Ornelas-Chavez v. Gonzalez
458 F.3d 1052 (9th Cir. 2006)
In Ornelas-Chavez v. Gonzalez, the Ninth Circuit again was faced with a case of a gay male with “female sexual identity” from Mexico. Ornelas-Chavez alleged that he had been beaten and raped at the hands of private actors.
The IJ and BIA found that Ornelas-Chavez had failed to establish persecution because the government was not directly involved other than one minor police detention. The BIA further faulted Ornelas-Chavez for failing to report the harms that he had suffered to the police.
The Ninth Circuit remanded stating that an individual who has faced persecution is not required to report the persecution if doing so would be futile or would subject one to further harm.
This holding is important for the many transgender asylum-seekers who are afraid to even set foot in the police stations of their home countries because cross-dressing is illegal or because they know that the police themselves may harm them without any repercussions.
The IJ and BIA found that Ornelas-Chavez had failed to establish persecution because the government was not directly involved other than one minor police detention. The BIA further faulted Ornelas-Chavez for failing to report the harms that he had suffered to the police.
The Ninth Circuit remanded stating that an individual who has faced persecution is not required to report the persecution if doing so would be futile or would subject one to further harm.
This holding is important for the many transgender asylum-seekers who are afraid to even set foot in the police stations of their home countries because cross-dressing is illegal or because they know that the police themselves may harm them without any repercussions.