* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

** The Honorable Edward R. Korman, Se nior United States District Judge, Eastern District of New York, sitting by designation. NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE LUIS BARRIOS-AGUILAR, Petitioner,

v. ERIC H. HOLDER, ATTORNEY GENERAL, Respondent. No. 06-70010 Agency No. A73-910-092

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 6, 2010 * Pasadena, California Before: CLIFTON and BYBEE, Circuit Judges, and KORMAN, District Judge. ** Jose Luis Barrios-Aguilar, a Guatemal an native, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) adopting and affirming the order of the Immigration Judge (“IJ”) de nying his application for asylum, withholding 

# FILED

JUL 02 2010 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 of removal, and protection under the Convention Against Torture. To qualify for asylum, petitioner must establish sufficient persecution “on account of” his membership in a statutorily protected class. See 8 U.S.C. § 1101(a)(42)(A). If he establishes that he suffe red past persecution, then a presumption arises that he also has a well -founded fear of future persecution, and the government bears the burden of rebutting this presumption by a preponderance of evidence. See 8 C.F.R. § 1208.13(b)(1) (2005). To show past persecution, petitioner must demonstrate “(1) an incident, or incide nts, that rise to the level of persecution; (2) that is ‘on account of’ one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either ‘unable or unwilling’ to control.” Navas v. INS , 217 F.3d 646, 655–56 (9th Cir. 2000) (footnotes omitted). In the absence of past persecution, petitione r must prove a well-founded fear of future persecution, which requires a fear that is both subjectively genuine and objectively reasonable. See Mgoian v. INS , 184 F.3d 1029, 1035 (9th Cir. 1999)

. I. We presume familiarity with the background of the case. Briefly, petitioner entered the United States in 1989 at the age of 15 soon after several men attacked and threatened him on two separate occasions because he is homosexual. The same men also came to his parents’ home in search of information about him and brutally3 attacked his father. Petitioner’s immediat e family ultimately received asylum in Canada based on the persecution they suffered in Guatemala. The IJ found that petitioner suffered pe rsecution, which included “persecution of his father as derivative persecution of himself.” He also determined that the persecution was “on account of” petitioner’s me mbership in a protected class because, “as a homosexual the [petitioner] is a memb er of a particular social group that is protected,” and “the motive of the persecu tion appears related to [his] homosexuality.” However, the IJ found that petitioner had not established the third requirement for past persecution—that the Guatemalan governmentwas unable or unwilling to control the persecution. The IJ explained that petitioner “d[id] not really put the government to the test” because he never alerted the poli ce to the persecution, “and [petitioner’s] own documents do not demonstrate that such a m ove would be futile.” In adopting the IJ’s decision, the BIA agreed that petitione r “has not shown that the government persecuted homosexuals or that it was unable or unwilling to control those who persecuted homosexuals.” We review the IJ’s factual findi ngs for substantial evidence. Aguilar Gonzales v. Mukasey , 534 F.3d 1204, 1208 (9th Cir. 2008). To reverse the IJ’s determination that an applicant is not eligible for asyl um, “we must find that the evidence not only supports that conclusion, but compels it.” INS v. Elias-Zacarias , 502 U.S. 478, 4814 & n.1 (1992). II. We first consider the issue of whethe r petitioner established past persecution. This issue turns on the third requireme nt for past persecution—whether the persecution was “committed by the government or forces the government is either unable or unwilling to control.” Navas , 217 F.3d at 655–56. When non-government actors are responsible for the persecution, courts look to whether the applicant reported the persecution to the police and wh ether the police responded to control the behavior. See Baballah v. Ashcroft , 367, F.3d 1067, 1078 (9th Cir. 2004)

