Legal Case Summary

Good morning, Your Honours and may it please the court. My name is Andrea Ringer and I along with my colleague Marco Polita represent the Petitioner's case. Patricia Bringas Rodriguez, I know the supervision of Mary Christina Sangeilat. Your Honours, this court should remand for two years. But let me ask you before you start. Are you going to divide the time with your co-counselor? Is it just you? Yes, Your Honours, I'll be speaking for the first seven minutes. My colleague will be speaking for six and then we'll be reserving two minutes for about. Okay, thank you. Your Honours, this court should remand for two key reasons. First, the agency fails to consider important evidence establishing that Patricia suffered past persecution. And second, the agency abused its discretion in failing to meaningfully consider the fact that Patricia was diagnosed with HIV prior to his board appeal. Your Honours, this court should remand because Patricia suffered past persecution. Patricia was sexually assaulted for nearly ten years by family members. His persecutors never called him by his name. Instead, they referred to him by derogatory terms relating to his sexual orientation. At least one of his attackers even admitted that he was motivated by his sexual orientation. Yet the agency did not consider any of this evidence. It did not, certainly did not mention it when it concluded that Pefilia was the only motive here. This Court in Paris, Cebova explicitly explained that it's extremely rare for a persecutor to admit its motive

. And Patricia provided exactly that. This error calls into the question the entire reasoning of the agency's opinion. Furthermore, the agency compounded its error by ignoring evidence that distinguishes this case from Castamartina's and shows that the government was unable and unwilling to protect Patricia. Your Honours, this case is different from Castamartina's for two main reasons. First, the attacks in this case occurred in very different context. Unlike Castamartina's who was attacked by strangers on the street, Patricia was, he was sexually assaulted by family members and neighbors for nearly ten years. The board's presidential decisions in matter of ARCG and matter of SA, they show the unique issues that are presented in a family context. And they certainly do here and this difference in the form. Let's suppose that we regarded, let's suppose that we would accept the fact that his attackers took attack them in part because of his sexual orientation and not simply because they were petafiles. How does that demonstrate the complicity of the Mexican government and that he is going to be persecuted by the government or with the government's act, we essence on account of his sexual orientation? I'm not sure the persecutor's motive necessarily is what shows the government's complicity and the abuse. Right, but don't we have to have some kind of government complicity in this? Of course, so Castamartina. So what's the government's complicity here? Patricia testified that childhood homosexual friends of his from Veracruz informed him that they were also persecuted or they were also raped on account of their sexual orientation and they sought state protection to no avail. Yet, this Gordon Afri explained that this is highly relevant to what the government could or would have done which is all that Patricia needed to establish. Do we know anything more about the friends? We know that Patricia learned this while he was living in Kansas which was at the age of 12 and then from the age of 14 to 17. I know, do we know how he learned it? If you're a telephone call by email? I don't need to be known, your honor. We don't have any of the friends identified. We don't know what police station they went to. We don't know what they told the police

. We have no reason and the IJ credited Mr. Brangas. So we have no reason to doubt that he is telling us the truth. That is that he was told by friends. But isn't the BIA in title to say that just isn't sufficient information for us to conclude that an entire government would overlook the kind of horrible things that were done to this child? Certainly, the board isn't titled to make such a finding but it did not do so here. It did not consider this and it's analysis. The immigration judge explicitly said that it did not find past persecution because he failed to seek protection from the authorities and the evidence did not show that the police would not have offered some protection. Well, I'm looking at page two of the BIA's decision. And the after citing Castro Martinez, the BIA says the respondent here has not demonstrated that the abuse was afflicted by government actors or that the government was unwilling or unable to control his abusers. You write your honor. The Board of Immigration Pills decision does say that I was referring to the immigration judges' opinion. Okay, but the BIA is the opinion that we're ruling. So the BIA did not, it didn't go through. It didn't parse all of the evidence and say, well, this week's up, this week's up, the jacked or this doesn't sufficient to satisfy the burden of proof here. But the BIA has entered a conclusion that the government that we have a failure of proof here. It does appear so, yes, your honor. That doesn't mean that we can only overturn that if there's, if the evidence compels a contrary result. Well, the standard of review is yes, that the evidence needs to compel the conclusion

. However, when the agency ignores important evidence, this court, you know- How do we know that the agency ignored it? So, does the agency have an obligation to refer to the evidence? No, your honor, but it, you know, this court explained enough for you that when an agency does not consider this sort of evidence, it errors in its analysis. And in the Board of Immigration Pills decision, I believe it says that the Board agreed with the immigration judges' determination. And then it, you know, it merely said that there's no, that it doesn't find that the government was unable to unwilling and it's sides to cast your Martinez. Let me go back if I can to Castram Martinez, because that's the case you need to sort of get out from under. Was any evidence presented by the petitioner and Castram Martinez of having, of anyone going to the police and being rebuffed? I don't believe so, your honor. But- There's the same, I'm trying to figure out if there's a valid distinction here. He does present evidence. He says that friends of his went to the police complaining of homosexual attack and were laughed at. And I'm trying to figure out if there was any such evidence in Castram Martinez, I found none. There were contensions that the police would not protect, but I don't think there was any evidence presented. So the question for me is whether or not this was enough evidence. It's a version of Judge Vibes' question. Is there enough evidence here from which the BAA should have concluded that the government was unwilling or unable to control? This is a hard one for me because it seems to me likely based upon what I've seen in other cases as well as the evidence in this case, it seems to me likely that the police would not have protected him, but I'm not sure that's so because the evidence we have here is so fragmented. What do I do with that? Your honor, I'm going to answer your question and pass off to my colleague. You'll- I'm going to answer and we'll make sure your colleague doesn't get cheated out of his time. This is not the only evidence in the record. You know, if this Court were to look to pages 281 through 93, it would also see evidence that the government is- Has- That- It would see evidence that there's domestic- That domestic violence is pervasive in Mexico. And- I'm sorry, I didn't hear what you said

. Pages 281 through 93 of the record. The State Report explains that domestic violence is pervasive, introphamily violence is pervasive, and rape victims rarely report because of the widely pervasive- That's true in the United States. I mean, that's just- that's just the nature of- of introphamily domestic violence. It's a horrible thing. But much of it doesn't- goes unreported in this country. And that- I'm afraid that doesn't really advance anything very specific about Mr. Bringas and about how the police would have responded had he gone to them and said, I've been raped as a child repeatedly. Does evidence speak to whether or not it would be futile or subjecting a further abuse for Hito's Seabes State protection? It's a pretty severe indictment of an entire country to say that no police in Mexico would have responded to the rape of a child. I don't believe that is- that is a standard, Your Honor. I mean, the evidence- it strongly suggests that the government would be unable or unwilling to protect him. How can the evidence strongly suggest when Oli has is unknown friends who told him that it's all hearsay? They- they went- we have no idea what they said. We have no idea what the police said. We don't know what the circumstances were. But that's not really very strong evidence, is it? I think it is strong evidence. And, you know, the State report also explains that the judiciary is ineffective and inefficient and corrupt. There- it sites to it one to two percent conviction rate. And when Patricia was looking at the prospect of reporting his persecutors and being put back into that same abusive home where his report, you know, not afford him or leave, he certainly was looking at further risk. Okay

. Well, let's hear from your colleague. I forget how much time you were saving for him. Six minutes. Six minutes. Six minutes for him and then two minutes for a bottle. You could put eight minutes on the clock. Thank you. Good morning, Your Honours. And may it please the court. My name is Marco Pledo and I will be continuing arguments on behalf of Mr. Patristo Brangas Rodriguez. You honor the Board of Bews' discretion here in failing to remand and light of Patristo's HIV diagnosis, which occurred after the proceedings bill for the immigration judge for three key reasons. First, the agency deviated from its policy memorandum, which states that HIV shall be considered in cases of asylum and withholding of removal. Second, Patristo's HIV diagnosis materially affects his eligibility for relief as it affects the reasonableness of his internal relocation within Mexico and places him in a more vulnerable subgroup. And finally, the Board aired because it failed to consider Patristo's HIV diagnosis in light of the existing record. Beginning with my first point, the agency here has a memorandum that established the policy of the INS and the agency here that HIV shall be considered in cases of asylum and withholding of removal. At pages 25 and 27 of the record, Patristo informed the Board that he had been diagnosed with HIV and that this put him in a more vulnerable position and affected his fear of future persecution. And the BIA on page three of his decision has referred to this evidence and referred to his HIV status

