Enamorado-Rodriguez v. Barr ( 2019 )

United States Court of Appeals
For the First Circuit
No. 19-1084
DARLIN ELEAZAR ENAMORADO-RODRIGUEZ,
Petitioner,
v.
WILLIAM P. BARR,*
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Thompson,
Circuit Judges.
Joshua D. Asher, with whom Megan McEntee, David C. Soutter,
and Ropes & Gray LLP were on brief for petitioner.
Jennifer A. Singer, Trial Attorney, U.S. Department of
Justice, Civil Division, Office of Immigration Litigation, with
whom Kristen A. Giuffreda, Trial Attorney, Joseph H. Hunt,
Assistant Attorney General, and Shelley R. Goad, Assistant
Director, were on brief for respondent.
October 30, 2019
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General William
P. Barr is substituted for former Acting Attorney General Matthew
G. Whitaker as respondent.
LYNCH, Circuit Judge. Darlin Eleazar Enamorado-
Rodriguez ("Enamorado"), a Honduran national, came to the United
States at age fifteen and sought asylum, withholding of removal,
and protection under the Convention Against Torture ("CAT"). He
asserted he had experienced past persecution on account of a
protected ground, his membership in his mother's nuclear family,
and would face future persecution.
Although the Immigration Judge ("IJ") found that
Enamorado's testimony was credible, and that the abuse Enamorado
suffered had indeed amounted to persecution, the IJ denied asylum
relief. He held that Enamorado had not met his burden to show the
required nexus. The BIA affirmed, saying in part that Enamorado
had failed to submit corroborative evidence.
We vacate the BIA's decision denying asylum and
withholding of removal as to Enamorado's family membership
persecution claim for relief, deny the relief Enamorado sought on
alternate particular social group ("PSG") theories and for CAT
relief, and remand the matter for proceedings on Enamorado's family
membership persecution claim, consistent with this opinion.
I.
We describe first those facts relevant to our conclusion
there was legal error. Facts pertinent to our rejection of
Enamorado's challenges to other claims are recited with the
analyses of those claims.
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Enamorado was born on January 22, 2000, in El Capuline,
a small, isolated, mountainous village in the municipality of Santa
Barbara, Honduras. According to the uncontradicted declaration
of Enamorado's mother, Ruth Azucena Rodriguez Acosta, his father,
Eleazar Enamorado Alberto, was addicted to drugs and physically
abused her, including while she was pregnant with Enamorado. Days
after Enamorado's birth, his father slapped his mother in front of
his father's sister, who told Eleazar that he had to leave the
family home. Eleazar did. Enamorado's mother then did not hear
from his father for seven months. His mother then moved to San
Pedro Sula with Enamorado so that she could live with her own
mother.
Enamorado's father eventually came to San Pedro Sula,
and when, after six months, his mother "decided to get back
together with him," they rented a room together. Within a month,
Enamorado's father resumed physically abusing his mother. His
mother "was never able to tell anyone how" his father abused her
and did not believe the police would take action if she reported
his abuse. She eventually began to work in a clothes factory, and
Enamorado's paternal grandmother, who then lived in San Pedro Sula,
watched Enamorado while his mother worked. When Enamorado's
grandmother decided to move back to El Capuline, she took Enamorado
with her, and Enamorado's mother thereafter visited him and her
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other child, Enamorado's sister, in El Capuline on weekends.
Enamorado's father accompanied her only occasionally.
When Enamorado was four, he and his sister moved again
to live with their parents in San Pedro Sula so that his sister
could start school. His father continued to use drugs and
physically abuse Enamorado's mother and both children. Eleazar
then took Enamorado back to his father's parents in El Capuline
and did not allow Enamorado's mother to visit or retrieve him.
When Enamorado was about six, his father tried to choke
his mother in their home while their daughter watched. His mother
told his father "to get out of the house," and the father then
left Honduras for Mexico. His father told his own parents not to
return Enamorado to his mother. Eleazar continued to threaten and
harass Enamorado's mother by telephone, including threats to kill
her. In fear, Enamorado's mother immediately fled Honduras for
the United States without her children. She left her daughter
with her cousin in San Pedro Sula. Her son, petitioner, remained
with his grandparents in El Capuline.
From about age six to age ten, Enamorado remained with
his father's parents in El Capuline in a house made of dirt and
stone, with no telephone or electricity. Both of his grandparents
"talked very bad" about his mother. They told Enamorado that his
mother had left Honduras because she did not love him and that
Enamorado's maternal grandmother had caused his parents'
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separation. Enamorado's grandfather told him that his mother did
not really love him because she had not come to say goodbye to him
before leaving Honduras.
