FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL CASTRO-MARTINEZ, No. 08-70343
Petitioner, Agency No.
v.
A088-515-684
ERIC H. HOLDER JR., Attorney ORDER AND
General, AMENDED
Respondent.
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 12, 2011*
Pasadena, California
Filed April 15, 2011
Amended December 5, 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).
20639
CASTRO-MARTINEZ v. HOLDER 20641
COUNSEL
Judith Marty, Fullerton, California, for the petitioner.
20642 CASTRO-MARTINEZ v. HOLDER
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.
ORDER
The opinion filed on April 15, 2011, is amended as follows:
1. At page 5118 of the slip opinion (641 F.3d 1103,
1107), omit the following sentence and citation from the end
of the paragraph at the top of the page:
Violence or discrimination inflicted by private par-
ties does not constitute persecution if it is not con-
doned 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. At page 5118 of the slip opinion (641 F.3d at 1108),
insert the following at the end of the paragraph beginning
“Likewise,” after “See Baballah v. Ashcroft, 367 F.3d 1067,
1078 (9th Cir. 2004)”:
As we have held previously, “[w]here the persecutor
is not a state actor, ‘we consider whether an appli-
cant reported the incident to police, because in such
cases a report of this nature may show governmental
inability to control the actors.’ ” Rahimzadeh v.
Holder, 613 F.3d 916, 921 (9th Cir. 2010) (quoting
Baballah, 367 F.3d at 1078).
3. At pages 5118-19 of the slip opinion (641 F.3d at
1108), replace the first citation and beginning of the next sen-
tence:
CASTRO-MARTINEZ v. HOLDER 20643
Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010).
An
with the following:
Id. Here, the matter is complicated by the fact that
Castro was between the ages of six and ten years
when the attacks occurred. See Hernandez-Ortiz v.
Gonzalez, 496 F.3d 1042, 1046 (9th Cir. 2007)
(holding that when the petitioner is a child, the IJ
must assess the alleged persecution from a child’s
perspective). We have never held that any victim, let
alone a child, is obligated to report a sexual assault
to the authorities, and we do not do so now.
Without any report, however, there is a “gap in
proof about how the government would [have]
respond[ed]” had Castro reported the attacks. Rahim-
zadeh, 613 F.3d at 922. Among other avenues, an
4. At pages 5118-19 of the slip opinion (641 F.3d at
1108), replace the text of footnote 1 with:
Contrary to what Castro argues, the BIA did not
impose a “reporting requirement” but regarded the
lack of a report of the abuse as one factor in its
assessment of whether Castro had sufficiently estab-
lished the Mexican government’s unwillingness or
inability to control his attackers. The BIA concluded
that, on the record as a whole, Castro had “not dem-
onstrated that the Mexican government was unable
or unwilling to protect him from harm.”
5. At page 5119 of the slip opinion (641 F.3d at 1108),
replace “unwillingness” in the first full sentence with “lack of
ability or willingness.”
6. At page 5119 of the slip opinion (641 F.3d at 1108),
omit the following from the end of the first paragraph:
20644 CASTRO-MARTINEZ v. HOLDER
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.
7. At page 5119-20 of the slip opinion (641 F.3d at 1108),
replace the paragraph beginning with “In this case” and end-
ing with “ ‘unwillingness to control rape.’ Id.” with the fol-
lowing:
An applicant can also meet his burden by “demon-
strating that a country’s laws or customs effectively
deprive the petitioner of any meaningful recourse to
governmental protection” or by “convincingly estab-
lish[ing] that [going to the authorities] would have
been futile or would have subjected [the individual]
to further abuse.” Id. at 921-22.
Beginning with the proposition that a victim is not
obligated to report the attacks, we look to the record
to determine whether Castro met his burden to “fill
in the gaps” and show that the government would
have been unable or unwilling to control his attack-
ers. Castro’s primary reason for not contacting the
authorities was that he believed the police would not
have helped him. However, such a statement, with-
out more, is not sufficient to fill the gaps in the
record regarding how the Mexican government
would have responded had Castro reported his
attacks. See Castro-Perez v. Gonzales, 409 F.3d
1069, 1072 (9th Cir. 2005).
8. At page 5120 of the slip opinion (641 F.3d at 1108),
omit the sentence at the beginning of the first full paragraph:
Here, it was not unreasonable for the BIA to per-
ceive Castro’s explanation for not contacting the
authorities to be less than persuasive.
CASTRO-MARTINEZ v. HOLDER 20645
9. At page 5120 of the slip opinion (641 F.3d at 1108), in
the second sentence of the first full paragraph, replace “ar-
gued” with “also testified.”