. Yes, Your Honor, but- So I didn't ignore it. It decided not to decline to remand it to the IJ, but that's not ignoring it. Yes, Your Honor. Here are our claimists twofold. First, it's that the agency didn't meaningfully consider but this is HIV diagnosis. It did acknowledge that he had HIV, but it didn't meaningfully consider his HIV diagnosis. As that Court has construed that term in Zalvrs' holder and Muhammad as cited in our brief. What the BIA should have done is that it should have looked at both the favorable factors, and if there were any unfavorable factors, and explained why his HIV diagnosis didn't affect the outcome of his case. Here, the agency didn't do so. And because the agency didn't meaningfully consider how his HIV status affected his eligibility for relief, or explained any deviation from its policy that was established in 1996, 96. Its action here was arbitrary. The BIA says that Mr. Ringer's had not provided any additional country conditions evidence or specific arguments regarding how his status as an HIV positive, homosexual changes the outcome of his case. Did you provide additional country conditions evidence or arguments regarding his status? Your Honor, but he did not provide additional country conditions evidence. What he did provide at page 25 of the record was an argument that this put him in a more vulnerable position and that it affected his peer-to-peachable case. But if he didn't provide any evidence, what grounds would you have for remanding to the IJ for finding his effect? Your Honor, as this Court said in Zalvrs' holder, it's necessary to consider all of the evidence in its entirety. There was already evidence in the record at page 299 and at page 295. That individuals with HIV are subjected to mistreatment and discrimination within Mexico

. So at page 299 of the record, there is evidence that a leader of a network of people affected with HIV and AIDS was subjected to abuse and detention by police. Also at page 295 of the record, there's evidence that individuals with HIV are discriminated in the military. So thus, there was already evidence that individuals with HIV are subjected to mistreatment in Mexico and the Board should have considered, but this was HIV diagnosis in light of what was already before the Board of Immigration appeals. Second, Your Honor, but these were HIV diagnosis materially affects his eligibility for relief because it affects the reasonableness of his internal relocation. And Boris Zalvrs' Gonzales, this Court held that no reasonable fact finder could conclude that it would be reasonable for an individual from Mexico who both had AIDS and was gay to internally relocate because of the social and cultural constraints that would be attended to such an individual within Mexico. Here, Patricio is under similar circumstances. He has HIV, is a homosexual and is also from Mexico and thus those same cultural constraints and social constraints as well as his health status are implicated by his new HIV diagnosis. Does that mean that everyone who is from Mexico and suffers from HIV and is gay, is entitled to asylum in the United States? No, Your Honor, it does not. As the memorandum states, the limiting principle is that an individual has to argue that they will be persecuted on account of their HIV- Prime Minister, if you had nothing more than a generalized status, that would suggest that everyone who is HIV and homosexual and lives in Mexico would be entitled to asylum because you've offered no specific information here, it's all general. Well, Your Honor, what needs to happen here as we argue is that really what the purpose of Patricio's motion was was that he needed to have his motion to remand granted so that he could provide further fax as to why he could establish the elements of asylum and withholding a removal. So it wouldn't be the case that just any individual with HIV and was gay from Mexico would be automatically eligible for asylum and withholding a removal. As the memorandum states, they would still have to meet all of the elements of asylum and withholding a removal. And as this Court has stated in Karuni versus Gonzalez, this Court already noted that the agency has noted that HIV and AIDS may be considered a particular social group. And here what we're arguing is that Patricio's HIV diagnosis and his homosexuality placed them in a more vulnerable subgroup. In Karuni, this Court looked at an individual from Lebanon who was homosexual and had AIDS, and he claimed that he would be persecuted on account of his homosexuality and his AIDS status. And there what the Court really looked at was that because this individual had AIDS, it would be more likely that somebody would be able to find out that the individual was homosexual because they, if they found out that they had AIDS, then they would go on to persecute the individual on the basis of their homosexuality because in Lebanon people essentially associate AIDS as a gay disease. Here, Aramika Spief has also shown that in Mexico it's the same circumstance. In Mexico, individuals treat HIV essentially as a gay disease

. So here, Patricio is under similar circumstances and that if he is returned to Mexico, he is now part of a more vulnerable subgroup because if someone finds out that he has HIV, they will essentially impute homosexuality on him and now there is an additional basis on which he could be persecuted. Other circuits have taken this approach also and Rosilus Camarena, the seven circuit held that the board aired where it overturned the IJ's conclusion that an individual from Mexico would be persecuted on account of that individual's HIV and homosexuality. And so thus, other circuits have also begun to take this approach. The HIV is something that needs to be considered and it affects the eligibility for relief. The second circuit has also taken this approach and in fact the second circuit has gone even, even further. The second circuit held that the agency aired where it failed to consider the individual's HIV diagnosis where the individual there claimed that they would be persecuted on account of their homosexuality and their HIV status. There, the agency found that the individual would not be persecuted on account of their homosexuality and the second circuit found no error with that determination and yet still remanded because the agency there failed to consider just the sole argument that he would be persecuted in part because of his HIV status. The ninth circuit has also taken a similar approach in an average's holder within the context of the convention against torture claim. And in an average's holder, this court held that the agency aired where it failed to meaningfully consider and analyzed the petitioners claim that he would be tortured on account of his AIDS status if he were returned to Nigeria where Nigerian prison officials would torture him because of his AIDS status. Okay, your time is rapidly running. Why don't we hear from the government? You've got 17 seconds left, but we'll put two minutes back on the clock. Thank you, honours. Good morning, Your Honours. May I please the court, John Blakely, on behalf of the respondent Attorney General in the United States. Your Honours, there's no dispute that this is a very sad case and there's no dispute that Mr. Bringer, Rodriguez, suffered from horrific abuse. But that doesn't end the discussion at all. The government doesn't grant relief to everyone who's lived through horrific conditions

. Rather, the government is set parameters for who will be entitled to relief in this particular case. We're talking asylum. And Mr. Bringer, Rodriguez has not satisfied any of those parameters for this case. And Judge. Let me ask you, what do you say, though, getting right to one of the critical issues here is the assertion that the immigration judge said there was no evidence of the government's unwillingness. And yet there was some evidence, so we've talked about it a little bit here in the nature of reports that were made to the petitioner. And so what do you do with that where, if that is what was stated by the immigration judge, that there was no evidence when in fact there was, what do we do with that? Well, I think it's important to recognize the context in which that statement no evidence was made. This is an oral decision issued by an immigration judge. And the only evidence that we do have it, I'd like to read from you because I think it's very important. This is on page 200 of the record. He says, I know that because when I was living in Kansas, a couple of my friends told me that they got raped, they got beat up like abuse, and they went to the police and they didn't do anything. They even laughed in their faces. That's the total of all the evidence that we have that says that anything more than what we had in Castro Martinez. That's the only differentiation between this and this. There's not the only evidence, although this may be duplicative, we have his affidavit that police are no help, cannot protect me. They wouldn't do anything to my abusers. They would laugh at me and tell me I deserve what I got because I was gay

. This happened to friends of mine in Veracruz. Now, that may be the same episode that is referring to. It's a little unclear. My guess is it's the same episode. Certainly, Your Honor, but it suffers from the same defect, that it's no actual evidence of, are we even talking about the same thing? Because what we're talking about from Mr. Bringer Rodriguez is horrific rape of a child. And what we're talking about in those cases is something that may be raped, but of who we don't know. We don't know where those friends were. We don't know how old they are. We don't know anything about it. So what we need from, it's no evidence of any value is what the immigration judge could have said. Because there's nothing here to suggest that the police in Veracruz and Trace-Valle is, I think, as the actual town. There's no evidence that the police there, if they were told that a four-year-old child was being raped, wouldn't do something. In fact, I think that that's reflected also by the approach of the rapists in these cases. Okay? In every circumstance, the rapist said, don't tell. But look at the circumstances of a four-year-old child who's going to be raped. The police may say we would have taken care of it, but it's unrealistic to expect that the four-year-old child would have gone to the police. So we end up with a null set if you insist that the four-year-old child go to the police in order to show the unwillingness of the police to protect. So is this just a plan on catch-22 and he loses no matter what? I don't think that it's completely a catch-22, Your Honor. I don't think that the rape of a four-year-old child, that is something that's completely undiscoverable. Well, we know from our own experience here in the United States that this stuff goes unreported all the time and it is, of course, totally fantasyland. And I don't hear you responding otherwise to me to expect that the four-year-old would report it. Absolutely, Your Honor. There's no expected. So how are we going to get evidence beyond what we have here of the police unwillingness to do anything about this? So I mean, if we insist on more than what we've got, I think this just goes by the board, we never can do anything about it. Well, I think what they said, what this Court said in Kestner Martinez is there has to be something else about the societal approach to the persecution. Yeah, or I'm not just quoting from Kestner Martinez showing that others have made reports of similar incidents to no avail. Well, the question is, how tightly do we read the word similar? I mean, we've got friends who say we were raped and the police laughed at us. Now, the friends could have been 60 years, Your Honor. They could have been 60 years old. They could have been 40 years old. So they could have been 60. Your friends are 60 years old now that I think it more likely that they would have been more or less his age. But, okay. Your Honor, we're talking about the evidence on the record. That's all we have

