CGRS celebrates en banc Ninth Circuit decision on LGBTQ asylum and child-sensitive standards

Wednesday, March 8, 2017

The Center for Gender & Refugee Studies (CGRS) commends the Ninth Circuit Court of Appeals en banc decision in Bringas-Rodriguez v. Sessions, issued today. The ruling reaffirms and expands the availability of asylum and related protection to LGBTQ individuals, survivors of child sexual abuse, and many others. It overturns prior Circuit precedent that narrowed such protection, and directs adjudicators to apply child-sensitive sensitive standards in considering children’s claims. CGRS played a key role in the case as amicus counsel and party, and provided support to Mr. Bringas-Rodriguez’s legal team.

Specifically, the Ninth Circuit held that Mr. Bringas-Rodriguez, a gay, HIV-positive Mexican man who survived horrific child sexual abuse by family members, met his burden to establish past persecution despite not reporting his abuse as a child to the police in his home country. The court overruled a 2011 decision that imposed a heightened standard for children who failed to report abuse. That previous decision, Castro-Martinez v. Holder held that such failure required children to overcome a “gap” in evidence to demonstrate that their governments would not protect them. CGRS argued as amicus in that case that children cannot and should not be expected to report sexual abuse, especially at a young age and at the hands of their caregivers. The Castro-Martinez panel, however, rejected that core contention and denied Mr. Castro-Martinez protection.

The en banc court today corrects the grievous error of the Ninth Circuit’s past decision and overrules Castro-Martinez. By broadly rejecting a heightened reporting requirement, it should also extend greater protection to individuals facing gender-based violence and persecution by gangs and other non-State actors. The court additionally reaffirmed that the inquiry into whether individuals’ home countries adequately protect them should not rest on the existence of favorable laws, but rather on actual state practice.

Co-Legal Director Eunice Lee states, “We applaud the Ninth Circuit for correcting its course and rejecting heightened reporting requirements for children and other vulnerable groups seeking asylum. Today’s decision comes at a particularly important time as access to asylum is being curtailed through government enforcement action. The court’s decision properly applies child-sensitive standards, looks to actual conditions in individuals’ home countries, and reaffirms the availability of protection to LGBTQ asylum seekers.”

Mr. Bringas-Rodriguez was represented by the UC Irvine School of Law (UCI) Appellate Clinic. Dean Erwin Chemerinsky of UCI argued the case before the en banc court on September 7, with CGRS present as amicus counsel.