MEMORANDUM Petitioner Aroldo Isaías 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 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 1078 (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). The petition for review is GRANTED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rulfe 36-3.