Enamorado's grandparents went well beyond his father's
instruction not to return Enamorado to his mother or allow her to
visit, refusing to allow him to see or speak to anyone in his
mother's family. Enamorado's sister was then living with
Eleazar's sister in another nearby town. When Enamorado asked his
sister about their father, she started crying and said that their
father had abused her.
During this period, Enamorado's grandparents physically
and verbally abused him. On many occasions, his grandmother used
a stick and rope to hit him, including on his back and his legs.
His grandmother did not treat anyone else this way. His
grandfather beat Enamorado with ropes used to tie horses, a water-
soaked belt, or the straps of a horse saddle, and once threatened
to hit Enamorado with the flat of a machete. His grandfather also
verbally insulted Enamorado, calling him "stupid" and specifically
referring to Enamorado's mother by calling Enamorado "son of a
whore." Because of the distance between homes in El Capuline,
neighbors were unaware of the abuse. The nearest police station
was too far for Enamorado to travel to, and he believed the police
would do nothing. Enamorado reported the abuse to his teachers
but they did nothing.
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When asked at the hearing why his life with his
grandparents was "very bad," Enamorado testified that both his
grandparents "mistreated [him] a lot because they hated [his]
mother very much." His grandmother hit him because "she hated
[his] mother very much." He added that his grandfather mistreated
him because "he was going to raise [Enamorado] up whichever way he
wanted, the same way he was raised, and he would tell [Enamorado]
that [he had] to become a man." The government did not cross-
examine Enamorado about his grandparents' motivations in abusing
him.
Enamorado's grandfather eventually left El Capuline and
did not return, leaving Enamorado alone with his grandmother.
When Enamorado was nine or ten, his grandmother also eventually
left, leaving Enamorado alone in El Capuline. His sister was
living with their paternal aunt, about ninety minutes away on foot,
and Enamorado could only visit infrequently. When he did, his
aunt did not offer to take care of him. Enamorado did not try to
leave El Capuline because his grandparents had told him to watch
the house and because he lacked means to travel. He went hungry,
had few clothes, and became very sick, including with dengue fever.
He could not travel to the health clinic. When he was twelve or
thirteen, Enamorado attempted suicide because of his sadness and
loneliness, but his sister came to El Capuline and found him in
time to prevent his death.
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Enamorado's grandmother eventually returned to El
Capuline. The house had been robbed during her absence, for which
she blamed Enamorado and beat him. Enamorado began working,
helping cousins in the fields.
The abuse was also committed by other members of
Enamorado's father's family. Enamorado worked with a paternal
cousin who often insulted him and his mother, calling him a "son
of a whore." His cousin once threw a machete at Enamorado's hand,
causing a deep cut.
His grandmother eventually left El Capuline again. When
he was fifteen, Enamorado moved to San Pedro Sula to live with his
sister and her partner. Men on the street threated Enamorado with
a weapon, asked him for money, and told him they could make him
disappear. Enamorado also learned that the MS-13 gang had killed
his paternal cousin, heightening his fear that he was in danger.
Enamorado decided to go to the United States.
He entered the United States on July 13, 2015, near
Hidalgo, Texas, was detained by immigration officials, and was
released to live in East Boston with his mother, step-siblings,
and half-siblings.
On February 28, 2018, Department of Homeland Security
Investigations ("HSI") Gang Strike Force agents took Enamorado
into custody because of his alleged association with MS-13 street
gang members. In Immigration Court in Boston, Enamorado conceded
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through counsel that he was removable and sought asylum,
withholding of removal, and protection under the CAT.
II.
A. Denial of Asylum Based on Family Relationship
Although the IJ had "some concerns regarding
[Enamorado's] denials that he may be a gang member," he "ultimately
. . . found [Enamorado] credible with respect to his claims of
past harm in Honduras and the claim of future harm." The IJ also
found that "the frequency of the beatings by [Enamorado's] paternal
grandparents, . . . the deprivation of food and medical help for
[Enamorado] as a young child, [and] the abandonment of [Enamorado]
by both his paternal grandparents" established that Enamorado had
suffered harm sufficient to constitute persecution.
The IJ then found that Enamorado had not "provided
sufficient evidence to establish that one central reason for the
harm he suffered was on account of his family, including that of
his nuclear family." Reasoning that Enamorado "only offered his
own speculation to support his position that he was persecuted on
account of his family," the IJ found "insufficient evidence to
establish a nexus to a protected ground or that one central reason
[Enamorado] was targeted was on account of his family, as opposed
to his grandparents' conceptions of masculinity or his
grandparents' adherence to the manner of they were raised [sic]."
