Carlos Alberto Bringas-Rodriguez, AKA Patricio Iron-Rodriguez, Petitioner,
Jefferson B. Sessions III[*], Attorney General, Respondent.
and Submitted En Banc September 7, 2016 San Francisco,
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A200-821-303
Chemerinsky (argued), Kathryn M. Davis, and Munmeeth Soni,
Pro Bono Counsel, University of California, Irvine School of
Law, Appellate Litigation Clinic, Irvine, California; Andrea
Ringer and Marco Pulido Marquez, Certified Law Students,
University of California, Irvine School of Law, Appellate
Litigation Clinic, Irvine, California; Mary-Christine
Sungaila, Pro Bono Attorney, Snell & Wilmer LLP and
Haynes and Boone LLP, Costa Mesa, California, for Petitioner.
W. Blakely (argued), Assistant Director, Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Civil Division,
Donald E. Keener, Deputy Director, Stuart F. Delery,
Assistant Attorney General, Civil Division, Kohsei Ugumori
and Jesi J. Carlson, Senior Litigation Counsel, United States
Department of Justice, Office of Immigration Litigation,
Washington, D.C., for Respondent.
E. Perkowski, Perkowski Legal, PC, Los Angeles, California,
for Amici Curiae The Public Law Center, Lambda Legal Defense
and Education Fund, the National Immigrant Justice Center,
the Center for HIV Law and Policy; HIV Law Project;
Immigration Equality; Disability Rights Legal Center; the
Asian & Pacific Islander Wellness Center, National Center
for Lesbian Rights, LGBT Center OC, Transgender Law Center,
Florence Immigrant & Refugee Rights Project, and Centro
Legal De La Raza.
Charanya Krishnaswami, Cortelyou C. Kenney (Volunteer), and
Lisa Jaskol, Public Counsel, Los Angeles, California, for
Amici Curiae Kids In Need of Defense, Tahirih Justice Center,
and Women's Refugee Commission.
Webb Daniel, Charles L. Coleman III, Kyong M. Kim, and
Garrett S. Garfield, Pro Bono Counsel, Holland & Knight
LLP, San Francisco, California; Eunice Lee, Karen Musalo, and
Blaine Bookey, Counsel, Center for Gender & Refugee
Studies, San Francisco, California; for Amicus Curiae of
Center for Gender & Refugee Studies.
Farmer, United Nations High Commissioner for Refugees,
Washington, D.C.; Ana C. Reyes, Counsel of Record, Williams
& Connolly LLP, Washington, D.C.; for Amicus Curiae
United Nations High Commissioner for Refugees.
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.
banc court granted a petition for review of the Board of
Immigration Appeals' denial of asylum, withholding of
removal, and protection under the Convention Against Torture
to a citizen of Mexico who asserted that Mexican officials
were unable or unwilling to protect him from harm by private
individuals due to his sexual orientation.
banc court held that the evidence Bringas-Rodriguez adduced
before the agency-credible written and oral testimony that
reporting his abuse would have been futile and potentially
dangerous, that other young gay men had reported their abuse
to the Mexican police to no avail, and country reports and
news articles documenting official and private persecution of
individuals on account of their sexual orientation-satisfied
longstanding evidentiary standards for establishing past
persecution and compelled the conclusion that
Bringas-Rodriguez suffered past persecution that the Mexican
government was unable or unwilling to control.
court overruled Castro-Martinez v. Holder, 674 F.3d
1073 (9th Cir. 2011), and other circuit precedent, to the
extent they introduced the construct that the failure to
report private persecution to government authorities creates
a "gap" in the evidence or imposed a heightened
evidentiary requirement to establish governmental inability
or unwillingness to protect.
banc court held that Bringas-Rodriguez was entitled to a
presumption of future persecution and remanded for the Board
to consider whether the presumption was rebutted, and to
consider Bringas-Rodriguez's claims for withholding of
removal and CAT protection, taking into account new evidence
of Bringas-Rodriguez's HIV diagnosis.
in the judgment, Judge Clifton agreed that the petition
should be granted and remanded for further proceedings, but
would not dictate to the Board that Bringas-Rodriguez
established past persecution.
