FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL CASTRO-MARTINEZ,
Petitioner, No. 08-70343
v.
Agency No.
A088-515-684
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 12, 2011*
Pasadena, California
Filed April 15, 2011
Before: M. Margaret McKeown, William A. Fletcher, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
5111
5114 CASTRO-MARTINEZ v. HOLDER
COUNSEL
Judith Marty, Fullerton, California, for the petitioner.
Gregory G. Katsas, Assistant Attorney General, Civil Divi-
sion, Mary Jane Candaux, Assistant Director, Aimee J.
Frederickson, Trial Attorney, Office of Immigration Litiga-
tion, Civil Division, U.S. Department of Justice, Washington,
D.C., for the respondent.
OPINION
CLIFTON, Circuit Judge:
Rafael Castro-Martinez (“Castro”), a native and citizen of
Mexico, timely petitions this court for review of a decision of
the Board of Immigration Appeals affirming an immigration
judge’s denial of his applications for asylum, withholding of
removal, and relief under the Convention Against Torture. We
conclude that substantial evidence supported the BIA’s con-
clusion that Castro failed to demonstrate past persecution or
a well-founded fear of future persecution on account of his
homosexuality or HIV-positive status. The sexual abuse Cas-
tro suffered was not inflicted by government actors, and the
BIA had sufficient basis to conclude that Castro failed to
show that the government was unable or unwilling to control
his attackers. Accordingly, we deny the petition.
I. Background
Rafael Castro-Martinez entered the United States without
inspection in 1995. He subsequently resided in California.
CASTRO-MARTINEZ v. HOLDER 5115
Castro, who is homosexual, believes that during his time in
this country he contracted HIV. He found out he is HIV-
positive in June 2004.
In 2007, Castro returned to Mexico for two weeks to visit
his mother. He sought to reenter the United States at San Ysi-
dro, where he turned himself in to immigration authorities and
requested asylum. He was issued a Notice to Appear and
charged with removability for entering the United States with-
out valid travel documents. He conceded removability in a
hearing before the immigration judge. He filed applications
for asylum, withholding of removal, and protection under the
Convention Against Torture, claiming that he had experienced
past persecution in Mexico as a homosexual male and that if
removed to Mexico he would face persecution and torture on
account of his homosexuality and his HIV-positive status.
Castro’s claim of past persecution was based on sexual
abuse he experienced as a child. In testimony that the immi-
gration judge found credible, Castro testified that he had been
teased and harassed for being gay since he was very young.
When he was between six and ten years old, he was raped
brutally and repeatedly by two male teenagers. Castro
believed he was victimized because of his homosexuality and
feminine characteristics. He never told his parents about the
abuse, because his abusers threatened that they would beat
him and kill his parents if he told them. Castro asserted that
given these threats, and the stigma associated with homosexu-
ality in Mexico, it would have been unreasonably dangerous
for him to have reported the sexual abuse to his teachers,
neighbors, or parents. Moreover, he claimed that because the
Mexican police are corrupt and ineffective in dealing with
crimes against homosexuals, it was unlikely that reporting
would have brought an effective response or protection from
the state. Castro contended that the Mexican government was
unwilling and unable to protect him from the sexual abuse and
that this constituted past persecution on account of his sexual
orientation. Castro argued that this past persecution estab-
5116 CASTRO-MARTINEZ v. HOLDER
lished a well-founded fear of future persecution under 8
U.S.C. § 1101(a)(42)(A).
Castro argued further that even if he was not held to have
suffered from past persecution, he nonetheless qualified for
asylum based on having a well-founded fear of future perse-
cution in Mexico, where the government systematically harms
gay men. He testified that if he now returned to Mexico he
feared that he would be beaten, tortured or killed for his sex-
ual orientation. To support his fear, Castro submitted country
reports documenting societal discrimination against homosex-
uals in Mexico and attacks on gay men committed by private
parties. He also presented evidence of widespread police cor-
ruption in Mexico and incidents of police violence against
homosexuals. Castro also claimed to have a well-founded fear
of future persecution on account of his HIV-positive status.
He testified that he believes HIV medication is not available
for gays in Mexico due to discrimination against homosexuals
and that he will die “in a slow and torturous way for not hav-
ing the medication that I need.”
The immigration judge found Castro removable and denied
his applications for asylum, withholding of removal, and pro-
tection under the Convention Against Torture. The IJ con-
cluded that Castro failed to establish eligibility for asylum
because he did not demonstrate past persecution or the likeli-
hood of future persecution at the hands of the government or
groups the government was unwilling or unable to control.
See Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997). The
IJ found that Castro had not presented any evidence that the
government systematically harms gay men or that it is unwill-
ing to control those who would commit violence against
homosexuals. The IJ pointed to country reports in the record
indicating that Mexican law prohibits discrimination on the
basis of sexual orientation and that the Mexican government
has made successful efforts to promote tolerance of homosex-
uals.
