Carlos Bringas-Rodriguez v. Eric Holder, Jr.

Filing

FILED OPINION (SIDNEY R. THOMAS, DIARMUID F. O'SCANNLAIN, BARRY G. SILVERMAN, KIM MCLANE WARDLAW, WILLIAM A. FLETCHER, RICHARD R. CLIFTON, CARLOS T. BEA, MILAN D. SMITH, JR., MORGAN B. CHRISTEN, JOHN B. OWENS and MICHELLE T. FRIEDLAND) The respondent, Attorney General Jefferson B. Sessions III, shall bear the costs on appeal. GRANTED; REMANDED. Opinion by Judge Wardlaw; Concurrence by Judge Clifton; Dissent by Judge Bea. FILED AND ENTERED JUDGMENT. [10347634]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CARLOS ALBERTO BRINGASRODRIGUEZ, AKA Patricio
Iron-Rodriguez,
Petitioner,

No. 13-72682
Agency No.
A200-821-303

v.
OPINION
*

JEFFERSON B. SESSIONS III ,
Attorney General,
Respondent.
*

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted En Banc September 7, 2016
San Francisco, California
Filed March 8, 2017
Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.
O’Scannlain, Barry G. Silverman, Kim McLane Wardlaw,
William A. Fletcher, Richard R. Clifton, Carlos T. Bea,
Milan D. Smith, Jr., Morgan B. Christen, John B. Owens
and Michelle T. Friedland, Circuit Judges.

*

Jefferson B. Sessions III is substituted for his predecessor as
Attorney General of the United States, pursuant to Federal Rule of
Appellate Procedure 43(c).

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BRINGAS-RODRIGUEZ V. SESSIONS
Opinion by Judge Wardlaw;
Concurrence by Judge Clifton;
Dissent by Judge Bea

SUMMARY**

Immigration
The en banc court granted a petition for review of the
Board of Immigration Appeals’ denial of asylum, withholding
of removal, and protection under the Convention Against
Torture to a citizen of Mexico who asserted that Mexican
officials were unable or unwilling to protect him from harm
by private individuals due to his sexual orientation.
The en banc court held that the evidence BringasRodriguez adduced before the agency—credible written and
oral testimony that reporting his abuse would have been futile
and potentially dangerous, that other young gay men had
reported their abuse to the Mexican police to no avail, and
country reports and news articles documenting official and
private persecution of individuals on account of their sexual
orientation—satisfied longstanding evidentiary standards for
establishing past persecution and compelled the conclusion
that Bringas-Rodriguez suffered past persecution that the
Mexican government was unable or unwilling to control.
The court overruled Castro-Martinez v. Holder, 674 F.3d
1073 (9th Cir. 2011), and other circuit precedent, to the extent
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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they introduced the construct that the failure to report private
persecution to government authorities creates a “gap” in the
evidence or imposed a heightened evidentiary requirement to
establish governmental inability or unwillingness to protect.
The en banc court held that Bringas-Rodriguez was
entitled to a presumption of future persecution and remanded
for the Board to consider whether the presumption was
rebutted, and to consider Bringas-Rodriguez’s claims for
withholding of removal and CAT protection, taking into
account new evidence of Bringas-Rodriguez’s HIV diagnosis.
Concurring in the judgment, Judge Clifton agreed that the
petition should be granted and remanded for further
proceedings, but would not dictate to the Board that BringasRodriguez established past persecution.
Dissenting, Judge Bea, joined by Judge 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 Mexican government is
unwilling or unable to protect homosexuals from persecution.

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COUNSEL

Erwin Chemerinsky (argued), Kathryn M. Davis, and
Munmeeth Soni, Pro Bono Counsel, University of California,
Irvine School of Law, Appellate Litigation Clinic, Irvine,
California; Andrea Ringer and Marco Pulido Marquez,
Certified Law Students, University of California, Irvine
School of Law, Appellate Litigation Clinic, Irvine, California;
Mary-Christine Sungaila, Pro Bono Attorney, Snell &
Wilmer LLP and Haynes and Boone LLP, Costa Mesa,
California, for Petitioner.
John W. Blakely (argued), Assistant Director, Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Civil
Division, Donald E. Keener, Deputy Director, Stuart F.
Delery, Assistant Attorney General, Civil Division, Kohsei
Ugumori and Jesi J. Carlson, Senior Litigation Counsel,
United States Department of Justice, Office of Immigration
Litigation, Washington, D.C., for Respondent.
Peter E. Perkowski, Perkowski Legal, PC, Los Angeles,
California, for Amici Curiae The Public Law Center, Lambda
Legal Defense and Education Fund, the National Immigrant
Justice Center, the Center for HIV Law and Policy; HIV Law
Project; Immigration Equality; Disability Rights Legal
Center; the Asian & Pacific Islander Wellness Center,
National Center for Lesbian Rights, LGBT Center OC,
Transgender Law Center, Florence Immigrant & Refugee
Rights Project, and Centro Legal De La Raza.
Charanya Krishnaswami, Cortelyou C. Kenney (Volunteer),
and Lisa Jaskol, Public Counsel, Los Angeles, California, for
Amici Curiae Kids In Need of Defense, Tahirih Justice
Center, and Women’s Refugee Commission.

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Laurie Webb Daniel, Charles L. Coleman III, Kyong M. Kim,
and Garrett S. Garfield, Pro Bono Counsel, Holland & Knight
LLP, San Francisco, California; Eunice Lee, Karen Musalo,
and Blaine Bookey, Counsel, Center for Gender & Refugee
Studies, San Francisco, California; for Amicus Curiae of
Center for Gender & Refugee Studies.
Alice Farmer, United Nations High Commissioner for
Refugees, Washington, D.C.; Ana C. Reyes, Counsel of
Record, Williams & Connolly LLP, Washington, D.C.; for
Amicus Curiae United Nations High Commissioner for
Refugees.

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OPINION

WARDLAW, Circuit Judge:
Carlos Alberto Bringas-Rodriguez (Bringas), a gay man
who is a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (BIA) denial of his
applications for asylum, withholding of removal, and
Convention Against Torture (CAT) protection. Bringas was
physically and sexually abused as a child on account of his
sexual orientation, and he submitted evidence that Mexico
was unable or unwilling to control his persecutors. Both the
Immigration Judge (IJ) and the BIA found Bringas’s
testimony credible, and both acknowledged that sexual
orientation and identity can establish membership in a
“particular social group.” Nevertheless, both the IJ and the
BIA denied Bringas relief, in part based on a conclusion that
his evidence was insufficient to demonstrate that the Mexican
government was unable or unwilling to control the private
individuals who attacked him. In so doing, both the IJ and
the BIA failed to address Bringas’s plausible, unrefuted
testimony that Mexican police laughed at his gay friends who
attempted to report rape and other abuse.
A divided panel of our court agreed, relying primarily on
our decision 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 unwilling to control the sexual abuse of children generally.
Bringas-Rodriguez v. Lynch, 805 F.3d 1171, 1178–79 (9th
Cir. 2015) (now withdrawn). The panel majority adopted the
IJ’s conclusion that it was unlikely that the Mexican
government would take no action to control the “abuse of
children.” Id. at 1181–82. We granted rehearing en banc and

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now hold that the evidence Bringas adduced before the
agency—credible written and oral testimony that reporting
was futile and potentially dangerous, that other young gay
men had reported their abuse to the Mexican police to no
avail, and country reports and news articles documenting
official and private persecution of individuals on account of
their sexual orientation—satisfies our longstanding
evidentiary standards for establishing past persecution and
compels the conclusion that Bringas suffered past persecution
that the Mexican government was unable or unwilling to
control.1 We overrule Castro-Martinez to the extent it might
suggest otherwise and remand this petition to the BIA for
further proceedings.
I.
Born in Tres Valles, Veracruz, Mexico, Bringas was
horrifically abused by his father, an uncle, cousins, and a
neighbor, all of whom perceived him to be gay or to exhibit
effeminate characteristics. His uncle first raped him when he
was four years old, and in addition to his uncle, three of his
cousins and a male neighbor physically and sexually abused
him on a regular basis while he lived in Mexico. Bringas’s
father also beat him as a child, telling him, “Act like a boy.
You are not a woman.” When he was eight, Bringas’s uncle
told him that the abuse was because he was gay. His uncle,
cousins, and neighbor never called him by his name, referring

1
Contrary to the dissent’s suggestion, Bringas submitted substantial
corroborating evidence after the IJ recommended he do so. That evidence
included a 2010 U.S. Department of State Country Report for Mexico,
several newspaper articles, and a psychological evaluation describing
Bringas’s past history of abuse.

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to him only as “fag, fucking faggot, queer,” and they
“laughed about it.”
Bringas lived with his mother in the United States for a
brief period when he was twelve years old. He returned to
Mexico, however, because he missed his grandmother, who
had raised him since he was nine. The abuse intensified upon
his return. Again he was repeatedly raped by his uncle,
cousins, and neighbor.
On one occasion, when Bringas refused to comply with
his neighbor’s demand for oral copulation, the neighbor beat
and raped him, leaving Bringas with black eyes and bruises.
Bringas’s abusers also threatened to hurt his grandmother,
with whom he was close, if he ever reported what was
happening. Fearing that they would follow through on their
threats, Bringas did not tell his mother, teachers, or anyone
else about the sexual abuse.
Bringas fled Mexico in 2004 at age fourteen to get away
from his abusers. He entered the United States without
inspection at El Paso, Texas, and lived with his mother in
Kansas for three years. He then moved out of his mother’s
home, living elsewhere in Kansas and in Colorado. He
worked several different jobs, including positions at a
supermarket, a pizzeria, and a chocolate shop. In August
2010, Bringas pleaded guilty to attempted contributing to the
delinquency of a minor in Colorado; he had been at home
drinking with some friends when another friend brought over
a minor who became drunk. Bringas spent ninety days in jail,
during which time he attempted suicide and was hospitalized,
which precipitated his finally telling a doctor and then his
mother about his childhood abuse. The Department of

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Homeland Security (DHS) issued a Notice to Appear in
August 2010.
In 2011, at age twenty, Bringas applied for asylum,
withholding of removal, and CAT protection. He had
previously been unaware “that the [U.S.] government could
protect [him],” and only found out when he “spoke with an
ICE officer in Colorado in September 2010.” In his
application, Bringas described the sexual abuse he endured in
Mexico and explained that he feared persecution if he
returned because he was gay and that the Mexican police
would not protect him. Bringas also credibly testified about
his gay friends’ experiences with police in Veracruz. Those
friends went to the police to report that they had been raped,
but the officers ignored their reports and “laugh[ed] on [sic]
their faces.” Additionally, he submitted 2009 and 2010 U.S.
Department of State Country Reports for Mexico and several
newspaper articles that documented violence against,
including murders of, gays and lesbians. The reports showed
that the violence rose even as—and perhaps because—
Mexican laws were becoming increasingly tolerant of gay
rights.2

2

The United Nations High Commissioner for Refugees (UNHCR)
has issued guidelines for refugee claims based on sexual orientation,
which explain that legal improvements and widespread persecution are not
mutually exclusive. UNHCR, Guidelines on International Protection No.
9: Claims to Refugee Status Based on Sexual Orientation and/or Gender
Identity Within the Context of Article 1A(2) of the 1951 Convention
and/or Its 1967 Protocol Relating to the Status of Refugees, ¶ 37,
U.N. Doc. HCR/GIP/12/09 (Oct. 23, 2012), available at
http://www.unhcr.org/509136ca9.pdf.

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The BIA, reviewing the IJ’s denial of Bringas’s claims for
relief, rejected his claims on the merits.3 The BIA recognized
“the serious abuse that [Bringas] endured as a child.” It
found, however, that, as in Castro-Martinez, Bringas did not
demonstrate that the “abuse was inflicted by government
actors or that the government was unwilling or unable to
control his abusers.” Concluding that Bringas thus failed to
establish past persecution, the BIA denied Bringas the
concomitant presumption of future persecution. It then
rejected Bringas’s argument that he had a well-founded fear
of future persecution because he had failed to show a pattern
or practice of persecution of gay men in Mexico,
distinguishing Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir.
2008), because “the record . . . d[id] not demonstrate
widespread brutality against homosexuals or that there [was]
any criminalization of homosexual conduct in Mexico.” The
BIA also concluded that Bringas had failed to show that the
Mexican government had been unable or unwilling to control
private individuals who perpetuated violence against
homosexuals, finding that Mexico “has taken numerous
positive steps to address the rights of homosexuals.” Finally,
the BIA rejected Bringas’s withholding of removal and CAT
claims and denied a remand to consider his HIV-positive
diagnosis.
The majority of a divided three-judge panel of our court
agreed that Bringas had failed to meet the heightened

3

The IJ denied Bringas’s asylum claim as untimely under the oneyear filing rule after some scuffling about whether Bringas had entered the
United States as an unaccompanied minor. The BIA, however, assumed
that the asylum application was timely, electing to determine Bringas’s
asylum claim on its merits. We must do the same. See Abebe v.
Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en banc).

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evidentiary burden for past persecution that it and the BIA
determined applicable to Bringas’s claim based on their
reading of Castro-Martinez. Acknowledging that nothing
requires an abuse victim, “let alone a child,” to report
persecution to the police, the panel majority reasoned that
where a victim fails to report abuse, even as a child, “there is
a ‘gap in proof about how the government would have
responded,’ and the petitioner bears the burden to ‘fill in the
gaps’ by showing how the government 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, uncontrolled persecution of gay men
in either Bringas’s home state or town. Id. at 1178–80.
Rather, the panel majority found that the country reports
demonstrated that Mexico permitted gay pride marches and
had expanded marriage equality. Id. at 1179. The panel
majority also cited a United Nations report stating that
Mexico had established a “‘specialized hate crime
prosecution unit[],’ developed a ‘new judicial protocol to
guide adjudication of cases involving human rights violations
on grounds of sexual orientation,’ implemented specialized
training for police officers, and officially designated May 17
as ‘National Day Against Homophobia.’” Id. at 1179 n.5
(alteration in original) (quoting U.N. High Comm’r for
Human Rights, Discrimination & Violence Against
Individuals Based on Their Sexual Orientation & Gender
Identity, ¶¶ 40, 74, 75 U.N. Doc. A/HRC/29/23 (May 4,
2015)4). Furthermore, the panel majority found insufficient

4

Ava ila b le a t http ://www.un.o r g/en/ga/search/
view_doc.asp?symbol=A/HRC/29/23. One of the eighteen amici that
submitted briefs supporting Bringas is the UNHCR. The UNHCR did so
to “correct[] any misunderstanding or lack of clarity” in its assessment of

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Bringas’s testimony that his gay male friends had suffered
persecution and reported it to the police in Veracruz, only to
have the officers laugh at them. Id. at 1180–81. Even if the
friends’ reports were credited, the panel majority explained,
those reports failed to establish that police practices in the
city or state of Veracruz could be linked to police practices in
Tres Valles, Bringas’s hometown. Id.
Further in support of its conclusion, the panel majority
noted the absence of evidence in the record suggesting that
Mexican police refuse to protect sexually abused children.
Stating that “Bringas’s allegations are not just about
discrimination against gay and lesbian Mexicans—they are
about child molestation,” the panel majority found Bringas’s
evidence lacking because he “ha[d] put forward no evidence
that Mexico tolerates the sexual abuse of children, or that
Mexican officials would refuse to protect an abused child
based on the gender of his or her abusers.” Id. at 1182.
Because Bringas had not described “how old his ‘friends’
were who reported abuse to the police,” Bringas’s testimony
about those reports was insufficient. Id. at 1181.
Finally, the panel majority interpreted Castro-Martinez to
foreclose it from finding that Bringas’s subjective fear of
future persecution was objectively reasonable, again citing
the “improving” situation for gay men in Mexico. Id. at
1182–83.

the experiences of lesbian, gay, bisexual, transgender and intersex
(LGBTI) individuals in Mexico. Brief for UNHCR as Amicus Curiae at
3. In particular, the UNHCR states that it “has not taken the position that
LGBTI individuals fleeing Mexico cannot have a well-founded fear of
persecution,” id. at 5, contradicting the panel majority’s conclusion to the
contrary, see Bringas-Rodriguez, 805 F.3d at 1179 n.5.