The IJ did not reach the question of future persecution if
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Enamorado returned to Honduras and did not consider whether the
rebuttable presumption would apply. See 8 C.F.R. § 208.13(b)(1).
The IJ acknowledged that Enamorado's mother provided a
lengthy sworn declaration about the circumstances surrounding
Enamorado's father's parents' mistreatment of him. The IJ
"place[d] minimal weight" on her declaration, "especially where
she was available as a witness" but did not testify. Apparently
not considering the declaration to be corroborative evidence, the
IJ concluded that Enamorado had failed to meet his burden through
his testimony alone and was required to support his testimony with
corroborative evidence. The IJ also rejected the alternate
claimed grounds for relief.
Enamorado appealed the IJ's decision to the BIA, arguing
that the IJ's conclusion about Enamorado's grandparents'
motivation in abusing him was clearly erroneous and based on an
error of law.1
The BIA dismissed Enamorado's appeal and engaged in its
own analysis. It observed that Enamorado "testified that his
grandmother beat him viciously because she hated his mother, but
that his grandfather beat him because he wanted to raise
[Enamorado] whatever way he wanted and desired to make him a man."
1
Enamorado also argued that the IJ lacked jurisdiction
because the Notice to Appear in Enamorado's case was defective
under Pereira v. Sessions, 138 S. Ct. 2105 (2018), but he does not
press this argument on appeal to this court.
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In fact, this was a mischaracterization; Enamorado's testimony was
that both his grandmother and his grandfather beat him because
they hated his mother. The BIA concluded that, although Enamorado
had "posit[ed] a plausible alternative motive to the one found by
the [IJ]," such a showing was "insufficient to demonstrate clear
error." The BIA also found that Enamorado had "not met his burden
to corroborate his claim that he was harmed on account of his
family membership," noting that he "had reasonably available
witnesses but did not make them available for cross-examination."
As a result, "[w]ithout additional corroboration, [Enamorado's]
testimony, while credible, was not sufficient in this case."
When "the BIA conducts a de novo review of the record,
independently validates the sufficiency of the evidence, and
adopts the IJ's findings and conclusions, the IJ's findings become
the BIA's." Laurent v. Ashcroft, 359 F.3d 59, 64 n.3 (1st Cir.
2004). We must uphold the BIA's decision if it is "supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." INS v. Elias–Zacarias, 502 U.S. 478, 481
(1992) (quoting 8 U.S.C. § 1105a(a)(4)) (internal quotation marks
omitted).
To qualify for asylum, a person must establish that he
or she is "someone who is unable or unwilling to return to his
home country due to persecution or a well-founded fear of future
persecution 'on account of race, religion, nationality, membership
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in a particular social group, or political opinion.'" Silva v.
Gonzales, 463 F.3d 68, 71 (1st Cir. 2006) (quoting 8 U.S.C.
§ 1101(a)(42)(A)). The person must show that one of the statutory
protected grounds "was or will be at least one central reason
for" his or her persecution. 8 U.S.C. § 1158(b)(1)(B)(i). Family
membership is "a sufficiently permanent and distinct
characteristic" to support an asylum claim. Ruiz v. Mukasey, 526
F.3d 31, 38 (1st Cir. 2008). If past persecution based on a
protected ground is found, a presumption of future persecution
arises and the burden shifts to the government to rebut that
presumption. Orelien v. Gonzales, 467 F.3d 67, 71 (1st Cir. 2006).
Enamorado argues that the BIA committed legal error by
failing to consider whether Enamorado's persecution had mixed
motivations, that is, whether, despite the possible presence of
another motivation, Enamorado's membership in his mother's family
was at least one central reason for his persecution. He also
argues that the BIA committed further error by requiring Enamorado
to provide further evidence than he did to corroborate his
testimony that he was persecuted based on his family.
The asylum statute provides that "the applicant must
establish that race, religion, nationality, membership in a
particular social group, or political opinion was or will be at
least one central reason for persecuting the applicant." 8 U.S.C.
§ 1158(b)(1)(B)(i) (emphasis added). Accordingly, "[w]e do not
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require an asylum applicant to demonstrate that he was singled out
only due to his protected trait," Ordonez-Quino v. Holder, 760
F.3d 80, 90 (1st Cir. 2014), and "the presence of a non-protected
motivation does not render an applicant ineligible for refugee
status," Aldana-Ramos v. Holder, 757 F.3d 9, 19 (1st Cir. 2014).
"Rarely will an applicant know the 'exact motivation' of his
persecutors--especially when he was victimized as a young
child--and, 'of course, persecutors may often have more than one
motivation.'" Ordonez-Quino, 760 F.3d at 90 (quoting Ivanov v.
Holder, 736 F.3d 5, 15 (1st Cir. 2013)).