Judge Bea, joined by Judge O'Scannlain, wrote that the
majority failed to properly apply the substantial evidence
standard and would hold that the evidence does not compel the
conclusion that the Mexican government is unwilling or unable
to protect homosexuals from persecution.
WARDLAW, Circuit Judge
Alberto Bringas-Rodriguez (Bringas), 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 his gay friends who attempted to report
rape and other abuse.
divided panel of our court agreed, relying primarily on our
decision in Castro-Martinez v. Holder, 674 F.3d 1073
(9th Cir. 2011), which interpreted the "unable or
unwilling to control" standard as requiring proof that
the police are unable or unwilling to control the sexual
abuse of children generally. Bringas-Rodriguez v.
Lynch, 805 F.3d 1171, 1178-79 (9th Cir. 2015) (now
withdrawn). The panel majority adopted the IJ's
conclusion that it was unlikely that the Mexican government
would take no action to control the "abuse of
children." Id. at 1181-82. We granted rehearing
en banc and now hold that the evidence Bringas adduced before
the agency-credible written and oral testimony that reporting
was futile and potentially dangerous, that other young gay
men had reported their abuse to the Mexican police to no
avail, and country reports and news articles documenting
official and private persecution of individuals on account of
their sexual orientation-satisfies our longstanding
evidentiary standards for establishing past persecution and
compels the conclusion that Bringas suffered past persecution
that the Mexican government was unable or unwilling to
control. We overrule Castro-Martinez to
the extent it might suggest otherwise and remand this
petition to the BIA for further proceedings.
Tres Valles, Veracruz, Mexico, Bringas was horrifically
abused by his father, an uncle, cousins, and a neighbor, all
of whom perceived him to be gay or to exhibit effeminate
characteristics. His uncle first raped him when he was four
years old, and in addition to his uncle, three of his cousins
and a male neighbor physically and sexually abused him on a
regular basis while he lived in Mexico. Bringas's father
also beat him as a child, telling him, "Act like a boy.
You are not a woman." When he was eight, Bringas's
uncle told him that the abuse was because he was gay. His
uncle, cousins, and neighbor never called him by his name,
referring to him only as "fag, fucking faggot, queer,
" and they "laughed about it."
lived with his mother in the United States for a brief period
when he was twelve years old. He returned to Mexico, however,
because he missed his grandmother, who had raised him since
he was nine. The abuse intensified upon his return. Again he
was repeatedly raped by his uncle, cousins, and neighbor.
occasion, when Bringas refused to comply with his
neighbor's demand for oral copulation, the neighbor beat
and raped him, leaving Bringas with black eyes and bruises.
Bringas's abusers also threatened to hurt his
grandmother, with whom he was close, if he ever reported what
was happening. Fearing that they would follow through on
their threats, Bringas did not tell his mother, teachers, or
anyone else about the sexual abuse.
fled Mexico in 2004 at age fourteen to get away from his
abusers. He entered the United States without inspection at
El Paso, Texas, and lived with his mother in Kansas for three
years. He then moved out of his mother's home, living
elsewhere in Kansas and in Colorado. He worked several
different jobs, including positions at a supermarket, a
pizzeria, and a chocolate shop. In August 2010, Bringas
pleaded guilty to attempted contributing to the delinquency
of a minor in Colorado; he had been at home drinking with
some friends when another friend brought over a minor who
became drunk. Bringas spent ninety days in jail, during which
time he attempted suicide and was hospitalized, which
precipitated his finally telling a doctor and then his mother
about his childhood abuse. The Department of Homeland
Security (DHS) issued a Notice to Appear in August 2010.