. However, an applicant “need not have reported thatpersecution to the authorities if he can convincingly establish that doing so would have been futile or [would] have subjected him to further abuse.” Ornelas-Chavez v. Gonzales , 458 F.3d 1052, 1058 (9th Cir. 2006). Indeed, we have recognized that a re porting requirement would be particularly “troubling” when evidence documents police abuse toward similarly situated members of a culturally subjugated group, such as men with alternative sexual identities in Latin American, and when cases involvegenerally under-reported crimes, such as
rape. See Ornelas-Chavez , 458 F.3d at 1057; Reyes-Reyes v. Ashcroft , 384 F.3d 782, 789 n.3 (9th Cir. 2004). In this case, the three attacks were ne ver reported to the police and petitioner5 did not present other evidence that th e police were aware of the incidents. Nevertheless, the record evidence indicates that petitioner and his family members did not report the incidents because they justif iably believed that doi ng so would be futile and might expose them to further harm. First, petitioner and his family members did not know the attackers’ affiliation and feared the men were members of e ither the Guatemalan government or the Guatemalan guerrillas. Indeed, the assaila nts were violent and persistent. They attempted to rape petitioner during the firs t attack and kidnap him during the second attack. They threatened petitioner with futu re harm during both attacks on him, first warning him that he “could run but eventu ally they would get [him]”, and second warning that if they ever saw him again they would put a bullet in his head. Although petitioner suffered only minor injuries, petiti oner’s father required an amputation and three months recovery in the hospital and he lost substantial use of his hand. During the attack on petitioner’s father, the assailants threatened to shoot petitioner’s handicapped brother unless petitioner’s moth er remained silent. When petitioner’s father was brought to the hospital, physicians hid him in a secret room fearing that the assailants would return to “finish up the killing.” Petitioner speculated that if someone had reported the attacks to the police, the assailants would “probably come back and kill [that person].” Accordi ngly, petitioner and his family members were justified in6 their belief that reporting the incidents might expose them to additional harm. See Boer-Sedano v. Gonzales , 418 F.3d 1082, 1088 (9th Cir. 2005). Second, some evidence in the record de scribes how members of the Guatemalan government have been unresponsive towardreports of crimes committed against homosexuals and have even participated in violence toward homosexuals. In a 1996 interview, a lesbian who resides in Guatemal a explained that there was currently “no acceptance” of homosexuality within Guatem alan society and “[g]ays and lesbians fear violence—violence from heterosexuals and violence from the police because when the police arrest us, they abuse us and violate us.” Ruben Mayorga, the Executive Director of OASIS, a community-b ased organization that focuses on AIDS prevention for the gay community in Guatemala, described in 1996: [H]omosexuals are routinely harasse d by family members, the church, the military and police forces, the media, the educational system, and by society at large. Because there are no formal laws [protecting sexual preference], gays and lesbians who have been persecuted on the basis of their sexual orientation have no judicial recourse. The record also indicates that, in the late 1990s, a string of homicides of transvestites occurred in which the police were either complicit or did not thoroughly investigate. The U.N. Mission noted a “socia l cleansing” effort against homosexuals and “practices leading to the extrajudicial execution of such persons through planned and coordinated actions.” The World Polic y Institute surmised that “homosexuals7 cannot under any circumstances count on the authorities to either protect them from violence, or to pursue assailants after the fact.” The United States granted asylum to some Guatemalans who had been brutally attacked by members of the government on account of their homosexuality. See U.N. High Comm. for Refugees, Reg’l Office for U.S. & Caribbean, Aslyum & the Law (Dec. 1998–Jan. 1999). U.S. State Department reports on human rights practices in Guatemala confirm that police officers and other government o fficials, at least at times, have been unsympathetic toward persecution homose xuals have faced. Th e 2003 Report relates: The Constitution states that all persons are free and equal in dignity and rights and that the State mu st protect the life, liberty, justice, security, peace, and development of all citizens. However, in practice, the Government frequently was unable to enforce these provisions, due to inadequate resources, corruption, and a dysfunctional judicial system

. . . . During the year, there were at least five killings of male homosexual sex workers. There wereno arrests made in any of the killings, and the police who arrived on the scene abused the victims’ companions. There were no arrests in the 2000 killings of five male homosexual sex workers. Moreover, we take judicial notice that the most recent report, released on March 11, 2010, likewise includes descriptions of police abuse toward homosexuals. The Report details how “[p]olice threatened persons engaged in prostitution and other commercial sexual activities withfalse drug charges to exto rt money or sexual favors and harassed lesbians and gay persons and transvestites with similar threats.” 20098 State Department Country Report, Guatemala, available at http://www.state.gov/g/drl/rls/hrrpt/2009/wha/136114.htm. Due to “[a] lack of trust in the judicial system and a fear of fu rther persecution or social recrimination,” victims often do not file complaints. Id. While the foregoing evidence covers a period of time after the attacks on petitioner and his father, it reveals wide spread intolerance of and entrenched discrimination toward homosexuals that has prevailed over tim e and can reasonably be assumed to have encompassed the rele vant period. Under these circumstances, petitioner was justified in hi s belief that the police woul d do “nothing” if told about the incidents because “[t]hey don’t care.” See Castro-Perez v. Gonzales , 409 F.3d 1069, 1070–72 (9th Cir. 2005). We therefore conclude that the eviden ce in the record compels a finding that petitioner suffered past persecution. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusi ve unless any reasonable adjudicator would be compelled to conclude to the contrary .”). This entitles petitioner to a presumption that he also has a well-founde d fear of future persecution. Nevertheless, the IJ held that, even if petitioner had established that Guatemala was unable or unwilling to control the persecution—and thus estab lished all three requirements for past persecution—“he fails to prove that he has the subjective or objective well-founded9 fear of returning.” This statement improperl y suggests that petitioner, rather than the government, has the burden of proving a well -founded fear of future persecution if he established past persecution. Similarly, th e BIA did not consider this presumption in its decision but rather adopted and affirmed the IJ’s decision, which erroneously overlooked the presumption. Accordingly, we remand the case to the BIA for further proceedings consistent with this opinion. CONCLUSION The petition is GRANTED and the case is REMANDED

.