The United States Court of Appeals for the Ninth Circuit, sitting en banc, granted an appeal in Bringas Rodriguez v. Sessions. The case involved a man from Mexico who was sexually abused during his youth because he is gay. In this significant decision, the court recognized that LGBT people often are persecuted by private actors, and that when such private acts of persecution occur, the victim cannot be expected to report the abuse to the authorities. The decision is groundbreaking because it reinforces the conclusion that persecution by private actors can form the basis for a request for asylum and that individual applicants cannot be held to an unreachable standard when tasked with proving that the government of their country cannot or will not control these private actors.

The decision is also significant because it explicitly overrules a previous decision, Castro Martinez v. Holder. In Bringas, the court criticized Castro-Martinez for creating a different, higher standard for “gay children” as compared to “gay individuals” and because it “erroneously assumed that where government authorities are able and willing to protect heterosexual children, they will be equally able and willing to protect children who exhibit a different sexual orientation.” The court also criticized the decision in Castro-Martinez for failing “to consider the difference between a country’s enactment of remedial laws and the eradication of persecutory practices, often long ingrained in a country’s culture.”

Mr. Bringas was represented by the appellate clinic at the University of California Irvine. The university’s dean, Erwin Chemerinsky, argued the case before the en banc court. “The Ninth Circuit’s en banc decision is a very important victory for those who are persecuted and seeking asylum, especially those who have been persecuted because of their sexual orientation,” said Chemerinsky. “This is a ruling that is going to make an enormous difference in many people’s lives.”

“Mexico is a complicated country when it comes to LGBT rights,” said Keren Zwick, managing attorney at the National Immigrant Justice Center (NIJC). “The reality is that even though Mexico has passed some very progressive laws, the day-to-day experience for LGBT people in many parts of Mexico remains dangerous. This decision is significant because it recognizes this complexity and preserves an asylum seeker’s ability to base his claim on a disconnect between the laws on the books and on-the-ground practices.”

NIJC coordinated amicus briefs in support of this case on behalf of a wide variety of nonprofit organizations including LGBT rights organizations, asylum law experts, and organizations dedicated to immigrant children. NIJC thanks and congratulates these many partners in this exciting victory.