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Bringas-Rodriguez v. Sessions

United States Court of Appeals, Ninth Circuit

March 8, 2017

Carlos Alberto Bringas-Rodriguez, AKA Patricio Iron-Rodriguez, Petitioner,
v.
Jefferson B. Sessions III[*], Attorney General, Respondent.

          Argued and Submitted En Banc September 7, 2016 San Francisco, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A200-821-303

          Erwin 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.

          John 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.

          Peter 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.

          Laurie 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.

          Alice 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.

         SUMMARY [**]

         Immigration

         The en 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.

         The en 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.

         The 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.

         The en 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.

         Concurring 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.

         Dissenting, 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.

          OPINION

          WARDLAW, Circuit Judge

         Carlos 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.

         A 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.[1] We overrule Castro-Martinez to the extent it might suggest otherwise and remand this petition to the BIA for further proceedings.

         I.

         Born in 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."

         Bringas 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.

         On one 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.

         Bringas 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.

         In 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.[2]

         The BIA, reviewing the IJ's denial of Bringas's claims for relief, rejected his claims on the merits.[3] 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.

         The 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)[4]). 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.

         Further 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.

         Finally, 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.

         Judge 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.

         II.

         We have 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)).

         III.

         A. Evolution of U.S. Refugee Law

         Because 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.

         Beginning 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.

         Rodríguez, 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.

         Finding 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.

         In 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.

         In 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.[5] 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.

          The 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).

         Our 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.

         McMullen, 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.

         Upon 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.[6]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.

         B. Refugee Law Today

         The 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.

         Because 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).

         C. The "Unable or Unwilling" Standard

         "An 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).

         1. Early decisions discussing the "unable or unwilling" standard in the context of private persecution

         For 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).

         Later 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 country.").

         In a 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." Id.

         In such 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."[7] Id.

         2. Decisions discussing the "unable or unwilling" standard where private persecution was unreported

         As 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.

         The BIA found that the credible testimony and country report evidence sufficiently established the "unable or unwilling" standard, reasoning:

[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 worsened.

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 occurred").

         We have 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.

         Korablina 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." Id.

         Though 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 ...


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