Лучшие тесты

Jose Luis Barrios-Aguilar, a Guatemalan native, petitions for review of a decision of the Board of Immigration Appeals ("BIA") adopting and affirming the order of the Immigration Judge ("IJ") denying his application for asylum, withholding of removal, and protection under the Convention Against Torture.

To qualify for asylum, petitioner must establish sufficient persecution "on account of" his membership in a statutorily protected class. See 8 U.S.C. § 1101(a)(42)(A). If he establishes that he suffered past persecution, then a presumption arises that he also has a well-founded fear of future persecution, and the government bears the burden of rebutting this presumption by a preponderance of evidence. See 8 C.F.R. § 1208.13(b)(1) (2005). To show past persecution, petitioner must demonstrate "(1) an incident, or incidents, that rise to the level of persecution; (2) that is `on account of' one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either `unable or unwilling' to control." Navas v. INS, 217 F.3d 646, 655-56 (9th Cir. 2000) (footnotes omitted). In the absence of past persecution, petitioner must prove a well-founded fear of future persecution, which requires a fear that is both subjectively genuine and objectively reasonable. See Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir. 1999).

I.

We presume familiarity with the background of the case. Briefly, petitioner entered the United States in 1989 at the age of 15 soon after several men attacked and threatened him on two separate occasions because he is homosexual. The same men also came to his parents' home in search of information about him and brutally attacked his father. Petitioner's immediate family ultimately received asylum in Canada based on the persecution they suffered in Guatemala.

The IJ found that petitioner suffered persecution, which included "persecution of his father as derivative persecution of himself." He also determined that the persecution was "on account of" petitioner's membership in a protected class because, "as a homosexual the [petitioner] is a member of a particular social group that is protected," and "the motive of the persecution appears related to [his] homosexuality." However, the IJ found that petitioner had not established the third requirement for past persecution—that the Guatemalan government was unable or unwilling to control the persecution. The IJ explained that petitioner "d[id] not really put the government to the test" because he never alerted the police to the persecution, "and [petitioner's] own documents do not demonstrate that such a move would be futile." In adopting the IJ's decision, the BIA agreed that petitioner "has not shown that the government persecuted homosexuals or that it was unable or unwilling to control those who persecuted homosexuals."

We review the IJ's factual findings for substantial evidence. Aguilar Gonzales v. Mukasey, 534 F.3d 1204, 1208 (9th Cir. 2008). To reverse the IJ's determination that an applicant is not eligible for asylum, "we must find that the evidence not only supports that conclusion, but compels it." INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992).

II.

We first consider the issue of whether petitioner established past persecution. This issue turns on the third requirement for past persecution—whether the persecution was "committed by the government or forces the government is either unable or unwilling to control." Navas, 217 F.3d at 655-56. When non-government actors are responsible for the persecution, courts look to whether the applicant reported the persecution to the police and whether the police responded to control the behavior. See Baballah v. Ashcroft, 367, F.3d 1067, 1078 (9th Cir. 2004). However, an applicant "need not have reported that persecution to the authorities if he can convincingly establish that doing so would have been futile or [would] have subjected him to further abuse." Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). Indeed, we have recognized that a reporting requirement would be particularly "troubling" when evidence documents police abuse toward similarly situated members of a culturally subjugated group, such as men with alternative sexual identities in Latin American, and when cases involve generally under-reported crimes, such as rape. See Ornelas-Chavez, 458 F.3d at 1057; Reyes-Reyes v. Ashcroft, 384 F.3d 782, 789 n.3 (9th Cir. 2004).

In this case, the three attacks were never reported to the police and petitioner did not present other evidence that the police were aware of the incidents. Nevertheless, the record evidence indicates that petitioner and his family members did not report the incidents because they justifiably believed that doing so would be futile and might expose them to further harm.