                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             APR 20 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


AROLDO ISAIAS HERNANDEZ, AKA                     No.   13-71356
Jose Natividad Ontiveros-Gomez,
                                                 Agency No. A073-413-655
              Petitioner,

 v.                                              MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted June 6, 2016
                               Seattle, Washington

Before: PAEZ and BYBEE, Circuit Judges, and TIGAR,** District Judge.

      Petitioner Aroldo Isaias Hernandez, a citizen of Mexico, appeals the Board

of Immigration Appeals’ (“BIA”) denial of his application for asylum, withholding

of removal, and protection under the Convention Against Torture (“CAT”). On

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jon S. Tigar, United States District Judge for the
Northern District of California, sitting by designation.
appeal, Hernandez argues that the BIA erred in finding that he does not have a

well-founded fear of future persecution if he is removed to Mexico. We have

jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review.

      We review legal questions de novo. Bringas-Rodriguez v. Sessions, 850

F.3d 1051, 1059 (9th Cir. 2017) (en banc). The BIA, citing our opinion in Castro-

Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), overruled in part by Bringas-

Rodriguez, 850 F.3d 1051, held that Hernandez did not establish a well-founded

fear of future persecution because the 2010 U.S. Department of State Human

Rights Report for Mexico

      indicates that Mexican society increasingly accepts homosexual
      behavior, that Mexico’s supreme court ruled that all states are required
      to recognized [sic] homosexual marriages, that the law prohibits
      discrimination on the basis of sexual orientation, and that women and
      men were given equal access to diagnostic services and treatment for
      HIV.

But since the BIA’s decision, we have made clear that Castro-Martinez “falsely

equated legislative and executive enactments prohibiting persecution with on-the-

ground progress.” Bringas-Rodriguez, 850 F.3d at 1075.

      We grant the petition so that the BIA can, in the first instance, apply this

court’s newly enunciated law to determine whether Hernandez is likely to face

persecution. See Lopez v. Ashcroft, 366 F.3d 799, 807 (9th Cir. 2004).



                                          2
The petition for review is GRANTED.




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