citizen of

Mexico, timely petitions this court for review of a decision of

the Board of Immigration Appeals affirming an immigration

judge’s denial of his applications for asylum, withholding of

removal, and relief under the Convention Against Torture. We

conclude that substantial evidence supported the BIA’s conclusion that Castro failed to demonstrate past persecution or

a well-founded fear of future persecution on account of his

homosexuality or HIV-positive status. The sexual abuse Castro suffered was not inflicted by government actors, and the

BIA had sufficient basis to conclude that Castro failed to

show that the government was unable or unwilling to control

his attackers. Accordingly, we deny the petition. 

I. Background 

Rafael Castro-Martinez entered the United States without

inspection in 1995. He subsequently resided in California.

5114 CASTRO-MARTINEZ v. HOLDER
Castro, who is homosexual, believes that during his time in

this country he contracted HIV. He found out he is HIVpositive in June 2004.

In 2007, Castro returned to Mexico for two weeks to visit

his mother. He sought to reenter the United States at San Ysidro, where he turned himself in to immigration authorities and

requested asylum. He was issued a Notice to Appear and

charged with removability for entering the United States without valid travel documents. He conceded removability in a

hearing before the immigration judge. He filed applications

for asylum, withholding of removal, and protection under the

Convention Against Torture, claiming that he had experienced

past persecution in Mexico as a homosexual male and that if

removed to Mexico he would face persecution and torture on

account of his homosexuality and his HIV-positive status.

Castro’s claim of past persecution was based on sexual

abuse he experienced as a child. In testimony that the immigration judge found credible, Castro testified that he had been

teased and harassed for being gay since he was very young.

When he was between six and ten years old, he was raped

brutally and repeatedly by two male teenagers. Castro

believed he was victimized because of his homosexuality and

feminine characteristics. He never told his parents about the

abuse, because his abusers threatened that they would beat

him and kill his parents if he told them. Castro asserted that

given these threats, and the stigma associated with homosexuality in Mexico, it would have been unreasonably dangerous

for him to have reported the sexual abuse to his teachers,

neighbors, or parents. Moreover, he claimed that because the

Mexican police are corrupt and ineffective in dealing with

crimes against homosexuals, it was unlikely that reporting

would have brought an effective response or protection from

the state. Castro contended that the Mexican government was

unwilling and unable to protect him from the sexual abuse and

that this constituted past persecution on account of his sexual

orientation. Castro argued that this past persecution estabCASTRO-MARTINEZ v. HOLDER 5115
lished a well-founded fear of future persecution under 8

U.S.C. § 1101(a)(42)(A).

Castro argued further that even if he was not held to have

suffered from past persecution, he nonetheless qualified for

asylum based on having a well-founded fear of future persecution in Mexico, where the government systematically harms

gay men. He testified that if he now returned to Mexico he

feared that he would be beaten, tortured or killed for his sexual orientation. To support his fear, Castro submitted country

reports documenting societal discrimination against homosexuals in Mexico and attacks on gay men committed by private

parties. He also presented evidence of widespread police corruption in Mexico and incidents of police violence against

homosexuals. Castro also claimed to have a well-founded fear

of future persecution on account of his HIV-positive status.

He testified that he believes HIV medication is not available

for gays in Mexico due to discrimination against homosexuals

and that he will die “in a slow and torturous way for not having the medication that I need.”

The immigration judge found Castro removable and denied

his applications for asylum, withholding of removal, and protection under the Convention Against Torture. The IJ concluded that Castro failed to establish eligibility for asylum

because he did not demonstrate past persecution or the likelihood of future persecution at the hands of the government or

groups the government was unwilling or unable to control.

See Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997). The

IJ found that Castro had not presented any evidence that the

government systematically harms gay men or that it is unwilling to control those who would commit violence against

homosexuals. The IJ pointed to country reports in the record

indicating that Mexican law prohibits discrimination on the

basis of sexual orientation and that the Mexican government

has made successful efforts to promote tolerance of homosexuals.

5116 CASTRO-MARTINEZ v. HOLDER
The BIA dismissed Castro’s appeal. The Board concluded

that Castro had failed to establish eligibility for asylum

because he had not shown that the Mexican government had

been unwilling or unable to protect him from his abusers, or

that homosexuals and HIV-positive individuals are subjected

to officially-sanctioned discrimination in Mexico. The Board

noted that Castro did not report the sexual abuse to the authorities and that he failed to provide a compelling reason as to

why seeking state protection would have been futile. See

Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1057-58 (9th

Cir. 2006). The Board further concluded that Castro had not

demonstrated that he would be unable to secure treatment for

HIV in Mexico, or that lack of access to HIV treatment was

a problem experienced only by homosexuals. Since Castro

failed to meet his burden of proof for asylum, he also failed

to establish his eligibility for withholding of removal. The

Board also denied his CAT claim, holding that Castro did not

demonstrate that it was more likely than not that he would be

tortured in Mexico.