2011, at age twenty, Bringas applied for asylum, withholding
of removal, and CAT protection. He had previously been
unaware "that the [U.S.] government could protect [him],
" and only found out when he "spoke with an ICE
officer in Colorado in September 2010." In his
application, Bringas described the sexual abuse he endured in
Mexico and explained that he feared persecution if he
returned because he was gay and that the Mexican police would
not protect him. Bringas also credibly testified about his
gay friends' experiences with police in Veracruz. Those
friends went to the police to report that they had been
raped, but the officers ignored their reports and
"laugh[ed] on [sic] their faces." Additionally, he
submitted 2009 and 2010 U.S. Department of State Country
Reports for Mexico and several newspaper articles that
documented violence against, including murders of, gays and
lesbians. The reports showed that the violence rose even
as-and perhaps because- Mexican laws were becoming
increasingly tolerant of gay rights.
BIA, reviewing the IJ's denial of Bringas's claims
for relief, rejected his claims on the merits. The BIA
recognized "the serious abuse that [Bringas] endured as
a child." It found, however, that, as in
Castro-Martinez, Bringas did not demonstrate that
the "abuse was inflicted by government actors or that
the government was unwilling or unable to control his
abusers." Concluding that Bringas thus failed to
establish past persecution, the BIA denied Bringas the
concomitant presumption of future persecution. It then
rejected Bringas's argument that he had a well-founded
fear of future persecution because he had failed to show a
pattern or practice of persecution of gay men in Mexico,
distinguishing Bromfield v. Mukasey, 543 F.3d 1071
(9th Cir. 2008), because "the record . . . d[id] not
demonstrate widespread brutality against homosexuals or that
there [was] any criminalization of homosexual conduct in
Mexico." The BIA also concluded that Bringas had failed
to show that the Mexican government had been unable or
unwilling to control private individuals who perpetuated
violence against homosexuals, finding that Mexico "has
taken numerous positive steps to address the rights of
homosexuals." Finally, the BIA rejected Bringas's
withholding of removal and CAT claims and denied a remand to
consider his HIV-positive diagnosis.
majority of a divided three-judge panel of our court agreed
that Bringas had failed to meet the heightened evidentiary
burden for past persecution that it and the BIA determined
applicable to Bringas's claim based on their reading of
Castro-Martinez. Acknowledging that nothing requires
an abuse victim, "let alone a child, " to report
persecution to the police, the panel majority reasoned that
where a victim fails to report abuse, even as a child,
"there is a 'gap in proof about how the government
would have responded, ' and the petitioner bears the
burden to 'fill in the gaps' by showing how the
government would have responded had he reported the
abuse." Bringas-Rodriguez, 805 F.3d at 1178
(quoting Castro-Martinez, 674 F.3d at 1081). The
panel majority found the 2009 and 2010 country reports
inadequate to establish widespread, uncontrolled persecution
of gay men in either Bringas's home state or town.
Id. at 1178-80. Rather, the panel majority found
that the country reports demonstrated that Mexico permitted
gay pride marches and had expanded marriage equality.
Id. at 1179. The panel majority also cited a United
Nations report stating that Mexico had established a
"'specialized hate crime prosecution unit, '
developed a 'new judicial protocol to guide adjudication
of cases involving human rights violations on grounds of
sexual orientation, ' implemented specialized training
for police officers, and officially designated May 17 as
'National Day Against Homophobia.'" Id.
at 1179 n.5 (alteration in original) (quoting U.N. High
Comm'r for Human Rights, Discrimination &
Violence Against Individuals Based on Their Sexual
Orientation & Gender Identity, ¶¶
40, 74, 75 U.N. Doc. A/HRC/29/23 (May 4, 2015)). Furthermore,
the panel majority found insufficient
Bringas's testimony that his gay male friends had
suffered persecution and reported it to the police in
Veracruz, only to have the officers laugh at them.