. So is this just a plan on catch-22 and he loses no matter what? I don't think that it's completely a catch-22, Your Honor. I don't think that the rape of a four-year-old child, that is something that's completely undiscoverable. Well, we know from our own experience here in the United States that this stuff goes unreported all the time and it is, of course, totally fantasyland. And I don't hear you responding otherwise to me to expect that the four-year-old would report it. Absolutely, Your Honor. There's no expected. So how are we going to get evidence beyond what we have here of the police unwillingness to do anything about this? So I mean, if we insist on more than what we've got, I think this just goes by the board, we never can do anything about it. Well, I think what they said, what this Court said in Kestner Martinez is there has to be something else about the societal approach to the persecution. Yeah, or I'm not just quoting from Kestner Martinez showing that others have made reports of similar incidents to no avail. Well, the question is, how tightly do we read the word similar? I mean, we've got friends who say we were raped and the police laughed at us. Now, the friends could have been 60 years, Your Honor. They could have been 60 years old. They could have been 40 years old. So they could have been 60. Your friends are 60 years old now that I think it more likely that they would have been more or less his age. But, okay. Your Honor, we're talking about the evidence on the record. That's all we have. And I'm just saying he could have been it. Could we say friends it could be anyone? It could have been a four-year-old that reported, in which case we have a four-year-old who's now reported. But what we have to evaluate is the evidence was before the immigration judge, and we have to compare it to what Castro Martinez said, this Court said in Castro Martinez. That it should have. Well, Castro Martinez might actually be wrong. I think this case is distinguishable, although narrowly. And as I'm sure you recognize, I was on the panel in Castro Martinez. We found it a very difficult and very close case, as evidenced by the fact that we came out with one opinion, and then we substantially amended the opinion. And we viewed Castro Martinez as an exceptionally close case. And this case is somewhat different in that there's at least some evidence of individualized report to police. The evidence is exactly as you describe it, not very particularized. And so for that reason, Your Honor, I'd ask that this Court find that Castro Martinez controls that there's no evidence here to establish that the government is, the government of Mexico is unable or unwilling to protect a young child from the rape, from any rapist. And in addition to that, the other aspect of the past persecution in this case is the on account of ground, which the board found that there was, that petitioner here failed to establish that this persecution was on account of a protected ground. And for the primary reason that an individual who rapes a four-year-old child is a pedophile. And that's what the IJ said, the BIA said nothing about that. But what the board said was that the board said there's that Mr. Bringsson, you said failed to establish this past persecution on account of protected ground. And so when it says that, it was also validating that portion of the, it then went on to cite only to the unable or willing argument, but there's nothing to do

. And I'm just saying he could have been it. Could we say friends it could be anyone? It could have been a four-year-old that reported, in which case we have a four-year-old who's now reported. But what we have to evaluate is the evidence was before the immigration judge, and we have to compare it to what Castro Martinez said, this Court said in Castro Martinez. That it should have. Well, Castro Martinez might actually be wrong. I think this case is distinguishable, although narrowly. And as I'm sure you recognize, I was on the panel in Castro Martinez. We found it a very difficult and very close case, as evidenced by the fact that we came out with one opinion, and then we substantially amended the opinion. And we viewed Castro Martinez as an exceptionally close case. And this case is somewhat different in that there's at least some evidence of individualized report to police. The evidence is exactly as you describe it, not very particularized. And so for that reason, Your Honor, I'd ask that this Court find that Castro Martinez controls that there's no evidence here to establish that the government is, the government of Mexico is unable or unwilling to protect a young child from the rape, from any rapist. And in addition to that, the other aspect of the past persecution in this case is the on account of ground, which the board found that there was, that petitioner here failed to establish that this persecution was on account of a protected ground. And for the primary reason that an individual who rapes a four-year-old child is a pedophile. And that's what the IJ said, the BIA said nothing about that. But what the board said was that the board said there's that Mr. Bringsson, you said failed to establish this past persecution on account of protected ground. And so when it says that, it was also validating that portion of the, it then went on to cite only to the unable or willing argument, but there's nothing to do. Well, if that's your argument, I totally disagree with you. He's got lots of evidence that this is happening to him because he is gay. As a four-year-old child, he was raped because he was gay. Well, he talks about the names they call him and so on. I mean, it's preposterous to me to think that every four-year-old male is going to be raped simply because they're pedophiles, based on what we have here. It's clear that they're doing this because he has perceived his gay. Now, I think that what the Immigration Judge in Board of both done here is, is applied the common sense to the situation. That the rape of a four-year-old child is only done for one reason and one reason only. And that's a pedophile engage of disengaged and despicable acts. That has nothing to do with the child, Your Honor. Nothing, not one little tiny bit. And as far as the, the purgeurit is they're used, they are vile. And I do disagree with them, but at the same time, if we were talking about a situation where one African-American man was beating up another African-American man and referred to that individual using the N word. We would not say he was beaten on account of his race. And that's what we have in this case. These situations are so distinct. I think you are just blinking reality. If you have numerous males raping a four-year-old child and then continuing to do so, while indicating that he is and calling various names referring to his sexuality, that that's the equivalent of beating somebody up and using the N word as you do it

. Well, if that's your argument, I totally disagree with you. He's got lots of evidence that this is happening to him because he is gay. As a four-year-old child, he was raped because he was gay. Well, he talks about the names they call him and so on. I mean, it's preposterous to me to think that every four-year-old male is going to be raped simply because they're pedophiles, based on what we have here. It's clear that they're doing this because he has perceived his gay. Now, I think that what the Immigration Judge in Board of both done here is, is applied the common sense to the situation. That the rape of a four-year-old child is only done for one reason and one reason only. And that's a pedophile engage of disengaged and despicable acts. That has nothing to do with the child, Your Honor. Nothing, not one little tiny bit. And as far as the, the purgeurit is they're used, they are vile. And I do disagree with them, but at the same time, if we were talking about a situation where one African-American man was beating up another African-American man and referred to that individual using the N word. We would not say he was beaten on account of his race. And that's what we have in this case. These situations are so distinct. I think you are just blinking reality. If you have numerous males raping a four-year-old child and then continuing to do so, while indicating that he is and calling various names referring to his sexuality, that that's the equivalent of beating somebody up and using the N word as you do it. I think those are just so totally separate that you're not dealing with the real. But why I'd like to explain myself a little bit more than Your Honor, what we have here is all individuals who are engaged in homosexual activity, to the extent that it's male on male sexual activity, and they're forcing it on somebody who is not receptive to that activity. And in doing so, they're throwing these pejoratives around. And in each case on a child, in many cases on a young child who does not necessarily have their sexuality developed yet. And so to put the blame on the child for some characteristic that they may or may not have at that point in their life is putting too much blame on the child. The credit or blame goes with it. Why are you talking about blame? I'm talking cause and effect. That is to say, perception of a feminine nature on the part of the child. His testimony is that I was perceived as a feminine. And that was the reason why they attacked me rather than others. So I'm not blaming the child. Nor do I think you are. Not at all, Your Honor. Not in the most remote possibility of not blaming the child in this case. But I think what we have here is just an incredibly horrific family dynamic in which the sexual abuse of a child is continued over and over again. I mean, I think the implication from the situation of the cousins, the uncle, the cousins, you know, all going after this child is, I'm guessing that the uncle had engaged in the same activity with the cousins, and then the cousins aged up to the point. And on what are you basing that quote, guess? I'm just, it's a presumption looking at its common sense application of the facts of the situation. You so insist on us paying attention to what's in the record, and then you say we think that you think the uncle sexually abused the cousins, you've got nothing

