PAEZ, Circuit Judge:
Moris Alfredo Quiroz Parada fled his native El Salvador in 1991 at the age of seventeen after he and his family were the victims of threats, home invasions, beatings, and killings at the hands of Frente Farabundo Martí para la Liberación Nacional (FMLN) guerillas. Twenty-four years after he first applied for asylum, Quiroz Parada petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We conclude that the record compels a finding of past persecution, and that substantial evidence does not support the agency's determination that the government successfully rebutted the presumption of future persecution. We also conclude that the agency erred as a matter of law in denying Quiroz Parada's application for CAT relief. Accordingly, we grant the petition and hold that Quiroz Parada is eligible for asylum and entitled to withholding of removal, and remand for reconsideration of his CAT claim.
Quiroz Parada, a native and citizen of El Salvador, entered the United States without authorization on May 25, 1991 at the age of seventeen. Quiroz Parada has continuously resided in the United States for the last twenty-seven years, and currently lives in Arizona with his wife and three children, the latter of whom are United States citizens. He is the sole provider for his family.
During the Salvadoran civil war of the 1980s and early 1990s, Quiroz Parada and his family were subjected to threats, home invasions, beatings, and killings by FMLN guerillas.
In June 1989, FMLN guerillas sought out and murdered Quiroz Parada's brother while he was on leave from the military. Following his brother's assassination, FMLN guerrillas broke into the Quiroz Parada family home on at least three occasions. The guerillas sought to kill other members of the Quiroz Parada family, and, on one occasion, to kidnap Quiroz Parada
The Quiroz Paradas knew the guerillas were specifically targeting their family largely because the FMLN guerillas would begin calling out their family's name upon entering the Quiroz Paradas' village. Although the FMLN's announcements were terrifying, they at least gave the family enough time to hide in the family's well and thus avoid harm during the first several invasions. On another occasion, however, the family did not hear the guerillas approaching in time to hide before the guerillas broke into their home. Quiroz Parada attempted to flee, but was struck by the guerillas, tied up, carried out of his home, and beaten; the guerillas apparently intended to forcibly conscript him. He was only able to escape because the army suddenly arrived at his village, which caused the guerillas to flee — but not before they beat Quiroz Parada, causing him to lose consciousness. Quiroz Parada testified that his family realized after this attack that they were being targeted because of his brother's military service.
The FMLN guerillas' targeting of the Quiroz Parada family also led to collateral consequences for those around the family. On one occasion, a different group of FMLN guerillas than had committed the previous home invasions mistakenly entered the home of the Quiroz Paradas' neighbors instead. The guerillas kidnapped the neighbor's sons and, upon discovering they had kidnapped the wrong family's sons, returned and murdered the mother in anger over their mistake.
Quiroz Parada fled to the United States in 1991 after these incidents, but his family members who remained in El Salvador continued to suffer harm even after the end of the civil war. In 2000, his father received a death threat from a former FMLN guerilla's son, who had become a Mara Salvatrucha (MS) gang member in the intervening years. This familial transition from FMLN guerilla to MS member was apparently common; Quiroz Parada's family members have told him that many sons of former FMLN guerillas are now part of the MS gang. These FMLN descendants have long memories: the MS member who threatened Quiroz Parada's father told him "You are going to die. Because your family was in the military and killed someone from my family. And one way or another you will die." Quiroz Parada's father was killed five years later in a suspicious hit-and-run, which Quiroz Parada believes to have been carried out by the MS member who threatened his father or one of his associates. The threats did not end with his father's death, either: Quiroz Parada's mother was forced to flee their family home after receiving threats from MS gang members whose fathers were FMLN guerillas.
Quiroz Parada's family members have warned him not to return to El Salvador because "history will repeat itself" — meaning
Quiroz Parada applied for asylum
Thirteen years passed before the government took any action on Quiroz Parada's 1994 asylum application. In May 2007, a Department of Homeland Security (DHS) officer finally interviewed Quiroz Parada. On May 31, 2007, Quiroz Parada's asylum case was referred to an immigration judge; DHS simultaneously issued a notice to appear, charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(I) for being present in the United States without being admitted or paroled. At a master calendar hearing in February 2008, an IJ sustained the charge of removability. Quiroz Parada requested relief in the form of asylum, withholding of removal, CAT protection, and cancellation of removal.