CASTRO-MARTINEZ v. HOLDER 5117
The BIA dismissed Castro’s appeal. The Board concluded
that Castro had failed to establish eligibility for asylum
because he had not shown that the Mexican government had
been unwilling or unable to protect him from his abusers, or
that homosexuals and HIV-positive individuals are subjected
to officially-sanctioned discrimination in Mexico. The Board
noted that Castro did not report the sexual abuse to the author-
ities and that he failed to provide a compelling reason as to
why seeking state protection would have been futile. See
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1057-58 (9th
Cir. 2006). The Board further concluded that Castro had not
demonstrated that he would be unable to secure treatment for
HIV in Mexico, or that lack of access to HIV treatment was
a problem experienced only by homosexuals. Since Castro
failed to meet his burden of proof for asylum, he also failed
to establish his eligibility for withholding of removal. The
Board also denied his CAT claim, holding that Castro did not
demonstrate that it was more likely than not that he would be
tortured in Mexico.
II. Discussion
We review the BIA’s construction and application of the
law de novo. See Murillo-Espinoza v. INS, 261 F.3d 771, 773
(9th Cir. 2001). We must uphold the BIA’s factual findings if
supported by “reasonable, substantial, and probative evidence
on the record.” INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). Our review is “confined to the BIA’s decision and the
bases upon which the BIA relied.” Navas v. INS, 217 F.3d
646, 658 n. 16 (9th Cir. 2000).
A. Past persecution
[1] To be eligible for asylum, an alien must demonstrate
that he is unable or unwilling to return to his home country
because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a par-
ticular social group, or a political opinion. 8 U.S.C.
5118 CASTRO-MARTINEZ v. HOLDER
§ 1101(a)(42)(A). Homosexual men in Mexico can constitute
a social group for the purpose of an asylum claim. See Boer-
Sedano v. Gonzales, 418 F.3d 1082, 1087-89 (9th Cir. 2005).
Persecution is the “infliction of suffering or harm . . . in a way
regarded as offensive” on the basis of one of the protected
grounds. Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995). To
qualify as persecution for the purpose of asylum, an act must
be inflicted either by the government or by individuals or
groups the government is unable or unwilling to control.
Sangha, 103 F.3d at 1487. Violence or discrimination
inflicted by private parties does not constitute persecution if
it is not condoned by the state and if the state takes reasonable
steps to prevent and respond to it. See Gomes v. Gonzales,
429 F.3d 1264, 1267 (9th Cir. 2005); Ghaly v. INS, 58 F.3d
1425, 1431 (9th Cir. 1995).
[2] Substantial evidence supported the BIA’s conclusion
that Castro had not been the victim of past persecution as
defined under the law. Although horrendous, the sexual abuse
Castro experienced was not inflicted by government actors.
Castro acknowledged that he had never been subjected to vio-
lence by government officials in Mexico.
[3] Likewise, evidence supported the conclusion that Cas-
tro failed to demonstrate that the government was unable or
unwilling to control his attackers. Castro testified that he
never reported the abuse to the authorities. In determining
whether the government was unable or unwilling to control
violence committed by private parties, the BIA may consider
whether the victim reported the attacks to the police. See
Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004).
[4] To be clear, “[t]he reporting of private persecution to
the authorities is not . . . an essential requirement for estab-
lishing government unwillingness or inability to control attack-
ers.”1 Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir.
1
Contrary to what Castro argues, the BIA did not impose a “reporting
requirement” but regarded Castro’s failure to report the abuse as one fac-
CASTRO-MARTINEZ v. HOLDER 5119
2010). An applicant can demonstrate the government’s
unwillingness to respond to violence by “establishing that pri-
vate persecution of a particular sort is widespread and well-
known but not controlled by the government” or “showing
that others have made reports of similar incidents to no avail.”
Id. at 922. In other words, the applicant need not have
reported the crime if he can demonstrate that doing so would
have been futile, or that contacting the authorities would have
subjected him to further abuse. Ornelas-Chavez, 458 F.3d at
1057-8.
In this case, however, substantial evidence supported the
BIA’s conclusion that Castro failed to sufficiently explain
why reporting the sexual abuse to the authorities would have
been futile or would have put him at risk of harm. Castro’s
reasons for not contacting the authorities were similar to those
offered by the petitioner in Castro-Perez v. Gonzales, 409
F.3d 1069, 1072 (9th Cir. 2005), in which we denied the peti-
tion of a young Honduran woman who was raped twice by her
boyfriend. Castro-Perez did not report her boyfriend’s assaults
to the police because she believed they would not investigate
a date rape. Id. We determined that this explanation was
insufficient, given that there are criminal laws against rape in
Honduras, and Castro-Perez had not shown that these laws
were not enforced.2 Id. Castro-Perez failed to demonstrate that
tor in its assessment of the Mexican government’s willingness or ability
to control his attackers. The BIA concluded that on the record as a whole,
Castro had “not demonstrated that the Mexican government was unable or
unwilling to protect him from harm.”
