## Facts

- Carlos Alberto Bringas-Rodriguez, a gay man from Mexico, sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
- As a child and adolescent in Mexico, he was repeatedly raped and otherwise sexually and physically abused by male relatives and a neighbor because of his sexual orientation.
- He did not report the abuse to police as a child, testifying credibly that reporting would have been dangerous due to threats and futile based on accounts of other gay youths receiving no help and being mocked by police.
- He submitted country-conditions evidence describing violence and discrimination against LGBTQ people in Mexico by private actors and officials, despite some legal reforms.
- The Immigration Judge found his testimony credible but denied relief, concluding he failed to show the Mexican government was unable or unwilling to protect him because he did not report the abuse.
- The Board of Immigration Appeals affirmed, relying on circuit precedent treating failure to report as creating an evidentiary “gap.”
- A Ninth Circuit panel denied review; the Ninth Circuit reheard the case en banc.

## Issues

1. Whether the record compelled a finding that Bringas suffered past persecution on account of sexual orientation that the Mexican government was unable or unwilling to control.
2. Whether a child victim’s failure to report private persecution to authorities creates an evidentiary “gap” or heightened requirement to prove governmental inability or unwillingness to protect.
3. If past persecution is established, how the presumption of future persecution affects asylum, withholding, and CAT on remand, including consideration of evidence that Bringas was diagnosed with HIV.

## Decision

- The en banc Ninth Circuit granted the petition for review and remanded.
- The court held the record compelled the conclusion that Bringas suffered past persecution on account of sexual orientation and that the Mexican government was unable or unwilling to control the private persecutors.
- The court overruled prior circuit precedent to the extent it treated failure to report as creating a “gap” in proof or imposing a heightened evidentiary requirement.
- Because past persecution was established, Bringas was entitled to a presumption of future persecution; the case was remanded for the agency to consider rebuttal and to reconsider withholding and CAT, including HIV-related evidence.

## Legal Principles

- An asylum applicant may prove a government is “unable or unwilling” to control private persecutors through credible testimony explaining why reporting would be futile or dangerous, corroborated by evidence such as others’ experiences and country-conditions materials.
- Failure to report private persecution is not a categorical bar and does not, by itself, create an evidentiary “gap” or heightened burden to establish governmental inability or unwillingness to protect.
- Severe sexual violence inflicted on account of a protected ground constitutes persecution.
- Once past persecution is established, a presumption of future persecution arises; the government may attempt to rebut it through changed circumstances or internal relocation, to be evaluated by the agency on remand.

## Conclusion

The en banc Ninth Circuit rejected a categorical adverse inference from a child’s nonreporting of sexual-orientation-based abuse, held the record compelled a finding of past persecution with governmental inability or unwillingness to protect, and remanded for application of the future-persecution presumption and reconsideration of related relief, including CAT and HIV-related risk.


Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc)