Carlos Bringas-Rodriguez v. Jefferson Sessions

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS ALBERTO BRINGAS- No. 13-72682 RODRIGUEZ, AKA Patricio Iron-Rodriguez, Agency No. Petitioner, 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). 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…

Concurrence by Judge CLIFTON;

Dissent by Judge BEA

OPINION

Carlos Alberto Bringas-Rodriguez (Brin-gas), 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 *1056 his gay Mends who attempted to report rape and other abuse.

A divided panel of our court agreed, relying…

concurring in the judgment:

I agree with the conclusion of the majority opinion that the petition for review filed by Carlos Alberto Bringas-Rodriguez 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 ease.

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 1059 (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 1062 (quoting Baghdasaryan v. Holder, 592…

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).

*1078 Here, the BIA found unpersuasive Brin-gas’s evidence of the Mexican government’s inability or unwillingness to control and prevent the abuse of homosexuals. The record evidence — uncorroborated hearsay testimony by Bringas’s Mends 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…