. I think those are just so totally separate that you're not dealing with the real. But why I'd like to explain myself a little bit more than Your Honor, what we have here is all individuals who are engaged in homosexual activity, to the extent that it's male on male sexual activity, and they're forcing it on somebody who is not receptive to that activity. And in doing so, they're throwing these pejoratives around. And in each case on a child, in many cases on a young child who does not necessarily have their sexuality developed yet. And so to put the blame on the child for some characteristic that they may or may not have at that point in their life is putting too much blame on the child. The credit or blame goes with it. Why are you talking about blame? I'm talking cause and effect. That is to say, perception of a feminine nature on the part of the child. His testimony is that I was perceived as a feminine. And that was the reason why they attacked me rather than others. So I'm not blaming the child. Nor do I think you are. Not at all, Your Honor. Not in the most remote possibility of not blaming the child in this case. But I think what we have here is just an incredibly horrific family dynamic in which the sexual abuse of a child is continued over and over again. I mean, I think the implication from the situation of the cousins, the uncle, the cousins, you know, all going after this child is, I'm guessing that the uncle had engaged in the same activity with the cousins, and then the cousins aged up to the point. And on what are you basing that quote, guess? I'm just, it's a presumption looking at its common sense application of the facts of the situation. You so insist on us paying attention to what's in the record, and then you say we think that you think the uncle sexually abused the cousins, you've got nothing. I have nothing to support that other than it's an inference drawn from the facts that so many people in the same family are willing to have sex with a young child, says to me that it's just a gross family dynamic. And it probably didn't just start with the sexual activity with Mr. Bringers Rodriguez. It probably started long before that, based on, that's the common sense of my experience with other pedophiles and with the prosecution of pedophiles and the perpetuation of that sort of activity. And so does it have a whole lot to do with this case? No, it doesn't, but I think you have to look at the use of the pejoratives to describe Mr. Bringers Rodriguez in that context of why would they have called in this name? Was it only that he was in feminine? I think it's common sense that that's not the reason that they use those, that they would have used those names while they're engaging in the activity, in this activity. It was just gross, despicable activity, and we should label it as such. Well, of course we are labeling it as such. The only question is, why is this occurring and is the fact of his affirmative appearance or manifestation contributing to it? That's what we're talking about. None of us are arguing with us anything other than despicable. Certainly, Your Honor. And so this Court could deny the petition for review on either the fact that he failed to establish that this was on account of that, that this was one central reason. And it could also deny because it's failed to establish that, he's failed to establish that the government is unable or unwilling. And not just failed to establish, but the standard of review here is that he has to decimbe a reversal of the immigration judges and the board's conclusions in this case. And then we also have the issue of a well-founded, future persecution, which is just, it's just completely, which he has failed to establish here. And then if I can also just eat it. The BIA didn't reach that question, correct? The BIA did not reach the question of well-founded fear of future because of what? What said, there was no, because of what, Your Honor? There is to say, because the BIA found no persecution on account of a protected ground, it did not reach the well-founded fear based on that presumption because it didn't find, it didn't have a basis for the presumption. It didn't afford the presumption, Your Honor, but it still evaluated whether there was a, whether there was a well-founded fear of persecution based on the no pattern or practice of persecution

. I have nothing to support that other than it's an inference drawn from the facts that so many people in the same family are willing to have sex with a young child, says to me that it's just a gross family dynamic. And it probably didn't just start with the sexual activity with Mr. Bringers Rodriguez. It probably started long before that, based on, that's the common sense of my experience with other pedophiles and with the prosecution of pedophiles and the perpetuation of that sort of activity. And so does it have a whole lot to do with this case? No, it doesn't, but I think you have to look at the use of the pejoratives to describe Mr. Bringers Rodriguez in that context of why would they have called in this name? Was it only that he was in feminine? I think it's common sense that that's not the reason that they use those, that they would have used those names while they're engaging in the activity, in this activity. It was just gross, despicable activity, and we should label it as such. Well, of course we are labeling it as such. The only question is, why is this occurring and is the fact of his affirmative appearance or manifestation contributing to it? That's what we're talking about. None of us are arguing with us anything other than despicable. Certainly, Your Honor. And so this Court could deny the petition for review on either the fact that he failed to establish that this was on account of that, that this was one central reason. And it could also deny because it's failed to establish that, he's failed to establish that the government is unable or unwilling. And not just failed to establish, but the standard of review here is that he has to decimbe a reversal of the immigration judges and the board's conclusions in this case. And then we also have the issue of a well-founded, future persecution, which is just, it's just completely, which he has failed to establish here. And then if I can also just eat it. The BIA didn't reach that question, correct? The BIA did not reach the question of well-founded fear of future because of what? What said, there was no, because of what, Your Honor? There is to say, because the BIA found no persecution on account of a protected ground, it did not reach the well-founded fear based on that presumption because it didn't find, it didn't have a basis for the presumption. It didn't afford the presumption, Your Honor, but it still evaluated whether there was a, whether there was a well-founded fear of persecution based on the no pattern or practice of persecution. What was the age at which the child was first, Mr. Rengus was first abused? Four-year-old. And how long did the abuse continue? Until he was 12, and then he was, he left for the United States. And then returned from Kansas. And then he returned for, and then, and then. And it was abused when he returned. Yes, and then. And we know at what point they referred to him by, by Gaseleurs? I don't think that the record defines exactly. But he does the reference. He testifies that he, that he realized at an early age what his sexual orientation was. So if the Gaseleurs were used at, at sort of any time in a very long period, that is eight years before he goes to Kansas several years after he returns from Kansas, then we may have somebody who is perfectly aware of his, of his own sexual orientation able to define it, who is being called by these, by these names. In which case we wouldn't have just a four-year-old, we might have a 14 or 15-year-old, who is aware of his sexual orientation and is being called these names. So then we just have to, then we just have to deal with what are the implications of that? That does seem to be at least an inference that it is on account of sex or on account of his sexual orientation. So we will then have to deal with whether, whether you've got government complicity here. Yes, but even before you get there, I would say that it would have to be, it could be a possibility that that's part of it. But, but what he needs to do is he needs to present evidence that compels a reversal of immigration judges' conclusion here, which was that it was not on account of. It seems to me that the strongest case for the government deals with whether the government of Mexico is complicit in the kind of persecution that he is suffering, not whether he may have suffered persecution on account of his sexual orientation. I agree with that, Your Honor

. What was the age at which the child was first, Mr. Rengus was first abused? Four-year-old. And how long did the abuse continue? Until he was 12, and then he was, he left for the United States. And then returned from Kansas. And then he returned for, and then, and then. And it was abused when he returned. Yes, and then. And we know at what point they referred to him by, by Gaseleurs? I don't think that the record defines exactly. But he does the reference. He testifies that he, that he realized at an early age what his sexual orientation was. So if the Gaseleurs were used at, at sort of any time in a very long period, that is eight years before he goes to Kansas several years after he returns from Kansas, then we may have somebody who is perfectly aware of his, of his own sexual orientation able to define it, who is being called by these, by these names. In which case we wouldn't have just a four-year-old, we might have a 14 or 15-year-old, who is aware of his sexual orientation and is being called these names. So then we just have to, then we just have to deal with what are the implications of that? That does seem to be at least an inference that it is on account of sex or on account of his sexual orientation. So we will then have to deal with whether, whether you've got government complicity here. Yes, but even before you get there, I would say that it would have to be, it could be a possibility that that's part of it. But, but what he needs to do is he needs to present evidence that compels a reversal of immigration judges' conclusion here, which was that it was not on account of. It seems to me that the strongest case for the government deals with whether the government of Mexico is complicit in the kind of persecution that he is suffering, not whether he may have suffered persecution on account of his sexual orientation. I agree with that, Your Honor. He was credited by the IJ. We have no reason to dispute that he was told during these acts that he was being persecuted because of his sexual orientation. That's correct, Your Honor. Does that mean you abandoned the argument as to he was not, he was not attacked because of a perceived homosexuality or a disability? Absolutely not, Your Honor. Okay, absolutely not. You just think it's a weaker argument? I think the other one is significantly stronger, yes, Your Honor. You can say that way. You can also say it's a weaker argument. I noticed on that a time unless there's a question, Your Honor. You've saved two minutes, or rather, you didn't save two minutes, but you have two minutes. Thank you, Your Honor. Your Honor, I'd like to make three points on Rebuttal. First, this case is distinguishable from Castramartina's, and so far as Patrisso has provided evidence of what the government would have done had he reported the abuse. He provided evidence that his friends reported in Veracruz to no avail. And here, because Patrisso. The BIA make a judgment about how strong that evidence is. No, Your Honor. No, we're within the agency's decision, either at the IJ

