Castro-Martinez v. Holder

by Eric Berndt

Castro-Martinez v. Holder, ___ F.3d ___, No. 08-70343, (9th Cir., April 15, 2011)
CLIFTON, Fletcher, McKeown

Summary: Castro, a gay and HIV-positive Mexican man, applied for asylum and withholding after a two week trip from United States back to Mexico.  He claimed past persecution and a well-founded fear of future persecution.  His claimed past persecution consisted of being raped by two older teenagers when he was between six and ten years old.  The agency and CtApp credited Castro’s testimony and raised no nexus or severity issues regarding his past abuse.  The CtApp’s decision addressed whether (1) Castro’s past abuse was attributable to Mexico’s government and (2) whether a “pattern or practice” of persecution against Mexico’s gay men exists.  The CtApp found against Castro on both issues and denied the petition.

1.  The CtApp affirmed the BIA’s ruling that Castro failed to demonstrate that Mexico’s government was unwilling to prevent or prosecute his past abuse: “There is no evidence in the record that Mexican authorities would have ignored the rape of a child, which is a crime under Mexican law.”  It also affirmed the BIA’s finding that reporting the abuse would have subjected him to mistreatment from Mexican police.  The CtApp cited Mexico’s laws against discrimination, including based on sexual orientation, and its government’s radio campaign to fight homophobia.

2.  The CtApp stated that Castro demonstrate that a pattern or practice of persecution against gay Mexicans existed, in the absence of past persecution.  The CtApp affirmed the finding of no pattern or practice, “particularly in light of the country reports indicating official efforts to prevent violence and discrimination against homosexuals.”  The court also rejected Castro’s argument that lack of HIV medication fell disproportionately on homosexuals, or that such deprivation amounted to more than “generalized economic disadvantage.”

Read the opinion here.