Id. at 1180-81. Even if the friends' reports
were credited, the panel majority explained, those reports
failed to establish that police practices in the city or
state of Veracruz could be linked to police practices in Tres
Valles, Bringas's hometown. Id.
in support of its conclusion, the panel majority noted the
absence of evidence in the record suggesting that Mexican
police refuse to protect sexually abused children. Stating
that "Bringas's allegations are not just about
discrimination against gay and lesbian Mexicans-they are
about child molestation, " the panel majority found
Bringas's evidence lacking because he "ha[d] put
forward no evidence that Mexico tolerates the sexual abuse of
children, or that Mexican officials would refuse to protect
an abused child based on the gender of his or her
abusers." Id. at 1182. Because Bringas had not
described "how old his 'friends' were who
reported abuse to the police, " Bringas's testimony
about those reports was insufficient. Id. at 1181.
the panel majority interpreted Castro-Martinez to
foreclose it from finding that Bringas's subjective fear
of future persecution was objectively reasonable, again
citing the "improving" situation for gay men in
Mexico. Id. at 1182-83.
W. Fletcher dissented, writing that he had developed
misgivings about Castro-Martinez-an opinion in which
he had joined-but also explaining that even if
Castro-Martinez controlled, he "part[ed] ways
with the majority" on its reading of the decision to
reject Bringas's asylum claim. Id. at 1186-87
(Fletcher, J., dissenting). Judge W. Fletcher pointed to our
ample precedent that does not require victims of private
persecution, especially child victims, to contemporaneously
report their abuse to government authorities in order to
become eligible for asylum in the United States. Id.
at 1192. "Yet, " he wrote,
"Castro-Martinez and today's decision
effectively require just that." Id.
jurisdiction under 8 U.S.C. § 1252(a). Because the BIA
conducted its own review and did not adopt the IJ's
decision, our review "is limited to the BIA's
decision." Hosseini v. Gonzales, 471 F.3d 953,
957 (9th Cir. 2006) (internal quotation mark omitted)
(quoting Cordon-Garcia v. INS, 204 F.3d 985, 990
(9th Cir. 2000)). We review the Board's legal conclusions
de novo, Romero-Mendoza v. Holder, 665 F.3d 1105,
1107 (9th Cir. 2011), and its factual findings for
substantial evidence, Zhi v. Holder, 751 F.3d 1088,
1091 (9th Cir. 2014). 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."
Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
Evolution of U.S. Refugee Law
this case ultimately turns on whether Bringas has adduced
compelling evidence that he is a refugee who is presumptively
eligible for asylum based on past persecution by
nongovernmental actors, it is helpful to our analysis to
review the development of our refugee laws generally.
with the persons displaced by World War II, the United States
has struggled to define its approach to refugees.
See Stephen H. Legomsky & Cristina M.
Immigration and Refugee Law and Policy 874-76, 878
(5th ed. 2009). The Immigration and Nationality Act (INA) of
1952, Pub. L. No. 82-414, 66 Stat. 163, and its predecessor,
the Immigration Act of 1924, Pub. L. No. 68-139, 43 Stat.
153, "contained no special provision exempting
[refugees] from the restrictions generally applicable to
immigrants." Id. at 876, 881; see also
Deborah E. Anker & Michael H. Posner, The Forty Year
Crisis: A Legislative History of the Refugee Act of
1980, 19 San Diego L. Rev. 9, 14 (1981). As a result,
until Congress passed comprehensive legislation concerning
refugees in 1980, the United States largely responded to
refugee crises on an ad hoc basis and with temporary
measures. Legomsky & Rodríguez, supra, at
881. The Displaced Persons Act of 1948, Pub. L. No. 80-774,
62 Stat. 1009, was the first such measure, and provided
sanctuary for certain refugees fleeing Nazi, Soviet, or
fascist persecution, as well as "displaced forced
laborers from states conquered by Germany." Anker &
Posner, supra, at 13. Later legislative efforts
included the Refugee Relief Act of 1953, Pub. L. No. 83-203,
67 Stat. 400, and its extension in 1957, which assisted
"victims of natural calamities" and refugees from
"communist-dominated parts of Europe and the Middle
East." Anker & Posner, supra, at 14.