. He was credited by the IJ. We have no reason to dispute that he was told during these acts that he was being persecuted because of his sexual orientation. That's correct, Your Honor. Does that mean you abandoned the argument as to he was not, he was not attacked because of a perceived homosexuality or a disability? Absolutely not, Your Honor. Okay, absolutely not. You just think it's a weaker argument? I think the other one is significantly stronger, yes, Your Honor. You can say that way. You can also say it's a weaker argument. I noticed on that a time unless there's a question, Your Honor. You've saved two minutes, or rather, you didn't save two minutes, but you have two minutes. Thank you, Your Honor. Your Honor, I'd like to make three points on Rebuttal. First, this case is distinguishable from Castramartina's, and so far as Patrisso has provided evidence of what the government would have done had he reported the abuse. He provided evidence that his friends reported in Veracruz to no avail. And here, because Patrisso. The BIA make a judgment about how strong that evidence is. No, Your Honor. No, we're within the agency's decision, either at the IJ. I would like to ask you a question very carefully. Can the BIA make a judgment about the strength of that evidence? You're on the, I understand you want to argue that the BIA didn't do such. I want to know whether the BIA is entitled to make a judgment about the strength of the evidence he's presented. You want the BIA have to make a judgment as to whether he's met his burden, even if it agrees that with the IJ that he has to be found credible? Yes, Your Honor. The, the, the board is able to determine whether Patrisso met his burden. And here what, what Patrisso did is he provided evidence that his friends reported to no avail. And because the IJ found him credible, any reasonable inferences that are to be drawn from, from the record, should be drawn in his favor, as this Court has said, in Zang vs. Zashkopf internal analysis. Now, BIA then have to accept that face value, the hearsay that he has, given, that he's offered. Well, Your Honor, what, what, what, what, what, what, what, what, what, what, what, have to accept the hearsay for the truth of the matter? Your Honor, it does not have to accept it. And really what, what, what, what we're arguing here is that as an internal analysis Chavez, what the agency should have done is it should have considered it. And if the agency thought that Patrisso's evidence was insufficient, then it should have considered the evidence and it, and said this is insufficient to, to distinguish this case from Castramartinus. However, it would not have been able to do so because we, we've demonstrated that this kind of evidence was specifically identified in Castramartinus, and is such that it could compel the conclusion that the government is unable on willing to, to help them. And here the IJ had, had a duty to develop the record as this Court has said in Shafir versus INS. And so if it was going to question this highly probative testimony, then the IJ should have, should have developed the record. Second, Your Honor, here no, no judicial body has yet meaningfully considered Patrisso's HIV diagnosis and how it affects his eligibility for relief. Here we've demonstrated that it affects his eligibility for relief and the agency didn't meaningfully consider it. And finally, Your Honor's here, the government does not concede that Patrisso was raped on account of his homosexuality

. I would like to ask you a question very carefully. Can the BIA make a judgment about the strength of that evidence? You're on the, I understand you want to argue that the BIA didn't do such. I want to know whether the BIA is entitled to make a judgment about the strength of the evidence he's presented. You want the BIA have to make a judgment as to whether he's met his burden, even if it agrees that with the IJ that he has to be found credible? Yes, Your Honor. The, the, the board is able to determine whether Patrisso met his burden. And here what, what Patrisso did is he provided evidence that his friends reported to no avail. And because the IJ found him credible, any reasonable inferences that are to be drawn from, from the record, should be drawn in his favor, as this Court has said, in Zang vs. Zashkopf internal analysis. Now, BIA then have to accept that face value, the hearsay that he has, given, that he's offered. Well, Your Honor, what, what, what, what, what, what, what, what, what, what, what, have to accept the hearsay for the truth of the matter? Your Honor, it does not have to accept it. And really what, what, what, what we're arguing here is that as an internal analysis Chavez, what the agency should have done is it should have considered it. And if the agency thought that Patrisso's evidence was insufficient, then it should have considered the evidence and it, and said this is insufficient to, to distinguish this case from Castramartinus. However, it would not have been able to do so because we, we've demonstrated that this kind of evidence was specifically identified in Castramartinus, and is such that it could compel the conclusion that the government is unable on willing to, to help them. And here the IJ had, had a duty to develop the record as this Court has said in Shafir versus INS. And so if it was going to question this highly probative testimony, then the IJ should have, should have developed the record. Second, Your Honor, here no, no judicial body has yet meaningfully considered Patrisso's HIV diagnosis and how it affects his eligibility for relief. Here we've demonstrated that it affects his eligibility for relief and the agency didn't meaningfully consider it. And finally, Your Honor's here, the government does not concede that Patrisso was raped on account of his homosexuality. However, the evidence here is, is sufficient that, that at page 217 of the record there's a confession by his uncle that he raped him because of his homosexuality. Also as Judge Fletcher pointed out at page 262 of the record, Patrisso provided in his affidavit that his friends in Veracruz reported the abuse. And finally, at pages 305 and 307, there is evidence that others perceived Patrisso to be gay and also that his abusers use gayslurs against him. And for the four-guind reasons, we ask that this Court reversed and remand the board's decision. Thank you, Your Honor. Thank you. Thank you. Both sides for their helpful arguments. The Court would particularly like to thank the students from UC Irvine for their helpful arguments, a nice debut. But thank both sides for their helpful arguments. The case of Brinkis Rodriguez versus Holder now submitted for decision.