10. At page 5120 of the slip opinion (641 F.3d at 1108),
replace the end of the last sentence of the first full paragraph:
child, which is a crime under Mexican law.
with the following:
young child or that authorities were unable to pro-
vide a child protection against rape.
11. At page 5120 of the slip opinion (641 F.3d at 1108),
in the first sentence of the second full paragraph, replace
“claimed” with “stated.”
12. At page 5120 of the slip opinion (641 F.3d at 1108-
09), in the second full paragraph, replace the section begin-
ning with “But the record” and ending with “prosecute
homophobic crimes” with the following:
But none of these reports compel the conclusion that
the police would have disregarded or harmed a male
child who reported being the victim of homosexual
rape by another male.
13. At pages 5120-21 of the slip opinion (641 F.3d at
1109), replace the paragraph:
In sum, while we do not diminish the trauma Castro
experienced, substantial evidence supported the
BIA’s conclusion 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
20646 CASTRO-MARTINEZ v. HOLDER
burden to show that the government was unable or
unwilling to control his attackers, he failed to dem-
onstrate that he had been the victim of past persecu-
tion.
with the following:
In sum, while we do not diminish the trauma Cas-
tro experienced, substantial evidence supported the
BIA’s conclusion that Castro did not meet his burden
to show that the government was unable or unwilling
to control his attackers and therefore failed to dem-
onstrate that he had been the victim of past persecu-
tion.
14. At page 5121 of the slip opinion (641 F.3d at 1109),
replace the first paragraph under the heading “B. Fear of
future prosecution” with the following three paragraphs:
Substantial evidence also supported the BIA’s
conclusion that Castro failed to demonstrate a well-
founded fear of future persecution. To establish a
well-founded fear of future persecution, an applicant
must demonstrate that his fear of persecution is sub-
jectively genuine and objectively reasonable. Ahmed
v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007). As
there was no adverse credibility determination, we
accept that Castro’s fear of future persecution was
genuine. See Li v. Holder, 559 F.3d 1096, 1107 (9th
Cir. 2009).
To establish that his fear of persecution was objec-
tively reasonable, Castro could have demonstrated
that he was a member of a disfavored group against
which there was a systematic pattern or practice of
persecution, or that he was singled out for persecu-
tion. See generally Wakkary v. Holder, 558 F.3d
1049 (9th Cir. 2009) (citing 8 C.F.R.
CASTRO-MARTINEZ v. HOLDER 20647
§ 1208.13(b)(2)(iii)). As to the latter, Castro did not
argue that any government actor had singled him out
for persecution. As to the former, Castro cited evi-
dence of societal discrimination against gays in
Mexico, and attacks on gay men committed both by
private parties and the police, to argue that the Mexi-
can government systematically harmed gay men and
failed to protect them from violence. The record did
not compel this conclusion, however, particularly in
light of recent country reports.
The BIA noted country reports in the record indi-
cating the Mexican government’s efforts to prevent
violence and discrimination against homosexuals.
These efforts have increased in recent years. Mexi-
can 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 Center to Prevent and Control
HIV/AIDS. Country reports submitted by Castro
noted the ongoing improvement of police treatment
of gay men and efforts to prosecute homophobic
crimes.
15. At page 5122 of the slip opinion (641 F.3d at 1110),
replace the short citation:
Gomes, 429 F.3d at 1266.
with the following long citation:
Gomes v. Gonzales, 429 F.3d 1264, 1266 (9th Cir.
2005).
With the opinion as amended, the panel voted to deny both
the petition for rehearing and petition for rehearing en banc.
20648 CASTRO-MARTINEZ v. HOLDER
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing and petition for rehearing en
banc are DENIED. No further petition for rehearing and/or
petition for rehearing en banc may be filed.
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, 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-
CASTRO-MARTINEZ v. HOLDER 20649
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-
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-
20650 CASTRO-MARTINEZ v. HOLDER
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.
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
CASTRO-MARTINEZ v. HOLDER 20651
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.
§ 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
20652 CASTRO-MARTINEZ v. HOLDER
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.
[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). As
we have held previously, “[w]here the persecutor is not a state
actor, ‘we consider whether an applicant reported the incident
to police, because in such cases a report of this nature may
show governmental inability to control the actors.’ ” Rahim-
zadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010) (quoting
Baballah, 367 F.3d at 1078).