these narrow policies inadequate, President Eisenhower
decided after the Soviets invaded Hungary in 1956-causing
some 200, 000 Hungarians to flee-to request that the Attorney
General temporarily parole 15, 000 Hungarian refugees into
the United States. Id. at 14-15. At that time, under
the INA, the Attorney General had the discretion to parole,
but not to formally admit, persons into the country "for
emergent reasons or for reasons deemed strictly in the public
interest." Id. at 15 (quoting 8 U.S.C. §
1182(d)(5) (1952)). Parole was originally intended to benefit
individual noncitizens in emergency situations; the Hungarian
crisis represented the first time it was used to admit
refugees en masse. Id.
light of the president's expanded use of parole, Congress
decided to reassert itself into refugee policy and create a
more structured regime. Legomsky & Rodríguez,
supra, at 881-82. The first permanent statutory basis
for admitting refugees was enacted in 1965 as part of a group
of amendments to the INA. Id. at 881. Under the 1965
amendments, a new admissions category was created for
"those who feared persecution and were fleeing either a
'Communist-dominated' country or a country
'within the general area of the Middle East.'"
Id. at 881 (quoting Pub. L. No. 89-236 § 3, 79
Stat. 911, 913 (1965)). However, the geographic and
ideological restrictions of the category, as well as the
"painfully inadequate" ceiling of 17, 400 entries
per year, limited the category's reach. Id. at
881-82. Presidents therefore continued to rely on parole when
refugee crises arose, granting entry to hundreds of thousands
of refugees from Cuba, Indochina, and Soviet and Eastern
European countries. Id. at 882. In other words,
refugee admissions remained ad hoc, spurring policy proposals
for overhauling the system that were debated throughout the
1970s. Anker & Posner, supra, at 20-42.
1980, to limit the parole power, create a predictable and
permanent admissions system, and fulfill international
obligations, Congress passed the Refugee Act of 1980 (the
"Act"), Pub. L. No. 96-212, 94 Stat. 102. Legomsky
& Rodríguez, supra, at 882-83. The final
version of the bill set quotas for refugee admissions and
limited the executive branch's parole authority. Anker
& Posner, supra, at 60-62. It adopted the
nondiscriminatory definition of refugee included in the 1951
United Nations Convention Relating to the Status of Refugees,
but amended it by including not only persons who feared
future persecution but also those who were victims of past
persecution. Deborah Anker, Law of Asylum in the
United States § 1:2 (2016). Furthermore, the Act
provided a statutory basis for asylum, the granting of status
to refugees who arrive or have been physically present in the
United States. Id.; see also Legomsky &
Rodríguez, supra, at 893. The Act
also brought the United States into conformity with the 1951
Convention with respect to withholding of removal, the remedy
by which an applicant can prevent forcible return to a
country where he fears persecution. Legomsky &
Rodríguez, supra, at 893. To this day, the
Act is the principal statute governing the admission of
refugees, grants of asylum, and withholding of removal.
Legomsky & Rodríguez, supra, at 883.
concept of persecution by non-state actors is
"inherent" in the definitions of persecution in the
1951 Convention and the Refugee Act of 1980. Anker,
supra, at § 4:8. Indeed, the 1979 UNHCR
Handbook on Procedures and Criteria for Determining Refugee
Status Under the 1951 Convention and the 1967 Protocol
Relating to the Status of Refugees stated that persecution
included "serious discriminatory or other offensive acts
. . . committed by the local populace . . . if they are
knowingly tolerated by the authorities, or if the authorities
refuse, or prove unable, to offer effective protection."
Anker & Posner, supra, at 67 (quoting UNHCR,
Handbook on Procedures and Criteria for Determining
Refugee Status Under the 1951 Convention and the 1967
Protocol Relating to the Status of Refugees (1979)).