The delays for Quiroz Parada didn't end there: nearly five years passed between his February 2008 hearing and his merits hearing before an IJ in November 2012. The government submitted its hearing exhibits back in 2008, including a 2007 Department of State Country Report and a 2007 Department of State Profile on El Salvador. Yet for unknown reasons, the government did not update their exhibits during the years that passed between submission of their exhibits and the actual hearing — despite the fact that the country
Quiroz Parada, by contrast, submitted his exhibits approximately one week before the November 2012 hearing. In addition to a written statement describing his past persecution and fear of future persecution, Quiroz Parada submitted a number of other exhibits corroborating his claims. For example, he submitted a 2010 letter from his sister — written prior to her fleeing the country — imploring him to not return to El Salvador for any reason because of the risk that he will be kidnapped or killed by MS. The letter explained that the "police do[] not help, and they even get killed," and warned that if he were to come back to the country, "history would repeat itself." Another one of his sisters sent him a copy of a handwritten threat she received from MS members, which said they knew she "snitched on the barrio" and warned her that if she failed to leave the area by a particular date, her "daughters will suffer the consequences." His exhibits also included several newspaper articles about the violence perpetrated by MS in Quiroz Parada's home region; these articles echoed a letter from the National Civil Police of El Salvador describing MS's crimes, the gang's pervasiveness in Quiroz Parada's home region, and how the rampant violence has forced many families to flee.
The long-awaited hearing in November 2012 did not begin on a promising note. Prior to hearing any testimony from Quiroz Parada or argument from his attorney, the IJ conveyed his belief that Quiroz Parada's asylum claim "may be a lost cause." Nonetheless, despite the IJ's significant skepticism, he allowed Quiroz Parada's attorney to present Quiroz Parada's case for asylum. On February 8, 2013, the IJ issued a written decision denying Quiroz Parada's requests for asylum, withholding of removal, CAT protection, and cancellation of removal. The IJ first found that Quiroz Parada was credible under both the pre-REAL ID Act and REAL ID Act standards.
Quiroz Parada appealed the IJ's decision to the BIA, which dismissed his appeal. In its decision, the BIA affirmed the IJ's determinations on Quiroz Parada's asylum, withholding, and CAT claims, including the IJ's alternative holding that even if Quiroz Parada had established past persecution, the government had rebutted the presumption of a well-founded fear of future persecution. The BIA denied relief to Quiroz Parada, but granted him voluntary departure. Quiroz Parada timely petitioned us for review.
We examine the BIA's "legal conclusions de novo and its factual findings for substantial evidence." Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted). Substantial evidence review means that we may only reverse the agency's determination
To be eligible for asylum, Quiroz Parada must establish that he is a refugee — namely, that he is unable or unwilling to return to El Salvador "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." Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th Cir. 2003) (quoting 8 U.S.C. § 1101(a)(42)(A)). "The source of the persecution must be the government or forces that the government is unwilling or unable to control."
We first conclude that substantial evidence does not support the BIA's determination that the harms Quiroz Parada previously suffered did not rise to the level of persecution. Our conclusion is largely driven by the fact that the BIA mischaracterized what Quiroz Parada endured as simply "threats against his family and attempt[s] to recruit him." This glib characterization ignores, among other evidence, his brother's assassination, the murder of his neighbor as a result of his own family being targeted, his experience being captured and beaten to the point of unconsciousness, repeated forced home invasions, and specific death threats toward his family.
