Regalado-Escobar v. Holder

• Citation: 717 F.3d 724
• Decision Date: 05 June 2013
• Docket Number: No. 09–72964.,09–72964.
• Parties: Jorge Alberto REGALADO–ESCOBAR, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

717 F.3d 724

Jorge Alberto REGALADO–ESCOBAR, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09–72964.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Nov. 9, 2012.

Filed June 5, 2013.

Roger Green (argued) and Jenny Tsai, Green & Tsai, Attorneys at Law, San Francisco, CA, for Petitioner.

Tony West, Assistant Attorney General, Civil Division, Cindy S. Ferrier, Senior Litigation Counsel, and Kimberly A. Burdge (argued), Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A070–451–936.

Before: ANDREW J. KLEINFELD and MARSHA S. BERZON, Circuit Judges, and WILLIAM E. SMITH, District Judge.^*

Opinion by Judge SMITH; Dissent by Judge KLEINFELD.

OPINION

SMITH, District Judge:

Jorge Alberto Regalado–Escobar petitions for a review of the decision of the Board of Immigration Appeals (BIA) denying his application for asylum,¹ withholding of removal,² and relief under the Convention Against Torture.³ We review questions of law de novo and the BIA's factual findings, including whether an applicant was persecuted on account of his political opinion, under the substantial evidence standard. See I.N.S. v. Elias–Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this standard, this court must uphold the BIA's findings unless “the evidence [the applicant] presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Id. at 483–84, 112 S.Ct. 812. For the reasons stated below, we deny in part, and grant and remand in part, the petition.

Background and Procedural History

A

Regalado is a native and citizen of El Salvador who came to the United States in February 2006 to escape the National Liberation Front for Farabundo Marti (FMLN).⁴ His conflicts with the FMLN began in 2002, when several men showed up at Regalado's house and asked him to join an FMLN demonstration that involved burning tires in the street and breaking windows. Regalado said that he was opposed to these activities and refused to join the FMLN demonstration. Before the Immigration Judge (IJ), Regalado stated that he refused to join because he had “always been a neutral person [and does not] agree with parties that use violence to resolve their political problems.” He further testified that he “didn't agree with [the FMLN's] political activities,” or with their “system” generally, adding that he has “never liked violence” and “never participated with [the FMLN].” The FMLN members said they would “settle this later,” and attacked Regalado on the streets a few days later. They beat Regalado with sticks and rocks and told him that if he did not cooperate, “next time would be worse.”

Regalado was attacked a second time in early 2003. He was waiting for a bus when two men began to beat him with sticks. They identified themselves as members of the FMLN and they told Regalado that if he did not join them, he and his family “would regret it.” After this incident, Regalado went to live with his father in another town but returned to his home in Bosque del Rio periodically to visit his wife and kids.

Regalado was attacked a third time in 2005. As he was exiting a bus, two men approached Regalado, identified themselves as FMLN members and began beating him. Regalado testified to the IJ that he almost died from this beating and one of his attackers told him that next time they would kill him.

B

The FMLN is a recognized political party in El Salvador that has significant representation in both national and local governments. The reports of the U.S. Department of State submitted by both Regalado and the Government describe incidents of violence perpetrated by members of the FMLN.

C

The IJ denied Regalado's application for asylum, stating that he failed to demonstrate that he was attacked on account of a protected ground under asylum law. Rather, the IJ found that Regalado was “either the victim of recruitment by what appears to be, essentially, a guerilla operation, or simply the victim of criminal activity.”In the alternative, the IJ denied Regalado's asylum application because Regalado failed to demonstrate that the government of El Salvador is either unable or unwilling to prevent the harm he suffered and the future persecution he fears. The IJ noted that Regalado did not report the attacks to the police and, during his second attack, fear of the police is the only reason his attackers fled as soon as they did. Lastly, the IJ found that Regalado failed to show that he could not safely relocate within El Salvador.

The IJ also stated that, as Regalado failed to satisfy the burden required for asylum eligibility, he necessarily failed to meet the higher burden required for withholding of removal. Moreover, the IJ held that Regalado failed to demonstrate that he was more likely than not to be tortured if he returned to El Salvador, so he was not eligible for relief under the Convention Against Torture.

D

The BIA upheld the IJ's conclusions that Regalado is ineligible for asylum, withholding of removal and relief under the Convention Against Torture. The BIA held that Regalado did not have a political opinion that could serve as the basis for an asylum claim because he was not “politically or ideologically opposed to the ideals espoused by the FMLN.” Rather, Regalado merely showed that he was opposed to the FMLN's violent activities for which he was being recruited, including demonstrations involving the burning of tires and breaking of windows. Further, the BIA held that Regalado did not show that he was persecuted on account of a political opinion. The BIA concluded that Regalado “failed to establish that at least one central reason for the FMLN members' conduct toward him was tied to his actual or imputed political opinions, rather than to his mere refusal to join their ranks and assist them in their violent activities.” Finally, the BIA found that Regalado was ineligible for relief under the Convention Against Torture because he did not show that he was more likely than not to be tortured if returned to El Salvador or that any torture would be inflicted at the instigation of or with the consent of public officials.

Discussion

To be eligible for asylum, Regalado must prove that he is a refugee; that is, that he is an alien “who is unable or unwilling to return to, and is unable or unwilling to avail himself ... of the protection of, [a] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). In order to establish past persecution, an applicant must show that he or she suffered harm that rises to the level of persecution “on account of” a statutorily protected ground. “To demonstrate a nexus between the harm [an asylum applicant] suffered and his political opinion, [the applicant] must show (1) that he held, or his persecutors believed that he held, a political opinion; and (2) that he was harmed because of that political opinion.” Zhiqiang Hu v. Holder, 652 F.3d 1011, 1017 (9th Cir.2011) (quoting Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.2010)). Even without having suffered past persecution, an applicant may establish eligibility for asylum based on a well-founded fear of future persecution. See Lopez–Galarza v. I.N.S., 99 F.3d 954, 958 (9th Cir.1996) (“Past persecution and a well-founded fear of future persecution provide separate avenues for establishing eligibility for asylum.”).

We grant Regalado's petition and remand with respect to his applications for asylum and withholding of removal. With respect to asylum eligibility, the BIA failed to address whether Regalado established a well-founded fear of future persecution on account of a protected ground, and with respect to withholding of removal, the BIA also neglected to address the likelihood of future persecution on such ground. This court's review of a BIA decision is limited to the decision itself, and does not include the IJ's decision, except to the extent that the BIA expressly adopted the IJ's opinion. See Zhiqiang Hu, 652 F.3d at 1016. “In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency. If we conclude that the BIA's decision cannot be sustained upon its reasoning, we must remand to allow the agency to decide any issues remaining in the case.” Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir.2004).

Regalado argued before both the BIA and this court that he has a well-founded fear of future persecution on a protected ground, independent of his alleged past persecution. The BIA rejected this contention without explanation. There is no indication, for example, that the BIA considered the FMLN's transition from a guerilla group to a recognized political party with seats in government when evaluating the objective basis for Regalado's fear of future persecution. Absent any reasoning from the BIA, we cannot find that substantial evidence supports the conclusion that Regalado has not established a well-founded fear of future persecution or that he is more likely than not to be persecuted if he returns to El Salvador. Therefore, we remand to the BIA to determine whether Regalado is eligible for asylum or withholding of removal in view of his avowed fear. See Mendez–Gutierrez v. Ashcroft, 340 F.3d 865, 870 (9th Cir.2003) (“[I]t is not for us to determine in the first instance whether [the applicant] has shown a well-founded fear of persecution.”).

Upon remand, when the BIA determines whether Regalado has a well-founded fear of future persecution on the basis of a protected ground, the BIA must re-evaluate whether Regalado's opposition to the violent activities of the FMLN constitutes a political opinion. In its prior decision, the BIA erred...