Even under U.S. statutory definitions of persecution
pre-dating the Refugee Act of 1980, a First Circuit opinion
and a published, precedential BIA opinion suggested that
persecution by non-state actors was cognizable as a predicate
for relief. See Rosa v. INS, 440 F.2d 100, 102 (1st
Cir. 1971); Matter of Eusaph, 10 I. & N. Dec.
453, 454 (BIA 1964).
circuit first determined that the appropriate standard of
review for BIA decisions under the Refugee Act of 1980 is the
now familiar "substantial evidence" test in
McMullen v. INS, 658 F.2d 1312, 1316 (9th Cir.
1981). See Sagermark v. INS, 767 F.2d 645, 649 (9th
Cir. 1985). McMullen also provided our first
occasion to address "[p]ersecution by . . . a group
which the government is unable to control" under the
Act. McMullen, 658 F.2d at 1315.
a Catholic of Irish descent, had joined the British Army and
been deployed to Northern Ireland in 1969 as part of British
peacekeeping efforts. Id. at 1314. As the British
soldiers became more violently anti-Catholic, torturing
prisoners and plotting to use armed force against nonviolent
civilian demonstrators, McMullen deserted them to join the
Provisional Irish Republican Army (PIRA), a nongovernmental
group that purported to protect Catholics from the British
army, but which eventually became, in McMullen's view,
extremist and terroristic. Id. He quit the PIRA, but
was jailed by the Republic of Ireland police for his earlier
activities as part of the PIRA. Id. When he was
released, the PIRA pressured him to participate in a plan to
kidnap an American, but McMullen refused. Id.
learning that the PIRA intended to murder him for that
refusal, McMullen fled to the United States, cooperated with
U.S. authorities, and sought withholding of
removal.Id. at 1313-14. The BIA reversed
the IJ's determination that "McMullen was not
deportable because 'the Government of the Republic of
Ireland is unable to control the activities of the PIRA and
that if [McMullen] were to be returned to that country he
would suffer persecution within the meaning of the (United
Nations) Convention, Protocol, and section 243(h) (of 8
U.S.C. § 1253(h)).'" Id. at 1315.
Before our court, the government "concede[d] that
persecution within the meaning of [section] 243(h) includes
persecution by nongovernmental groups such as the PIRA, where
it is shown that the government of the proposed country of
deportation is unwilling or unable to control that
group." Id. at 1315 n.2.
Refugee Law Today
Attorney General may, in his discretion, grant asylum to
applicants in the United States who meet the definition of
"refugee" under 8 U.S.C. § 1101(a)(42)(A). 8
U.S.C. § 1158(b)(1). An applicant qualifies as a refugee
if he "is unable or unwilling to return to his home
country because of a well-founded fear of future persecution
on account of race, religion, nationality, membership in a
particular social group, or political opinion."
Navas v. INS, 217 F.3d 646, 654 (9th Cir. 2000). An
applicant may establish a "well-founded fear of future
persecution" in two ways: by proving past persecution,
or by demonstrating that he has a "subjectively genuine
and objectively reasonable" fear of future persecution.
Id. at 654-56, 656 n.11.
Bringas applied for asylum after the passage of the REAL ID
Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, he must show
that his sexual orientation was "one central
reason" for his persecution. 8 U.S.C. §
1158(b)(1)(B)(I). However, his "persecution may be
caused by more than one central reason, and [he] need not
prove which reason was dominant." Parussimova v.
Mukasey, 555 F.3d 734, 741 (9th Cir. 2009). If Bringas
is able to show that he was subjected to past persecution, he
is entitled to a rebuttable presumption of a well-founded
fear of future persecution. Tawadrus v. Ashcroft,
364 F.3d 1099, 1103 (9th Cir. 2004); see also 8
C.F.R. § 1208.13(b)(1).
The "Unable or Unwilling" Standard
applicant alleging past persecution has the burden of
establishing that (1) his treatment rises to the level of
persecution; (2) the persecution was on account of one or
more protected grounds; and (3) the persecution was committed
by the government, or by forces that the government was
unable or unwilling to control." Baghdasaryan v.