Good morning, Your Honours and may it please the court. My name is Andrea Ringer and I along with my colleague Marco Polita represent the Petitioner's case. Patricia Bringas Rodriguez, I know the supervision of Mary Christina Sangeilat. Your Honours, this court should remand for two years. But let me ask you before you start. Are you going to divide the time with your co-counselor? Is it just you? Yes, Your Honours, I'll be speaking for the first seven minutes. My colleague will be speaking for six and then we'll be reserving two minutes for about. Okay, thank you. Your Honours, this court should remand for two key reasons. First, the agency fails to consider important evidence establishing that Patricia suffered past persecution. And second, the agency abused its discretion in failing to meaningfully consider the fact that Patricia was diagnosed with HIV prior to his board appeal. Your Honours, this court should remand because Patricia suffered past persecution. Patricia was sexually assaulted for nearly ten years by family members. His persecutors never called him by his name. Instead, they referred to him by derogatory terms relating to his sexual orientation. At least one of his attackers even admitted that he was motivated by his sexual orientation. Yet the agency did not consider any of this evidence. It did not, certainly did not mention it when it concluded that Pefilia was the only motive here. This Court in Paris, Cebova explicitly explained that it's extremely rare for a persecutor to admit its motive. And Patricia provided exactly that. This error calls into the question the entire reasoning of the agency's opinion. Furthermore, the agency compounded its error by ignoring evidence that distinguishes this case from Castamartina's and shows that the government was unable and unwilling to protect Patricia. Your Honours, this case is different from Castamartina's for two main reasons. First, the attacks in this case occurred in very different context. Unlike Castamartina's who was attacked by strangers on the street, Patricia was, he was sexually assaulted by family members and neighbors for nearly ten years. The board's presidential decisions in matter of ARCG and matter of SA, they show the unique issues that are presented in a family context. And they certainly do here and this difference in the form. Let's suppose that we regarded, let's suppose that we would accept the fact that his attackers took attack them in part because of his sexual orientation and not simply because they were petafiles. How does that demonstrate the complicity of the Mexican government and that he is going to be persecuted by the government or with the government's act, we essence on account of his sexual orientation? I'm not sure the persecutor's motive necessarily is what shows the government's complicity and the abuse. Right, but don't we have to have some kind of government complicity in this? Of course, so Castamartina. So what's the government's complicity here? Patricia testified that childhood homosexual friends of his from Veracruz informed him that they were also persecuted or they were also raped on account of their sexual orientation and they sought state protection to no avail. Yet, this Gordon Afri explained that this is highly relevant to what the government could or would have done which is all that Patricia needed to establish. Do we know anything more about the friends? We know that Patricia learned this while he was living in Kansas which was at the age of 12 and then from the age of 14 to 17. I know, do we know how he learned it? If you're a telephone call by email? I don't need to be known, your honor. We don't have any of the friends identified. We don't know what police station they went to. We don't know what they told the police. We have no reason and the IJ credited Mr. Brangas. So we have no reason to doubt that he is telling us the truth. That is that he was told by friends. But isn't the BIA in title to say that just isn't sufficient information for us to conclude that an entire government would overlook the kind of horrible things that were done to this child? Certainly, the board isn't titled to make such a finding but it did not do so here. It did not consider this and it's analysis. The immigration judge explicitly said that it did not find past persecution because he failed to seek protection from the authorities and the evidence did not show that the police would not have offered some protection. Well, I'm looking at page two of the BIA's decision. And the after citing Castro Martinez, the BIA says the respondent here has not demonstrated that the abuse was afflicted by government actors or that the government was unwilling or unable to control his abusers. You write your honor. The Board of Immigration Pills decision does say that I was referring to the immigration judges' opinion. Okay, but the BIA is the opinion that we're ruling. So the BIA did not, it didn't go through. It didn't parse all of the evidence and say, well, this week's up, this week's up, the jacked or this doesn't sufficient to satisfy the burden of proof here. But the BIA has entered a conclusion that the government that we have a failure of proof here. It does appear so, yes, your honor. That doesn't mean that we can only overturn that if there's, if the evidence compels a contrary result. Well, the standard of review is yes, that the evidence needs to compel the conclusion. However, when the agency ignores important evidence, this court, you know- How do we know that the agency ignored it? So, does the agency have an obligation to refer to the evidence? No, your honor, but it, you know, this court explained enough for you that when an agency does not consider this sort of evidence, it errors in its analysis. And in the Board of Immigration Pills decision, I believe it says that the Board agreed with the immigration judges' determination. And then it, you know, it merely said that there's no, that it doesn't find that the government was unable to unwilling and it's sides to cast your Martinez. Let me go back if I can to Castram Martinez, because that's the case you need to sort of get out from under. Was any evidence presented by the petitioner and Castram Martinez of having, of anyone going to the police and being rebuffed? I don't believe so, your honor. But- There's the same, I'm trying to figure out if there's a valid distinction here. He does present evidence. He says that friends of his went to the police complaining of homosexual attack and were laughed at. And I'm trying to figure out if there was any such evidence in Castram Martinez, I found none. There were contensions that the police would not protect, but I don't think there was any evidence presented. So the question for me is whether or not this was enough evidence. It's a version of Judge Vibes' question. Is there enough evidence here from which the BAA should have concluded that the government was unwilling or unable to control? This is a hard one for me because it seems to me likely based upon what I've seen in other cases as well as the evidence in this case, it seems to me likely that the police would not have protected him, but I'm not sure that's so because the evidence we have here is so fragmented. What do I do with that? Your honor, I'm going to answer your question and pass off to my colleague. You'll- I'm going to answer and we'll make sure your colleague doesn't get cheated out of his time. This is not the only evidence in the record. You know, if this Court were to look to pages 281 through 93, it would also see evidence that the government is- Has- That- It would see evidence that there's domestic- That domestic violence is pervasive in Mexico. And- I'm sorry, I didn't hear what you said. Pages 281 through 93 of the record. The State Report explains that domestic violence is pervasive, introphamily violence is pervasive, and rape victims rarely report because of the widely pervasive- That's true in the United States. I mean, that's just- that's just the nature of- of introphamily domestic violence. It's a horrible thing. But much of it doesn't- goes unreported in this country. And that- I'm afraid that doesn't really advance anything very specific about Mr. Bringas and about how the police would have responded had he gone to them and said, I've been raped as a child repeatedly. Does evidence speak to whether or not it would be futile or subjecting a further abuse for Hito's Seabes State protection? It's a pretty severe indictment of an entire country to say that no police in Mexico would have responded to the rape of a child. I don't believe that is- that is a standard, Your Honor. I mean, the evidence- it strongly suggests that the government would be unable or unwilling to protect him. How can the evidence strongly suggest when Oli has is unknown friends who told him that it's all hearsay? They- they went- we have no idea what they said. We have no idea what the police said. We don't know what the circumstances were. But that's not really very strong evidence, is it? I think it is strong evidence. And, you know, the State report also explains that the judiciary is ineffective and inefficient and corrupt. There- it sites to it one to two percent conviction rate. And when Patricia was looking at the prospect of reporting his persecutors and being put back into that same abusive home where his report, you know, not afford him or leave, he certainly was looking at further risk. Okay. Well, let's hear from your colleague. I forget how much time you were saving for him. Six minutes. Six minutes. Six minutes for him and then two minutes for a bottle. You could put eight minutes on the clock. Thank you. Good morning, Your Honours. And may it please the court. My name is Marco Pledo and I will be continuing arguments on behalf of Mr. Patristo Brangas Rodriguez. You honor the Board of Bews' discretion here in failing to remand and light of Patristo's HIV diagnosis, which occurred after the proceedings bill for the immigration judge for three key reasons. First, the agency deviated from its policy memorandum, which states that HIV shall be considered in cases of asylum and withholding of removal. Second, Patristo's HIV diagnosis materially affects his eligibility for relief as it affects the reasonableness of his internal relocation within Mexico and places him in a more vulnerable subgroup. And finally, the Board aired because it failed to consider Patristo's HIV diagnosis in light of the existing record. Beginning with my first point, the agency here has a memorandum that established the policy of the INS and the agency here that HIV shall be considered in cases of asylum and withholding of removal. At pages 25 and 27 of the record, Patristo informed the Board that he had been diagnosed with HIV and that this put him in a more vulnerable position and affected his fear of future persecution. And the BIA on page three of his decision has referred to this evidence and referred to his HIV status. Yes, Your Honor, but- So I didn't ignore it. It decided not to decline to remand it to the IJ, but that's not ignoring it. Yes, Your Honor. Here are our claimists twofold. First, it's that the agency didn't meaningfully consider but this is HIV diagnosis. It did acknowledge that he had HIV, but it didn't meaningfully consider his HIV diagnosis. As that Court has construed that term in Zalvrs' holder and Muhammad as cited in our brief. What the BIA should have done is that it should have looked at both the favorable factors, and if there were any unfavorable factors, and explained why his HIV diagnosis didn't affect the outcome of his case. Here, the agency didn't do so. And because the agency didn't meaningfully consider how his HIV status affected his eligibility for relief, or explained any deviation from its policy that was established in 1996, 96. Its action here was arbitrary. The BIA says that Mr. Ringer's had not provided any additional country conditions evidence or specific arguments regarding how his status as an HIV positive, homosexual changes the outcome of his case. Did you provide additional country conditions evidence or arguments regarding his status? Your Honor, but he did not provide additional country conditions evidence. What he did provide at page 25 of the record was an argument that this put him in a more vulnerable position and that it affected