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Judge W. Fletcher dissented, writing that he had
developed misgivings about Castro-Martinez—an opinion in
which he had joined—but also explaining that even if CastroMartinez controlled, he “part[ed] ways with the majority” on
its reading of the decision to reject Bringas’s asylum claim.
Id. at 1186–87 (Fletcher, J., dissenting). Judge W. Fletcher
pointed to our ample precedent that does not require victims
of private persecution, especially child victims, to
contemporaneously report their abuse to government
authorities in order to become eligible for asylum in the
United States. Id. at 1192. “Yet,” he wrote, “CastroMartinez and today’s decision effectively require just that.”
Id.
II.
We have jurisdiction under 8 U.S.C. § 1252(a). Because
the BIA conducted its own review and did not adopt the IJ’s
decision, our review “is limited to the BIA’s decision.”
Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)
(internal quotation mark omitted) (quoting Cordon-Garcia v.
INS, 204 F.3d 985, 990 (9th Cir. 2000)). We review the
Board’s legal conclusions de novo, Romero-Mendoza v.
Holder, 665 F.3d 1105, 1107 (9th Cir. 2011), and its factual
findings for substantial evidence, Zhi v. Holder, 751 F.3d
1088, 1091 (9th Cir. 2014). A finding by the IJ is not
supported by substantial evidence 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)).

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III.

A. Evolution of U.S. Refugee Law
Because this case ultimately turns on whether Bringas has
adduced compelling evidence that he is a refugee who is
presumptively eligible for asylum based on past persecution
by nongovernmental actors, it is helpful to our analysis to
review the development of our refugee laws generally.
Beginning with the persons displaced by World War II,
the United States has struggled to define its approach to
refugees. See Stephen H. Legomsky & Cristina M.
Rodríguez, Immigration and Refugee Law and Policy 874–76,
878 (5th ed. 2009). The Immigration and Nationality Act
(INA) of 1952, Pub. L. No. 82-414, 66 Stat. 163, and its
predecessor, the Immigration Act of 1924, Pub. L. No. 68139, 43 Stat. 153, “contained no special provision exempting
[refugees] from the restrictions generally applicable to
immigrants.” Id. at 876, 881; see also Deborah E. Anker &
Michael H. Posner, The Forty Year Crisis: A Legislative
History of the Refugee Act of 1980, 19 San Diego L. Rev. 9,
14 (1981). As a result, until Congress passed comprehensive
legislation concerning refugees in 1980, the United States
largely responded to refugee crises on an ad hoc basis and
with temporary measures. Legomsky & Rodríguez, supra, at
881. The Displaced Persons Act of 1948, Pub. L. No. 80-774,
62 Stat. 1009, was the first such measure, and provided
sanctuary for certain refugees fleeing Nazi, Soviet, or fascist
persecution, as well as “displaced[] forced laborers from
states conquered by Germany.” Anker & Posner, supra, at
13. Later legislative efforts included the Refugee Relief Act
of 1953, Pub. L. No. 83-203, 67 Stat. 400, and its extension
in 1957, which assisted “victims of natural calamities” and

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refugees from “communist-dominated parts of Europe and the
Middle East.” Anker & Posner, supra, at 14.
Finding these narrow policies inadequate, President
Eisenhower decided after the Soviets invaded Hungary in
1956—causing some 200,000 Hungarians to flee—to request
that the Attorney General temporarily parole 15,000
Hungarian refugees into the United States. Id. at 14–15. At
that time, under the INA, the Attorney General had the
discretion to parole, but not to formally admit, persons into
the country “for emergent reasons or for reasons deemed
strictly in the public interest.” Id. at 15 (quoting 8 U.S.C.
§ 1182(d)(5) (1952)). Parole was originally intended to
benefit individual noncitizens in emergency situations; the
Hungarian crisis represented the first time it was used to
admit refugees en masse. Id.
In light of the president’s expanded use of parole,
Congress decided to reassert itself into refugee policy and
create a more structured regime. Legomsky & Rodríguez,
supra, at 881–82. The first permanent statutory basis for
admitting refugees was enacted in 1965 as part of a group of
amendments to the INA. Id. at 881. Under the 1965
amendments, a new admissions category was created for
“those who feared persecution and were fleeing either a
‘Communist-dominated’ country or a country ‘within the
general area of the Middle East.’” Id. at 881 (quoting Pub. L.
No. 89-236 § 3, 79 Stat. 911, 913 (1965)). However, the
geographic and ideological restrictions of the category, as
well as the “painfully inadequate” ceiling of 17,400 entries
per year, limited the category’s reach. Id. at 881–82.
Presidents therefore continued to rely on parole when refugee
crises arose, granting entry to hundreds of thousands of
refugees from Cuba, Indochina, and Soviet and Eastern

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European countries. Id. at 882. In other words, refugee
admissions remained ad hoc, spurring policy proposals for
overhauling the system that were debated throughout the
1970s. Anker & Posner, supra, at 20–42.
In 1980, to limit the parole power, create a predictable
and permanent admissions system, and fulfill international
obligations, Congress passed the Refugee Act of 1980 (the
“Act”), Pub. L. No. 96-212, 94 Stat. 102. Legomsky &
Rodríguez, supra, at 882–83. The final version of the bill set
quotas for refugee admissions and limited the executive
branch’s parole authority. Anker & Posner, supra, at 60–62.
It adopted the nondiscriminatory definition of refugee
included in the 1951 United Nations Convention Relating to
the Status of Refugees, but amended it by including not only
persons who feared future persecution but also those who
were victims of past persecution.5 Deborah Anker, Law of
Asylum in the United States § 1:2 (2016). Furthermore, the
Act provided a statutory basis for asylum, the granting of
status to refugees who arrive or have been physically present
in the United States. Id.; see also Legomsky & Rodríguez,
supra, at 893. The Act also brought the United States into
conformity with the 1951 Convention with respect to
withholding of removal, the remedy by which an applicant
can prevent forcible return to a country where he fears
persecution. Legomsky & Rodríguez, supra, at 893. To this
day, the Act is the principal statute governing the admission
of refugees, grants of asylum, and withholding of removal.
Legomsky & Rodríguez, supra, at 883.

5

In 1968, the United States ratified the United Nations Protocol
Relating to the Status of Refugees, which incorporated the 1951
Convention.

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The concept of persecution by non-state actors is
“inherent” in the definitions of persecution in the 1951
Convention and the Refugee Act of 1980. Anker, supra, at
§ 4:8. Indeed, the 1979 UNHCR Handbook on Procedures
and Criteria for Determining Refugee Status Under the 1951
Convention and the 1967 Protocol Relating to the Status of
Refugees stated that persecution included “serious
discriminatory or other offensive acts . . . committed by the
local populace . . . if they are knowingly tolerated by the
authorities, or if the authorities refuse, or prove unable, to
offer effective protection.” Anker & Posner, supra, at 67
(quoting UNHCR, Handbook on Procedures and Criteria for
Determining Refugee Status Under the 1951 Convention and
the 1967 Protocol Relating to the Status of Refugees (1979)).
Even under U.S. statutory definitions of persecution
pre-dating the Refugee Act of 1980, a First Circuit opinion
and a published, precedential BIA opinion suggested that
persecution by non-state actors was cognizable as a predicate
for relief. See Rosa v. INS, 440 F.2d 100, 102 (1st Cir. 1971);
Matter of Eusaph, 10 I. & N. Dec. 453, 454 (BIA 1964).
Our circuit first determined that the appropriate standard
of review for BIA decisions under the Refugee Act of 1980
is the now familiar “substantial evidence” test in McMullen
v. INS, 658 F.2d 1312, 1316 (9th Cir. 1981). See Sagermark
v. INS, 767 F.2d 645, 649 (9th Cir. 1985). McMullen also
provided our first occasion to address “[p]ersecution by . . .
a group which the government is unable to control” under the
Act. McMullen, 658 F.2d at 1315.
McMullen, a Catholic of Irish descent, had joined the
British Army and been deployed to Northern Ireland in 1969
as part of British peacekeeping efforts. Id. at 1314. As the
British soldiers became more violently anti-Catholic,

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torturing prisoners and plotting to use armed force against
nonviolent civilian demonstrators, McMullen deserted them
to join the Provisional Irish Republican Army (PIRA), a
nongovernmental group that purported to protect Catholics
from the British army, but which eventually became, in
McMullen’s view, extremist and terroristic. Id. He quit the
PIRA, but was jailed by the Republic of Ireland police for his
earlier activities as part of the PIRA. Id. When he was
released, the PIRA pressured him to participate in a plan to
kidnap an American, but McMullen refused. Id.
Upon learning that the PIRA intended to murder him for
that refusal, McMullen fled to the United States, cooperated
with U.S. authorities, and sought withholding of removal.6
Id. at 1313–14. The BIA reversed the IJ’s determination that
“McMullen was not deportable because ‘the Government of
the Republic of Ireland is unable to control the activities of
the PIRA and that if [McMullen] were to be returned to that
country he would suffer persecution within the meaning of
the (United Nations) Convention, Protocol, and section

6

McMullen concerned an application for withholding of removal, not
asylum, but the analysis of “persecution” is the same for both. To obtain
withholding of removal, the Refugee Act of 1980 requires that an
applicant show that his “life or freedom would be threatened” if returned
to his home country. See 8 U.S.C. § 1231(b)(3). Though semantically
different from the required showing of “persecution” to prove that one is
a refugee eligible for asylum, a threat to life or freedom has been equated
with persecution by the BIA and courts, including the Supreme Court. See
INS v. Stevic, 467 U.S. 407, 429–30 (1984). Indeed, the current
regulations governing withholding of removal use the terms
interchangeably, 8 C.F.R. § 1208.16, as did we in McMullen.
Furthermore, although the specific statutory provision at issue in
McMullen, 8 U.S.C. § 1253(h), was the predecessor to the current
withholding of removal statute, 8 U.S.C. § 1231(b)(3), the relevant
statutory language is identical.

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243(h) (of 8 U.S.C. § 1253(h)).’” Id. at 1315. Before our
court, the government “concede[d] that persecution within the
meaning of [section] 243(h) includes persecution by nongovernmental groups such as the PIRA, where it is shown
that the government of the proposed country of deportation is
unwilling or unable to control that group.” Id. at 1315 n.2.
B. Refugee Law Today
The Attorney General may, in his discretion, grant asylum
to applicants in the United States who meet the definition of
“refugee” under 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C.
§ 1158(b)(1). An applicant qualifies as a refugee if he “is
unable or unwilling to return to his home country because of
a well-founded fear of future persecution on account of race,
religion, nationality, membership in a particular social group,
or political opinion.” Navas v. INS, 217 F.3d 646, 654 (9th
Cir. 2000). An applicant may establish a “well-founded fear
of future persecution” in two ways: by proving past
persecution, or by demonstrating that he has a “subjectively
genuine and objectively reasonable” fear of future
persecution. Id. at 654–56, 656 n.11.
Because Bringas applied for asylum after the passage of
the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231,
he must show that his sexual orientation was “one central
reason” for his persecution. 8 U.S.C. § 1158(b)(1)(B)(I).
However, his “persecution may be caused by more than one
central reason, and [he] need not prove which reason was
dominant.” Parussimova v. Mukasey, 555 F.3d 734, 741 (9th
Cir. 2009). If Bringas is able to show that he was subjected
to past persecution, he is entitled to a rebuttable presumption
of a well-founded fear of future persecution. Tawadrus v.