Holder, 592 F.3d 1018, 1023 (9th Cir. 2010).
Early decisions discussing the "unable or
unwilling" standard in the context of private
several years following passage of the Refugee Act of 1980,
decisions considering whether a government was unable or
unwilling to control private persecution almost exclusively
involved a fear of future persecution by organized groups,
such as anti-government guerillas. See., e.g.,
Arteaga v. INS, 836 F.2d 1227, 1231 (9th Cir. 1988)
(remanding for the BIA to consider whether the petitioner
established a well-founded fear of persecution by guerillas
that the El Salvadoran government could not control),
abrogated on other grounds by INS v. Elias-Zacarias,
502 U.S. 478 (1992); Sangha v. INS, 103 F.3d 1482,
1487 (9th Cir. 1997) (holding that the petitioner had been
persecuted by a terrorist group that the government of India
could not control). In such decisions, either it was
undisputed that the government was unable or unwilling to
control the powerful organizations at issue, or the inability
to control was proved through documentary evidence, such as
country conditions reports. See, e.g.,
Gomez-Saballos v. INS, 79 F.3d 912, 916-17 (9th Cir.
1996) (concluding that "documentary evidence about
general conditions in Nicaragua" was enough to show that
the government was "unable to control" former
National Guard members); Arteaga, 836 F.2d at 1231
(analyzing eligibility for asylum under the assumption that
guerillas were not controlled by the government).
petitions for review, however, involved claims for relief
based on past persecution by unorganized groups and
individuals. See, e.g., Singh v. INS, 94
F.3d 1353, 1357-60 (9th Cir. 1996) (stating that the
petitioner's assailants "need not [have] file[d]
articles of incorporation before they can be capable of
persecution"). In such instances, where the petitioner
was required to show that previous attacks were committed in
the shadow of an acquiescent government, we looked to
evidence of how the police responded to the petitioner's
requests for protection. In Singh, for example, the
petitioner-an ethnic Indian citizen of Fiji-received death
threats from ethnic Fijians and was assaulted at work.
Id. at 1357-58. He and his family were also attacked
twice at their home. Id. We looked to record
evidence showing that "the government ha[d] encouraged
and condoned the discrimination, harassment, and violence by
ethnic Fijians against Indo-Fijians." Id. at
1360. But we also highlighted that "Singh testified that
he reported each assault and threat to the police and that .
. . the police failed to respond to any of his crime
reports." Id. We therefore concluded that the
government of Fiji "could not or would not control"
the persecutors. Id.; see also Andriasian v.
INS, 180 F.3d 1033, 1042-43 (9th Cir. 1999) ("[T]he
widespread nature of the persecution of ethnic Armenians
documented by the State Department Country Report, combined
with the police officer's response [advising Mr.
Andriasian to leave the country] when Mr. Andriasian turned
to him for help, clearly establishes that the government of
Azerbaijan either could not or would not control Azeris who
sought to threaten and harm ethnic Armenians living in their
published, precedential opinion, the BIA reasoned similarly.
In In re O-Z & I-Z, 22 I. & N. Dec. 23 (BIA
1998), a father and son, natives of Russia and citizens of
Ukraine, were beaten and threatened with death on several
occasions because they were Jewish. Id. at 23-24.
They reported the attacks three times, but the police
"took no action beyond writing a report."
Id. at 26. From that, the BIA concluded that
"the Ukrainian [g]overnment was unable or unwilling to
control the respondent's attackers and protect him or his
son from the anti-Semitic acts of violence."
instances of police failure to respond to a report of
persecution, we have held that a petitioner need not provide
evidence that a government is "unable or unwilling to
control [persecution] 'on a countrywide basis.'"
Mashiri v. Ashcroft, 383 F.3d 1112, 1122 (9th Cir.
2004) (rejecting the government's reliance on a U.S.
Department of State country report to counter the
petitioner's evidence of local police unwillingness to
protect her and her family). "Instead, an asylum
applicant may meet her burden with evidence that the
government was unable or unwilling to control the persecution
in the applicant's home city or area." Id.
