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Bringas-Rodriguez v. Lynch, 805 F.3d 1171 (9th Cir. 2015) - Nov. 19, 2015
June 14, 2016 - "Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion [805 F.3d 1171] shall not be cited as precedent by or to any court of the Ninth Circuit."
[Court staff summary from 2015 - "The panel denied a petition for review of the Board of Immigration Appeals’ denial of asylum, withholding of removal, and protection under the Convention Against Torture to a citizen of Mexico who sought relief based on his sexual orientation and HIV-positive status. Relying on Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), the panel held that substantial evidence supported the Board’s determination that Bringas-Rodriguez failed to establish that the Mexican government was unwilling or unable to protect him, where he did not report the abuse he suffered to authorities, and his evidence, including hearsay testimony and country reports, was insufficient to establish that doing so would have been futile. The panel held that Bringas-Rodriguez failed to establish a pattern or practice of persecution of gay men in Mexico. The panel also held that Bringas-Rodriguez’s CAT claim failed because he did not show that he would more likely than not be tortured by or with the acquiescence of the Mexican government if he is removed to Mexico. The panel held that the Board did not abuse its discretion in denying Bringas-Rodriguez’s motion to remand based on his recent HIV diagnosis. Dissenting, Judge W. Fletcher wrote that he has growing doubts about this court’s decision in Castro-Martinez, but even applying Castro-Martinez to the facts of this case, Bringas-Rodriguez submitted evidence sufficient to show that the Mexican government was unwilling or unable to protect him from abuse."]