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Ashcroft, 364 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 alleging past persecution has the burden of
establishing that (1) his treatment rises to the level of
persecution; (2) the persecution was on account of one or
more protected grounds; and (3) the persecution was
committed by the government, or by forces that the
government was unable or unwilling to control.”
Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.
2010).
1. Early decisions discussing the “unable or unwilling”
standard in the context of private persecution
For several years following passage of the Refugee Act of
1980, decisions considering whether a government was
unable or unwilling to control private persecution almost
exclusively involved a fear of future persecution by organized
groups, such as anti-government guerillas. See., e.g.,
Arteaga v. INS, 836 F.2d 1227, 1231 (9th Cir. 1988)
(remanding for the BIA to consider whether the petitioner
established a well-founded fear of persecution by guerillas
that the El Salvadoran government could not control),
abrogated on other grounds by INS v. Elias-Zacarias, 502
U.S. 478 (1992); Sangha v. INS, 103 F.3d 1482, 1487 (9th
Cir. 1997) (holding that the petitioner had been persecuted by
a terrorist group that the government of India could not
control). In such decisions, either it was undisputed that the
government was unable or unwilling to control the powerful
organizations at issue, or the inability to control was proved
through documentary evidence, such as country conditions

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reports. See, e.g., Gomez-Saballos v. INS, 79 F.3d 912,
916–17 (9th Cir. 1996) (concluding that “documentary
evidence about general conditions in Nicaragua” was enough
to show that the government was “unable to control” former
National Guard members); Arteaga, 836 F.2d at 1231
(analyzing eligibility for asylum under the assumption that
guerillas were not controlled by the government).
Later petitions for review, however, involved claims for
relief based on past persecution by unorganized groups and
individuals. See, e.g., Singh v. INS, 94 F.3d 1353, 1357–60
(9th Cir. 1996) (stating that the petitioner’s assailants “need
not [have] file[d] articles of incorporation before they can be
capable of persecution”). In such instances, where the
petitioner was required to show that previous attacks were
committed in the shadow of an acquiescent government, we
looked to evidence of how the police responded to the
petitioner’s requests for protection. In Singh, for example,
the petitioner—an ethnic Indian citizen of Fiji—received
death threats from ethnic Fijians and was assaulted at work.
Id. at 1357–58. He and his family were also attacked twice
at their home. Id. We looked to record evidence showing
that “the government ha[d] encouraged and condoned the
discrimination, harassment, and violence by ethnic Fijians
against Indo-Fijians.” Id. at 1360. But we also highlighted
that “Singh testified that he reported each assault and threat
to the police and that . . . the police failed to respond to any
of his crime reports.” Id. We therefore concluded that the
government of Fiji “could not or would not control” the
persecutors. Id.; see also Andriasian v. INS, 180 F.3d 1033,
1042–43 (9th Cir. 1999) (“[T]he widespread nature of the
persecution of ethnic Armenians documented by the State
Department Country Report, combined with the police
officer’s response [advising Mr. Andriasian to leave the

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country] when Mr. Andriasian turned to him for help, clearly
establishes that the government of Azerbaijan either could not
or would not control Azeris who sought to threaten and harm
ethnic Armenians living in their country.”).
In a published, precedential opinion, the BIA reasoned
similarly. In In re O-Z & I-Z, 22 I. & N. Dec. 23 (BIA 1998),
a father and son, natives of Russia and citizens of Ukraine,
were beaten and threatened with death on several occasions
because they were Jewish. Id. at 23–24. They reported the
attacks three times, but the police “took no action beyond
writing a report.” Id. at 26. From that, the BIA concluded
that “the Ukrainian [g]overnment was unable or unwilling to
control the respondent’s attackers and protect him or his son
from the anti-Semitic acts of violence.” Id.
In such instances of police failure to respond to a report
of persecution, we have held that a petitioner need not
provide evidence that a government is “unable or unwilling
to control [persecution] ‘on a countrywide basis.’” Mashiri
v. Ashcroft, 383 F.3d 1112, 1122 (9th Cir. 2004) (rejecting
the government’s reliance on a U.S. Department of State
country report to counter the petitioner’s evidence of local
police unwillingness to protect her and her family). “Instead,
an asylum applicant may meet her burden with evidence that
the government was unable or unwilling to control the
persecution in the applicant’s home city or area.”7 Id.

7

Though we explained in Mashiri that an applicant can prove
governmental inability or unwillingness through evidence specific to her
“home city or area,” we did not hold that applicants are required to do so.

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2. Decisions discussing the “unable or unwilling”
standard where private persecution was unreported
As early as 2000, the BIA concluded 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 government officials. In re S–A–,
22 I. & N. Dec. 1328, 1335 (BIA 2000). There, the BIA
addressed the plight of a native and citizen of Morocco,
S–A–, who at age fourteen began to suffer regular beatings
and was burned, kicked, and punched by her orthodox
Muslim father on account of her more liberal Muslim beliefs.
Id. at 1329–30. Both S–A– and her U.S. citizen aunt credibly
testified that going to the police would have been futile,
because, “in Moroccan society, such action would [have
been] not only unproductive but potentially dangerous.” Id.
at 1330, 1333. The BIA considered that testimony and the
U.S. Department of State Country Reports on Human Rights
Practices for 1997, which corroborated that few Moroccan
women report abuse to the authorities “because the judicial
procedure is skewed against them,” and that women who
reported were often returned to their abusers. Id. at 1333.
The BIA found that the credible testimony and country
report evidence sufficiently established the “unable or
unwilling” standard, reasoning:
[T]he source of the respondent’s repeated
physical assaults, imposed isolation, and
deprivation of education was not the
government, but her own father. Although
she did not request protection from the
government, the evidence convinces us that
even if the respondent had turned to the

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government for help, Moroccan authorities
would have been unable or unwilling to
control her father’s conduct. The respondent
would have been compelled to return to her
domestic situation and her circumstances may
well have worsened.

Id. at 1335. The BIA concluded that, because S–A– had
suffered persecution at the hands of her father that the
government was unable or unwilling to control, and because
the government failed to rebut the presumption of future
persecution, S–A– was entitled to asylum. Id.; see also In re
Jose Luis Garcia-Gonzalez, A201 063 604, 2011 WL
7327341, at *1 (BIA Nov. 10, 2011) (unpublished) (finding
that Mexico was unable or unwilling to control the
applicant’s abusive father because “the record reflects that the
police did not have a presence in the respondent’s small
town” and because “the respondent was under 14 years old
when the harm occurred”).
We have similarly long held that a victim of abuse need
not report it to government authorities to establish the
government’s inability or unwillingness to protect him. In
Korablina v. INS, 158 F.3d 1038 (9th Cir. 1998), the
petitioner, a Jewish native of Russia and citizen of the
Ukraine, was the victim of harassment and beatings
perpetrated against Jewish citizens. Id. at 1041–42.
Korablina was fired from the job she had held for twentyeight years by a new boss who was a member of an ultranationalist and anti-Semitic group. Id. at 1041. After
searching for six months for a new job, she found work as a
clerical secretary to a Jewish man. Id. at 1042. In that new
position, she saw three men attack her boss and thereafter
return monthly to the office to extort money. Id. Though she

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and her fellow employees reported the beating to the police,
the officers never appeared, and when Korablina sought help
from a friend at the municipal city hall, the friend
disappeared. Id. Korablina then began receiving anti-Semitic
death threats that warned of retaliation if she reported the
threats to anyone. Id. Soon thereafter, two men violently
attacked Korablina and left her barely breathing, telling her
she “could not . . . conceal her Jewish origin.” Id.
Though Korablina never reported the threats or the attack,
she credibly testified that “the police were not interested in
protecting Jews,” that reporting “would be fruitless,” and that
she was frightened that if she reported she would share the
same fate as her friend in the municipal city hall. Id.
Korablina’s daughter also credibly testified that “telling the
authorities was useless,” which was why neither she nor her
father reported the violent anti-Semitic attacks that they had
suffered. Id. at 1042–43. Furthermore, Korablina offered
“articles detailing the authorities’ unresponsiveness to
complaints made by Jewish victims in Kiev.” Id. at 1043.
We determined that the credible testimony and corroborating
articles were enough to establish that the government was
unable and unwilling to control the private acts of violence,
and noted that “[c]onspicuous by its absence [was] any
authoritative evidence from the government disputing the
thrust of her evidence and of the government’s complicity.”
Id. at 1045.
In Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004),
we first expressly suggested that a per se reporting
requirement was untenable. Id. at 789 & n.3. In ReyesReyes, we considered the past persecution of an El
Salvadoran “homosexual male with a female sexual identity”
who had been beaten and raped at age thirteen because of his

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sexual orientation and identity. Id. at 785. Though we
“decline[d] to reach” Reyes’s argument that the IJ had
incorrectly imposed a per se reporting requirement, we
nevertheless stated that such a bright-line rule “would indeed
be troubling, especially in light of evidence in the record that
rape victims in El Salvador regularly underreport such crimes
due to the poor response of the authorities,” as well as circuit
precedent documenting physical attacks against homosexuals
by national police in Latin America. Id. at 789 & n.3.
Two years later, we squarely held:
[A]n applicant who seeks to establish
eligibility for withholding of removal under
section 1231(b)(3) on the basis of past
persecution at the hands of private parties the
government is unwilling or unable to control
need not have reported that persecution to the
authorities if he can convincingly establish
that doing so would have been futile or have
subjected him to further abuse.
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir.
2006). We thus “ma[d]e explicit” what may have been only
implicit in Korablina, Reyes-Reyes, and In re S–A–. Id. In
Ornelas-Chavez, we considered a withholding of removal
claim by a Mexican gay male who “suffered a great deal of
abuse . . . because of his homosexuality and female sexual
identity”: he was beaten by his parents and raped by his
father’s friend, his cousins, and a worker at his grandfather’s
hacienda. Id. at 1054. The BIA denied his request for
withholding of removal despite finding his testimony
credible, concluding that Ornelas-Chavez failed to establish
the government’s inability or unwillingness to protect him.

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Id. at 1055. In doing so, the BIA cited “only two pieces of
evidence: background country conditions and OrnelasChavez’s failure to report the incident to the authorities.”8 Id.
at 1056. We held this was legal error in light of OrnelasChavez’s credible testimony that he did not report the abuse
to the police “[b]ecause the same police mistreated and
harasse[d] [him]”; that “two of [his homosexual] friends were
assassinated,” presumably on account of their sexual
orientation; and that others had reacted with indifference
when he told them about the attacks he suffered. Id. at 1057
(second alteration in original). We reasoned that disregarding
Ornelas-Chavez’s credible testimony about why he failed to
report his abuse to police “was tantamount to making the
reporting of private persecution a sine qua non for the success
of [his] withholding of removal claim.”9 Id. at 1057.

8

The BIA could not have relied solely on the country conditions
reports “unless it specifically held that some or all of Ornelas-Chavez’s
testimony was not credible in light of the background conditions.” Id.
9

In Ornelas-Chavez, we distinguished our decision in Castro-Perez
v. Gonzales, 409 F.3d 1069 (9th Cir. 2005), which concluded that the
petitioner failed to establish that the Honduran government was unable or
unwilling to control the man who had raped her, in part because she had
not reported the attack. Id. at 1070–72. Assuming that she was a member
of a particular social group, we found the petitioner’s reasons for not
reporting insufficient. Id. at 1072. The petitioner had testified only that
the police “were not willing to do anything” and that she was afraid her
father would beat her. Id. We also found that the country report in
evidence did not conclusively show that the Honduran government would
have ignored the report of rape. Id. In Ornelas-Chavez, we explained that
Castro-Perez was not contrary to our rule that reporting is not required;
we simply found the petitioner’s reasons for not reporting in Castro-Perez
insufficient to establish governmental inability or unwillingness to protect
her. Ornelas-Chavez, 458 F.3d at 1057–58.

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We next took up the “unable or unwilling” standard in a
pair of cases argued, submitted, and filed on the same dates
by the same panel. In one, Rahimzadeh v. Holder, 613 F.3d
916 (9th Cir. 2010), the petitioner, who had received death
threats and suffered physical attacks by extremist Muslims in
the Netherlands because he was Christian, did not report the
violence because his persecutors threatened to kill him and
his sister if he did so. In the other, Afriyie v. Holder, 613
F.3d 924 (9th Cir. 2010), the petitioner, who was violently
attacked on the basis of his Christian religion by Muslims in
Ghana, did file a written report with the police and requested
protection, but to no avail. Both Rahimzadeh and Afriyie
were deemed credible by the agency, but we denied
Rahmizadeh’s petition and granted Afriyie’s.
We began our analysis in both cases by citing our
precedent, Ornelas-Chavez, and that of the BIA, In re S–A–,
to correctly recognize that “reporting persecution to
government authorities is not essential to demonstrating that
the government 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 reporting
and police inaction is one means of establishing governmental
inability or unwillingness to control the attackers or protect
the attacked. Afriyie, 613 F.3d at 931; Rahimzadeh, 613 F.3d
at 921. We also introduced a new construct for analyzing the
situation where no report has been made:
The absence of a report to police does not
reveal anything about a government’s ability
or willingness to control private attackers;
instead, it leaves a gap in proof about how the
government would respond if asked, which

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the petitioner may attempt to fill by other
methods.
Rahimzadeh, 613 F.3d at 922 (emphasis added); see also
Afriyie, 613 F.3d at 931. We summarized several avenues for
filling this “gap,” based on a survey of prior case law. We
stated that a petitioner could fill the evidentiary gap by:
1) “demonstrating that a country’s laws or customs
effectively deprive the petitioner of any meaningful recourse
to governmental protection,” Rahimzadeh, 613 F.3d at 921
(citing In re S-A, 22 I. & N. Dec. at 1328, 1330, 1332–33,
1335); 2) describing “[p]rior interactions with the
authorities,” id. (citing Ornelas-Chavez, 458 F.3d at 1054);
3) “showing that others have made reports of similar
incidents to no avail,” id. at 922 (citing Afriyie, 613 F.3d at
932–33); 4) “establishing that private persecution of a
particular sort is widespread and well-known but not
controlled by the government,” id. (citing Avetova-Elisseva
v. INS, 213 F.3d 1192, 1198 (9th Cir. 2000)); or
5) “convincingly establish[ing] that [reporting] would have
been futile or [would] have subjected [the applicant] to
further abuse,” id. (third alteration in original) (citing
Ornelas-Chavez, 458 F.3d at 1058).
We stressed that the “BIA was entitled to rely on all
relevant evidence in the record, including [country] reports,”
to determine whether the “unable or unwilling” standard was
met, Afriyie, 613 F.3d at 933, and in both decisions we
examined all the record evidence to determine whether
substantial evidence supported the agency’s denial of relief.
Indeed, the different outcomes in the cases did not turn on
whether the attacks were reported to the police; rather, our
decisions turned on the nature and quality of the evidence,

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including credible testimony and country reports and all other
evidence in the record.
In Rahimzadeh, we concluded that the IJ properly treated
the absence of a report to authorities as “merely one factor in
the assessment of the Dutch government’s willingness and
ability to control private extremists, not as a per se bar to
asylum.” 613 F.3d at 922. We concluded that the IJ’s
finding that “the Dutch authorities in fact would have been
willing and able to control Rahimzadeh’s attackers was
supported by substantial evidence.” Id. at 923. The 2006
U.S. Department of State Country Report on Human Rights
Practices in the Netherlands noted not only that “[Dutch] law
provides for freedom of religion,” but also that “the
government generally respect[s] this right in practice.” Id.
(alterations in original). Specifically, the judicial system
provided “effective means” for addressing human rights
abuse, and the government had taken “firm action against
groups espousing violence in support of an Islamic extremist
agenda,” id., the very groups that Rahimzadeh described as
his persecutors. A second government report, the 2006 U.S.
Department of State International Religious Freedom Report,
also indicated that the “[g]overnment at all levels sought to
protect [the freedom of religion] in full and did not tolerate its
abuse, either by governmental or private actors.”10 Id.
(second alteration in original).
By contrast, in Afriyie, we concluded that the IJ’s finding
that Afriyie failed to establish Ghana’s inability or
unwillingness to control his attackers or protect him while

10

We noted that “[a]lthough general country-level information is
ordinarily insufficient to contradict direct, specific, credited testimony, the
IJ did not use the country reports for that purpose.” Id. (citations omitted).