It is clear that the harms Quiroz Parada and his family actually suffered — murder, physical assault, home invasions, and specific death threats — rise to the level of persecution under our precedent. It is, of course, "well established that physical violence is persecution under 8 U.S.C. § 1101(a)(42)(A)." Li v. Holder, 559 F.3d 1096, 1107 (9th Cir. 2009). Quiroz Parada was beaten into unconsciousness, which we have held is "clear[ly]" sufficient to show past persecution. See Gafoor v. INS, 231 F.3d 645, 650 (9th Cir. 2000) (holding it was "clear" that petitioner who had been kidnapped and beaten until bleeding and unconscious suffered persecution). Moreover, we have consistently held that petitioners whose family members
We next address whether the agency's determination on the issue of nexus — that is, whether Quiroz Parada's persecution was "on account of race, religion, nationality, membership in a particular social group, or political opinion," 8 U.S.C. § 1101(a)(42)(A) — was supported by substantial evidence. Because the BIA's decision affirmed the IJ's overall findings on past persecution but did not specifically address the IJ's determination on nexus, we review the IJ's decision "as a guide to what lay behind the BIA's conclusion." See Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006) (internal quotation marks and citation omitted); see also Morgan v. Mukasey, 529 F.3d 1202, 1206 (9th Cir. 2008).
For reasons that are difficult to ascertain, the IJ divided the harms Quiroz Parada and his family suffered into two categories: (1) "threats" against him and his family, which the IJ determined had a nexus to his brother's military service and possibly also to his father's position as a marshal, and (2) attempts to forcibly conscript Quiroz Parada via home invasions, which the IJ viewed as lacking a nexus to his family's government service. We conclude that the agency's decision that Quiroz Parada only established nexus for some of the harms he suffered is unsupported by substantial evidence.
Under pre-REAL ID Act law, where an asylum-seeker's testimony is deemed credible, direct, and specific, corroboration is not required to establish the facts to which the applicant testifies. See Ladha, 215 F.3d at 899-901. And under pre-REAL ID Act law, so long as the applicant produces evidence from which it is reasonable to believe that the persecutor's actions were motivated at least in part by a protected ground, the applicant is eligible for asylum. See Borja v. INS, 175 F.3d 732, 736-37 (9th Cir. 1999) (en banc).
Here, Quiroz Parada's credible testimony establishes that the persecution he and his family suffered was "on account of" his family's government and military service — which constitutes persecution on account of a protected ground in two ways. As we recently reiterated, "the family remains the quintessential particular social group." Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015). That is, an asylum-seeker who has suffered persecution "on account of th[eir] familial relationship" has suffered persecution by reason of membership in a particular social group. Id. (citation omitted). As Quiroz Parada testified without contradiction, FMLN members specifically sought out the "particular social group" of his family, even shouting the Quiroz Parada family name as the guerillas entered the family's village.
Quiroz Parada's persecution on account of his family's government service also amounts to persecution on account of imputed political opinion. In a similar case, we concluded that guerillas imputed a political opinion to the petitioner on account of her husband's and brother's service in the Guatemalan military. See Rios, 287 F.3d at 900-01. Likewise, in Meza-Manay v. INS, 139 F.3d 759 (9th Cir. 1998), we
Finally, we note that the agency made much of the attempted conscription of Quiroz Parada as a potential motivating factor behind the FMLN guerillas' invasions of the Quiroz Parada family home. It is true, of course, that conscription by a non-governmental group does not necessarily constitute persecution on account of a protected ground. See, e.g., Melkonian, 320 F.3d at 1068 (citing INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)) (explaining that under Elias-Zacarias, forced conscription does not always amount to persecution on account of a protected ground, but holding that petitioner who was targeted for forced conscription on account of his ethnicity and religion had been persecuted). But where, as here, there is uncontradicted evidence that the attempted forced conscription was on account of Quiroz Parada's family association and imputed political opinion based on his brother's military service — both protected grounds — that attempted conscription is persecution within the meaning of our asylum laws. See id. We reiterate that because Quiroz Parada's claim is governed by pre-REAL ID Act law, he need only demonstrate that his persecutors were motivated in part by a protected ground — which he has amply done. See Borja, 175 F.3d at 736-37; Navas, 217 F.3d at 661. Thus, it is immaterial that the FMLN's attempted conscription of Quiroz Parada would have served the dual goals of "fill[ing] their ranks in order to carry on their war against the government and pursue their political goals," Elias-Zacarias, 502 U.S. at 482, 112 S.Ct. 812, and of retaliating against the Quiroz Parada family — the latter is a protected ground, even if the former is not.