2
By contrast, we have held that the fear of reporting is not speculative
when the victim had been subjected to past abuse by the same parties and
previous attempts at reporting were futile. See Boer-Sedano, 418 F.3d. at
1088 (victim’s failure to report sexual assault by police officer was rea-
sonable when he had been assaulted by the same officer in the past with-
out intervention from other officials); Ornelas-Chavez, 458 F.3d at 1058
(failure to report sexual assault to the authorities was reasonable when
extreme violence and indifference characterized the victim’s previous
dealings with government officials and police had abused him in the past).
5120 CASTRO-MARTINEZ v. HOLDER
the government must “bear some responsibility for [her] rapes
because it is either unable or unwilling to control rape.” Id.
[5] Here, it was not unreasonable for the BIA to perceive
Castro’s explanation for not contacting the authorities to be
less than persuasive. Castro argued that he could not report
the sexual abuse because of threats from his attackers. While
private threats may explain why an asylum applicant did not
report the crime, “the question in an asylum case is whether
the [authorities] could and would provide protection.” Rahim-
zadeh, 613 F.3d at 923. As the BIA observed, there was no
evidence in the record that Mexican authorities would have
ignored the rape of a child, which is a crime under Mexican
law.
[6] Castro also claimed that he was afraid of contacting the
police because they would likely abuse him on account of his
homosexuality. Castro presented country reports documenting
police corruption and participation in torture, abuse, and traf-
ficking, as well as incidents of police harassment of gay men.
But the record did not compel the conclusion that the police
would have disregarded Castro or harmed him if he reported
the attacks. At the time of the abuse, he was a young child.
In addition, the BIA noted country reports in the record indi-
cating the Mexican government’s efforts to prevent violence
and discrimination against homosexuals, which have
increased in recent years. Mexican law prohibits several types
of discrimination, including bias based on sexuality, and it
requires federal agencies to promote tolerance. In April 2005,
the Mexican government launched a radio campaign to fight
homophobia in conjunction with Conasida, the National Cen-
ter to Prevent and Control HIV/AIDS. Country reports sub-
mitted by Castro noted the ongoing improvement of police
treatment of gay men and efforts to prosecute homophobic
crimes.
[7] In sum, while we do not diminish the trauma Castro
experienced, substantial evidence supported the BIA’s con-
CASTRO-MARTINEZ v. HOLDER 5121
clusion that Castro’s failure to report the crime undermined
his claim that he was unable to seek protection from the state
against his abusers. See Ornelas-Chavez, 458 F.3d at 1057;
Rahimzadeh, 613 F.3d at 920-23. Because Castro did not meet
his burden to show that the government was unable or unwill-
ing to control his attackers, he failed to demonstrate that he
had been the victim of past persecution.
B. Fear of future persecution
[8] Substantial evidence also supported the BIA’s conclu-
sion that Castro failed to demonstrate a well-founded fear of
future persecution. To establish a well-founded fear of future
persecution, an applicant must show that he has suffered per-
secution in the past, or the existence of a “pattern or practice”
of persecution against similarly situated individuals who are
members of a protected group. See Knezevic v. Ashcroft, 367
F.3d 1206, 1213 (9th Cir. 2004). A “pattern or practice” refers
to “systematic” persecution. See Wakkary v. Holder, 558 F.3d
1049, 1061 (9th Cir. 2009); Bromfield v. Mukasey, 543 F.3d
1071, 1078 (9th Cir. 2009). Citing evidence of societal dis-
crimination against gays in Mexico, and attacks on gay men
committed both by private parties and the police, Castro
argued that the Mexican government systematically harms
gay men and fails to protect them from violence. The record
did not compel this conclusion, particularly in light of the
country reports indicating official efforts to prevent violence
and discrimination against homosexuals.
Castro also claimed to have a well-founded fear of persecu-
tion insofar as he will be unable to receive HIV treatment in
Mexico because he is homosexual. Castro testified that “ho-
mosexual men are not a priority to receive medication” in
Mexico. Substantial evidence supported the BIA’s conclusion
that, based on the documentary evidence provided by Castro,
lack of access to HIV drugs is a problem suffered not only by
homosexuals but by the Mexican population as a whole. The
record noted the high cost of HIV drugs, lack of access to
5122 CASTRO-MARTINEZ v. HOLDER
health insurance for the poor and unemployed, and possible
government mismanagement of funds allocated for HIV treat-
ment. “Generalized economic disadvantage” does not rise to
the level of persecution. Raass v. INS, 692 F.2d 596 (9th Cir.
1982). The BIA was justified in concluding that Castro failed
to demonstrate that he would be deprived of treatment for
HIV in Mexico because of his membership in a protected
social group.
III. Conclusion
Substantial evidence supported the BIA’s conclusion that
Castro did not demonstrate that the Mexican government was
unwilling or unable to control his attackers, and that he there-
fore failed to establish eligibility for asylum. Because Castro
did not demonstrate eligibility for asylum, his claim for with-
holding of removal, governed by a more stringent standard, is
also foreclosed. Gomes, 429 F.3d at 1266. In his opening
brief, Castro did not challenge the BIA’s denial of his CAT
claim and therefore waived it. Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). Accord-
ingly, we deny the petition for review.
PETITION DENIED.