NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAR 08 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SERGIO GONZALEZ-ORTEGA, No. 12-73137
Petitioner, Agency No. A201-240-753
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 10, 2015
Seattle, Washington
Before: NGUYEN and FRIEDLAND, Circuit Judges and ZOUHARY,** District
Judge.
Sergio Gonzalez-Ortega petitions for review of a Board of Immigration
Appeals (BIA) decision affirming the denial of his applications for asylum,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jack Zouhary, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
withholding of removal, and relief under the Convention Against Torture (CAT).
We dismiss in part, deny in part, grant in part, and remand.
1. Gonzalez-Ortega argues that the BIA abused its discretion by finding that
his asylum application did not qualify for the extraordinary circumstances
exception to the one-year filing deadline. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R.
§ 1208.4(a)(5). Because the facts surrounding the reason for his delay are
disputed, we lack jurisdiction to consider this question. See Gasparyan v. Holder,
707 F.3d 1130, 1134 (9th Cir. 2013). We therefore dismiss the petition as to his
untimely asylum application.
2. The BIA improperly determined that Gonzalez-Ortega did not suffer past
persecution in Mexico because the record compels the conclusion that he was
persecuted “on account of” his homosexuality. Parussimova v. Mukasey, 555 F.3d
734, 738-39 (9th Cir. 2009) (quoting Navas v. INS, 217 F.3d 646, 655-56 (9th Cir.
2000)). The BIA concluded that Gonzalez-Ortega was victimized because of his
general vulnerability and not due to his sexual orientation. But “[p]ersecutors’
motivation should not be questioned when the persecutors specifically articulate
their reason for attacking a victim,” Li v. Holder, 559 F.3d 1096, 1111-12 (9th Cir.
2009), and his brother uttered homophobic slurs while raping him, making clear he
was targeted because of his homosexuality. While his brother may have had other
2
motivations for repeatedly raping him, “a persecutor may be motivated by more
than one central reason, and ‘an asylum applicant need not prove which reason was
dominant.’” Singh v. Holder, 764 F.3d 1153, 1162 (9th Cir. 2014) (quoting
Parussimova, 555 F.3d at 741). Moreover, his cousin clearly targeted him only
because his closeted homosexuality made him vulnerable. Therefore, the BIA
erred by concluding that Gonzalez-Ortega was not raped “on account of” his
homosexuality.
Additionally, the BIA misapplied our holding in Castro-Martinez v. Holder,
674 F.3d 1073 (9th Cir. 2011), by suggesting that Gonzalez-Ortega was required to
report his abuse to the police in order to show government acquiescence to his
persecution. “We have never held that any victim, let alone a child, is obligated to
report a sexual assault to the authorities.” Castro-Martinez, 674 F.3d at 1081. Our
“review is limited to the BIA’s decision” unless “the IJ’s opinion is expressly
adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting
Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)). The BIA’s pin cite to
the IJ’s opinion on this issue does not change our analysis—its discussion is
cursory and does not reference the IJ’s reasoning or conclusions—and thus we read
the BIA as citing the IJ’s opinion for factual support of the assertion that no
reporting occurred, not as “expressly adopt[ing]” the IJ’s reasoning. Id. (quoting
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Cordon-Garcia, 204 F.3d at 990). We grant the petition and remand for further
consideration of Gonzalez-Ortega’s claim of past persecution under the proper
legal standard and in light of all relevant record evidence.
3. The BIA’s determination that Gonzalez-Ortega failed to show that he is
more likely than not to suffer torture if returned to Mexico is supported by
substantial evidence. Therefore, we deny the petition as to his CAT claim.
The government shall bear the costs for this petition for review.
DISMISSED in part, DENIED in part, GRANTED in part and REMANDED.
4
FILED
Gonzalez-Ortega v. Lynch, No. 12-73137
MAR 08 2016
NGUYEN, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent only as to the denial of the petition for review of the
BIA’s decision on Gonzalez-Ortega’s CAT claim. Though the BIA, incorporating
the IJ’s decision, noted that Mexico has taken steps to protect its gay and lesbian
citizens, it failed to “examine the efficacy of those efforts.” Madrigal v. Holder,
716 F.3d 499, 506 (9th Cir. 2013). There is no indication that the BIA considered
all of the relevant evidence on this point, including evidence submitted by
Gonzalez-Ortega suggesting that Mexico’s efforts have been ineffectual, and that
government officials often brutalize, torture, and extort people because of their
sexual orientation. When considering whether a person is likely to be tortured, the
BIA must look to practical realities, not just legal obligations that may or may not
be enforced. See Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1081 (9th Cir.
2015). Beyond that, the BIA overlooked conditions in Gonzalez-Ortega’s home
region and improperly placed the burden on him to show that he could not safely
relocate within the country. Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir.
2003). I would therefore remand Gonzalez-Ortega’s CAT claim to the BIA for
reconsideration.