his peer-to-peachable case. But if he didn't provide any evidence, what grounds would you have for remanding to the IJ for finding his effect? Your Honor, as this Court said in Zalvrs' holder, it's necessary to consider all of the evidence in its entirety. There was already evidence in the record at page 299 and at page 295. That individuals with HIV are subjected to mistreatment and discrimination within Mexico. So at page 299 of the record, there is evidence that a leader of a network of people affected with HIV and AIDS was subjected to abuse and detention by police. Also at page 295 of the record, there's evidence that individuals with HIV are discriminated in the military. So thus, there was already evidence that individuals with HIV are subjected to mistreatment in Mexico and the Board should have considered, but this was HIV diagnosis in light of what was already before the Board of Immigration appeals. Second, Your Honor, but these were HIV diagnosis materially affects his eligibility for relief because it affects the reasonableness of his internal relocation. And Boris Zalvrs' Gonzales, this Court held that no reasonable fact finder could conclude that it would be reasonable for an individual from Mexico who both had AIDS and was gay to internally relocate because of the social and cultural constraints that would be attended to such an individual within Mexico. Here, Patricio is under similar circumstances. He has HIV, is a homosexual and is also from Mexico and thus those same cultural constraints and social constraints as well as his health status are implicated by his new HIV diagnosis. Does that mean that everyone who is from Mexico and suffers from HIV and is gay, is entitled to asylum in the United States? No, Your Honor, it does not. As the memorandum states, the limiting principle is that an individual has to argue that they will be persecuted on account of their HIV- Prime Minister, if you had nothing more than a generalized status, that would suggest that everyone who is HIV and homosexual and lives in Mexico would be entitled to asylum because you've offered no specific information here, it's all general. Well, Your Honor, what needs to happen here as we argue is that really what the purpose of Patricio's motion was was that he needed to have his motion to remand granted so that he could provide further fax as to why he could establish the elements of asylum and withholding a removal. So it wouldn't be the case that just any individual with HIV and was gay from Mexico would be automatically eligible for asylum and withholding a removal. As the memorandum states, they would still have to meet all of the elements of asylum and withholding a removal. And as this Court has stated in Karuni versus Gonzalez, this Court already noted that the agency has noted that HIV and AIDS may be considered a particular social group. And here what we're arguing is that Patricio's HIV diagnosis and his homosexuality placed them in a more vulnerable subgroup. In Karuni, this Court looked at an individual from Lebanon who was homosexual and had AIDS, and he claimed that he would be persecuted on account of his homosexuality and his AIDS status. And there what the Court really looked at was that because this individual had AIDS, it would be more likely that somebody would be able to find out that the individual was homosexual because they, if they found out that they had AIDS, then they would go on to persecute the individual on the basis of their homosexuality because in Lebanon people essentially associate AIDS as a gay disease. Here, Aramika Spief has also shown that in Mexico it's the same circumstance. In Mexico, individuals treat HIV essentially as a gay disease. So here, Patricio is under similar circumstances and that if he is returned to Mexico, he is now part of a more vulnerable subgroup because if someone finds out that he has HIV, they will essentially impute homosexuality on him and now there is an additional basis on which he could be persecuted. Other circuits have taken this approach also and Rosilus Camarena, the seven circuit held that the board aired where it overturned the IJ's conclusion that an individual from Mexico would be persecuted on account of that individual's HIV and homosexuality. And so thus, other circuits have also begun to take this approach. The HIV is something that needs to be considered and it affects the eligibility for relief. The second circuit has also taken this approach and in fact the second circuit has gone even, even further. The second circuit held that the agency aired where it failed to consider the individual's HIV diagnosis where the individual there claimed that they would be persecuted on account of their homosexuality and their HIV status. There, the agency found that the individual would not be persecuted on account of their homosexuality and the second circuit found no error with that determination and yet still remanded because the agency there failed to consider just the sole argument that he would be persecuted in part because of his HIV status. The ninth circuit has also taken a similar approach in an average's holder within the context of the convention against torture claim. And in an average's holder, this court held that the agency aired where it failed to meaningfully consider and analyzed the petitioners claim that he would be tortured on account of his AIDS status if he were returned to Nigeria where Nigerian prison officials would torture him because of his AIDS status. Okay, your time is rapidly running. Why don't we hear from the government? You've got 17 seconds left, but we'll put two minutes back on the clock. Thank you, honours. Good morning, Your Honours. May I please the court, John Blakely, on behalf of the respondent Attorney General in the United States. Your Honours, there's no dispute that this is a very sad case and there's no dispute that Mr. Bringer, Rodriguez, suffered from horrific abuse. But that doesn't end the discussion at all. The government doesn't grant relief to everyone who's lived through horrific conditions. Rather, the government is set parameters for who will be entitled to relief in this particular case. We're talking asylum. And Mr. Bringer, Rodriguez has not satisfied any of those parameters for this case. And Judge. Let me ask you, what do you say, though, getting right to one of the critical issues here is the assertion that the immigration judge said there was no evidence of the government's unwillingness. And yet there was some evidence, so we've talked about it a little bit here in the nature of reports that were made to the petitioner. And so what do you do with that where, if that is what was stated by the immigration judge, that there was no evidence when in fact there was, what do we do with that? Well, I think it's important to recognize the context in which that statement no evidence was made. This is an oral decision issued by an immigration judge. And the only evidence that we do have it, I'd like to read from you because I think it's very important. This is on page 200 of the record. He says, I know that because when I was living in Kansas, a couple of my friends told me that they got raped, they got beat up like abuse, and they went to the police and they didn't do anything. They even laughed in their faces. That's the total of all the evidence that we have that says that anything more than what we had in Castro Martinez. That's the only differentiation between this and this. There's not the only evidence, although this may be duplicative, we have his affidavit that police are no help, cannot protect me. They wouldn't do anything to my abusers. They would laugh at me and tell me I deserve what I got because I was gay. This happened to friends of mine in Veracruz. Now, that may be the same episode that is referring to. It's a little unclear. My guess is it's the same episode. Certainly, Your Honor, but it suffers from the same defect, that it's no actual evidence of, are we even talking about the same thing? Because what we're talking about from Mr. Bringer Rodriguez is horrific rape of a child. And what we're talking about in those cases is something that may be raped, but of who we don't know. We don't know where those friends were. We don't know how old they are. We don't know anything about it. So what we need from, it's no evidence of any value is what the immigration judge could have said. Because there's nothing here to suggest that the police in Veracruz and Trace-Valle is, I think, as the actual town. There's no evidence that the police there, if they were told that a four-year-old child was being raped, wouldn't do something. In fact, I think that that's reflected also by the approach of the rapists in these cases. Okay? In every circumstance, the rapist said, don't tell. But look at the circumstances of a four-year-old child who's going to be raped. The police may say we would have taken care of it, but it's unrealistic to expect that the four-year-old child would have gone to the police. So we end up with a null set if you insist that the four-year-old child go to the police in order to show the unwillingness of the police to protect. So is this just a plan on catch-22 and he loses no matter what? I don't think that it's completely a catch-22, Your Honor. I don't think that the rape of a four-year-old child, that is something that's completely undiscoverable. Well, we know from our own experience here in the United States that this stuff goes unreported all the time and it is, of course, totally fantasyland. And I don't hear you responding otherwise to me to expect that the four-year-old would report it. Absolutely, Your Honor. There's no expected. So how are we going to get evidence beyond what we have here of the police unwillingness to do anything about this? So I mean, if we insist on more than what we've got, I think this just goes by the board, we never can do anything about it. Well, I think what they said, what this Court said in Kestner Martinez is there has to be something else about the societal approach to the persecution. Yeah, or I'm not just quoting from Kestner Martinez showing that others have made reports of similar incidents to no avail. Well, the question is, how tightly do we read the word similar? I mean, we've got friends who say we were raped and the police laughed at us. Now, the friends could have been 60 years, Your Honor. They could have been 60 years old. They could have been 40 years old. So they could have been 60. Your friends are 60 years old now that I think it more likely that they would have been more or less his age. But, okay. Your Honor, we're talking about the evidence on the record. That's all we have. And I'm just saying he could have been it. Could we say friends it could be anyone? It could have been a four-year-old that reported, in which case we have a four-year-old who's now reported. But what we have to evaluate is the evidence was before the immigration judge, and we have to compare it to what Castro Martinez said, this Court said in Castro Martinez. That it should have. Well, Castro Martinez might actually be wrong. I think this case is distinguishable, although narrowly. And as I'm sure you recognize, I was on the panel in Castro Martinez. We found it a very difficult and very close case, as evidenced by the fact that we came out with one opinion, and then we substantially amended the opinion. And we viewed Castro Martinez as an exceptionally close case. And this case is somewhat different in that there's at least some evidence of individualized report to police. The evidence is exactly as you describe it, not very particularized. And so for that reason, Your Honor, I'd ask that this Court find that Castro Martinez controls that there's no evidence here to establish that the government is, the government of Mexico is unable or unwilling to protect a young child from the rape, from any rapist. And in addition to that, the other aspect of the past persecution in this case is the on account of ground, which the board found that there was, that petitioner here failed to establish that this persecution was on account of a protected ground. And for the primary reason that an individual who rapes a four-year-old child is a pedophile. And that's what the IJ said, the BIA said nothing about that. But what the board said was that the board said there's that