NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

MAR 08 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

SERGIO GONZALEZ-ORTEGA, No. 12-73137

Petitioner, Agency No. A201-240-753

v.

MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

Respondent.

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

Argued and Submitted July 10, 2015 Seattle, Washington

Before: NGUYEN and FRIEDLAND, Circuit Judges and ZOUHARY,** District Judge.

Sergio Gonzalez-Ortega petitions for review of a Board of Immigration

Appeals (BIA) decision affirming the denial of his applications for asylum,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jack Zouhary, District Judge for the U.S. District Court for the Northern District of Ohio, sitting by designation. withholding of removal, and relief under the Convention Against Torture (CAT).

We dismiss in part, deny in part, grant in part, and remand.

1. Gonzalez-Ortega argues that the BIA abused its discretion by finding that

his asylum application did not qualify for the extraordinary circumstances

exception to the one-year filing deadline. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R.

§ 1208.4(a)(5). Because the facts surrounding the reason for his delay are

disputed, we lack jurisdiction to consider this question. See Gasparyan v. Holder,

707 F.3d 1130, 1134 (9th Cir. 2013). We therefore dismiss the petition as to his

untimely asylum application.

2. The BIA improperly determined that Gonzalez-Ortega did not suffer past

persecution in Mexico because the record compels the conclusion that he was

persecuted “on account of” his homosexuality. Parussimova v. Mukasey, 555 F.3d

734, 738-39 (9th Cir. 2009) (quoting Navas v. INS, 217 F.3d 646, 655-56 (9th Cir.

2000)). The BIA concluded that Gonzalez-Ortega was victimized because of his

general vulnerability and not due to his sexual orientation. But “[p]ersecutors’

motivation should not be questioned when the persecutors specifically articulate

their reason for attacking a victim,” Li v. Holder, 559 F.3d 1096, 1111-12 (9th Cir.

2009), and his brother uttered homophobic slurs while raping him, making clear he

was targeted because of his homosexuality. While his brother may have had other

2 motivations for repeatedly raping him, “a persecutor may be motivated by more

than one central reason, and ‘an asylum applicant need not prove which reason was

dominant.’” Singh v. Holder, 764 F.3d 1153, 1162 (9th Cir. 2014) (quoting

Parussimova, 555 F.3d at 741). Moreover, his cousin clearly targeted him only

because his closeted homosexuality made him vulnerable. Therefore, the BIA

erred by concluding that Gonzalez-Ortega was not raped “on account of” his

homosexuality.

Additionally, the BIA misapplied our holding in Castro-Martinez v. Holder,

674 F.3d 1073 (9th Cir. 2011), by suggesting that Gonzalez-Ortega was required to

report his abuse to the police in order to show government acquiescence to his

persecution. “We have never held that any victim, let alone a child, is obligated to

report a sexual assault to the authorities.” Castro-Martinez, 674 F.3d at 1081. Our

“review is limited to the BIA’s decision” unless “the IJ’s opinion is expressly

adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting

Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)). The BIA’s pin cite to

the IJ’s opinion on this issue does not change our analysis—its discussion is

cursory and does not reference the IJ’s reasoning or conclusions—and thus we read

the BIA as citing the IJ’s opinion for factual support of the assertion that no

reporting occurred, not as “expressly adopt[ing]” the IJ’s reasoning. Id. (quoting

3 Cordon-Garcia, 204 F.3d at 990). We grant the petition and remand for further

consideration of Gonzalez-Ortega’s claim of past persecution under the proper

legal standard and in light of all relevant record evidence.

3. The BIA’s determination that Gonzalez-Ortega failed to show that he is

more likely than not to suffer torture if returned to Mexico is supported by

substantial evidence. Therefore, we deny the petition as to his CAT claim.

The government shall bear the costs for this petition for review.

DISMISSED in part, DENIED in part, GRANTED in part and REMANDED.

4

FILED

Gonzalez-Ortega v. Lynch, No. 12-73137

MAR 08 2016

NGUYEN, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent only as to the denial of the petition for review of the

BIA’s decision on Gonzalez-Ortega’s CAT claim. Though the BIA, incorporating

the IJ’s decision, noted that Mexico has taken steps to protect its gay and lesbian

citizens, it failed to “examine the efficacy of those efforts.” Madrigal v. Holder,

716 F.3d 499, 506 (9th Cir. 2013). There is no indication that the BIA considered

all of the relevant evidence on this point, including evidence submitted by

Gonzalez-Ortega suggesting that Mexico’s efforts have been ineffectual, and that

government officials often brutalize, torture, and extort people because of their

sexual orientation. When considering whether a person is likely to be tortured, the

BIA must look to practical realities, not just legal obligations that may or may not

be enforced. See Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1081 (9th Cir.

2015). Beyond that, the BIA overlooked conditions in Gonzalez-Ortega’s home

region and improperly placed the burden on him to show that he could not safely

relocate within the country. Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir.

2003). I would therefore remand Gonzalez-Ortega’s CAT claim to the BIA for

reconsideration.