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preaching was not supported by substantial evidence.
Although Afriyie was able to file a police report, that said
little about whether the police were able to protect him.
Afriyie, 613 F.3d at 931. Afriyie’s credible testimony
“indicate[d] [that] the Ghanaian police forces lacked the
resources necessary to protect him.” Id. at 931–32. Afriyie
testified that his group had requested protection, but that “the
police had only one gun for the entire station.” Id. at 928. He
also testified that police relied on the individuals who were
attacked to track down and bring in the perpetrators, and that
two murders of his group’s members were reported but
remained unsolved. Id. Afriyie further testified that even if
the police could protect him, they required bribes, suggesting
their unwillingness to do so. Id. Moreover, the country
report on which the IJ relied did not state that claims of
persecution against Christians were investigated and
prosecuted; it only noted that claims of corruption against the
police were pursued. Id. at 933. There was no evidence in
the report that Christians were able to obtain protection, and
general statements in the report could not, in any event,
contradict Afriyie’s specific, direct credible testimony. Id. at
933–34.
In the next “unable or unwilling” decision involving
nonreporting, Castro-Martinez, we interpreted the
Rahimzadeh and Afriyie “gap” construct in the context of a
gay, HIV-positive man seeking asylum based on the
childhood physical and sexual abuse he suffered “because of
his homosexuality and feminine characteristics.” 674 F.3d at
1079. Castro credibly testified that he never told his parents
about the repeated, brutal rapes he suffered between the ages
of six and ten because the abusers threatened that if he did so,
they would beat him and kill his parents. Id. He further
credibly testified that “given these threats, and the stigma

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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.” Id. Moreover,
because the Mexican police might themselves abuse him on
account of his sexual orientation and were ineffective in
dealing with the persecution of homosexuals, it would have
been futile and dangerous to go to the police. Id. at 1079,
1081. Castro backed up this credible testimony by presenting
“country reports documenting police corruption and
participation in torture, abuse, and trafficking, as well as
incidents of police harassment of gay men.” Id. at 1081.
We stated that “[w]e have never held that any victim, let
alone a child, is obligated to report a sexual assault to the
authorities, and we do not do so now.” Id. We also
acknowledged that, with respect to Castro’s petition, “the
matter is complicated by the fact that Castro was between the
ages of six and ten years 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 petitioner
is a child, the IJ must assess the alleged persecution from a
child’s perspective.” Castro-Martinez, 674 F.3d at 1081
(emphasis in original).
Nevertheless, though the credible testimony and country
report evidence met the types of evidence that we held in
Rahimzadeh and Afriyie would fill the evidentiary “gap”
created by not reporting, we determined the evidence was
insufficient. We stated that “Castro’s primary reason for not
contacting authorities was that he believed the police would
not have helped him.” Id. This, we held, “without more,
[was] not sufficient to fill the gaps in the record.” Id. In
denying Castro relief, we also relied on the lack of evidence
in the record that “Mexican authorities would have ignored

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the rape of a young child or that authorities were unable to
provide a child protection against rape.” Id. Further, we
dismissed country report evidence of police harassment of
gay men, stating that “none of these reports compel the
conclusion that the police would have disregarded or harmed
a male child who reported being the victim of homosexual
rape by another male.” Id.
We again addressed a petitioner’s claim of past
persecution on account of his sexual orientation where the
violence was not reported in Vitug v. Holder, 723 F.3d 1056
(9th Cir. 2013). Thirty-seven-year-old Vitug credibly
testified that he was “beaten five times on the street, and two
of these beatings were ‘severe’”; that he was “harassed and
threatened by the police because of his perceived sexual
orientation”; and that he was “unable to obtain employment
in the Philippines.” Id. at 1064. He also credibly testified
that the “police [in the Philippines] will not do anything to
help gay men who report abuse,” and that “it is well known
in the Philippines that police harass gay men and turn a blind
eye to hate crimes committed against gay men.” Id. at
1064–65 (alteration in original). He bolstered this credible
testimony with “documentary evidence of a police raid on a
gay theater during which police beat and robbed the patrons.”
Id. at 1065.
In Vitug, we did not apply, or even mention, the
Rahimzadeh and Afriyie “gap” construct. Rather, we held
that Vitug’s credible testimony and documentary evidence of
police abuse of homosexuals “‘convincingly establish[ed] that
[reporting the attacks] would have been futile or have
subjected him to further abuse,’ thereby demonstrating that
the government was unwilling to control the attackers.” Id.

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(alterations in original) (citing Ornelas-Chavez, 458 F.3d at
1058).
D. Castro-Martinez
1. Introduction of a heightened evidentiary standard for
children
To determine whether private persecutors are individuals
whom the government is unable or unwilling to control, we
must examine “all relevant evidence in the record, including
[country] reports.” Afriyie, 613 F.3d at 933. The useful
survey from Rahimzadeh of the types of evidence that may
establish the “unable or unwilling” prong of the test for past
persecution is not, and never was, an exhaustive list. Like all
other circuits to consider the question, we do not deem the
failure to report to authorities outcome determinative, and we
consider all evidence in the record. See Castillo-Diaz v.
Holder, 562 F.3d 23, 27–28 (1st Cir. 2009) (holding that
where petitioner failed to report her rape to authorities, the IJ
properly relied on evidence in a State Department report that
El Salvador enforces its rape laws with significant penalties
to conclude the country was able and willing to protect
petitioner); Cardozo v. Att’y Gen., 505 F. App’x 135, 138–39
(3d Cir. 2012) (unpublished) (citing Ornelas-Chavez for the
proposition that “an applicant ‘need not have reported th[e]
persecution to the authorities if he can convincingly establish
that doing so would have been futile or [would] have
subjected him to further abuse’” (alteration in original)
(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 Cir.
2008) (holding that substantial evidence did not support the
IJ’s finding that Cameroon was able and willing to protect a

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nonreporting petitioner, where petitioner’s credible testimony
explaining that the police do not protect women from
domestic violence, the State Department country reports, and
a relative’s affidavit evidenced that Cameroon would “not do
anything” to protect her, citing In re S–A–); Lopez v. U.S.
Att’y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007) (holding
that the BIA erred by reasoning “that the failure to seek
protection without more is enough to defeat a claim for
asylum,” and remanding to the BIA to consider in the first
instance petitioner’s testimony and country reports, applying
In re S–A–).
Whether a victim has reported or attempted to report
violence or abuse to the authorities is a factor that may be
considered, as is credible testimony or documentary evidence
explaining why a victim did not report. Rahimzadeh and
Afriyie unnecessarily introduced the construct that the failure
to report creates a “gap” in the evidence, because our law is
clear that the agency, and we, upon review, must examine all
the evidence in the record that bears on the question of
whether the government is unable or unwilling to control a
private persecutor. Framing the question of nonreporting as
a “failure” that creates an evidentiary “gap” had the
inadvertent effect of heightening the evidentiary standard
beyond the traditional types of proof, accepted in every prior
precedent, that we have deemed sufficient to demonstrate
governmental inability or unwillingness to protect victims of
persecution. To the extent that our cases’ discussion of gap
filling suggested that the burden of proof on governmental
inability or unwillingness to protect was something beyond
the standard we use for other elements—proof by a
preponderance of the evidence, considering all the evidence
in the record—we supersede those cases by clarifying that

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there is no heightened proof requirement.11 The very next
petition for review that we considered in the context of
nonreporting was Castro-Martinez, which transformed the
“gap” into a “gulf,” never to be quite filled, especially for
those who were victimized as children, the least likely
persons to report their abuse to authorities.
In Castro-Martinez, Castro adduced credible testimony
detailing the rapes he suffered as a child on account of his
sexual orientation and feminine characteristics, the risk of
retaliation from both his abusers and the police if he reported
his abuse, and country reports documenting private and police
harassment of and violence against homosexuals. Despite all
this evidence, we held that Castro failed to meet his burden to
“fill in the gaps” because he had not shown that Mexican
officials were unable or unwilling to intervene specifically in
the abuse of gay children, as opposed to gay individuals
generally. Castro-Martinez, 674 F.3d at 1081–82. Yet the
nature and quality of Castro’s evidence fell within several of
the categories of proof that we said in Rahimzadeh would
suffice, and which should have been sufficient to satisfy the
“unable or unwilling” standard under the correctly applied
law.
By effectively defining Castro’s social group as gay
children and rejecting Castro’s evidence, we “demand[ed] an
unwarranted level of specificity” and “effectively eliminated
11

Thus the linchpin of the dissent—that this opinion departs from the
substantial evidence standard—is misguided. This opinion merely
clarifies that the legal standard, substantial evidence, is not heightened or
made more stringent when the persecution is directed to a child, as
opposed to an adult, who does not report the persecution to the authorities.
The BIA applied the wrong legal standard, which it drew from the
standard we incorrectly applied in Castro-Martinez.

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[country reports] as a method of showing a foreign
government’s inability or unwillingness to prevent sexual
abuse of gay children.” Bringas-Rodriguez, 805 F.3d at 1192
(Fletcher, J., dissenting). Castro’s evidence demonstrated the
futility and potential danger of reporting to the authorities,
Ornelas-Chavez, 458 F.3d at 1058, and the widespread
tolerance of private persecution of homosexuals by the
authorities, Rahimzadeh, 613 F.3d at 922, but we held that
evidence insufficient. We imposed a higher burden that
required Castro to demonstrate that “Mexican authorities
would have ignored the rape of a young child or that
authorities were unable to provide a child protection against
rape.” 674 F.3d at 1081. The result of this holding was to
carve out a sub-group of “gay children” within the broader
social group of “gay individuals.” It also necessarily and
erroneously assumed that where government authorities are
able and willing to protect heterosexual children, they will be
equally able and willing to protect children who exhibit a
different sexual orientation or are “different” in other ways.
However, our immigration laws recognize that persons who
fall within the enumerated, protected refugee categories are
often treated more harshly by the authorities than those who
do not, precisely because of the characteristics that provided
them with statutory protection under our refugee laws in the
first place.
Furthermore, adult and child victims of physical and
sexual abuse alike face significant barriers to reporting their
abuse and seeking the protection of authorities. Sexual abuse
commonly results in “severe and long-lasting” effects,
including “avoidance of situations that trigger memories of
the violation, profound feelings of shame, [and] difficulty
remembering events.” Lopez-Galarza v. INS, 99 F.3d 954,
962 (9th Cir. 1996) (quoting Shana Swiss & Joan E. Giller,

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Rape As a Crime of War: A Medical Perspective, 270 J. Am.
Med. Ass’n 612, 614 (1993)). As was the case with Bringas,
a victim may also fear retaliation, not just from his abusers,
but from “police, society, even family members.”
The barriers to reporting become even greater when the
victim is a child. As Judge W. Fletcher noted in his dissent
from the panel-majority opinion:
Many children will not report these crimes for
some of the same reasons Bringas-Rodriguez
did not. Abusers often threaten their victims
with harm if they tell anyone, and they
sometimes make good on those threats.
Children also have difficulty getting
information to the police, especially if family
members or neighbors—the people who might
report the abuse—are the abusers.
Bringas-Rodriguez, 805 F.3d at 1192 (Fletcher, J.,
dissenting). Children may lack the cognitive ability to
understand that they are being abused, and that beatings and
rapes by adults they should be able to trust are crimes. Brief
for Kids in Need of Defense et al. as Amici Curiae at 11.
Even if they do have that cognitive ability, child victims may
not only fear retaliation for reporting to authorities, but may
also be practically unable to do so because their day-to-day
actions are controlled by their abusers, especially if their
abusers are family members. Child victims of sexual abuse
frequently “lack the information to navigate official, often
complex, channels required to report abuse” and are likely to
be unaware of shelters or agencies that might provide them
protection. Id. at 9–10. Asylum officers’ training guidelines
specifically require them to consider the difficulty children

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may experience in reporting abuse: “The fact that a child did
not seek protection in his or her country of origin does not
necessarily undermine his or her case. The asylum officer
must explore what, if any, means the child had of seeking
protection.” U.S. Citizenship and Immigr. Servs., Asylum
Officer Basic Training Course: Guidelines for Children’s
Asylum Claims 40 (2009).12
Even if a child is able to report the abuse, he may not be
able to articulate 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: Child
Asylum Claims Under Articles 1(A)2 and 1(F) of the 1951
Convention and/or 1967 Protocol Relating to the Status of
Refugees, ¶ 39, U.N. Doc HCR/GIP/09/08 (Dec. 22, 2009).13
For all of these reasons, we recognize that children who
suffer sexual abuse are generally unlikely to report that abuse
to authorities. Because they are unlikely to report, it is
similarly unlikely that country reports or other evidence will
be able to document the police response, or lack thereof, to
the sexual abuse of children. Placing on Castro the added
burden of demonstrating governmental inability or
unwillingness to control child sexual abuse generally was
thus tantamount to imposing a reporting requirement on
sexually abused children: either the petitioner must have

12
Available at http://www.uscis.gov/sites/default/
files/USCIS/Humanitarian/Refugees%20%26%20Asylum/Asylum/AO
BTC%20Lesson%20Plans/Guidelines-for-Childrens-Asylum-Claims-3
1aug10.pdf.
13

Available at http://www.unhcr.org/50ae46309.pdf.

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reported in his own case, or other children must have reported
to create the basis for a country report on the general
response.14 That added burden was inappropriate, both
because it reflected a heightened gap-filling proof
requirement and because it focused on evidence regarding the
treatment of gay children rather than the treatment of gay
Mexicans generally.
2. Overemphasis on laws as opposed to practices
In Castro-Martinez, we also failed to consider the
difference between a country’s enactment of remedial laws
and the eradication of persecutory practices, often long
ingrained in a country’s culture. Rejecting Castro’s claim
that, in Mexico, a systematic pattern or practice of
persecution against homosexuals remained, we found
Castro’s evidence unpersuasive “in light of recent country
reports,” which showed that the “Mexican government’s
efforts to prevent violence and discrimination against
homosexuals . . . ha[d] increased in recent years.” CastroMartinez, 674 F.3d at 1082.
Mexico is to be lauded for its efforts. But it is well
recognized that a country’s laws are not always reflective of
actual country conditions. It is not unusual that a country’s
“de jure commitments to LGBTI protection do not align with
the de facto reality of whether the State is able and willing to
provide protection.” Brief for UNHCR as Amicus Curiae at
4. And we have recently recognized that Mexico has

14

We have imposed such a heightened burden in two decisions only,
Castro-Martinez and the Bringas-Rodriguez panel-majority opinion. Both
involved past persecution of a child. We have never imposed such a
standard in a petition involving an adult’s claim of past persecution.

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experienced “an increase in violence against gay, lesbian, and
transgender individuals during the years in which greater
legal protections have been extended to these communities.”
Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1081 (9th Cir.
2015) (emphasis in original).
Moreover, the anti-discrimination efforts discussed in
Castro-Martinez seem to have been made by the national
government, and thus do not necessarily reveal anything
about the practices within state or municipal jurisdictions.
See Madrigal v. Holder, 716 F.3d 499, 507 (9th Cir. 2013)
(noting that while Mexico’s national government was willing
to control the drug cartel that attacked the petitioner, it was
not necessarily able to do so, in part because state and local
officials were involved with drug traffickers).15
IV.
Substantial evidence compels the conclusion that Bringas
has established past persecution.

