Third Circuit Remands Convention Against Torture Application Based on fear of Gangs

In an unpublished decision, the Third Circuit remanded an application for protection under the Convention Against Torture, based on fear that Mexican gangs would target a returning deportee with family members in the United States.  The applicant presented evidence from an expert witness that the Mexican government is unable to control gangs.  The Board of Immigration Appeals concluded that the Mexican government was making attempts to weed out corrupt officials and train its military and law enforcement not to engage in acts of torture, and thus, that it would not acquiesce in the torture of the applicant.  

On appeal, the Third Circuit concluded that the Board had not considered "the possibility that, even though the Mexican government attempted to protect its citizens, it could still acquiesce to torture due to its inability to actually protect its citizens from torture. There is no indication that the agency considered evidence, such as Dr. Boerman’s report, indicating that the Mexican government could not control Los Zetas or the corrupt officials who are involved in kidnappings and torture. Rather, the agency seemed to assume that as long as the Mexican government tried to help its citizens, then it could not be found to have acquiesced."  An excellent reminder that the desire to protect is not the same thing as the ability to do so.

The full text of Torres-Escalantes v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/144663np.pdf 

Ninth Circuit Denies Asylum Related Relief for Gay Male from Mexico

Carlos Bringas Rodriguez was repeatedly sexually abused by his relatives and neighbor as a child.  His uncle clearly told Bringas Rodriguez that he was abusing him because he was gay.  Bringas Rodriguez never reported the abuse to the police.  He testified before the Immigration Judge that several of his gay friends had reported abuse to the Mexican police and that the police had failed to do anything.  Nevertheless, the Immigration Judge found that Bringas Rodriguez had not established that the Mexican police were unable or unwilling to protect him from harm.   The Board of Immigration Appeals and the Ninth Circuit agreed.  The Ninth Circuit also noted that its decision in Castro-Martinez v. Holder foreclosed the argument that there is a pattern or practice of persecution against homosexuals in Mexico.  

The Ninth Circuit also affirmed the denial of Bringas Rodriguez's request for protection under the Convention Against Torture, finding that the past harm he experienced did not compel a finding of a likelihood of future torture and suggesting that he could internally relocate to Mexico City, an area more tolerant of homosexuals.

Finally, the Court affirmed the denial of Bringas Rodriguez's motion for remand based on his HIV diagnosis, finding that he did not provide evidence s regarding how his status as an HIV positive homosexual changes the outcome of his case, and noting that the lack of access to HIV drugs is a problem suffered not only by homosexuals but by the Mexican population as a whole. 

Judge Fletcher wrote a compelling dissent, casting doubt on the rationale of Castro- Martinez and finding that even under the standards of that case, Bringas Rodriguez had demonstrated asylum eligibility.

The full text of Bringas Rodriguez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/19/13-72682.pdf

Ninth Circuit Addresses DUI Crimes and the Treatment of Transgender Individuals in Mexico

Edin Avendano-Hernandez was repeatedly beaten, sexually assaulted, and verbally abused by relatives and police officers because she is a transgender woman.  While in the United States, she was twice convicted of DUI-related offenses, including one DUI involving bodily injury.  The Ninth Circuit affirmed the agency's determination that this conviction was a particularly serious crime, noting that DUI crimes are inherently dangerous, and that Avendano-Hernandez inflicted injuries (albeit relatively minor ones) on the driver of another car.  The Ninth Circuit did note that it was improper to characterize an additional sentence imposed for a probation violation as a sentencing enhancement, but found that the agency's error on this point was harmless.  

Turning to Avendano-Hernandez's application for protection under the Convention Against Torture, the Ninth Circuit disagreed with the agency's finding that she failed to show that the Mexican government would more likely than not consent to or acquiescence in her torture. The court noted that Avendano-Hernandez had already been raped by government officials, and that rape was itself a form of torture.  Thus, because she had already been tortured by government officials, she need not make any of government acquiescence to torture by private individuals.  Turning to the issue of future torture, the Ninth Circuit chastised the agency for conflating laws that protect the gay and lesbian community with government protection of the transgender community.  "While the relationship between gender identity and sexual orientation is complex, and sometimes overlapping, the two identities are distinct."  Given that Mexico has one of the highest transgender murder rates in the world, the Ninth Circuit determined that Avendano-Hernandez was entitled to protection under the Convention Against Torture.

The full text of Avendano-Hernandez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/03/13-73744.pdf