                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 07 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RICARDO LUIS FONSECA ROJO,                       No. 09-72870

              Petitioner,                        Agency No. A076-853-960

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                     Argued and Submitted November 5, 2010
                              Pasadena, California

Before: SCHROEDER, D.W. NELSON, and REINHARDT, Circuit Judges.

       Ricardo Luis Fonseca Rojo (“Fonseca Rojo”) petitions for review of the

Board of Immigration Appeals’ (“BIA’s”) denial of his applications for asylum and

withholding of removal. Following an original petition for review, this panel

remanded the case to the BIA, because the Immigration Judge (“IJ”) had based his

asylum determination on an incorrect legal standard. On remand, the BIA applied


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the correct standard and determined that Fonseca Rojo had failed to demonstrate a

well-founded fear of future persecution. This Court has jurisdiction pursuant to 8

U.S.C. § 1252(a)(1), and we review factual findings underlying the denial of an

application for asylum or withholding of removal for substantial evidence. INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992); Li v. Ashcroft, 356 F.3d 1153, 1157 (9th

Cir. 2004) (en banc); Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir. 2005).

Because substantial evidence does not support the BIA’s determination as to

asylum, we grant the petition, reverse the finding, and remand to the agency.

      Even where an applicant has not suffered past persecution, he is still eligible

for asylum if he can demonstrate a well-founded fear of future persecution that is

“both subjectively genuine and objectively reasonable.” Karouni, 399 F.3d at

1170 (quotations omitted). This panel previously decided that Fonseca Rojo

satisfied the subjective prong by credibly testifying that he fears for his life if he is

forced to return to Chile. The objective prong requires “credible, direct, and

specific evidence” supporting a “reasonable fear of persecution.” Id. (quotations

omitted). Even a ten percent chance of persecution will suffice. Id. at 1178.

      In finding that Fonseca Rojo’s fear of future persecution was not objectively

reasonable, the BIA pointed to the following factors: (1) the petitioner’s “voluntary

return to Chile” and the “absence of persecution” during his visit, (2) the supposed


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“lack of evidence of record indicating persecution of homosexuals in Chile beyond

isolated incidents of hate crimes,” and (3) the “repeal of [Chile’s] anti-sodomy law

after the petitioner departed for the United States.” None of these findings

constitutes substantial evidence.

      The BIA’s reliance on Fonseca Rojo’s return trip to Chile is particularly

misplaced. This Court has “never held that the existence of return trips standing

alone” can negate a petitioner’s well-founded fear. Boer-Sedano v. Gonzales, 418

F.3d 1082, 1091 (9th Cir. 2005). The absence of persecution during Fonseca

Rojo’s stay in Chile is clearly explained in the record by the fact that he did

nothing to expose his sexuality to his fellow citizens. Arguing that a lack of

persecution during a short trip undermines a petitioner’s well-founded fear of

future persecution is tantamount to “saddling [Fonseca Rojo] with the Hobson’s

choice of returning to [Chile] and either (1) facing persecution for engaging in

future homosexual acts or (2) living a life of celibacy.” Karouni, 399 F.3d at 1173.

In other words, by suggesting that Fonseca Rojo could be safe in Chile if he

behaved as he did during his short return, the government is “essentially arguing

that the INA requires [Fonseca Rojo] to change a fundamental aspect of his human

identity.” Id.




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      Regarding the supposed lack of evidence of persecution, the BIA failed to

consider Fonseca Rojo’s previous experiences in Chile. Even if those experiences

did not rise to the level of past persecution, this Circuit has made it clear that such

evidence is, nevertheless, central to the question of whether a petitioner’s fear of

future persecution is objectively reasonable. See Lim v. INS, 224 F.3d 929, 935-36

(9th Cir. 2000) (finding that past threats made petitioner’s fear of future

persecution objectively reasonable, even though they did not establish past

persecution). Fonseca Rojo’s neighbors and the Chilean police made it clear that

their behavior was directed toward making him more of a “man.” When other

tenants explained that they wanted Fonseca Rojo out of their building because he

was a “faggot,” the police threatened to throw him in jail. The officers also pushed

him into the street, taunting him with propositions for oral sex and threatening to

stick a baton “up [his] ass.” On another occasion, the officers made “obscene

gestures,” pointing to their genitals and asking petitioner if he wanted to “suck

this.” After being detained for holding hands with his boyfriend in a public park,

Fonseca Rojo was forced to remain in the extreme, suffocating heat of a police van

for approximately five hours. On still another occasion, a group of men attacked

Fonseca Rojo and his boyfriend because they were “faggots,” and the police

released the aggressors while detaining Fonseca Rojo for at least an hour, telling


                                            4
him and his boyfriend that they deserved the experience so they “would become

more manly.” There is no question that these and other incidents occurred because

of Fonseca Rojo’s sexual orientation.

      Instead of considering how Fonseca Rojo’s credible and persuasive

testimony bears on his fear of future persecution, however, the BIA demanded

more evidence indicating persecution of homosexuals, as a group, in Chile. As this

Court has made clear, however, “the categories of group targeting and individual

targeting are not absolute and distinct.” Kotasz v. I.N.S., 31 F.3d 847, 854 (9th Cir.

1994). Where Fonseca Rojo has demonstrated egregious “singling out,” he should

bear a correspondingly lesser burden of showing group targeting. Id. This lesser

burden is met by evidence in the record indicating that the police continue to use

Chile’s morality laws to persecute homosexuals as a group.

      For this same reason, the BIA’s reliance on Chile’s repeal of the anti-

sodomy law is misplaced. The status of the anti-sodomy law is of little or no

relevance to Fonseca Rojo’s fear of persecution. None of the incidents suffered by

petitioner was the result of violating this statute, and on only one occasion did the

arresting officers claim the statute as a basis for petitioner’s detention. The repeal

of a law that is not directly relevant to Fonseca Rojo’s claims does not, therefore,

constitute substantial evidence.


                                           5
      Even when taken together, the BIA’s justifications for finding that Fonseca

Rojo does not have a well-founded fear of future persecution do not amount to

substantial evidence. Because a reasonable fact-finder would be compelled to

conclude that Fonseca Rojo has demonstrated a ten-percent likelihood that he

would be persecuted if sent back to Chile, Fonseca Rojo is statutorily eligible for

asylum.

      On remand, the Attorney General shall exercise his discretion on Fonseca

Rojo’s asylum claim in a manner not inconsistent with this disposition. The BIA

shall also evaluate Fonseca Rojo’s withholding of removal claim in the first

instance. Id. at 1179.

      Petition for review GRANTED; REMANDED to the BIA for further

proceedings.




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