Split Vote, No Asylum for Abused Gay Mexican Man

A Mexican citizen who is gay and HIV-positive lost his appeal for asylum in the U.S. because he failed to show sufficiently that the Mexican government was unwilling or unable to protect him from abuse, a federal appeals court held Thursday.

The 9th U.S. Circuit Court of Appeals, in a 2-1 vote, upheld denial of asylum protection for Carlos Bringas-Rodriguez.

Bringas, who has considered himself gay since the age of 10, argued that he was abused as young as age four by his father, who would tell him to “act like a boy,” and sexually abused and raped by his uncle, cousins and a neighbor from the time he was four until he was 12.

He came to the U.S. in 2002 at age 12 with his mother and stepfather but returned to live with his grandmother and the abuse resumed, according to the appeals court.

He never reported the abuse to police because he believe the complaint would be considered frivolous, the court noted.

Then in 2004, at 13, he returned to his mother in the U.S. to escape his abusers.

Six years later he was convicted of contributing to the delinquency of a minor in Colorado, essentially for drinking at his house when a friend brought over a minor.  He spent 90 days in jail and attempted suicide.

Immigration officials then attempted to deport him but Bringas filed for asylum under the Convention Against Torture alleging he was raped by his relatives.

The court cited country reports from Mexico from 2009 and 2010 that found, despite accounts of persecution of homosexuals in the country, some areas, such as Mexico City, have been significant advances.  Bringas could relocate to Mexico City “without risking possible future abuse,” wrote Judge Jay Bybee, joined by visiting Judge Benjamin Settle of Seattle.

“Even if Bringas’s past experiences constituted torture, the BIA [Board of Immigration Appeals] is not required ‘to presume that he would be tortured again because of his own credible testimony that he had been subjected to torture as a child,’” Bybee wrote, citing a 2011 decision by the court in a similar case.

[It is perhaps worth noting that while serving in the Bush Administration as the Assistant Attorney General for the Office of Legal Counsel in the DOJ, Bybee signed the controversial “Torture Memos” in August of 2002, which authorized “enhanced interrogation techniques” such as “water boarding” and sleep deprivation, used on detainees at Guantanamo Bay, Cuba and Abu Ghraib prison in Iraq.]

In dissent, Judge William Fletcher said he has growing doubts about the correctness of the 2011 case on which Bybee relied.

In addition, Fletcher said that Bringas had testified that while he was in the U.S. at age 12, he was told by two Mexican gay friends that they too were raped and beaten but when they went to the police to report the crimes the officers laughed at them.

Bringas said he feared that Mexican police would laugh and tell him he got what he deserved.

In that 2011 ruling, the court held that the BIA may consider whether the victim reported the attacks to police. Citing that opinion, Fletcher wrote, “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.”

Fletcher argued that because Bringas left in 2004, the relevant period for assessing the police protection of gays are the years before 2004, not those of 2009 and 2010.

“Bringas-Rodriguez, like most abused children, did not report to the policy the sexual abuse he suffered,” Fletcher said.  Thus in seeking asylum,  he had to relieve on other evidence of the Mexican government’s unwillingness to protect him.

The 2009-2010 country reports describe police indifference to, and participation in, violence against homosexuals.  Bringas’s gay friends told him police in his home state of Veracruz laughed at their claims of assault.

Bringas’s evidence of Mexican government failings “should be enough” to merit asylum protection, said Fletcher.

Case: Bringas-Rodriguez v. Lynch, No. 13-72682

 

 

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