An 11-judge appeals panel will reconsider a November decision to deny asylum to a Mexican citizen who is gay and HIV-positive in a review that may overturn a 2011 precedent that required asylum-seekers to show they reported alleged sexual assaults to police to be credible.
A majority of the 9th U.S. Circuit Court of Appeals voted to rehear the asylum appeal of Carlos Bringas-Rodriguez Tuesday after a three-judge panel denied his asylum appeal because he failed to show sufficiently that the Mexican government was unwilling or unable to protect him from abuse.
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 in his own house when a friend brought over a minor. He spent 90 days in jail and attempted suicide.
The U.S. attempted to deport him and he sought asylum under the Convention Against Torture, alleging he was raped by relatives.
In the November decision, Judge Jay Bybee wrote, “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.’” He cited a 2011 decision by the appeals court in a similar case.
A dissent by Judge William Fletcher may have convinced a majority of the court to reconsider the decision. He said 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-Rodriguez 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.”
“Bringas-Rodriguez, like most abused children, did not report to the police the sexual abuse he suffered,” Fletcher said. Thus in seeking asylum, he had to rely 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.
The case will now be briefed and set for argument before an 11-judge en banc panel of the court.
Case: Bringas-Rodriguez v. Lynch, No. 13-72682