To be clear, “[t]he reporting of private persecution to the
authorities is not . . . an essential requirement for establishing
government unwillingness or inability to control attackers.”1
Id. Here, the matter is complicated by the fact that Castro was
1
Contrary to what Castro argues, the BIA did not impose a “report-
ing requirement” but regarded the lack of a report of the abuse as one fac-
tor in its assessment of whether Castro had sufficiently established the
Mexican government’s unwillingness or inability to control his attackers.
The BIA concluded that, on the record as a whole, Castro had “not demon-
strated that the Mexican government was unable or unwilling to protect
him from harm.”
CASTRO-MARTINEZ v. HOLDER 20653
between the ages of six and ten years when the attacks
occurred. See Hernandez-Ortiz v. Gonzalez, 496 F.3d 1042,
1046 (9th Cir. 2007) (holding that when the petitioner is a
child, the IJ must assess the alleged persecution from a child’s
perspective). We have never held that any victim, let alone a
child, is obligated to report a sexual assault to the authorities,
and we do not do so now.
[4] Without any report, however, there is a “gap in proof
about how the government would [have] respond[ed]” had
Castro reported the attacks. Rahimzadeh, 613 F.3d at 922.
Among other avenues, an applicant can demonstrate the gov-
ernment’s lack of ability or willingness to respond to violence
by “establishing that private persecution of a particular sort is
widespread and well-known but not controlled by the govern-
ment” or “showing that others have made reports of similar
incidents to no avail.” Id.
An applicant can also meet his burden by “demonstrating
that a country’s laws or customs effectively deprive the peti-
tioner of any meaningful recourse to governmental protec-
tion” or by “convincingly establish[ing] that [going to the
authorities] would have been futile or would have subjected
[the individual] to further abuse.” Id. at 921-22.
Beginning with the proposition that a victim is not obli-
gated to report the attacks, we look to the record to determine
whether Castro met his burden to “fill in the gaps” and show
that the government would have been unable or unwilling to
control his attackers. Castro’s primary reason for not contact-
ing the authorities was that he believed the police would not
have helped him. However, such a statement, without more,
is not sufficient to fill the gaps in the record regarding how
the Mexican government would have responded had Castro
reported his attacks. See Castro-Perez v. Gonzales, 409 F.3d
1069, 1072 (9th Cir. 2005).
[5] Castro also testified that he could not report the sexual
abuse because of threats from his attackers. While private
20654 CASTRO-MARTINEZ v. HOLDER
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 young child or that authorities were
unable to provide a child protection against rape.
[6] Castro also stated 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 none of these reports compel the conclusion that the
police would have disregarded or harmed a male child who
reported being the victim of homosexual rape by another
male.
[7] In sum, while we do not diminish the trauma Castro
experienced, substantial evidence supported the BIA’s con-
clusion that Castro did not meet his burden to show that the
government was unable or unwilling to control his attackers
and therefore failed to demonstrate that he had been the vic-
tim 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 demonstrate that his fear of
persecution is subjectively genuine and objectively reason-
able. Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007).
As there was no adverse credibility determination, we accept
that Castro’s fear of future persecution was genuine. See Li v.
Holder, 559 F.3d 1096, 1107 (9th Cir. 2009).
To establish that his fear of persecution was objectively
reasonable, Castro could have demonstrated that he was a
CASTRO-MARTINEZ v. HOLDER 20655
member of a disfavored group against which there was a sys-
tematic pattern or practice of persecution, or that he was sin-
gled out for persecution. See generally Wakkary v. Holder,
558 F.3d 1049 (9th Cir. 2009) (citing 8 C.F.R.
§ 1208.13(b)(2)(iii)). As to the latter, Castro did not argue that
any government actor had singled him out for persecution. As
to the former, Castro cited evidence of societal discrimination
against gays in Mexico, and attacks on gay men committed
both by private parties and the police, to argue that the Mexi-
can government systematically harmed gay men and failed to
protect them from violence. The record did not compel this
conclusion, however, particularly in light of recent country
reports.
The BIA noted country reports in the record indicating the
Mexican government’s efforts to prevent violence and dis-
crimination against homosexuals. These efforts 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.
[9] Castro also claimed to have a well-founded fear of per-
secution insofar as he will be unable to receive HIV treatment
in Mexico because he is homosexual. Castro testified that
“homosexual 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
health insurance for the poor and unemployed, and possible
government mismanagement of funds allocated for HIV treat-
20656 CASTRO-MARTINEZ v. HOLDER
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 v. Gonzales, 429 F.3d 1264, 1266 (9th
Cir. 2005). 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). Accordingly, we deny the petition for review.
PETITION DENIED.