CASILLAS v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-09-07No. No. 20-72354

Summary · law.co

Holding. The petition was granted and the case was remanded to the Board of Immigration Appeals to reconsider whether Casillas suffered past persecution, as the immigration judge's factual finding that he was never physically harmed was contradicted by substantial evidence of two separate childhood assaults.

Mario Rodriguez Casillas, a Mexican citizen living in the United States as a teacher since 2005, appealed the denial of his application for withholding of removal based on fear of persecution in Mexico due to his sexual orientation and HIV-positive status. An immigration judge found Casillas credible but rejected his claim by concluding he had never been physically harmed in Mexico, despite evidence in the record showing otherwise.

The court found the immigration judge's factual finding to be contradicted by substantial evidence. Casillas had testified and provided an affidavit describing two separate physical attacks during his childhood in Mexico: an attempted sexual assault by classmates in first grade and an assault by a classmate in junior high school that caused him severe injury. The court determined that these acts of physical violence plainly constituted physical harm and that any reasonable adjudicator would reach the same conclusion.

The court explained that a finding of past persecution generates a presumption of eligibility for withholding of removal, and physical harm has been consistently recognized as persecution under immigration law. Because the immigration judge's error regarding whether physical harm occurred was not harmless, the case was remanded for reconsideration of whether Casillas suffered past persecution in light of the physical violence he experienced.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether physical attacks during childhood constitute persecution under withholding of removal standards
Whether credible testimony and affidavit evidence of physical harm contradicts an immigration judge's factual finding
Whether persecution based on sexual orientation is cognizable for withholding of removal

Procedural posture

The Ninth Circuit reviewed the Board of Immigration Appeals' affirmance of an immigration judge's denial of withholding of removal, applying substantial evidence review to factual findings.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Mario Rodriguez Casillas, a citizen of Mexico, seeks review of a Board of Immigration Appeals (BIA) decision dismissing his appeal of the Immigration Judges (IJ) order denying withholding of removal. We review factual findings for substantial evidence, Hanna v. Keisler, 506 F.3d 933, 940 (9th Cir. 2007), and we grant the petition.

Casillas has been in the United States since 2005 and works in Washington State as a teacher. He was apprehended in 2017 as part of an investigation into a different individual. He now seeks withholding of removal on the ground that his life or freedom would be threatened in Mexico on account of his identity as a gay, HIV-positive individual.

The IJ found Casillas credible but denied the application for withholding of removal. In concluding that Casillas did not suffer past persecution, the IJ relied on its finding that Casillas was never “physically harmed by anyone in Mexico.”

That finding is directly contradicted by substantial evidence.

Casillas was twice physically harmed. In first grade, a group of boys “attempted to sexually assault [him]” and “threw [him] to the ground.” See Kaur v. Wilkinson 986 F.3d 1216, 1224 (9th Cir. 2021) (“[A]ttempted rape almost always constitutes persecution”). In junior high school, a boy called him a gay slur and pushed him off his bike, causing him to land “on the rear tire and then onto the ground, causing severe pain to [his] genital area.” In addition to these incidents, which were described in his affidavit, Casillas explicitly testified that he was attacked. When asked whether he was “threatened or [ ] physically harmed in Mexico because of his sexual orientation,” he responded unequivocally: “Yes. When I was a kid, when I was a child, I suffered from attacks from my neighbors, my classmates at the school.”

Because any reasonable adjudicator would be compelled to conclude that these plain acts of physical violence constitute “physical harm,” the IJs finding that Casillas was not “physically harmed by anyone” is error. See 8 U.S.C. 1252(b)(4)(B) (the agencys factual findings “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”). The error is not harmless because a finding of persecution would generate a presumption of eligibility for withholding of removal, and “[p]hysical harm has consistently been treated as persecution.” Chand v. INS, 222 F.3d 1066, 1073 (9th Cir. 2000); see also Kaur v. Wilkinson, 986 F.3d 1216, 1222 (9th Cir. 2021) (“The hallmarks of persecutory conduct include, but are not limited to, the violation of bodily integrity and bodily autonomy.”); Li v. Holder, 559 F.3d 1096, 1107 (9th Cir. 2009) (“[P]hysical violence is persecution”).

We remand to the BIA for the agency to reconsider whether Casillas suffered past persecution in light of the evidence that he suffered physical harm.

PETITION GRANTED; REMANDED.

FOOTNOTES

. Because the BIA explicitly adopted the IJs opinion, we treat the IJs opinion as the BIAs. See Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir. 1995).