As the Ninth Circuit has said, and we agree,
an applicant need not prove that a protected
ground was the most important reason why the
persecution occurred. The Act states that a
protected ground must constitute 'at least
one' of the central reasons for persecutory
conduct; it does not require that such reason
account for 51% of the persecutors'
motivation.
Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009).
Nothing in the IJ's ruling reads that the IJ utilized a
mixed-motive or "at least one central reason" analysis, as the
statute requires. Enamorado's briefing to the IJ and the BIA did
not waive this issue. Nor did the IJ's ruling explain how
Enamorado's family membership was not "at least one central reason"
for his persecution given Enamorado's uncontested testimony,
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deemed credible by the IJ, that his grandmother and grandfather
each beat him because each hated his mother.
The BIA did not recognize this error. Further, it
focused on the grandfather's motivation, ignoring the
grandmother's, and even then mischaracterized the testimony. We
note that Enamorado's abuse continued during the period when he
lived only with his grandmother because his grandfather had left
El Capuline. The grandmother's persecution based on hatred of the
mother may have been sufficient standing alone, but neither the IJ
nor the BIA addressed this point.
Nothing in the record or the IJ's decision supports the
conclusion that Enamorado's description of his grandfather's
motivation, if different, also applied to his grandmother's
motivation. The IJ's conclusion that Enamorado's abuse was
motivated only by "his grandparents' conception of masculinity or
his grandparents' adherence to the manner of they were raised
[sic]" does not follow the required analysis.
Even on its own terms, the IJ's conclusion--that
Enamorado's grandfather was motivated by his conception of
masculinity or how he was raised--does not itself exclude that
Enamorado's relationship to his mother motivated his grandfather's
abuse.
Enamorado's grandfather may have been raised to believe
that the "sins" of the mother (in not remaining with Enamorado's
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father despite the beatings she suffered) should be visited on her
son. Indeed, his grandparents did not say his mother left Honduras
in light of the death threats received from the father. Rather,
they told him his mother did not love him. And that belief is
consistent with the grandfather's anger with the grandson for his
status as his mother's child, calling Enamorado "son of a whore."
Nor is Enamorado's grandfather's stated desire to ensure that
Enamorado would "become a man" inconsistent with a motive based on
Enamorado's being his mother's son. That is particularly so in
light of the record evidence that family "violence against women
is considered natural" in Honduras. Nothing in the IJ's decision
addressed this.
The government responds that the IJ permissibly
concluded that Enamorado did not meet his burden to show that his
family membership was a cause of his persecution. The government
stated at oral argument that Enamorado's testimony about his
grandparents' motivation was speculation because he did not
provide quoted specific statements that his grandparents made that
demonstrated their hatred of his mother. The government offered
no authority that an asylum applicant is required to establish the
motivation for the persecution using direct quotes from the
applicant's persecutor, and we are aware of none. It also argues
that Enamorado's testimony was no more than his speculation about
the reasons for his grandparents' abuse and therefore insufficient
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on its own to demonstrate his entitlement to asylum.2 The BIA,
however, did not call this evidence "speculation," and we reject
that argument by the government as not an accurate summation of
the record.
In the ordinary course, "[a]n alien may satisfy his
burden of proving entitlement to asylum 'by [his] own testimony if
that testimony is specific and credible.'" Rivera-Coca v. Lynch,
844 F.3d 374, 379 (1st Cir. 2016) (quoting Chhay v. Mukasey, 540
F.3d 1, 6 (1st Cir. 2008)). It is true that corroborative evidence
may be required even if the applicant is credible. 8 U.S.C.
§ 1158(b)(1)(B)(ii). Further, "[a] failure either to provide
readily available corroborating evidence or to offer a compelling
explanation for such a failure can be fatal to an asylum claim."
Rivera-Coca, 844 F.3d at 379. This is not a case where the
applicant's testimony was weak, causing a greater need for
corroborative evidence. Mukamusoni v. Ashcroft, 390 F.3d 110, 122
(1st Cir. 2004).
But an asylum seeker need not provide such corroboration
where "the applicant does not have the evidence and cannot
2 The government also filed a Rule 28(j) letter about the
Attorney General's decision in Matter of L-E-A-, 27 I. & N. Dec.
581 (A.G. 2019). The issues it addresses are not before the court.
The BIA decided this case under prior law, and the government's
brief does not present the argument that Enamorado's maternal
family was not a cognizable PSG. Further, unlike in Matter of L-
E-A-, the government in this case left it to Enamorado to establish
the validity of his PSG, which he did.
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reasonably obtain [it]." 8 U.S.C. § 1158(b)(1)(B)(ii).