Decisions discussing the "unable or unwilling"
standard where private persecution was unreported
early as 2000, the BIA concluded in a published, precedential
opinion that the "unable or unwilling" standard
could be established in the absence of a report of the
violence or threatened violence to government officials.
In re S-A-, 22 I. & N. Dec. 1328, 1335 (BIA
2000). There, the BIA addressed the plight of a native and
citizen of Morocco, S-A-, who at age fourteen began to suffer
regular beatings and was burned, kicked, and punched by her
orthodox Muslim father on account of her more liberal Muslim
beliefs. Id. at 1329-30. Both S-A- and her U.S.
citizen aunt credibly testified that going to the police
would have been futile, because, "in Moroccan society,
such action would [have been] not only unproductive but
potentially dangerous." Id. at 1330, 1333. The
BIA considered that testimony and the U.S. Department of
State Country Reports on Human Rights Practices for 1997,
which corroborated that few Moroccan women report abuse to
the authorities "because the judicial procedure is
skewed against them, " and that women who reported were
often returned to their abusers. Id. at 1333.
found that the credible testimony and country report evidence
sufficiently established the "unable or unwilling"
[T]he source of the respondent's repeated physical
assaults, imposed isolation, and deprivation of education was
not the government, but her own father. Although she did not
request protection from the government, the evidence
convinces us that even if the respondent had turned to the
government for help, Moroccan authorities would have been
unable or unwilling to control her father's conduct. The
respondent would have been compelled to return to her
domestic situation and her circumstances may well have
Id. at 1335. The BIA concluded that, because S-A-
had suffered persecution at the hands of her father that the
government was unable or unwilling to control, and because
the government failed to rebut the presumption of future
persecution, S-A- was entitled to asylum. Id.;
see also In re Jose Luis Garcia-Gonzalez, A201 063
604, 2011 WL 7327341, at *1 (BIA Nov. 10, 2011) (unpublished)
(finding that Mexico was unable or unwilling to control the
applicant's abusive father because "the record
reflects that the police did not have a presence in the
respondent's small town" and because "the
respondent was under 14 years old when the harm
similarly long held that a victim of abuse need not report it
to government authorities to establish the government's
inability or unwillingness to protect him. In Korablina
v. INS, 158 F.3d 1038 (9th Cir. 1998), the petitioner, a
Jewish native of Russia and citizen of the Ukraine, was the
victim of harassment and beatings perpetrated against Jewish
citizens. Id. at 1041-42.
was fired from the job she had held for twenty-eight years by
a new boss who was a member of an ultra-nationalist and
anti-Semitic group. Id. at 1041. After searching for
six months for a new job, she found work as a clerical
secretary to a Jewish man. Id. at 1042. In that new
position, she saw three men attack her boss and thereafter
return monthly to the office to extort money. Id.
Though she and her fellow employees reported the beating to
the police, the officers never appeared, and when Korablina
sought help from a friend at the municipal city hall, the
friend disappeared. Id. Korablina then began
receiving anti-Semitic death threats that warned of
retaliation if she reported the threats to anyone.
Id. Soon thereafter, two men violently attacked
Korablina and left her barely breathing, telling her she
"could not . . . conceal her Jewish origin."
Korablina never reported the threats or the attack, she
credibly testified that "the police were not interested
in protecting Jews, " that reporting "would be
fruitless, " and that she was frightened that if she
reported she would share the same fate as her friend in the
municipal city hall. Id. Korablina's daughter
also credibly testified that "telling the authorities
was useless, " which was why neither she nor her father
reported the violent anti-Semitic attacks that they had
suffered. Id. at 1042-43. Furthermore, Korablina
offered "articles detailing the authorities'
unresponsiveness to complaints made by Jewish victims in
Kiev." Id. at 1043. We determined that the
credible testimony and corroborating articles were enough to
establish that the government was unable and unwilling to
control the private acts of violence, and noted ...