Having concluded that the evidence compels a finding that Quiroz Parada established past persecution on account of his familial relationship and imputed political opinion, we next address whether the agency erred in its alternative conclusion that even if Quiroz Parada had established past persecution, the government had successfully rebutted the attendant presumption of future persecution. It is on this issue that the severe delays Quiroz Parada experienced in the government's processing of his claims for relief become most relevant; those delays ultimately produced an agency decision unsupported by substantial evidence.
A petitioner who has suffered past persecution is presumed to have a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1). The government may rebut that presumption if it establishes by a preponderance of the evidence that either (1) there "has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution," or (2) the "applicant could avoid future persecution by relocating to another part of the applicant's country of nationality."
Where the government submits "evidence of changed country conditions tending to rebut the presumption of a well-founded fear of persecution, the IJ must make an `individualized determination' of how the changed circumstances affect the alien's specific situation." Ali v. Holder, 637 F.3d 1025, 1030 (9th Cir. 2011) (quoting Marcos v. Gonzales, 410 F.3d 1112, 1120-21 (9th Cir. 2005)). "Where past persecution has been established, generalized information from a State Department report on country conditions is not sufficient to rebut the presumption of future persecution." Id. (emphasis omitted) (quoting Kamalyan v. Holder, 620 F.3d 1054, 1059 (9th Cir. 2010)).
Although the agency
Unlike fine wine, reports on country conditions do not improve with age — a reality that our colleagues on the Second Circuit have repeatedly acknowledged. In Tambadou, for example, the court granted a petition for review where the BIA's 2002 decision relied upon a 1996 country conditions report to determine that conditions had adequately changed in Mauritania such that the presumption of future persecution had been rebutted. 446 F.3d at 302-04. Given the six-year delay between the report's publication and the BIA's decision, the Second Circuit aptly observed that "it is difficult to see how the Report could be said to describe `current' conditions." Id. at 303. Similarly, in Yang, the court granted a petition for review of a BIA decision affirming an IJ's determination that the petitioner had not established a well-founded fear of future persecution, because the IJ's decision had relied heavily on a 1993 country conditions report. 277 F.3d at 163. Noting that "current country conditions bear vitally as to asylum," the court reversed and remanded because "the administrative record is silent as to China's contemporary treatment of persons with backgrounds similar to [petitioner's]."
The circumstances here are even more extreme and even more demanding of reversal than those in Yang and Tambadou. The country reports at issue in this case were already a half-decade out-of-date by the time of the IJ hearing — unlike in Yang and Tambadou, where the country conditions reports were relatively current at the time of the IJ hearings and only became out-of-date while the petitioners waited for their cases to be heard by the BIA and then the federal courts of appeals. The government gave no explanation for why it failed to submit more recent reports before the IJ hearing in 2012, nor can we discern any from our review of the record. The reports are now more than a decade out-of-date — although we note that the eleven-year gap between the reports' publication and our opinion today is still not as long as the thirteen years it took for DHS to process Quiroz Parada's asylum application.
But the staleness of the country conditions reports is not the most troubling part of the government's handling of Quiroz Parada's asylum claim. Quiroz Parada suffered past persecution by the FMLN on the basis of his family association and imputed political opinion. At the time of the 2007 country conditions reports, the FMLN had been reconstituted as a political party, but did not have control of either the Salvadoran legislature or the presidency. But in 2009 — two years after the publication of the country conditions reports, and three years prior to the IJ hearing — the FMLN rose to power.
