NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIO RODRIGUEZ CASILLAS,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent. No. 20

- 72354

Agency No. A209

- 820

- 936

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted September 2, 2021 * * Seattle, Washington

Before: McKEOWN and GOULD, Circuit Judges, and RAKOFF, ** * District Judge.

Mario Rodriguez Casillas , a citizen of Mexico, seeks review of a Board of

Immigration Appeals (BIA) decision dismissing his appeal of the Immigration

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 

# FILED

SEP 7 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2

Judge’s (IJ) order denying withholding of removal. We review factual findings for

substantial evidence, Hanna v. Keisler , 506 F.3 d 933, 940 (9th Cir. 2007)

, and we

grant the petition.

Casillas has been in the United States since 2005 and works in Washington

State as a teacher. He was apprehended in 2017 as part of an investigation into a

different individual. He now seeks withholding of removal on the ground that his

life or freedom would be threatened in Mexico on account of his identity as a gay,

HIV

- positive individual.

Th e IJ found Casillas credible but denied the application for withholding of

removal. In concluding that Casillas did not suffer past persecution , the IJ relied

on its finding that Casillas was never “ physically harmed by anyone in Mexico.” 1

That finding is directly contradicted by s ubstantial evidence

.

Casillas was twice physically harmed. I n first grade, a group of boys

“attempted to sexually assault [ him ] ” and “thr ew [him] to the ground

. ” See Kaur

v. Wilkinson 986 F.3d 1216, 12 24 (9th C ir. 2021) (“ [A] ttempted rape almost

always constitutes persecution” )

. I n junior high school, a boy called him a gay slur

and pushed him off his bike, causing him to land “on the rear tire and then onto the

ground, causing severe pain to [his] genital area .” In addition to these incidents,

1 Bec ause the BIA explicitly adopted the IJ’s opinion , we treat the IJ’s opinion as

the BIA’s

. See Alaelua v. INS , 45 F.3d 1379, 1382 (9th Cir. 1995).3

which were described in his affidavit, Casillas explicitly testified that he was

attacked. When asked whether he was “threatened or [] physically harmed in

Mexico because of his sexual orientation,” he responded unequiv ocally: “Yes.

When I was a kid, when I was a child, I suffered from attacks from my neighbors,

my classmates at the school.”

Because a

ny reasonable adjudicator would be compelled to conclude that

these plain acts of physical violence constitute “physical harm

, ” the IJ’s finding

that Casillas was not “physically harmed by anyone” is error. See 8 U.S.C.

1252(b)(4)(B) (the agency’s factual findings “are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary”)

. Th e error is not

harmless because a finding of persecution would generate a presumption of

eligibility for withholding of removal, and “ [p] hysical harm has consistently b een

treated as persecution.” Chand v. INS , 222 F.3d 1066, 10 73 (9th Cir. 2000) ; s ee

also Kaur v. Wilkinson , 986 F.3d 1216 , 1222 (9th Cir. 2021) (“The hallmarks of

persecutory conduct include, but are not limited to, the violation of bodily integrity

and b odily autonomy.”) ; Li v. Holder , 559 F.3d 1096, 1107 (9th Cir. 2009)

(“ [P] hysical violence is persecution”).

We remand to the BIA for the agency to reconsider whether Casillas

suffered past persecution in light of the evidence that he suffered physical har m.

PETITION GRANTED ; REMANDED

.