"[B]efore the failure to produce corroborating evidence can be
held against an applicant, there must be explicit findings that
(1) it was reasonable to expect the applicant to produce
corroboration and (2) the applicant's failure to do so was not
adequately explained." Soeung v. Holder, 677 F.3d 484, 488 (1st
Cir. 2012).
The government's legal position as to corroboration
fails. The IJ never informed Enamorado that he was required to
provide further evidence by putting his mother on the stand despite
her sworn declaration. There was no objection to consideration of
her declaration and no request for cross-examination by the
government. The stated reason for not considering her declaration
does not strike us as sound, as we discuss below. The government
does not argue that the declaration was not part of Enamorado's
asylum application. See 8 C.F.R. § 1208.3(c)(1) ("[I]nformation
provided in the [asylum] application may be used . . . to satisfy
any burden of proof in . . . removal proceedings."); Mukamusoni,
390 F.3d at 121 (discounting improperly applicant's affidavit is
"an error of law").
The IJ's decision notes that Enamorado's mother "was not
offered for cross-examination notwithstanding her presence in the
court," but it does not contain a finding that Enamorado's mother,
who apparently refused to testify, was reasonably available to
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take the stand. There is no explanation in the record for this
refusal and no explanation of whether the mother thought she would
jeopardize her own asylum application by testifying. Her mere
presence in the courtroom does not itself establish that she was
reasonably available to testify. As the government conceded at
oral argument, the IJ made no "explicit finding[] that . . . it
was reasonable to expect [Enamorado] to produce corroboration" of
his grandparents' motives or that his failure to offer
corroborative testimony was inadequately explained. See Soeung,
677 F.3d at 488.
The BIA independently referred to the need for
corroborative evidence from other witnesses. But Enamorado
testified that there were no other witnesses to his abuse because
of the distance between homes in El Capuline, and the IJ did not
explain on this record what further evidence was reasonably
available despite Enamorado's youth and isolation at the time of
the abuse. See Ordonez-Quino, 760 F.3d at 90 (acknowledging that
a young victim of persecution will often have little evidence of
persecutors' motivation). Despite our deference to findings made,
"[w]e cannot read these findings into the record; they [must be]
made explicitly in the first instance by the IJ and the BIA."
Soeung, 677 F.3d at 489.
Here, the IJ found Enamorado credible with respect to
his persecution and did not explain why, despite Enamorado's
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credible, unrebutted testimony, his mother's sworn affidavit was
not considered, or why it was reasonable to require further
evidence to buttress Enamorado's proffered explanation of his
grandparents' motives. Without such findings, "any holding that
an otherwise credible claim is doomed because the petitioner failed
to provide corroborating evidence directly conflicts with the
applicable regulations." Mboowa v. Lynch, 795 F.3d 222, 226 n.3
(1st Cir. 2015) (citing 8 C.F.R. § 208.13(a)). This is the second
error of law which requires us to remand for a proper analysis.
B. Denial of Asylum Based on Enamorado's Other Proposed PSGs
Enamorado also claimed eligibility for asylum based on
his membership in what he argued are three other PSGs: (1) Honduran
children viewed as property by immediate family and unable to
leave; (2) Honduran children lacking parental protection; and
(3) young Honduran male deportees labeled as gang members by U.S.
law enforcement. The IJ concluded that these proposed PSGs lacked
the requisite particularity. The BIA affirmed. We deny the
petition as to its attacks on the BIA's determinations that
Enamorado's other proposed PSGs are not cognizable under the asylum
statute.
"[A]n applicant seeking asylum or withholding of removal
'based on "membership in a particular social group" must establish
that the group is: (1) composed of members who share a common
immutable characteristic, (2) defined with particularity, and (3)
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socially distinct within the society in question.'" Paiz-Morales
v. Lynch, 795 F.3d 238, 244 (1st Cir. 2015) (quoting Matter of M–
E–V–G–, 26 I. & N. Dec. 227, 237 (BIA 2014)).
First, the IJ reasonably concluded that Enamorado did
not show that his proposed PSGs of "Honduran children viewed as
property by immediate family and unable to leave" and "Honduran
children lacking parental protection" have the required
particularity, finding that their ambiguous terms gave them no
"definable boundaries." These descriptions are "ambiguous group
characteristics, largely subjective." Mendez-Barrera v. Holder,
602 F.3d 21, 27 (1st Cir. 2010). Further, were Enamorado to return
to Honduras, he would not be a child. See Miranda-Bojorquez v.
Barr, 937 F.3d 1, 6 (1st Cir. 2019) (petitioner did not establish
membership in a PSG of minor children because he was "no longer a
minor").