15
It bears noting, however, that—contrary to the panel majority’s
putative requirement that Bringas show that he would be persecuted in his
hometown—even though actions at the national and local levels may not
always align, an applicant is not required to present evidence of local
practices to establish that the government was unable or unwilling to
protect him. We have rejected such a requirement in the past. See
Krotova v. Gonzales, 416 F.3d 1080, 1083, 1087 (9th Cir. 2005)
(examining country report evidence of police failure to arrest anti-Semitic
attackers throughout Russia); Yan Rong Zhao v. Holder, 728 F.3d 1144,
1148 (9th Cir. 2013) (municipal-level proof of government persecution not
required where the petitioner presented province-level proof). Rather, we
must assess the entire evidentiary record in each application, and we do
not deem the presence or lack of any specific type of evidence conclusive.

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A. Persecution on Account of a Protected Ground
There is no dispute that the brutal beatings and rapes that
Bringas suffered as a child rise to the level of persecution. “It
is well established that physical violence is persecution under
8 U.S.C. § 1101(a)(42)(A).” Li v. Holder, 559 F.3d 1096,
1107 (9th Cir. 2009).
Likewise, there is no real dispute that Bringas’s sexual
orientation was at least one central reason for his persecution.
As the BIA acknowledged, “sexual orientation and sexual
identity can be the basis for establishing a particular social
group.” See Boer-Sedano v. Gonzales, 418 F.3d 1082,
1087–88 (9th Cir. 2005) (holding that “homosexual men in
Mexico” constitute a particular social group for purposes of
asylum); Karouni v. Gonzales, 399 F.3d 1163, 1171–73 (9th
Cir. 2005) (concluding that the petitioner was eligible for
asylum because of a well-founded fear of persecution on
account of his “membership in the particular social group of
homosexuals”).
The government argues that the BIA rejected Bringas’s
claim because he failed to establish that the sexual abuse he
suffered was on account of his homosexuality. The
government reads the BIA’s decision as affirming the IJ’s
finding that the sexual predators who attacked Bringas were
pedophiles motivated by perverse sexual urges. But the BIA
did not adopt the IJ’s decision, and nothing about the BIA’s
decision suggests that it denied Bringas’s claim on nexus
grounds. Rather, by acknowledging the abuse Bringas
suffered as a child, and then immediately pivoting to CastroMartinez, the BIA’s reasoning could only have been that, as
in Castro-Martinez, Bringas’s claim failed for want of proof
that the government was unable or unwilling to control his

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abusers. Indeed, the BIA decision’s following three
paragraphs discuss homosexuals as “a particular social
group” and acknowledge that Bringas is a gay man.
Finally, even if we read the BIA’s decision to conclude
that the IJ’s “perverse desire” finding was not clearly
erroneous, the entire record compels the conclusion that at
least one central reason for Bringas’s persecution was his
sexual orientation. Indeed, there is no evidence in the record
suggesting Bringas’s abusers were motivated by anything
else; to find otherwise would be to effectively rule that
children can never be victims of abuse on the basis of sexual
identity, as such abuse will always be subsumed by a
presumption of abuse on grounds unrelated to their protected
social group. This cannot be the case. Bringas need only
demonstrate that his sexual orientation was “at least one
central reason” for the abuse; he need not show it was the
only reason. Parussimova, 555 F.3d at 741. The record is
replete with statements by Bringas’s abusers as to exactly
why they targeted him. His father chastised him as a child for
being effeminate and beat him because he was “different.”
When Bringas was eight, his uncle told him the reason for the
ongoing physical and sexual abuse was his sexuality. Bringas
explained that his uncle, his cousins, and his neighbors
“called [him] fag, fucking faggot, queer and laughed about
it.” A full reading of the record leaves no doubt that Bringas
was persecuted on account of his sexual orientation.
B. Unable or Unwilling to Control Private Persecutors
Although Bringas’s persecutors were private, not
government, actors, the record evidence compels the
conclusion that the government was unable or unwilling to
control them. Bringas was not required to report his abuse to

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the authorities because ample evidence demonstrates that
reporting would have been futile and dangerous. Bringas
volunteered in his asylum application the reason he believed
he would be harmed if returned to Mexico:
If I went to the police they wouldn’t do
anything. They will take a report and never
follow-up on it or they would simply laugh at
me and tell me that I got what I deserved
because I am gay. My gay friend from
Veracruz living in Kansas City told me this is
what happened to him.
In his sworn affidavit, Bringas stated: “I was afraid to tell
anyone about my abuse because my uncle threatened to hurt
me and my family.” Bringas further explained that when his
neighbor sexually assaulted him, “[h]e laughed at [Bringas]
and said that if [Bringas] told anyone, he would do something
[Bringas] would be sorry for.” The IJ recognized that
Bringas’s abusers acted like pedophilic abusers, who “usually
manipulate their victims in such a way as to terrify them, and
prevent them from going to an adult and reporting the abuse
because they want to continue perpetrating their abuse on the
victim.” Finally, Bringas stated in his affidavit: “The police
are no help and cannot protect me. They wouldn’t do
anything to my abusers. They would laugh at me and tell me
I deserved what I got because I was gay. This happened to
friends of mine in Veracruz.”
At his removal hearing, Bringas testified that he did 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. Bringas further testified that he was afraid to return to
Mexico because he would get “beat up by police, society,

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even family members.” The IJ and Bringas then had the
following exchange:
IJ: Okay, you’re older now. You can go tell
police if you return to Mexico and suffer
abuse, you could tell the police. . . . Couldn’t
you do that?
Bringas: They will do nothing. . . . I know
that because when I was living in Kansas,16
couple of my friends told me that they got
raped, they got beat up, like abuse, and they
went to the police and they didn’t do
anything. They even laugh on [sic] their
faces.
Thus, even the IJ understood the improbability of a younger
Bringas reporting his abuse to the authorities; by stating
“you’re older now . . . you could tell the police . . . .
[c]ouldn’t you do that,” the IJ recognized the difference
between a minor’s ability to report and an adult’s. Moreover,
both the IJ and the BIA found this testimony credible under
the heightened standards of the Real ID Act.17

16

The panel-majority opinion faults this evidence as not being
sufficiently age-specific. However, on his asylum application, Bringas
states that he lived in Kansas from 2004 to 2007, that is, from the age of
fourteen to seventeen. From that, we can draw the inference that his
friends were also minors when they attempted to report in Veracruz.
17
Though Bringas’s report of his friends’ experiences was hearsay,
we have made clear that hearsay, or even hearsay upon hearsay, can
establish asylum eligibility. Ramirez-Alejandre v. Ashcroft, 319 F.3d 365,
370 (9th Cir. 2003) (en banc); Cordon-Garcia v. INS, 204 F.3d 985,
992–93 (9th Cir. 2000). Bringas’s testimony was sufficiently specific to

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In addition to his sworn asylum application, affidavit, and
credible testimony, Bringas submitted the 2009 and 2010
U.S. Department of State Human Rights Reports for Mexico
and several newspaper articles describing the treatment of gay
men in Mexico. The 2009 and 2010 reports show official
discrimination and violence by police against homosexuals,
and show that persecution of gay men remained a serious
problem in Mexico five and six years after Bringas fled in
2004. The 2009 report states, “While homosexual conduct
experienced growing social acceptance, the National Center
to Prevent and Control HIV/AIDS stated that discrimination
persisted.” The 2010 report includes an identical observation
from the National Human Rights Commission. Additionally,
the 2009 report describes a particularly severe example of
discrimination by Mexican officials:
One of the most prominent cases of
discrimination and violence against gay men
was that of Agustin Humberto Estrada
Negrete, a teacher and gay activist from
Ecatepec, Mexico State.
In 2007 he
participated in a gay rights march wearing a
dress and high heels. According to the NGO
Asilegal, soon after the march, Estrada began
receiving threatening telephone calls and

be deemed credible. Bringas explained through his application and his
testimony where he learned about his friends’ experiences (Kansas), to
whom and where these friends reported the violence against them (the
Mexican police in Veracruz), and the types of attacks they had suffered
(rape and battery). Inexplicably, neither the BIA nor the IJ discussed this
testimony, and the panel majority found it insufficient. While the agency
is not required to discuss every piece of evidence, this particular piece was
crucial, because it explains why any reporting would have been futile and
dangerous.

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verbal and physical attacks. In 2008 he was
fired from the school for children with
disabilities where he worked. After his
dismissal, he and a group of supporters began
lobbying the government to reinstate him;
when they went to the governor’s palace to
attend a meeting with state officials in May,
police beat him and his supporters. The next
day he was taken to prison, threatened, and
raped. Although he was released, Estrada
continued to face harassment by state
authorities.
The 2010 country report states that “some public officials
continued to perpetrate bureaucratic abuses and some
criminal acts with impunity.” It also notes that “rape victims
rarely filed complaints with the police, in part because of the
authorities’ ineffective and unsupportive responses to
victims.”
Bringas additionally offered several newspaper articles,
including one in which the Associated Press reported that a
“review of more than 70 newspapers in 11 Mexican states”
revealed an increase from “an average of nearly 30 killings a
year motivated by homophobia between 1995 and 2000” to
“nearly 60 a year between 2001 and 2009.” Thus, the totality
of Bringas’s evidence compels the conclusion that reporting
his abuse would have been futile and dangerous.
From Bringas’s reports, we do see increasing social
acceptance of homosexuals in Mexico, especially in certain
parts of Mexico, such as Mexico City, where same-sex
marriage has been legalized. But the panel-majority opinion,
like the Castro-Martinez decision and the BIA decision here,

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falsely equated legislative and executive enactments
prohibiting persecution with on-the-ground progress.
Moreover, the new laws depicted in the country reports
include a 2010 law legalizing gay marriage in Mexico City,
a Supreme Court decision requiring other states to recognize
those marriages, and a 2010 law allowing gay couples to
adopt children in Mexico City. The question we address here,
however, is whether Bringas suffered past persecution in the
years preceding 2004.
Therefore, these important
developments bear little relevance to Bringas’s abuse, which
ended in 2004.
V.
Examining all the evidence in the record, and applying
long-standing precedent, substantial evidence compels the
conclusion that Bringas has proven past persecution due to
his identification as a gay individual, and he need not
additionally provide evidence specific to him as a gay child.
He is therefore entitled to the presumption of a well-founded
fear of future persecution.18 Accordingly, we remand to the

18

The dissent argues that Bringas’s fear of future persecution as a
gay Mexican man is “unrelated” to his past persecution based on his
sexual orientation as a child and thus we cannot presume future
persecution under 8 C.F.R. § 1208.13(b)(1). However, it is not the nature
of the persecutory acts that must be related for the presumption to arise.
Rather, it is the enumerated statutory ground that motivates the
persecution that must be related—in other words, the reason for the fear
of future persecution must be related to the reason for the past persecution.
Cf. Matter of A–T–, 24 I. & N. Dec. 617, 622 (A.G. 2008) (recognizing,
in the context of a related provision for withholding of removal, that the
presumption arises where the fear of future persecution is “on account of
the same statutory ground” as the past persecution and that the feared

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agency for consideration in the first instance of whether the
presumption has been rebutted, and for consideration of
Bringas’s withholding of removal and CAT claims.19 The
respondent, Attorney General Jefferson B. Sessions III, shall
bear the costs on appeal.
GRANTED; REMANDED.

harm need not take a form “identical” to the past harm). Here, the reasons
for Bringas’s past persecution and his fear of future persecution are the
same—his sexual orientation.
19

Bringas asked the agency to consider his HIV diagnosis, of which
he learned after filing his notice of appeal to the BIA. The BIA denied
this request, stating that Bringas failed to show “how his status as an HIV
positive homosexual changes the outcome of his case.” Upon remand, the
agency should consider this new information, which is “material” and
“could not have been discovered or presented” to the IJ. Ali v. Holder,
637 F.3d 1025, 1031–32 (9th Cir. 2011) (quoting 8 C.F.R. § 1003.2(c)(1));
see also Angov v. Lynch, 788 F.3d 893, 897 (9th Cir. 2015). Bringas’s
HIV diagnosis may also be relevant to the question of relocation, which
the agency must consider upon remand. See Boer-Sedano, 418 F.3d at
1090–91.

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CLIFTON, Circuit Judge, concurring in the judgment:
I agree with the conclusion of the majority opinion that
the petition for review filed by Carlos Alberto BringasRodriguez should be granted and the matter remanded to the
BIA for further proceedings. The basis for my conclusion is
much narrower than that adopted by the majority opinion,
however. In my view, the majority opinion does not respect
the proper standard for our court’s review of an order of
removal. That standard is supposed to be highly deferential,
and I agree with the dissent that it has not been applied that
way in this case.
The majority opinion acknowledges that a finding by the
IJ is not supported by substantial evidence when “‘any
reasonable adjudicator would be compelled to conclude to the
contrary’ based on the evidence in the record.” Majority Op.
at 13 (quoting Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir.
2014)). The majority opinion also agrees that Bringas had the
burden of establishing that the persecution suffered by
Bringas, in the form of the sexual attacks on him when he
was a child, “was committed by . . . forces that the
government was unable or unwilling to control.” Id. at 20
(quoting Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th
Cir. 2010)).
The evidence offered by Bringas in support of the
proposition that the Mexican government was unable or
unwilling to control sexual attacks against children was not
so overwhelming. That evidence, described in the majority
opinion at 43–45 and in the dissent at 72 n.15, amounted in
the end to an unspecific hearsay report by Bringas of what he
was told by one or two other persons about what had
happened when a report was made to police in a different

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town. That evidence would have been sufficient to support a
conclusion that a report by a child to the police would have
been futile, but it was not so powerful that no reasonable
adjudicator could have found to the contrary. The same is
true about the more general evidence offered by Bringas from
country reports and newspaper articles about discrimination
against gay men and homophobic violence in Mexico. That
general evidence did not speak directly to the kind of violence
suffered by Bringas. It did not say so much about how the
Mexican government would have reacted that it would have
compelled any reasonable adjudicator to agree with the
majority opinion’s own assessment.
The reason that I conclude that the petition for review
should be granted is that the agency appeared to disregard the
evidence that Bringas offered on the subject. The IJ stated in
his oral decision that
[W]e certainly do not have any evidence
whatsoever that the police in Mexico or the
authorities do not take any action whatsoever
to offer some type of protection against the
abuse of children, sexually, whether the
sexually abused child is a male or female, or
whether the abuser is a male or a female.
There is no evidence of that, so I cannot really
conclude that the government was unwilling
or unable to offer [Bringas] protection from
the sexual abuse perpetrated upon him as a
child.
The BIA’s conclusion was more general, stating that the
“evidence does not establish” that the Mexican government
is unwilling or unable to control private violence against

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homosexuals. But the BIA did not correct the IJ’s finding
that there was “no evidence whatsoever” to support Bringas’s
contention that a police report would have been futile, and it
did not reflect any awareness of the evidence to that effect.
In my view, the failure to recognize that evidence and to
account for it in the decision justifies remand to the agency
for further proceedings, including further consideration of the
question of whether Bringas suffered past persecution. I
would grant the petition for review, but I would not dictate
the answer to that past persecution question.

