Ricardo Fonseca Rojo v. Eric Holder, Jr. , 408 F. App'x 73 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICARDO LUIS FONSECA ROJO, No. 09-72870
Petitioner, Agency No. A076-853-960
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 5, 2010
Pasadena, California
Before: SCHROEDER, D.W. NELSON, and REINHARDT, Circuit Judges.
Ricardo Luis Fonseca Rojo (“Fonseca Rojo”) petitions for review of the
Board of Immigration Appeals’ (“BIA’s”) denial of his applications for asylum and
withholding of removal. Following an original petition for review, this panel
remanded the case to the BIA, because the Immigration Judge (“IJ”) had based his
asylum determination on an incorrect legal standard. On remand, the BIA applied
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the correct standard and determined that Fonseca Rojo had failed to demonstrate a
well-founded fear of future persecution. This Court has jurisdiction pursuant to 8
U.S.C. § 1252(a)(1), and we review factual findings underlying the denial of an
application for asylum or withholding of removal for substantial evidence. INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992); Li v. Ashcroft, 356 F.3d 1153, 1157 (9th
Cir. 2004) (en banc); Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir. 2005).
Because substantial evidence does not support the BIA’s determination as to
asylum, we grant the petition, reverse the finding, and remand to the agency.
Even where an applicant has not suffered past persecution, he is still eligible
for asylum if he can demonstrate a well-founded fear of future persecution that is
“both subjectively genuine and objectively reasonable.” Karouni, 399 F.3d at
1170 (quotations omitted). This panel previously decided that Fonseca Rojo
satisfied the subjective prong by credibly testifying that he fears for his life if he is
forced to return to Chile. The objective prong requires “credible, direct, and
specific evidence” supporting a “reasonable fear of persecution.” Id. (quotations
omitted). Even a ten percent chance of persecution will suffice. Id. at 1178.
In finding that Fonseca Rojo’s fear of future persecution was not objectively
reasonable, the BIA pointed to the following factors: (1) the petitioner’s “voluntary
return to Chile” and the “absence of persecution” during his visit, (2) the supposed
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“lack of evidence of record indicating persecution of homosexuals in Chile beyond
isolated incidents of hate crimes,” and (3) the “repeal of [Chile’s] anti-sodomy law
after the petitioner departed for the United States.” None of these findings
constitutes substantial evidence.
The BIA’s reliance on Fonseca Rojo’s return trip to Chile is particularly
misplaced. This Court has “never held that the existence of return trips standing
alone” can negate a petitioner’s well-founded fear. Boer-Sedano v. Gonzales, 418
F.3d 1082, 1091 (9th Cir. 2005). The absence of persecution during Fonseca
Rojo’s stay in Chile is clearly explained in the record by the fact that he did
nothing to expose his sexuality to his fellow citizens. Arguing that a lack of
persecution during a short trip undermines a petitioner’s well-founded fear of
future persecution is tantamount to “saddling [Fonseca Rojo] with the Hobson’s
choice of returning to [Chile] and either (1) facing persecution for engaging in
future homosexual acts or (2) living a life of celibacy.” Karouni, 399 F.3d at 1173.
In other words, by suggesting that Fonseca Rojo could be safe in Chile if he
behaved as he did during his short return, the government is “essentially arguing
that the INA requires [Fonseca Rojo] to change a fundamental aspect of his human
identity.” Id.3
Regarding the supposed lack of evidence of persecution, the BIA failed to
consider Fonseca Rojo’s previous experiences in Chile. Even if those experiences
did not rise to the level of past persecution, this Circuit has made it clear that such
evidence is, nevertheless, central to the question of whether a petitioner’s fear of
future persecution is objectively reasonable. See Lim v. INS, 224 F.3d 929, 935-36
(9th Cir. 2000) (finding that past threats made petitioner’s fear of future
persecution objectively reasonable, even though they did not establish past
persecution). Fonseca Rojo’s neighbors and the Chilean police made it clear that
their behavior was directed toward making him more of a “man.” When other
tenants explained that they wanted Fonseca Rojo out of their building because he
was a “faggot,” the police threatened to throw him in jail. The officers also pushed
him into the street, taunting him with propositions for oral sex and threatening to
stick a baton “up [his] ass.” On another occasion, the officers made “obscene
gestures,” pointing to their genitals and asking petitioner if he wanted to “suck
this.” After being detained for holding hands with his boyfriend in a public park,
Fonseca Rojo was forced to remain in the extreme, suffocating heat of a police van
for approximately five hours. On still another occasion, a group of men attacked
Fonseca Rojo and his boyfriend because they were “faggots,” and the police
released the aggressors while detaining Fonseca Rojo for at least an hour, telling
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him and his boyfriend that they deserved the experience so they “would become
more manly.” There is no question that these and other incidents occurred because
of Fonseca Rojo’s sexual orientation.
Instead of considering how Fonseca Rojo’s credible and persuasive
testimony bears on his fear of future persecution, however, the BIA demanded
more evidence indicating persecution of homosexuals, as a group, in Chile. As this
Court has made clear, however, “the categories of group targeting and individual
targeting are not absolute and distinct.” Kotasz v. I.N.S., 31 F.3d 847, 854 (9th Cir.
1994). Where Fonseca Rojo has demonstrated egregious “singling out,” he should
bear a correspondingly lesser burden of showing group targeting. Id. This lesser
burden is met by evidence in the record indicating that the police continue to use
Chile’s morality laws to persecute homosexuals as a group.
For this same reason, the BIA’s reliance on Chile’s repeal of the anti-
sodomy law is misplaced. The status of the anti-sodomy law is of little or no
relevance to Fonseca Rojo’s fear of persecution. None of the incidents suffered by
petitioner was the result of violating this statute, and on only one occasion did the
arresting officers claim the statute as a basis for petitioner’s detention. The repeal
of a law that is not directly relevant to Fonseca Rojo’s claims does not, therefore,
constitute substantial evidence.
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Even when taken together, the BIA’s justifications for finding that Fonseca
Rojo does not have a well-founded fear of future persecution do not amount to
substantial evidence. Because a reasonable fact-finder would be compelled to
conclude that Fonseca Rojo has demonstrated a ten-percent likelihood that he
would be persecuted if sent back to Chile, Fonseca Rojo is statutorily eligible for
asylum.
On remand, the Attorney General shall exercise his discretion on Fonseca
Rojo’s asylum claim in a manner not inconsistent with this disposition. The BIA
shall also evaluate Fonseca Rojo’s withholding of removal claim in the first
instance. Id. at 1179.
Petition for review GRANTED; REMANDED to the BIA for further
proceedings.
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