Mr. Bringsson, you said failed to establish this past persecution on account of protected ground. And so when it says that, it was also validating that portion of the, it then went on to cite only to the unable or willing argument, but there's nothing to do. Well, if that's your argument, I totally disagree with you. He's got lots of evidence that this is happening to him because he is gay. As a four-year-old child, he was raped because he was gay. Well, he talks about the names they call him and so on. I mean, it's preposterous to me to think that every four-year-old male is going to be raped simply because they're pedophiles, based on what we have here. It's clear that they're doing this because he has perceived his gay. Now, I think that what the Immigration Judge in Board of both done here is, is applied the common sense to the situation. That the rape of a four-year-old child is only done for one reason and one reason only. And that's a pedophile engage of disengaged and despicable acts. That has nothing to do with the child, Your Honor. Nothing, not one little tiny bit. And as far as the, the purgeurit is they're used, they are vile. And I do disagree with them, but at the same time, if we were talking about a situation where one African-American man was beating up another African-American man and referred to that individual using the N word. We would not say he was beaten on account of his race. And that's what we have in this case. These situations are so distinct. I think you are just blinking reality. If you have numerous males raping a four-year-old child and then continuing to do so, while indicating that he is and calling various names referring to his sexuality, that that's the equivalent of beating somebody up and using the N word as you do it. I think those are just so totally separate that you're not dealing with the real. But why I'd like to explain myself a little bit more than Your Honor, what we have here is all individuals who are engaged in homosexual activity, to the extent that it's male on male sexual activity, and they're forcing it on somebody who is not receptive to that activity. And in doing so, they're throwing these pejoratives around. And in each case on a child, in many cases on a young child who does not necessarily have their sexuality developed yet. And so to put the blame on the child for some characteristic that they may or may not have at that point in their life is putting too much blame on the child. The credit or blame goes with it. Why are you talking about blame? I'm talking cause and effect. That is to say, perception of a feminine nature on the part of the child. His testimony is that I was perceived as a feminine. And that was the reason why they attacked me rather than others. So I'm not blaming the child. Nor do I think you are. Not at all, Your Honor. Not in the most remote possibility of not blaming the child in this case. But I think what we have here is just an incredibly horrific family dynamic in which the sexual abuse of a child is continued over and over again. I mean, I think the implication from the situation of the cousins, the uncle, the cousins, you know, all going after this child is, I'm guessing that the uncle had engaged in the same activity with the cousins, and then the cousins aged up to the point. And on what are you basing that quote, guess? I'm just, it's a presumption looking at its common sense application of the facts of the situation. You so insist on us paying attention to what's in the record, and then you say we think that you think the uncle sexually abused the cousins, you've got nothing. I have nothing to support that other than it's an inference drawn from the facts that so many people in the same family are willing to have sex with a young child, says to me that it's just a gross family dynamic. And it probably didn't just start with the sexual activity with Mr. Bringers Rodriguez. It probably started long before that, based on, that's the common sense of my experience with other pedophiles and with the prosecution of pedophiles and the perpetuation of that sort of activity. And so does it have a whole lot to do with this case? No, it doesn't, but I think you have to look at the use of the pejoratives to describe Mr. Bringers Rodriguez in that context of why would they have called in this name? Was it only that he was in feminine? I think it's common sense that that's not the reason that they use those, that they would have used those names while they're engaging in the activity, in this activity. It was just gross, despicable activity, and we should label it as such. Well, of course we are labeling it as such. The only question is, why is this occurring and is the fact of his affirmative appearance or manifestation contributing to it? That's what we're talking about. None of us are arguing with us anything other than despicable. Certainly, Your Honor. And so this Court could deny the petition for review on either the fact that he failed to establish that this was on account of that, that this was one central reason. And it could also deny because it's failed to establish that, he's failed to establish that the government is unable or unwilling. And not just failed to establish, but the standard of review here is that he has to decimbe a reversal of the immigration judges and the board's conclusions in this case. And then we also have the issue of a well-founded, future persecution, which is just, it's just completely, which he has failed to establish here. And then if I can also just eat it. The BIA didn't reach that question, correct? The BIA did not reach the question of well-founded fear of future because of what? What said, there was no, because of what, Your Honor? There is to say, because the BIA found no persecution on account of a protected ground, it did not reach the well-founded fear based on that presumption because it didn't find, it didn't have a basis for the presumption. It didn't afford the presumption, Your Honor, but it still evaluated whether there was a, whether there was a well-founded fear of persecution based on the no pattern or practice of persecution. What was the age at which the child was first, Mr. Rengus was first abused? Four-year-old. And how long did the abuse continue? Until he was 12, and then he was, he left for the United States. And then returned from Kansas. And then he returned for, and then, and then. And it was abused when he returned. Yes, and then. And we know at what point they referred to him by, by Gaseleurs? I don't think that the record defines exactly. But he does the reference. He testifies that he, that he realized at an early age what his sexual orientation was. So if the Gaseleurs were used at, at sort of any time in a very long period, that is eight years before he goes to Kansas several years after he returns from Kansas, then we may have somebody who is perfectly aware of his, of his own sexual orientation able to define it, who is being called by these, by these names. In which case we wouldn't have just a four-year-old, we might have a 14 or 15-year-old, who is aware of his sexual orientation and is being called these names. So then we just have to, then we just have to deal with what are the implications of that? That does seem to be at least an inference that it is on account of sex or on account of his sexual orientation. So we will then have to deal with whether, whether you've got government complicity here. Yes, but even before you get there, I would say that it would have to be, it could be a possibility that that's part of it. But, but what he needs to do is he needs to present evidence that compels a reversal of immigration judges' conclusion here, which was that it was not on account of. It seems to me that the strongest case for the government deals with whether the government of Mexico is complicit in the kind of persecution that he is suffering, not whether he may have suffered persecution on account of his sexual orientation. I agree with that, Your Honor. He was credited by the IJ. We have no reason to dispute that he was told during these acts that he was being persecuted because of his sexual orientation. That's correct, Your Honor. Does that mean you abandoned the argument as to he was not, he was not attacked because of a perceived homosexuality or a disability? Absolutely not, Your Honor. Okay, absolutely not. You just think it's a weaker argument? I think the other one is significantly stronger, yes, Your Honor. You can say that way. You can also say it's a weaker argument. I noticed on that a time unless there's a question, Your Honor. You've saved two minutes, or rather, you didn't save two minutes, but you have two minutes. Thank you, Your Honor. Your Honor, I'd like to make three points on Rebuttal. First, this case is distinguishable from Castramartina's, and so far as Patrisso has provided evidence of what the government would have done had he reported the abuse. He provided evidence that his friends reported in Veracruz to no avail. And here, because Patrisso. The BIA make a judgment about how strong that evidence is. No, Your Honor. No, we're within the agency's decision, either at the IJ. I would like to ask you a question very carefully. Can the BIA make a judgment about the strength of that evidence? You're on the, I understand you want to argue that the BIA didn't do such. I want to know whether the BIA is entitled to make a judgment about the strength of the evidence he's presented. You want the BIA have to make a judgment as to whether he's met his burden, even if it agrees that with the IJ that he has to be found credible? Yes, Your Honor. The, the, the board is able to determine whether Patrisso met his burden. And here what, what Patrisso did is he provided evidence that his friends reported to no avail. And because the IJ found him credible, any reasonable inferences that are to be drawn from, from the record, should be drawn in his favor, as this Court has said, in Zang vs. Zashkopf internal analysis. Now, BIA then have to accept that face value, the hearsay that he has, given, that he's offered. Well, Your Honor, what, what, what, what, what, what, what, what, what, what, what, have to accept the hearsay for the truth of the matter? Your Honor, it does not have to accept it. And really what, what, what, what we're arguing here is that as an internal analysis Chavez, what the agency should have done is it should have considered it. And if the agency thought that Patrisso's evidence was insufficient, then it should have considered the evidence and it, and said this is insufficient to, to distinguish this case from Castramartinus. However, it would not have been able to do so because we, we've demonstrated that this kind of evidence was specifically identified in Castramartinus, and is such that it could compel the conclusion that the government is unable on willing to, to help them. And here the IJ had, had a duty to develop the record as this Court has said in Shafir versus INS. And so if it was going to question this highly probative testimony, then the IJ should have, should have developed the record. Second, Your Honor, here no, no judicial body has yet meaningfully considered Patrisso's HIV diagnosis and how it affects his eligibility for relief. Here we've demonstrated that it affects his eligibility for relief and the agency didn't meaningfully consider it. And finally, Your Honor's here, the government does not concede that Patrisso was raped on account of his homosexuality. However, the evidence here is, is sufficient that, that at page 217 of the record there's a confession by his uncle that he raped him because of his homosexuality. Also as Judge Fletcher pointed out at page 262 of the record, Patrisso provided in his affidavit that his friends in Veracruz reported the abuse. And finally, at pages 305 and 307, there is evidence that others perceived Patrisso to be gay and also that his abusers use gayslurs against him. And for the four-guind reasons, we ask that this Court reversed and remand the board's decision. Thank you, Your Honor. Thank you. Thank you. Both sides for their helpful arguments. The Court would particularly like to thank the students from UC Irvine for their helpful arguments, a nice debut. But thank both sides for their helpful arguments. The case of Brinkis Rodriguez versus Holder now submitted for decision