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BEA, Circuit Judge, with whom O’SCANNLAIN, Circuit
Judge, joins, dissenting:
I respectfully dissent from the majority opinion because
it usurps the power of the Board of Immigration Appeals
(BIA) to determine facts. It does this by reciting, but
ultimately departing, from the “substantial evidence” standard
which states that agency “findings of fact are conclusive
unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B)
(emphasis added).1
Here, the BIA found unpersuasive Bringas’s evidence of
the Mexican government’s inability or unwillingness to

1

See Lianhua Jiang v. Holder, 754 F.3d 733, 740 (9th Cir. 2014)
(“Given the extremely deferential [substantial evidence] standard of
review, anything approaching a de novo review is improper.”); Cole v.
Holder, 659 F.3d 762, 780 (9th Cir. 2011) (“We have held that ‘[t]his
strict [substantial evidence] standard bars the reviewing court from
independently weighing the evidence and holding that the petitioner is
eligible for asylum, except in cases where compelling evidence is shown.’
Kotasz v. INS, 31 F.3d 847, 851 (9th Cir. 1994). ‘We are not free to look
anew at the testimony and then measure the soundness of the agency’s
decision by what we would have found. Nor does evidence compel the
opposite conclusion just because it would also support a different result.’
Donchev v. Mukasey, 553 F.3d 1206, 1213 (9th Cir. 2009).”); Quon v.
Gonzales, 428 F.3d 883, 890–91 (9th Cir. 2005) (O’Scannlain, J.,
dissenting) (“[W]e must accept the IJ’s finding of fact unless the evidence
compels a contrary conclusion. This is an extremely deferential standard
of review: it is not enough that the evidence supports a contrary
conclusion, that the panel would have weighed the evidence differently,
or even that the panel is persuaded that the finding is incorrect; the
evidence must be so overwhelming that not just the panel but ‘any
reasonable adjudicator would be compelled to conclude the contrary.’ The
law and the Supreme Court are unequivocal on this point.” (internal
citations omitted)).

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control and prevent the abuse of homosexuals. The record
evidence—uncorroborated hearsay testimony by Bringas’s
friends that police in Veracruz failed to respond to reports of
homosexual abuse; newspaper articles which document an
average of fewer than sixty murders per year of homosexuals
in Mexico, with no evidence at all regarding how the
Mexican government responded to those murders; a single
instance of the persecution of a homosexual man by Mexican
government officials; and strong evidence of efforts by the
Mexican government to protect homosexual citizens—does
not compel us to reverse the BIA’s finding.2 We should deny
the petition for review.
To reach its conclusion that the record evidence compels
the conclusion that Bringas established past persecution, the
majority holds that if there is any evidence—including
uncorroborated hearsay testimony—that a foreign
government is unable or unwilling to control persecution by
private, not public, individuals, the administrative trier of fact
must disdain evidence to the contrary, and must ignore the
alien’s failure to produce any of the agency-requested
corroborating evidence, which our immigration law
specifically requires.3 The effect of this new standard: having

2

See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (“To
reverse the BIA finding we must find that the evidence not only supports
that conclusion, but compels it—and also compels the further conclusion
that [the petitioner] had a well-founded fear that the guerrillas would
persecute him because of that political opinion.” (emphases in original)).
3
See 8 U.S.C. § 1158(b)(1)(B)(i)-(ii) (“The burden of proof is on the
applicant to establish that the applicant is a refugee . . . . Where the trier
of fact determines that the applicant should provide evidence that
corroborates otherwise credible testimony, such evidence must be
corroborated unless the applicant does not have the evidence and cannot

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carried his burden of presentation of evidence, the alien is

reasonably obtain the evidence.”). The Immigration Judge (IJ) asked
Bringas’s counsel for corroborating details to support Bringas’s claim that
the Mexican government was unable or unwilling to control Bringas’s
private persecutors, and even granted Bringas a 120-day extension to
provide such corroborating details. During one of the hearings before the
IJ, the IJ made the following comments to Bringas’s attorney: “If I were
an attorney, I’d go for the corroboration because, I mean, to me, it’s a lot
more important to make sure your case is presented with all the adequate
proof, rather than risk that in order to see if you are able to beat the clock
and get a work card.” Bringas’s attorney at the IJ hearing responded with
the following: “Well, let’s just go ahead and set it over so that we can
provide corroborating evidence. I don’t know how successful we’re going
to be, that’s the only problem.” Indeed, even after the 120-day extension
provided by the IJ, Bringas did not supplement the hearsay testimony of
his friend or friends—which was the core of his claim of governmental
lassitude before, or contempt to, pleas for government help—with any
affidavits from his friends or corroborating details through his testimony,
nor with any proofs that he could not “reasonably obtain” the evidence.
The evidence the majority points to as corroborating evidence to refute
this dissent has nothing to do with the corroboration actually requested by
the IJ, under 8 U.S.C. § 1158(b)(1)(B)(ii). The IJ required evidence to
corroborate Bringas’s claim the Mexican government was unable or
unwilling to control Bringas’s private persecutors. The State Department
2010 Country Report is silent on that score, as are the newspaper articles.
They contain reports of incidents, but say nothing about the Mexican
government’s involvement or reaction to those incidents. Of course, the
psychological evaluation of Bringas quite properly tells us about him and
his claims, but tells us nothing to corroborate his claims of Mexican
government involvement or reaction to incidents of persecution committed
by other persons.

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discharged from his burden of persuasion.4 This is not and
cannot be the law.
I.
Carlos Alberto Bringas-Rodriguez is twenty-six years old,
homosexual, and a citizen of Mexico. From the ages of four
to twelve, Bringas was repeatedly sexually abused by his
uncle, cousins, and neighbor in Tres Valles, a town in the
Mexican state of Veracruz. At the age of twelve, Bringas
moved to Kansas with his stepfather to live with his mother
for several months, but within that same year returned to Tres
Valles to live with his grandmother. Once back in Tres
Valles, the sexual abuse continued. Bringas never reported
the abuse to the police. At the age of fourteen, he returned to
Kansas with his mother “to escape [his] abusers.” He entered
the United States without inspection or authorization.
Six years later, at the age of twenty and while living in
Colorado, Bringas pleaded guilty to and was convicted of
attempted “Contributing to the Delinquency of a Minor.”5
4
See 8 U.S.C. § 1158(b)(1)(B)(ii) (“The testimony of the [asylum]
applicant may be sufficient to sustain the applicant’s burden without
corroboration, but only if the applicant satisfies the trier of fact that the
applicant’s testimony is credible, is persuasive, and refers to specific facts
sufficient to demonstrate the applicant is a refugee.” (emphases added));
Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir. 1997) (“[T]he petitioner
bears the burden of persuading the IJ that his evidence is credible, and the
IJ is entitled to evaluate assertions of past persecution in light of the
strength or weakness of such other evidence as the petitioner may
present.” (internal citations omitted)).
5

COLO. REV. STAT. § 18-6-701 (“(1) Any person who induces, aids,
or encourages a child to violate any federal or state law, municipal or
county ordinance, or court order commits contributing to the delinquency

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Shortly thereafter, immigration authorities issued him a
Notice to Appear. Bringas conceded removability but
requested asylum, withholding of removal, and relief under
the Convention Against Torture (CAT). He claimed that he
had suffered sexual abuse as a minor and that this abuse
amounted to past persecution on account of his sexual
orientation.
The IJ denied Bringas’s asylum claim because it was
untimely filed. With respect to withholding of removal, the IJ
found Bringas credible but ruled that Bringas had not
established past persecution on account of a protected ground
for two reasons: (1) The evidence established that the “central
reasons for the abuse were the perverse sexual urges of the
abusers,” not Bringas’s sexual orientation, and (2) there was
no evidence that the police in Mexico would not have
protected Bringas “from the sexual abuse perpetrated upon
him as a child.” As to Bringas’s fear of future persecution, the
IJ noted that country reports included a few instances of
persecution of homosexuals in Mexico, but not any “pattern
or practice” of government participation or acquiescence in
such persecution. Moreover, the country reports showed that
the country as a whole—and Mexico City in particular—had
made significant advances with respect to rights for
homosexuals, such that Bringas could potentially relocate to
a part of the country where he would be safe. The IJ also
denied relief under the CAT on the grounds that Bringas
offered insufficient evidence that “torture in the future by the
government, or with the acquiescence of the government”
was more likely than not.

of a minor. For the purposes of this section, the term ‘child’ means any
person under the age of eighteen years. (2) Contributing to the
delinquency of a minor is a class 4 felony.”).

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The BIA dismissed Bringas’s appeal. The BIA denied
Bringas’s asylum claim on the merits, assuming arguendo
that the application was timely filed. The BIA concluded that
Bringas failed to establish past persecution because he had
not proved that the government was unable or unwilling to
control his abusers, avoiding the question whether Bringas
established that he was abused because he was homosexual.
The BIA also found that Bringas did not have a well-founded
fear of future persecution because he failed to prove a
“pattern or practice” of persecution against homosexuals in
Mexico. Citing this court’s opinion in Castro-Martinez v.
Holder, 674 F.3d 1073, 1082 (9th Cir. 2011), and comparing
the experience of homosexual men in Mexico to the
experience of homosexual men in Jamaica,6 the BIA
explained that no “widespread brutality against homosexuals
or . . . criminalization of homosexual conduct [exists] in
Mexico.” With respect to withholding of removal, because
Bringas failed to satisfy the lower burden of proof required
for asylum, the BIA found that he failed to satisfy the higher
standard for withholding of removal. With respect to CAT
relief, the BIA found no clear error in the IJ’s determination
that Bringas failed to prove that torture by or with the
acquiescence of the Mexican government was more likely
than not.

6

In Bromfield v. Mukasey, 543 F.3d 1071, 1078 (9th Cir. 2008), the
Ninth Circuit granted a petition for review and remanded after finding a
pattern or practice of persecution of homosexual men in Jamaica. The
evidence compelled such a finding based on a culture of severe
discrimination against homosexuals, numerous cases of violence against
persons based on their sexual orientation by police and vigilante groups,
brutality against homosexuals, as well as Jamaican law criminalizing
homosexual conduct, resulting in several prosecutions.

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Finally, the BIA rejected Bringas’s request to remand his
case to the IJ in light of Bringas’s recent HIV diagnosis.
Bringas’s brief to the BIA explained his recent diagnosis and
argued that “this fact is significant because it now places
[him] in a more vulnerable position should he be returned to
Mexico.” The BIA declined to remand Bringas’s case for
further consideration because Bringas had not provided any
additional country conditions evidence or specific arguments
regarding how his status as an HIV positive homosexual
would change the outcome of his case.
Bringas petitioned this court for review of the BIA’s
decision. The three-judge panel denied Bringas’s petition for
review. The panel first noted that it could not “resolve
Bringas’s asylum claim on timeliness grounds because the
BIA ignored this procedural defect . . . .” Bringas-Rodriguez
v. Lynch, 805 F.3d 1171, 1177 (9th Cir. 2015) (now
withdrawn); see also Abebe v. Gonzales, 432 F.3d 1037, 1041
(9th Cir. 2005) (en banc) (“When the BIA has ignored a
procedural defect and elected to consider an issue on its
substantive merits, we cannot then decline to consider the
issue based upon this procedural defect.”). In reviewing
Bringas’s asylum claim on the merits, the panel concluded the
evidence did not compel reversal of the BIA’s determination
that Bringas failed to establish past persecution or a wellfounded fear of future persecution. Bringas-Rodriguez, 805
F.3d at 1177. The panel followed the BIA and analyzed only
whether Bringas failed to establish that his abuse was
inflicted by individuals the government was unable or
unwilling to control, thereby avoiding the question whether
Bringas suffered abuse because he is homosexual. Id. at
1177–78.

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The panel agreed with the IJ and BIA that Bringas failed
to establish that the Mexican government was unable or
unwilling to control his abusers, and therefore failed to
establish past persecution. Id. at 1178. The country reports
and hearsay evidence introduced by Bringas did not
sufficiently close the gap in proof as to how the government
would have responded to reports of his abuse, had such
reports been made. Id. at 1180–82. With respect to the
country conditions evidence, the panel stated that the country
reports noted no instances of discrimination or persecution in
Veracruz and “only one specific example of government
persecution on the basis of sexual orientation in Mexico.” Id.
at 1179. The panel highlighted portions of the reports
describing “gay pride” marches across Mexico as well as a
Mexican Supreme Court decision “requiring Mexico’s states
to recognize legally performed [same-sex] marriages
performed elsewhere,” a decision that was made five years
before the United States Supreme Court reached a similar
conclusion. Id. Turning to Bringas’s testimony about his
friends’ experiences in Veracruz, the panel first recognized
that Bringas credibly testified that a “couple” of his friends
told him “that they got raped, they got beat up, like abuse,
and they went to the police [in Veracruz, Mexico] and they
didn’t do anything” except “laugh [in] their faces.” Id. at
1178. Nonetheless, the panel concluded that the lack of
corroborating details about Bringas’s friends’ experiences—
including the names of his friends, how old they were when
they were abused and when they reported their abuse, by
whom they were abused, to whom they reported their abuse,
or where the abuse occurred—justified the BIA’s conclusion
that Bringas failed to establish that the government would be

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unable or unwilling to control his abusers.7 Id. at 1180. The
panel therefore held that Bringas was not entitled to a
presumption of a well-founded fear of persecution. Id. at
1182.
The panel also concluded that Bringas’s evidence
supported the BIA’s conclusion that Bringas failed to
establish a well-founded fear of future persecution. Id. The
panel recognized two avenues for Bringas to establish an
objectively reasonable fear of future persecution: (1) that he
was a member of a disfavored group against which there was
a systematic pattern or practice of persecution, or (2) that he
belongs to a disfavored group and has an individualized risk
of being singled out for persecution. Id. Bringas forfeited the
second argument by failing to raise it before the BIA.
Therefore, the panel focused only on whether Bringas
established a pattern or practice of persecution of homosexual
men in Mexico. Id. The panel concluded that Bringas
adduced no evidence establishing a change of conditions in
Mexico since the court decided Castro-Martinez v. Holder,
674 F.3d 1073, 1082 (9th Cir. 2011).8 Therefore, the panel
held that substantial evidence supported the BIA’s finding of
no pattern or practice of persecution. Bringas-Rodriguez, 805
F.3d at 1183.