Because the agency's determination that the government successfully rebutted the presumption of future persecution is unsupported by substantial evidence, we hold that the presumption has not been rebutted and that Quiroz Parada is statutorily eligible for asylum and entitled to withholding of removal, and remand for the Attorney General to exercise his discretion under 8 U.S.C. § 1158(b) as to whether to grant asylum. See Baballah v. Ashcroft, 367 F.3d 1067, 1078 n.11, 1078-79 (9th Cir. 2004); Ndom v. Ashcroft, 384 F.3d 743, 756 (9th Cir. 2004); Mashiri v. Ashcroft, 383 F.3d 1112, 1123 (9th Cir. 2004). Particularly
We next address whether the BIA erred in determining that Quiroz Parada failed to establish eligibility for CAT protection. We conclude that we have jurisdiction to review his CAT claim and that the agency committed several reversible errors in its analysis.
As an initial matter, we reject the government's contention that we lack jurisdiction to consider Quiroz Parada's CAT claim because he did not raise it before the BIA. Although Quiroz Parada did not specifically appeal his CAT claim to the BIA, the agency addressed the merits of the claim. It is well-established that we may review any issue addressed on the merits by the BIA, regardless of whether the petitioner raised it before the agency. See Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013), cert. denied, ___ U.S. ___, 135 S.Ct. 355, 190 L.Ed.2d 59, 190 L.Ed.2d 250 (2014). Accordingly, we have jurisdiction to review the claim.
The BIA's
The agency's first error was its failure to consider all relevant evidence. CAT's implementing regulations explicitly require the agency to consider "all evidence relevant
Here, the relevant evidence included Quiroz Parada's credible testimony, the 2007 country conditions reports, and exhibits submitted by Quiroz Parada. Yet the IJ summarily dismissed Quiroz Parada's CAT claim, stating:
This conclusion ignored significant evidence in the record demonstrating that 1) Quiroz Parada credibly feared death at the hands of the MS gang, and 2) the country conditions reports and other evidence in the record established not only that the government "acquiescence[d]" in the MS gang's violence, but also that Salvadoran security forces engaged in torture on a regular basis — as the IJ himself found in a section of his decision summarizing the country conditions evidence:
Thus, while the IJ did "consider" the country conditions reports, the significant and material disconnect between the IJ's quoted observations and his conclusions regarding Quiroz Parada's CAT claim indicate that the IJ did not properly consider all of the relevant evidence before him. See
The agency's second error was its overly narrow construction of the "acquiescence" standard. In a similar case, we reversed and remanded where the agency. "erred by construing `government acquiescence' too narrowly," noting that "acquiescence does not require actual knowledge or willful acceptance of torture; awareness and willful blindness will suffice." Aguilar-Ramos, 594 F.3d at 705-06 (citing Zheng v. Ashcroft, 332 F.3d 1186, 1194-95 (9th Cir. 2003)). In Aguilar-Ramos, we found "evidence in the record that suggests that gangs and death squads operate in El Salvador, and that its government is aware of and willfully blind to their existence." Id. at 706. So too here.
Moreover, we have held that the acquiescence standard is met where the record demonstrates that public officials at any level — even if not at the federal level — would acquiesce in torture the petitioner is likely to suffer. Madrigal v. Holder, 716 F.3d 499, 509-10 (9th Cir. 2013). Evidence showing widespread corruption of public officials — as the record reveals here — can be highly probative on this point. See id. at 510 (noting that "[v]oluminous evidence in the record explains that corruption of public officials in Mexico remains a problem"). As in Madrigal, the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government (or at least parts of the Salvadoran government) in the "rampant" violence and murder perpetrated by the MS gang — at whose hands Quiroz Parada fears that he will be killed. And as we have previously held, "torture" under CAT includes killings. See Cole, 659 F.3d at 771.
Because the agency erred by failing to consider all relevant evidence and by improperly construing the government acquiescence standard, we reverse the BIA's determination that Quiroz Parada is not eligible for CAT relief and remand to the agency for further consideration of his claim.
We conclude that Quiroz Parada suffered past persecution on account of his family association and imputed political opinion, and that the presumption of future persecution has not been rebutted. Under these circumstances, he is eligible for asylum, and entitled to withholding of removal. We remand to the BIA for the agency to reconsider Quiroz Parada's claim for relief under CAT, for the Attorney General to exercise his discretion as to whether to grant Quiroz Parada asylum, and for an appropriate order withholding Quiroz Parada's removal.