Enamorado's third proposed PSG arises out of events
after his arrival in Boston. On January 22, 2018, HSI labeled
Enamorado "a VERIFIED and ACTIVE member of the MS-13 gang in the
Boston metro area." HSI's conclusion was based on field reports
gathered by the Boston Police Department, the Boston Regional
Intelligence Center, the Boston School Police Department, and the
Massachusetts State Police that Enamorado was seen interacting
with certain other individuals, was seen in certain areas of East
Boston, and was seen wearing apparel bearing gang symbols such as
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the Chicago Bulls logo. Enamorado denies that he is or has been
in the MS-13 gang. Because some of his paternal cousins are in
the 18th Street Gang, he believes that reports that he is in the
MS-13 gang may be fatal if he returns to Honduras. His third
proposed PSG of young Honduran male deportees labeled as gang
members by U.S. law enforcement is based on this fear.
The IJ reasonably concluded that Enamorado did not show
that this proposed PSG has the required particularity, finding
that the group is not viewed as socially distinct in Honduras.
The record does not compel a conclusion that persons incorrectly
perceived by U.S. law enforcement as gang members are themselves
a distinct social group in Honduras. See Cantarero v. Holder, 734
F.3d 82, 86 (1st Cir. 2013).
C. Denial of Relief Under CAT
The IJ's denial, and the BIA's affirmance, as to
Enamorado's application for CAT protection is supported by
substantial evidence. "A petitioner seeking CAT protection must
show 'it is more likely than not' that he would be subject to
torture 'by or with the acquiescence of a government official.'"
Aldana-Ramos, 757 F.3d at 19 (quoting Nako v. Holder, 611 F.3d 45,
50 (1st Cir. 2010)). The IJ concluded that Enamorado had offered
insufficient evidence of the needed government indifference,
noting that Enamorado had never contacted the police in the past
about his abuse and was never mistreated by a government official.
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III.
The BIA's decision as to Enamorado's asylum and
withholding of removal claims based on his persecution as a member
of his mother's family was based on legal errors as described.
The BIA's decision as to Enamorado's other proposed PSGs and his
CAT claim, on the other hand, contained no legal errors and was
supported by substantial evidence.
Enamorado asks us to find that the record compels a
finding of his eligibility for asylum and to declare that he has
established past persecution. But where the agency's decision was
based on errors of law, we are required to remand to allow the
agency to make its own finding using the correct legal standard.
We may not make the finding ourselves in the first instance. See
INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (per curiam);
Castaneda-Castillo v. Gonzales, 488 F.3d 17, 22 (1st Cir. 2007)
(en banc); Vumi v. Gonzales, 502 F.3d 150, 159 (2d Cir. 2007)
(remanding to agency when agency did not use mixed-motive
analysis).
We grant the petition in part and deny it in part, vacate
the BIA's decision as to Enamorado's asylum and withholding of
removal claims based on the PSG of family relationship, and remand
for further proceedings on that claim consistent with this opinion.
-Concurring Opinion Follows-
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LIPEZ, Circuit Judge, concurring in part and concurring
in the judgment. Although there is much to admire in the majority
opinion, I disagree that the agency decisionmakers committed legal
error by failing to apply the mixed-motive standard. The IJ's and
BIA's analyses show that they used the correct standard. The
error lies elsewhere -- reaching a conclusion on the nexus element
that is not supported by the evidence.3 This record compels a
finding that at least one central reason for Enamorado's
persecution was membership in his mother's family. Hence, I would
hold that Enamorado has established that he was persecuted on the
basis of a protected ground. In my view, the proceedings on remand
should first focus on whether the government is unwilling or unable
to protect Enamorado from such persecution. See Rosales Justo v.
Sessions, 895 F.3d 154, 162 (1st Cir. 2018). If so, he will then
have the benefit of a rebuttable presumption of future persecution,
which the remand proceedings would then address. See Rivera-Coca
v. Lynch, 844 F.3d 374, 378-79 (1st Cir. 2016).
3 As the majority notes, when, as in this case, "the BIA
conducts a de novo review of the record, independently validates
the sufficiency of the evidence, and adopts the IJ's findings and
conclusions, the IJ's findings become the BIA's." Laurent v.
Ashcroft, 359 F.3d 59, 64 n.3 (1st Cir. 2004). However, for
clarity, I will refer to both the IJ's and BIA's decisions as
appropriate to my analysis.
