Pro bono advocates convince court gay man faced past persecution in Mexico

Though Mexico’s national laws have increasingly promoted equality for sexual minorities, the country’s culture and local laws have been slower to embrace LGBTI tolerance, the 9th Circuit noted today.

Therefore, in an en banc opinion written by Judge Kim McLane Wardlaw, the court overruled its own precedent and sent back to the Board of Immigration Appeals the case of an asylum-seeking Mexican man, as advocated by his representatives, including pro bono attorney Mary-Christine Sungaila, UC Irvine School of Law Dean Erwin Chemerinsky and Andrea Ringer and Marco Pulido Marquez, law students from UC Irvine’s Appellate Litigation Clinic. Chemerinsky argued the case on behalf of Carlos Bringas-Rodriguez on Sept. 7.

To achieve refugee status, aliens must demonstrate they have “suffered past persecution” that the government in their native country “was unable or unwilling to control.” Wardlaw’s opinion in Bringas-Rodriguez vs. Sessions concluded past persecution can be shown even if a country makes the persecution illegal, overruling Castro-Martinez vs. Holder, a 2011 9th Circuit case.

Wardlaw offered a candid assessment:

In Castro-Martinez, we also failed 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. . . Mexico is to be lauded for its efforts. But it is well recognized that a country’s laws are not always reflective of actual country conditions. . . Moreover, the anti-discrimination efforts discussed in Castro-Martinez seem to have been made by the national government, and thus do not necessarily reveal anything about the practices within state or municipal jurisdictions.

After reviewing sworn statements, newspaper articles and State Department reports, Wardlaw and her colleauges determined “substantial evidence compels the conclusion that Bringas has proven past persecution due to his identification as a gay individual.”

In dissent, Judge Carlos Bea wrote that the majority opinion gives too much credit to evidence of questionable validity — calling it “hearsay” — and “undervalues evidence of social progress in Mexico regarding rights for homosexual individuals in a manner that defies logic.”

Sungaila, a partner with Haynes and Boone, has been a successful pro bono and appellate advocate in other cases. Chemerinsky is a prolific constitutional scholar and was the founding dean of UC Irvine’s law school in 2009.

According to its website, “The Appellate Litigation Clinic provides students with experience in legal research and analysis and provides them with an opportunity to build upon oral advocacy skills.” The 9th Circuit has adopted procedures allowing students from UC Irvine and other law schools to provide legal representation.

David Raatz is a lawyer and writer in Wailuku, Hawai`i.