II. Discussion

We review the BIA’s construction and application of the

law de novo. See Murillo-Espinoza v. INS, 261 F.3d 771, 773

(9th Cir. 2001). We must uphold the BIA’s factual findings if

supported by “reasonable, substantial, and probative evidence

on the record.” INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992). Our review is “confined to the BIA’s decision and the

bases upon which the BIA relied.” Navas v. INS, 217 F.3d

646, 658 n. 16 (9th Cir. 2000). 

A. Past persecution

[1] To be eligible for asylum, an alien must demonstrate

that he is unable or unwilling to return to his home country

because of persecution or a well-founded fear of persecution

on account of race, religion, nationality, membership in a particular social group, or a political opinion. 8 U.S.C.

CASTRO-MARTINEZ v. HOLDER 5117
§ 1101(a)(42)(A). Homosexual men in Mexico can constitute

a social group for the purpose of an asylum claim. See BoerSedano v. Gonzales, 418 F.3d 1082, 1087-89 (9th Cir. 2005).

Persecution is the “infliction of suffering or harm . . . in a way

regarded as offensive” on the basis of one of the protected

grounds. Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995). To

qualify as persecution for the purpose of asylum, an act must

be inflicted either by the government or by individuals or

groups the government is unable or unwilling to control.

Sangha, 103 F.3d at 1487. Violence or discrimination

inflicted by private parties does not constitute persecution if

it is not condoned by the state and if the state takes reasonable

steps to prevent and respond to it. See Gomes v. Gonzales,

429 F.3d 1264, 1267 (9th Cir. 2005); Ghaly v. INS, 58 F.3d

1425, 1431 (9th Cir. 1995). 

[2] Substantial evidence supported the BIA’s conclusion

that Castro had not been the victim of past persecution as

defined under the law. Although horrendous, the sexual abuse

Castro experienced was not inflicted by government actors.

Castro acknowledged that he had never been subjected to violence by government officials in Mexico.

[3] Likewise, evidence supported the conclusion that Castro failed to demonstrate that the government was unable or

unwilling to control his attackers. Castro testified that he

never reported the abuse to the authorities. In determining

whether the government was unable or unwilling to control

violence committed by private parties, the BIA may consider

whether the victim reported the attacks to the police. See

Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004).

[4] To be clear, “[t]he reporting of private persecution to

the authorities is not . . . an essential requirement for establishing government unwillingness or inability to control attackers.”1 Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir.

1Contrary to what Castro argues, the BIA did not impose a “reporting

requirement” but regarded Castro’s failure to report the abuse as one fac5118 CASTRO-MARTINEZ v. HOLDER
2010). An applicant can demonstrate the government’s

unwillingness to respond to violence by “establishing that private persecution of a particular sort is widespread and wellknown but not controlled by the government” or “showing

that others have made reports of similar incidents to no avail.”

Id. at 922. In other words, the applicant need not have

reported the crime if he can demonstrate that doing so would

have been futile, or that contacting the authorities would have

subjected him to further abuse. Ornelas-Chavez, 458 F.3d at

1057-8. 

In this case, however, substantial evidence supported the

BIA’s conclusion that Castro failed to sufficiently explain

why reporting the sexual abuse to the authorities would have

been futile or would have put him at risk of harm. Castro’s

reasons for not contacting the authorities were similar to those

offered by the petitioner in Castro-Perez v. Gonzales, 409

F.3d 1069, 1072 (9th Cir. 2005), in which we denied the petition of a young Honduran woman who was raped twice by her

boyfriend. Castro-Perez did not report her boyfriend’s assaults

to the police because she believed they would not investigate

a date rape. Id. We determined that this explanation was

insufficient, given that there are criminal laws against rape in

Honduras, and Castro-Perez had not shown that these laws

were not enforced.2Id. Castro-Perez failed to demonstrate that

tor in its assessment of the Mexican government’s willingness or ability

to control his attackers. The BIA concluded that on the record as a whole,

Castro had “not demonstrated that the Mexican government was unable or

unwilling to protect him from harm.” 

2By contrast, we have held that the fear of reporting is not speculative

when the victim had been subjected to past abuse by the same parties and

previous attempts at reporting were futile. See Boer-Sedano, 418 F.3d. at

1088 (victim’s failure to report sexual assault by police officer was reasonable when he had been assaulted by the same officer in the past without intervention from other officials); Ornelas-Chavez, 458 F.3d at 1058

(failure to report sexual assault to the authorities was reasonable when

extreme violence and indifference characterized the victim’s previous

dealings with government officials and police had abused him in the past).