7

These details were requested of Bringas’s counsel, together with a
provision of time for their production. See supra note 3.
8

In Castro-Martinez, this court rejected the claim that “the Mexican
government systematically harmed gay men and failed to protect them
from violence.” 674 F.3d at 1082. Although the court acknowledged
evidence of societal discrimination and isolated attacks, as to the required
element of governmental lassitude or incapacity, it explained that “the
Mexican government’s efforts to prevent violence and discrimination
against homosexuals . . . ha[d] increased in recent years.” Id.

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With respect to Bringas’s CAT claim, the panel held that
the same evidence that supported the BIA’s dismissal of the
pattern-or-practice claim also supported the IJ and BIA’s
conclusion that Bringas failed to establish a likelihood of
torture. Id. at 1184. As the panel stated, conditions in Mexico
are “insufficiently dangerous for gay people to constitute a
likelihood of government-initiated or -sanctioned torture.”
Id.; Castro-Martinez, 674 F.3d at 1082. The panel noted that
the likelihood of future torture was especially low given that
Bringas is now a “selfsufficient [sic] homosexual adult” who
could “relocate to a different part of Mexico.” BringasRodriguez, 805 F.3d at 1184.
Finally, the panel held that the BIA did not abuse its
discretion in declining to remand based on Bringas’s HIV
diagnosis. According to the panel, the BIA offered a reasoned
explanation that was neither arbitrary nor irrational: Bringas
did not provide “any additional country conditions evidence
or specific arguments regarding how his [HIV] status changes
the outcome of his case.” Id. at 1185.
Bringas filed a petition for rehearing en banc, which we
granted. A majority of the en banc panel today overrules
several of our prior immigration cases in two respects, but
only by misreading those cases. First, the majority holds that
Rahimzadeh and Afriyie “unnecessarily introduced the
construct that the failure to report [private persecution to
government authorities] creates a ‘gap’ in the evidence,
because our law is clear that the agency, and we, upon
review, must examine all the evidence in the record that bears
on the question of whether the government is unable or

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unwilling to control a private persecutor.”9 Op. at 35. The
majority overrules Rahimzadeh and Afriyie “[t]o the extent
that [the] discussion of gap filling suggested that the burden
of proof on governmental inability or unwillingness to protect
was something beyond the standard we use for other
elements—proof by a preponderance of the evidence,
considering all the evidence in the record.” Op. at 35.
However, neither case held that any “gap” created by the
failure to report could not be filled by other evidence. At
most, the “gap” language commented on the lack of one kind
of evidence, which could be supplanted by another kind of
evidence. It did not increase the evidentiary burden on the
petitioner. For instance, there is no “gap” in establishing the
date of a fire loss when the homeowner does not file a report
with the Fire Department, if he produces a date-stamped
video of his house burning. Similarly, there is no “gap” when
an asylum petitioner does not report his persecution by
private individuals to government officials, if he produces
alternative, compelling evidence that the foreign government
at issue is unable or unwilling to control his persecutors.
Second, the majority overrules Castro-Martinez because,
in that case, “[w]e imposed a higher burden [on Castro, who
was persecuted by private individuals as a child] that required
Castro to demonstrate that ‘Mexican authorities would have
ignored the rape of a young child or that authorities were
unable to provide a child protection against rape.’” Op. at 37
(citing Castro-Martinez, 674 F.3d at 1081). The majority
holds that this language effectively imposed “a reporting
requirement on sexually abused children: either the petitioner
must have reported in his own case, or other children must
9

Rahimzadeh v. Holder, 613 F.3d 916 (9th Cir. 2010); Afriyie v.
Holder, 613 F.3d 924 (9th Cir. 2010).

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have reported to create the basis for a country report on the
general response.” Op. at 39–40. However, Castro-Martinez
stated unequivocally that asylum petitioners, especially
children, need not report their abuse to establish past
persecution. See Castro-Martinez, 674 F.3d at 1081 (“We
have never held that any victim, let alone a child, is obligated
to report a sexual assault to the authorities, and we do not do
so now.”). Instead of accurately reading Castro-Martinez,
which needed no clarification with respect to whether a
reporting requirement exists for asylum petitioners of any
age, the majority removes the requirement imposed by the
Supreme Court and Congress on asylum petitioners to
produce evidence sufficient to compel the conclusion that the
foreign government was unable or unwilling to protect
against private persecution. I address the majority’s two
issues in turn.
II.
A. The majority rejects our substantial evidence standard by
holding that merely proffering traditional “types of
proof” categorically suffices to establish an “unable or
unwilling” claim.
The majority takes issue with the commonsense
conclusion reached in Rahimzadeh and Afriyie that a
petitioner who does not report his private persecution to
government officials leaves an evidentiary “gap” regarding
how those officials would react to such a report.10 The

10

See Rahimzadeh, 613 F.3d at 922 (“The absence of a report to
police does not reveal anything about a government’s ability or
willingness to control private attackers; instead, it leaves a gap in proof
about how the government would respond if asked, which the petitioner

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majority “supersedes” Rahimzadeh and Afriyie because
“[f]raming the question of nonreporting as a ‘failure’ that
creates an evidentiary ‘gap’ had the inadvertent effect of
heightening the evidentiary standard beyond the traditional
types of proof, accepted in every prior precedent, that we have
deemed sufficient to demonstrate governmental inability or
unwillingness to protect victims of persecution.” Op. at 35
(emphasis added).
The assertion that Rahimzadeh and Afriyie created a
heightened evidentiary standard for petitioners who fail to
report their private persecution to government authorities
ignores clear language to the contrary from both opinions.
Rahimzadeh and Afriyie made clear that reporting private
persecution to government authorities is not required to
establish past persecution.11 Rahimzadeh and Afriyie also
provided clear guidance regarding how evidence other than

may attempt to fill by other methods.”); Afriyie, 613 F.3d at 931 (“‘[T]he
absence of a report to police . . . leaves a gap in proof about how the
government would respond, which the petitioner may attempt to fill by
other methods.’” (quoting Rahimzadeh, 613 F.3d at 922)). Recognizing
that a “gap” exists is not to make it determinant or change the standard of
proof which requires all evidence on the matter to be considered. See
Vitug v. Holder, 723 F.3d 1056, 1064 (9th Cir. 2013) (“[T]he BIA abuses
its discretion where it ignores arguments or evidence.”).
11

See Rahimzadeh, 613 F.3d at 921 (“The reporting of private
persecution to the authorities is not, however, an essential requirement for
establishing government unwillingness or inability to control attackers.”);
id. at 922 (“[I]t is clear that the IJ treated the failure to report as merely
one factor in the assessment of the Dutch government’s willingness and
ability to control private extremists, not as a per se bar to asylum.”);
Afriyie, 613 F.3d at 931 (“We begin by noting that reporting persecution
to government authorities is not essential to demonstrating that the
government is unable or unwilling to protect him from private actors.”).

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reports to the police can compel the conclusion that
government officials were unable or unwilling to protect
petitioners from private persecution.12 The language from
those opinions needed no further clarification.
But the majority does not overrule those cases in an
attempt to clarify how this court reviews evidence of past
persecution. Instead, the majority recites, yet ignores the
standard of review for past persecution claims involving
private persecutors.13 The majority holds that “[f]raming the
question of nonreporting as a ‘failure’ that creates an
evidentiary ‘gap’ had the inadvertent effect of heightening the
evidentiary standard beyond the traditional types of proof,
accepted in every prior precedent, that we have deemed
sufficient to demonstrate governmental inability or

12
In Rahimzadeh and Afriyie, we explained that petitioners who do
not report their private persecution to government authorities can establish
that government authorities were unable or unwilling to protect them
through several evidentiary channels. For example, petitioners could
establish that others have made reports of similar incidents to no avail—as
Bringas did here in proffering the hearsay statements of his friends as to
their insouciant and contemptuous reception by the Mexican police, see
Afriyie, 613 F.3d at 932–33, or that “private persecution of a particular
sort is widespread and well-known but not controlled by the government.”
Rahimzadeh, 613 F.3d at 922.
13

The majority characterizes its opinion as merely clarifying that “the
legal standard, substantial evidence, is not heightened or made more
stringent when the persecution is directed to a child, as opposed to an
adult . . . .” Op. at 36, n.11. But the majority does not apply the true
substantial evidence test to either children or adult petitioners. On this
point, the concurrence agrees. See Concurring Op. at 50 (“In my view, the
majority opinion does not respect the proper standard for our court’s
review of an order of removal. That standard is supposed to be highly
deferential, and I agree with the dissent that it has not been applied that
way in this case.”).

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unwillingness to protect victims of persecution.” Op. at 35
(emphasis added). Neither we, nor any other court, has
accepted the notion that presentation of a type of proof used
in other cases, regardless of its probative value, is
categorically sufficient to establish that government officials
were unable or unwilling to control private persecution. The
nature and quality of the evidence adduced always mattered.
However, under the majority’s view, the probative value of
that proof becomes irrelevant when petitioners provide a
“type[] of proof, accepted in every prior precedent, that we
have deemed sufficient to demonstrate governmental inability
or unwillingness to protect victims of persecution.” Op. at 35
(emphases added). The majority ignores that an inadequate
response by government officials to a petitioner’s direct
report of private persecution will sometimes provide stronger
evidence that government officials are unable or unwilling to
protect against private persecution than other types of
evidence. Our prior cases recognized this uncontroversial
statement regarding the nature of evidence. See, e.g., Afriyie,
613 F.3d at 931 (“[W]hen an applicant attempts to report
persecution to the police or request protection from them, the
authorities’ response (or lack thereof) to such requests may
provide powerful evidence with respect to the government’s
willingness or ability to protect the requestor.” (emphasis
added)). Rahimzadeh and Afriyie did not create a heightened
evidentiary burden for petitioners who do not report their
persecution. Those cases simply recognized that a petitioner’s
direct report to government officials, followed by an
inadequate or nonexistent response by those officials,
provides “powerful” proof that indirect, vague, or hearsay
evidence may lack. My colleagues fundamentally alter our
longstanding substantial evidence standard of review by
suggesting that evidence other than a failure to report
persecution to the police—such as Bringas’s hearsay

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testimony from friends—categorically suffices to constitute
compelling evidence that government officials are unable or
unwilling to control persecution by private, nongovernmental individuals.
B. The majority sets aside substantial evidence review by
excusing adult petitioners who were persecuted as
children from adducing sufficient, alternative evidence
that the government was unable or unwilling to protect
them.
My colleagues take issue with the following language in
Castro-Martinez:
As the BIA observed, there was no evidence
in the record that Mexican authorities would
have ignored the rape of a young child or that
authorities were unable to provide a child
protection against rape. . . . [N]one of [the]
reports compel the conclusion that the police
would have disregarded or harmed a male
child who reported being the victim of
homosexual rape by another male.
Castro-Martinez, 674 F.3d at 1081. According to my
colleagues, this language effectively requires child victims of
private persecution to report their abuse to the authorities
based on the following reasoning:
[C]hildren who suffer sexual abuse are
generally unlikely to report that abuse to
authorities. Because they are unlikely to
report, it is similarly unlikely that country
reports or other evidence will be able to

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document the police response, or lack thereof,
to the sexual abuse of children. . . . That added
burden was inappropriate, both because it
reflected a heightened gap-filling proof
requirement and because it focused on
evidence regarding the treatment of gay
children rather than the treatment of gay
Mexicans generally.
Op. at 39–40 (emphasis added). Castro-Martinez addressed
this exact issue: whether the victim’s report of the abuse to
the police was a requirement, else an evidentiary gap would
make the rest of the victim’s proof insufficient, and whether
this requirement obtained only as to homosexual children. See
Castro-Martinez, 674 F.3d at 1081 (“We have never held that
any victim, let alone a child, is obligated to report a sexual
assault to the authorities, and we do not do so now.”). CastroMartinez’s express language does not permit of a reading that
a reporting requirement exists for persecuted children and
only for such children rather than similar adults. Nonetheless,
the majority concludes that Castro-Martinez created a
reporting requirement for persecuted children.
The majority is undoubtedly correct that children who
suffer sexual abuse are unlikely to report their abuse to
government officials of their own accord. The fact that
victims of private persecution—young or old—are unlikely
to report their abuse to authorities explains why we have
never held that victims of private persecution need to report
their abuse to establish past persecution for asylum purposes.
See, e.g., Rahimzadeh, 613 F.3d at 922 (“None of [the
immigration cases surveyed], or any other we have found,
creates a freestanding reporting requirement to qualify for
asylum.”). But the majority goes much further than restating

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that child victims of private persecution, like all victims of
private persecution, need not report their persecution to the
authorities. The majority concludes that, because children are
unlikely to report, “it is similarly unlikely that country
reports or other evidence will be able to document the police
response, or lack thereof, to the sexual abuse of children.”
Op. at 39 (emphasis added). In other words, this court should
excuse the absence of any “country report[] or other
evidence” that government officials were unable or unwilling
to protect adult petitioners who suffered persecution as a
child because children are unlikely to report their private
persecution to the authorities.
The majority fails to explain why adults who suffer
private persecution at the hands of their family, neighbors, or
community are any less likely to report their private
persecution to government authorities, and thus less deserving
of the majority’s lack-of-evidence-be-damned approach. We
do not require victims of private persecution to report to
government authorities to establish past persecution for
asylum purposes because, no matter their age, victims are
unlikely to report private persecution given that reporting
may be futile or dangerous. See Afriyie, 613 F.3d at 931.
Nonetheless, our nation’s immigration law still requires
asylum petitioners to adduce sufficient evidence other than
their or others’ reports to governmental authorities to prove
that those authorities were unable or unwilling to protect
asylum petitioners from private persecution. The majority
dismisses that requirement for a petitioner who experienced
persecution when he was a child—even though the petitioner,
as an adult, can reasonably identify other documentary,
anecdotal, or statistical evidence to support his “unable or
unwilling” claim—because the petitioner was unlikely to
report his persecution when he was a child. But adult

