Castro-Martinez v. Holder

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The Ninth Circuit upheld a decision by the Board of Immigration Appeals denying asylum to Rafael Castro-Martinez, a gay, HIV-positive man from Mexico.  The Court held that Mr. Castro-Martinez had not shown that the government of Mexico was unable or unwilling to protect him, and that country conditions in Mexico did not prove that he had a well-founded fear of persecution based on a pattern or practice of persecution of gay men.

CGRS Involvement

CGRS joined an amici brief in support of Mr. Castro-Martinez’s case before the Ninth Circuit Court of Appeals, asking the Court to reconsider its decision upholding the denial of asylum to Mr. Castro-Martinez.  Amici argued that the Court applied the wrong legal standard by failing to consider Mr. Castro-Martinez's failure to report his abuse from the perspective of a child, given that he was between 6-10 years old when his past sexual abuse occurred.

Basic Facts

As a young boy, Mr. Castro-Martinez was brutally raped by two male teenagers because of his homosexuality and feminine characteristics. He did not report the assault to either his parents or the Mexican authorities because his attackers threatened to kill his parents and harm him if he revealed their actions. Mr. Castro-Martinez thereafter came to the United States.  After contracting HIV while in the U.S., his fear of returning to Mexico only increased because of the widespread discrimination against homosexuals with HIV and denial of access to medications. 

Procedural History

Mr. Castro-Martinez applied for asylum, claiming that he had experienced past persecution in Mexico as a homosexual male and if removed to Mexico he would face future persecution on account of his homosexuality and his HIV-positive status. The Immigration Judge denied his application for asylum, concluding that Mr. Castro-Martinez failed to demonstrate past persecution or the likelihood of future persecution at the hand of the Mexican government or groups the government was unwilling or unable to control. Mr. Castro-Martinez’s appeal was dismissed by the Board of Immigration Appeals, noting that Mr. Castro-Martinez had not reported the sexual abuse he experienced as a child to the authorities and also failed to provide a compelling reason as to why seeking state protection would have been futile.  Mr. Castro-Martinez appealed and the Ninth Circuit Court of Appeals upheld the Board’s determination that Mr. Castro-Martinez failed to establish that the Mexican government was unwilling or unable to control his attackers or that he had a well-founded fear of future persecution, and denied his petition for review.  

Notably, the Ninth Circuit's initial published opinion applied the wrong legal standard, faulting Mr. Castro-Martinez for failing to report the abuse and not considering his failure to report from the perspective of a child.  Mr. Castro-Martinez and amici asked the Court to reconsider its opinion.  Although the Court declined to reconsider its opinion, and continued to uphold the asylum denial, the Court did amend its opinion to reflect the correct, and more favorable, legal standard for government ability and willingness to control in cases involving applicants who were children at the time of persecution.

Legal Documents

Ninth Circuit Amended Opinion

Amici of Child Experts Joined by CGRS

Amici Brief of LGBT Rights Organizations

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