FILED
NOT FOR PUBLICATION
APR 20 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AROLDO ISAIAS HERNANDEZ, AKA No. 13-71356
Jose Natividad Ontiveros-Gomez,
Agency No. A073-413-655
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 6, 2016
Seattle, Washington
Before: PAEZ and BYBEE, Circuit Judges, and TIGAR,** District Judge.
Petitioner Aroldo Isaias Hernandez, a citizen of Mexico, appeals the Board
of Immigration Appeals’ (“BIA”) denial of his application for asylum, withholding
of removal, and protection under the Convention Against Torture (“CAT”). On
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jon S. Tigar, United States District Judge for the
Northern District of California, sitting by designation.
appeal, Hernandez argues that the BIA erred in finding that he does not have a
well-founded fear of future persecution if he is removed to Mexico. We have
jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review.
We review legal questions de novo. Bringas-Rodriguez v. Sessions, 850
F.3d 1051, 1059 (9th Cir. 2017) (en banc). The BIA, citing our opinion in Castro-
Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), overruled in part by Bringas-
Rodriguez, 850 F.3d 1051, held that Hernandez did not establish a well-founded
fear of future persecution because the 2010 U.S. Department of State Human
Rights Report for Mexico
indicates that Mexican society increasingly accepts homosexual
behavior, that Mexico’s supreme court ruled that all states are required
to recognized [sic] homosexual marriages, that the law prohibits
discrimination on the basis of sexual orientation, and that women and
men were given equal access to diagnostic services and treatment for
HIV.
But since the BIA’s decision, we have made clear that Castro-Martinez “falsely
equated legislative and executive enactments prohibiting persecution with on-the-
ground progress.” Bringas-Rodriguez, 850 F.3d at 1075.
We grant the petition so that the BIA can, in the first instance, apply this
court’s newly enunciated law to determine whether Hernandez is likely to face
persecution. See Lopez v. Ashcroft, 366 F.3d 799, 807 (9th Cir. 2004).
2
The petition for review is GRANTED.
3