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I. The Agency's Decision on Mixed Motive
The IJ concluded, and the BIA affirmed, that Enamorado
failed to provide "sufficient evidence to establish that one
central reason for the harm he suffered was on account of his
family, including that of his nuclear family." In reaching that
conclusion, the IJ noted that the statute governing asylum requires
that membership in a particular social group be "at least one
central reason" for an asylum applicant's persecution. The IJ
further stated that "[t]he key question is whether the evidence
indicated that the persecutors 'had any animus against the family
or the respondent based on their biological ties, historical
status, or other features relating to the family's unit.'" IJ Op.
at 15 (quoting Matter of L-E-A-, 27 I. & N. Dec. 40, 47 (B.I.A.
2017)). After articulating this correct legal standard, the IJ
acknowledged the petitioner's testimony that he had been
persecuted on account of his membership in his family but rejected
it as insufficient to establish the required nexus. The IJ
concluded that the record supported only one conclusion: that
Enamorado's grandparents abused him because of their "conception
of masculinity" or a commitment to raise Enamorado in the way that
they were raised.
The BIA affirmed the IJ's conclusion, finding no clear
error in the IJ's factual determination that Enamorado had failed
to establish the required family-motivated nexus. Like the IJ,
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the BIA acknowledged the petitioner's evidence that he was
persecuted by his grandparents because of his family membership
-- his paternal grandparents hated his mother -- but concluded
that, although this alternative motive for the abuse was plausible,
the IJ's rejection of it did not amount to clear error.
To be sure, neither the IJ nor the BIA explicitly invoked
the mixed-motive analysis. But the legal framework articulated
by each of them makes clear that the IJ applied that standard and
that the BIA reviewed its application. The IJ acknowledged the
evidence supporting an additional motive, but he concluded that
the evidence was insufficient. The BIA affirmed this analysis.
Thus, in my view, the BIA did not commit legal error by failing to
engage in a mixed-motive analysis. Rather, as detailed below, the
agency erred in reaching a conclusion regarding the nexus element
that disregarded the compelling evidence of family-based
motivation.
II. The Evidence of Mixed Motive
We review the IJ's findings of fact, adopted by the BIA,
under the substantial evidence standard, which requires that we
respect findings "supported by reasonable, substantial, and
probative evidence on the record considered as a whole." Ordonez-
Quino v. Holder, 760 F.3d 80, 87 (1st Cir. 2014) (quoting Larios
- 24 -
v. Holder, 608 F.3d 105, 107 (1st Cir. 2010)). 4 There is
substantial evidence to support the agency's findings if the record
does not compel a contrary factual finding but simply "supports a
conclusion contrary to that reached by the BIA." See Hincapie v.
Gonzales, 494 F.3d 213, 218 (1st Cir. 2007) (citing I.N.S. v.
Elias-Zacaris, 502 U.S. 478, 481 n.1 (1992)). If, however, the
record viewed in its entirety would compel a reasonable fact-
finder to reach a contrary conclusion, "'our deference is not
unlimited,' and we must reject . . . the IJ's findings." Ordonez-
Quino, 760 F.3d at 87 (quoting Ivanov v. Holder, 736 F.3d 5, 11
(1st Cir. 2013)).
As the majority's thorough recitation of the evidence
reveals, multiple factors compel a finding regarding nexus
contrary to that reached by the IJ and affirmed by the BIA. First,
Enamorado provided specific testimony not only about his
grandparents' abusive treatment, but also about specific
statements and actions that led him to believe that they persecuted
him because they hated his mother. He testified that his
grandparents prohibited him from seeing or speaking with anyone in
his mother's family, talked "very bad" about his mother, told him
that his mother did not love him, and called him a "son of a whore"
repeatedly. He also testified that both of his grandparents
4
Whether persecution occurred "on account of a protected
ground" is a finding of fact. Ordonez-Quino, 760 F.3d at 87.
- 25 -
abused him "because they hated [his] mother very much" and that
his grandmother hit him because "she hated [his] mother very much."
The government did not attempt to discredit Enamorado's testimony
concerning the family-based reason for his treatment; it did not
cross-examine him on any of his statements regarding his
grandparents' abuse or their motivations.
Second, and perhaps most significantly, the IJ found
this testimony credible, but selectively -- and arbitrarily --
relied on it in reaching his nexus finding about the motivation of
the grandparents. Despite Enamorado's lengthy testimony
describing his grandparents' hatred of his mother, the IJ
cherrypicked a single statement from Enamorado's unrebutted,
credible testimony to conclude that his grandparents' motivation
for abusing him was their conception of masculinity or an adherence
to raising him as they were raised. In other words, in making his
nexus finding, the IJ relied exclusively on one piece of
Enamorado's testimony -- notably, the sole part of his testimony
that supported a motivation other than one protected by asylum law
-- but then disregarded the rest of that testimony, despite all of
it coming from the same source deemed credible by the IJ. This
inconsistent treatment of Enamorado's uncontested, credible
testimony cannot be upheld. When the petitioner's testimony is
properly viewed in its entirety, along with the rest of the record
- 26 -
evidence, we must conclude that Enamorado has established that his
persecution was on account of his family membership.