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petitioners are also unlikely to report their private persecution
to authorities, and thus similarly unlikely to obtain “country
reports or other evidence” documenting the “police response,
or lack thereof” to reports of private persecution. I fear our
court will soon excuse the absence of “country reports or
other evidence” from asylum petitioners who experienced
private persecution as adults under the same reasoning
adopted by the majority today. We lack the authority to make
such a dramatic shift in our nation’s immigration and asylum
law. If there is to be a relaxing of our asylum requirements
for victims of private persecution, the authority lies with
Congress, not this court, to enact it.
III.
Bringas’s evidence does not compel the conclusion that
Mexican authorities were unable or unwilling to control
Bringas’s private persecutors. After reciting, but then
lowering our standard of review beyond the bounds set by the
Supreme Court in Elias-Zacarias and Congress in 8 U.S.C.
1252(b)(4)(B), the majority easily reaches the conclusion that
Bringas adduced evidence sufficient to compel the conclusion
that Mexican authorities were unable or unwilling to protect
him. The majority reaches this conclusion by comparing
Bringas’s evidence to the evidence presented in other cases
in our circuit involving petitioners who suffered private
persecution and never reported their persecution to the
authorities. Op. at 24–34. However, a careful review of the
evidence presented in those cases explains why the nature
and quality of the evidence adduced by Bringas does not
come close to compelling the conclusion reached by the

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majority.14 Compared to the evidence in our prior cases,
Bringas’s evidence included only vague, unspecific hearsay
testimony describing his friend[s]’ experiences with the
police in Veracruz,15 newspaper articles which documented

14

See Korablina v. INS, 158 F.3d 1038, 1042 (9th Cir. 1998)
(granting the petition for review based on evidence that the petitioner
witnessed the beating of her Jewish boss, whose beating was reported to
the police to no avail, and reported the beating to a friend at the municipal
city hall, who soon thereafter “disappeared”); Ornelas-Chavez v.
Gonzalez, 458 F.3d 1052, 1057 (9th Cir. 2006) (granting in part the
petition for review based on credible testimony that (1) the petitioner was
personally mistreated and harassed by police officers, who jailed him and
threatened to do so again if he continued dating men, and (2) police
officers brutally maimed and killed the petitioner’s gay friends); Afriyie,
613 F.3d at 928–29 (9th Cir. 2010) (granting in part the petition for review
based on credible testimony that (1) the petitioner and others reported to
the police, to no avail, the petitioner’s beating by private actors, the
murder of members of his religious group by private actors, and the
murder of the petitioner’s sister and destruction of her home, and (2) the
police had only one gun at the police station with which to protect the
petitioner’s religious group); Vitug, 723 F.3d at 1064 (9th Cir. 2013)
(granting in part the petition for review based on evidence that the
petitioner was personally harassed and threatened by police officers on
account of his sexual orientation).
15
Bringas gave the following credible, hearsay testimony: “[W]hen
I was living in Kansas, couple of my friends told me that they got raped,
they got beat up, like abuse, and they went to the police [in Mexico] and
they didn’t do anything. They even laugh on [sic] their faces.” Bringas
also stated the following in his asylum application: “If I went to the police
[in Mexico] they wouldn’t do anything. They will take a report and never
follow-up on it or they would simply laugh at me and tell me that I got
what I deserved because I am gay. My gay friend from Veracruz living in
Kansas City told me this is what happened to him.” Bringas presented
inconsistent statements regarding whether a single “friend” or multiple
“friends” reported to the Mexican police they had been victims of abuse,
all to no avail. Credible hearsay evidence, such as Bringas’s friends’
statements, may be admissible in immigration proceedings. Rojas-Garcia

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isolated incidents of private discrimination and persecution
against homosexual individuals in Mexico,16 and a single
instance of persecution against a homosexual man by

v. Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003). The majority places great
weight on the fact that “Bringas’s testimony was sufficiently specific to
be deemed credible.” Op. at 45–46 n.17. Here, the majority gives us a
concrete example of its usurpation of fact-finding power from the
administrative agency to itself. Whether the evidence was “sufficiently”
specific was not the majority’s call. Whether hearsay testimony was so
specific as to compel it be adjudged credible is the proper standard for
judgment. Moreover, the mere absence of an adverse credibility finding
does not compel our court to make a finding contrary to the BIA. That
would make a hash out of the REAL ID Act of 2005, which assumes no
adverse credibility finding, but authorizes the trier of fact to require
corroborating evidence, and in the absence of such corroborating
evidence, allows the trier of fact to reject the otherwise credible evidence
as of insufficient weight—which is precisely what happened to Bringas.
He was given 120 days to buttress his testimony with corroborating details
and other evidence. He rejected that opportunity. He gave no explanation
as to why he could not produce any of the corroborating evidence
requested, even though the statute specifically provides for grounds
available to excuse failure to produce the corroboration. See 8 U.S.C. §
1158(B)(i)-(ii) (“The burden of proof is on the applicant to establish that
the applicant is a refugee . . . . Where the trier of fact determines that the
applicant should provide evidence that corroborates otherwise credible
testimony, such evidence must be corroborated unless the applicant does
not have the evidence and cannot reasonably obtain the evidence.”
(emphasis added)); see also supra note 3.
16
“Bringas additionally offered several newspaper articles, including
one in which the Associated Press reported that a ‘review of more than 70
newspapers in 11 Mexican states’ revealed an increase from ‘an average
of nearly 30 killings a year motivated by homophobia between 1995 and
2000’ to ‘nearly 60 a year between 2001 and 2009.’” Op. at 47.

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Mexican officials.17 Our prior cases involving private
persecution explain why I cannot join the majority in holding
that the evidence here compels the conclusion that Mexican
authorities were unable or unwilling to protect Bringas. We
have never reached such a conclusion on evidence as weak as
that which Bringas presents.
But the majority does not err only by overweighing
Bringas’s scant evidence that the Mexican authorities were
unable or unwilling to protect him. The majority also
undervalues evidence of social progress in Mexico regarding
rights for homosexual individuals in a manner that defies
logic. The majority first summarizes the relevant evidence of
social progress in Mexico identified by the panel in BringasRodriguez v. Lynch, 805 F.3d 1171 (9th Cir. 2015) (now
withdrawn):
[T]he [three-judge] panel majority found that
the country reports demonstrated that Mexico
permitted gay pride marches and had
expanded marriage equality. The panel
majority also cited a United Nations report
stating that Mexico had established a

17

“In 2007, [Agustin Humberto Estrada Negrete] participated in a
gay rights march wearing a dress and high heels. According to the NGO
Asilegal, soon after the march, Estrada began receiving threatening
telephone calls and verbal and physical attacks. In 2008 he was fired from
the school for children with disabilities where he worked. After his
dismissal, he and a group of supporters began lobbying the government to
reinstate him; when they went to the governor’s palace to attend a meeting
with state officials in May, police beat him and his supporters. The next
day he was taken to prison, threatened, and raped. Although he was
released, Estrada continued to face harassment by state authorities.” Op.
at 46–47.

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“‘specialized hate crime prosecution unit[],’
developed a ‘new judicial protocol to guide
adjudication of cases involving human rights
violations on grounds of sexual orientation,’
implemented specialized training for police
officers, and officially designated May 17 as
‘National Day Against Homophobia.’”
Op. at 11 (internal citations omitted). The majority holds that,
despite this evidence of progress, as countries like Mexico
successfully improve conditions for particular social groups
eligible for asylum, any private backlash that results from
such government-sponsored improvements should be
interpreted by this court as evidence that the foreign
government is in fact “unable or unwilling” to protect that
particular social group. See Op. at 9 (“The reports showed
that the violence rose even as—and perhaps because—
Mexican laws were becoming increasingly tolerant of gay
rights.”). In other words, as countries become more able and
willing to protect a particular social group, the trier of fact
must disregard that evidence of social progress and conclude
that countries are in fact less able and willing to protect
particular social groups when isolated incidents of private
persecution occur. The majority does not provide any limiting
principle regarding when our court should begin to accept
evidence of the significant progress of foreign countries in
protecting its most vulnerable citizens, or explain why
evidence of an average of less than 60 homophobia-motivated
murders a year committed by private actors in Mexico
between 2001 and 2009 permits a conclusion that the
Mexican government, overseeing a country of more than 120

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million people, is unable or unwilling to protect its
homosexual citizens.18
The majority alternatively sets aside the evidence of
Mexico’s social progress advancing the rights of
homosexuals because the evidence reflects changes made
after the period during which Bringas was abused, which
ended in 2004. Op. at 48. Of course, the same can be said
about most of the evidence Bringas relies on to support his
claim that Mexican police were unable or unwilling to protect
him before 2004. The country reports are from 2009 and
2010. The single example of police violence against a
homosexual man occurred in 2008. The newspaper articles
were published in 2010. Using the majority’s reasoning, the
only relevant evidence adduced by Bringas was hearsay
testimony regarding his homosexual friend[s]’ experiences
with the police in Mexico, and a single article documenting
the number of murders committed by private actors each year
between 1995 and 2009 that were motivated by homophobia,
with no discussion whatsoever of how Mexican police
responded to those private acts. Even under the relaxed

18
See CIA, THE WORLD FACTBOOK (2016), available at
https://www.cia.gov/library/publications/the-world-factbook/geos/mx.html
(estimating Mexico’s population to be 123,166,749 as of July 2016). The
majority’s conclusion that an average of fewer than 60 homophobiamotivated a murders a year in a country of 120 million people compels the
conclusion that the Mexican government is unable or unwilling to protect
its homosexual citizens is especially confounding given that the same
article which documents those murders goes on to discuss the Mexican
government’s “radio campaign in 2005 to promote tolerance of
homosexuals,” the laws passed in Mexico City which elevated
homosexual marriage to the same status as heterosexual marriage and
allowed same-sex couples to adopt children, and Mexico City’s annual
“gay pride parade.”

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standard of review adopted today, Bringas’s evidence does
not compel the conclusion reached by the majority.
IV.
Even if I agreed with the majority that the evidence here
compelled the conclusion that Bringas suffered past
persecution, I would still dissent on the basis that the past
persecution purportedly established here does not entitle
Bringas 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 applicant’s fear of future persecution is
unrelated to the past persecution, the applicant bears the
burden of establishing that the fear is well-founded.”
(emphasis added). The majority responds by noting that
Bringas’s fear of future persecution on account of his sexual
orientation is clearly related to his past persecution on
account of his sexual orientation. But the only private
persecution Bringas ever experienced in Mexico on account
of his sexual orientation was when he was a child to age
fourteen, and at the hands of his uncle, cousins, and neighbor,
all of whom lived (and presumably still live) in Tres Valles,
Veracruz, Mexico. Given the isolated location of Bringas’s
abuse, and given the fact that Bringas is no longer a child
subject to the oversight and control of his family and
neighbors in Tres Valles, I would hold that Bringas’s past
persecution is unrelated within the meaning of 8 C.F.R.
§ 1208.13(a)(1), and does not entitle him to the presumption
of a well-founded fear of future persecution. I would further
deny Bringas’s petition for review because he has not carried
his burden to establish that the evidence compels a finding of
a well-founded fear of future persecution, as explained in the
well-reasoned opinion of the three-judge panel. See Bringas-

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Rodriguez, 805 F.3d 1171, 1182–84 (9th Cir. 2015) (now
withdrawn).19
Assuming, as the majority does, that Bringas’s past
persecution entitles him to a presumption of a well-founded
fear of future persecution, the majority acted correctly in
remanding to the agency “for consideration in the first
instance of whether the presumption [of a well-founded fear
of future persecution] has been rebutted.” Op. at 49. See INS
v. Orlando Ventura, 537 U.S. 12, 16–17 (2002). On remand,
the agency may well conclude that Mexico’s significant
progress regarding rights for homosexuals constitute changed
conditions sufficient to rebut the presumption of a wellfounded fear of future persecution. See 8 C.F.R.
§ 1208.13(b)(1)(A) (stating that a “fundamental change in
circumstances such that the applicant no longer has a wellfounded fear of persecution in the applicant’s country of
nationality” may rebut the presumption of a well-founded fear
of future persecution). Or the agency may conclude that

19

In Matter of A –T–, 24 I. & N. Dec. 617, 621 (A.G. 2008), the BIA
held that a female asylum petitioner who had undergone female genital
mutilation against her will in Mali was not entitled to the presumption of
a well-founded fear of future persecution because there was no chance that
she would be personally persecuted again by the procedure. The Attorney
General vacated the BIA decision, and stated that “where an alien
demonstrates that she suffered past persecution on account of one of the
statutory bases, it is ‘presumed’ that her life or freedom would be
threatened in the future ‘on the basis of the original claim’—in other
words, on account of the same statutory ground.” Id. at 622. However, the
Attorney General based his decision on the fact that “female genital
mutilation is indeed capable of repetition,” and that the petitioner’s fear
of future persecution was therefore related to her past persecution. Id. at
621–22. Here, Bringas has not adduced evidence that his past persecution
is related to a fear of future persecution, given the nature of his abuse and
the identity of his persecutors.

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Bringas, now a financially self-sufficient adult, who has been
employed in the United States not only in entry-level
positions in the food service industry, but in at least one
supervisory position, can reasonably and safely relocate to a
new area within Mexico, such as Mexico City, where he
would be safe from the only private individuals in Mexico
who have ever persecuted him on account of his sexual
orientation. Id. § 1208.13(b)(1)(i)(B). Assuming arguendo
that Bringas’s past persecution entitles him to the
presumption of a well-founded fear of future persecution,
however, I agree with the majority that we must leave these
questions to the agency in the first instance on remand.20

20

In a footnote at the end of its opinion, the majority states that
“[u]pon remand, the agency should consider [Bringas’s HIV diagnosis],
which is ‘material’ and ‘could not have been discovered or presented’ to
the IJ.” Op. at 49 n.19 (internal citations omitted). After Bringas filed his
notice of appeal of the IJ’s decision, he claims that he was diagnosed with
HIV. Bringas requested that the BIA remand to the IJ to consider
Bringas’s HIV-positive status in his applications for relief. Bringas’s brief
to the BIA included only one line stating that his HIV status is significant
because it places Bringas in a “more vulnerable position should he be
returned to Mexico.” The BIA declined to remand to the IJ. This decision
was not an abuse of discretion. See Taggar v. Holder, 736 F.3d 886, 889
(9th Cir. 2013) (“We review the [BIA’s] denial of motions to remand for
abuse of discretion.” (citing Vargas-Hernandez v. Gonzales, 497 F.3d 919,
923 (9th Cir. 2007)). Bringas failed to provide additional country
conditions evidence or arguments to support the claim that his HIV
diagnosis would put him in a more vulnerable position should he be
returned to Mexico. Also, the record does not contain evidence of any
discrepancy between men and women or between homosexuals and
heterosexuals in access to HIV drugs in Mexico. The BIA provided a
reasoned explanation for declining to remand that was neither arbitrary nor
irrational. See Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir.
2008). Therefore, I also disagree with the majority that the agency must
consider the evidence of Bringas’s HIV diagnosis on remand.

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V.

Despite my colleagues’ faithful recitation of the proper
standard of review, they effectively replace it with a much
lower standard in violation of Supreme Court precedent and
our nation’s immigration law. Therefore, I respectfully
dissent.