Sunday, 15 May 2011

Mexican refugee loses asylum case in CA court

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Castro-Martinez v Holder

Case No. 08-70343 (C.A. 9, Apr. 15, 2011)

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 conclusion 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 Castro 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.


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 Ysidro, 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 without 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 immigration 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 homosexuality 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 established a well-founded fear of future persecution under 8 U.S.C. § 1101(a)(42)(A).
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