That the record compels this contrary conclusion is
perhaps most obvious when considering the grandmother's
motivations for abusing Enamorado. Although the petitioner stated
that his grandfather abused him because of his view of masculinity,
he never said the same of his grandmother. The IJ completely
disregarded this fact. Indeed, there is no evidence in the record
that supports the IJ's conclusion that Enamorado's grandmother was
motivated by her view of masculinity or a commitment to raise the
petitioner as she was raised. And, as the majority points out,
the petitioner was abused by his grandmother, even when his
grandfather was not living with them.
Third, as the majority correctly emphasizes, the IJ
improperly rejected as "speculation" Enamorado's testimony that
his grandparents' hatred of his mother was one cause for his abuse.
In support of this view, the IJ cited Villalta-Martinez v.
Sessions, 882 F.3d 20 (1st Cir. 2018), in which the court also
referred to an asylum applicant's testimony as speculation. See
id. at 25. However, that case and other asylum cases involving
"speculative" testimony are readily distinguishable from the
unique circumstances presented here.
In Villalta-Martinez, the petitioner asserted that gangs
extorted money from her while she was working at a store owned by
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her romantic partner because of her membership in his family. Id.
at 23-24. The IJ found, and the BIA affirmed, that Villalta-
Martinez had failed to present evidence demonstrating that the
gang members targeted her for any reason other than to extort money
from her. Id. at 24. In affirming that decision, our court noted
that the petitioner provided only her own speculation to support
her contention that one central reason for her persecution was her
relationship to her partner. Id. at 25. Indeed, the petitioner
had not provided evidence that these unidentified gang members
even knew of her relationship to him. Id. at 24. Moreover, her
testimony suggested that she was not singled out by the gang
members. All of the employees at the store were threatened by the
gang, undercutting her contention that it was her unique
relationship to her partner that motivated the gang's actions.
Id. at 23-24. We similarly have affirmed the BIA's denials of
asylum petitions where a petitioner's evidence of the nexus element
is limited to the petitioner's own theory about a stranger's
motivation for persecuting him or her. See, e.g., Giraldo-Pabon
v. Lynch, 840 F.3d 21, 25 (1st Cir. 2016) (affirming the BIA's
conclusion that the petitioner's "own belief that another cousin
was stabbed because of her family members' involvement in narco-
trafficking" did not establish the requisite nexus).
Enamorado's testimony regarding his grandparents'
actions and statements -- and his own inference about their
- 28 -
motivations for abusing him -- is not "speculation" in the same
sense. Enamorado could not, of course, testify with certainty
about his grandparents' state of mind. But an inference anchored
in direct, intimate interactions with his abusive grandparents
with whom he lived is as well supported as can reasonably be
expected. And, relatedly, Enamorado is the best source, aside
from his abusers themselves, for insight into the reasons he was
persecuted, particularly given that he lived during his years of
abuse in a mountainous, remote village, far from police, medical
facilities, or even other family.
Accordingly, given the specific circumstances of
petitioner's abusive treatment, there is not substantial evidence
to support the IJ's conclusion on nexus, adopted by the BIA, when
the record is viewed as a whole. Rather, the record compels a
finding that at least one central reason for the grandparents'
abuse was Enamorado's membership in his mother's family. In my
view, that conclusion follows regardless of the error, which I
agree was made, as to corroborative evidence. Thus, I cannot join
the mixed-motive discussion in Section II.A of the majority's
decision.5
5 I do, however, agree with the majority's analysis of the
corroboration error in Section II.A, Enamorado's other proposed
PSGs, and relief under CAT.
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III. Conclusion
There is only one conclusion to draw from this record
-- Enamorado has established that he was persecuted on the basis
of his family membership. In my view, the proceedings on remand
should first focus on the government's unwillingness or inability
to protect him from this persecution. 6 If that is the case,
Enamorado would then have the benefit of a rebuttable presumption
of future persecution, which would also be addressed in the remand
proceedings.
6 When an asylum applicant is persecuted by a private actor,
rather than the government itself, he or she has "the burden of
proving that the government was either 'unwilling or unable' to
protect him [or her] from persecution." Rosales Justo, 895 F.3d
at 162 (quoting Burbiene v. Holder, 568 F.3d 251, 255 (1st Cir.
2009)). The petitioner attempted to meet this burden in the
proceedings below. However, because the IJ found that Enamorado
had not established the nexus element, the IJ did not reach a
conclusion about the "unwilling or unable" element.
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