CASTRO-MARTINEZ v. HOLDER 5119
the government must “bear some responsibility for [her] rapes

because it is either unable or unwilling to control rape.” Id. 

[5] Here, it was not unreasonable for the BIA to perceive

Castro’s explanation for not contacting the authorities to be

less than persuasive. Castro argued that he could not report

the sexual abuse because of threats from his attackers. While

private threats may explain why an asylum applicant did not

report the crime, “the question in an asylum case is whether

the [authorities] could and would provide protection.” Rahimzadeh, 613 F.3d at 923. As the BIA observed, there was no

evidence in the record that Mexican authorities would have

ignored the rape of a child, which is a crime under Mexican

law.

[6] Castro also claimed that he was afraid of contacting the

police because they would likely abuse him on account of his

homosexuality. Castro presented country reports documenting

police corruption and participation in torture, abuse, and trafficking, as well as incidents of police harassment of gay men.

But the record did not compel the conclusion that the police

would have disregarded Castro or harmed him if he reported

the attacks. At the time of the abuse, he was a young child.

In addition, the BIA noted country reports in the record indicating the Mexican government’s efforts to prevent violence

and discrimination against homosexuals, which have

increased in recent years. Mexican law prohibits several types

of discrimination, including bias based on sexuality, and it

requires federal agencies to promote tolerance. In April 2005,

the Mexican government launched a radio campaign to fight

homophobia in conjunction with Conasida, the National Center to Prevent and Control HIV/AIDS. Country reports submitted by Castro noted the ongoing improvement of police

treatment of gay men and efforts to prosecute homophobic

crimes.

[7] In sum, while we do not diminish the trauma Castro

experienced, substantial evidence supported the BIA’s con5120 CASTRO-MARTINEZ v. HOLDER
clusion that Castro’s failure to report the crime undermined

his claim that he was unable to seek protection from the state

against his abusers. See Ornelas-Chavez, 458 F.3d at 1057;

Rahimzadeh, 613 F.3d at 920-23. Because Castro did not meet

his burden to show that the government was unable or unwilling to control his attackers, he failed to demonstrate that he

had been the victim of past persecution.

B. Fear of future persecution 

[8] Substantial evidence also supported the BIA’s conclusion that Castro failed to demonstrate a well-founded fear of

future persecution. To establish a well-founded fear of future

persecution, an applicant must show that he has suffered persecution in the past, or the existence of a “pattern or practice”

of persecution against similarly situated individuals who are

members of a protected group. See Knezevic v. Ashcroft, 367

F.3d 1206, 1213 (9th Cir. 2004). A “pattern or practice” refers

to “systematic” persecution. See Wakkary v. Holder, 558 F.3d

1049, 1061 (9th Cir. 2009); Bromfield v. Mukasey, 543 F.3d

1071, 1078 (9th Cir. 2009). Citing evidence of societal discrimination against gays in Mexico, and attacks on gay men

committed both by private parties and the police, Castro

argued that the Mexican government systematically harms

gay men and fails to protect them from violence. The record

did not compel this conclusion, particularly in light of the

country reports indicating official efforts to prevent violence

and discrimination against homosexuals.

Castro also claimed to have a well-founded fear of persecution insofar as he will be unable to receive HIV treatment in

Mexico because he is homosexual. Castro testified that “homosexual men are not a priority to receive medication” in

Mexico. Substantial evidence supported the BIA’s conclusion

that, based on the documentary evidence provided by Castro,

lack of access to HIV drugs is a problem suffered not only by

homosexuals but by the Mexican population as a whole. The

record noted the high cost of HIV drugs, lack of access to

CASTRO-MARTINEZ v. HOLDER 5121
health insurance for the poor and unemployed, and possible

government mismanagement of funds allocated for HIV treatment. “Generalized economic disadvantage” does not rise to

the level of persecution. Raass v. INS, 692 F.2d 596 (9th Cir.

1982). The BIA was justified in concluding that Castro failed

to demonstrate that he would be deprived of treatment for

HIV in Mexico because of his membership in a protected

social group.

III. Conclusion

Substantial evidence supported the BIA’s conclusion that

Castro did not demonstrate that the Mexican government was

unwilling or unable to control his attackers, and that he therefore failed to establish eligibility for asylum. Because Castro

did not demonstrate eligibility for asylum, his claim for withholding of removal, governed by a more stringent standard, is

also foreclosed. Gomes, 429 F.3d at 1266. In his opening

brief, Castro did not challenge the BIA’s denial of his CAT

claim and therefore waived it. Arpin v. Santa Clara Valley

Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). Accordingly, we deny the petition for review.

PETITION DENIED. 

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