Jeydi Herrera-Reyes v. Attorney General United States ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 19-2255
________________
JEYDI L. HERRERA-REYES,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES of
AMERICA,
Respondent
________________
On Petition for Review of
a Decision of the Board of Immigration Appeals
(BIA No. A216-587-697)
Immigration Judge: John B. Carle
________________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 13, 2019
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
(Opinion filed: February 28, 2020)
Karen L. Hoffmann, Esq.
Syrena Law
128 Chestnut Street, Room 301a
Philadelphia, PA 19106
Attorney for Petitioner
Katherine A. Smith, Esq.
United States Department of Justice
Office of Immigration Litigation, Room 2245
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorney for Respondent
________________
OPINION
________________
KRAUSE, Circuit Judge.
This case presents the question whether and under what
circumstances threats of violence may contribute to a
cumulative pattern of past persecution when not coupled with
physical harm to the asylum-seeker or her family. We
conclude the Immigration Judge and the Board of Immigration
Appeals erred in holding that Petitioner Jeydi Herrera-Reyes—
a Nicaraguan national who received death threats from
members of the governing Sandinista Party after her home was
burned down, a convoy in which she was traveling came under
gunfire, and a political meeting she was organizing was robbed
at gunpoint—had not suffered past persecution within the
2
meaning of the asylum statute. We will therefore grant the
petition for review and vacate and remand to the BIA.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner claimed she experienced past persecution as
an active opponent of the Nicaraguan government. As
reflected in the record and before the IJ, that government has a
“de facto concentration of power in a single party”—the
Sandinistas—“with an authoritarian executive branch
exercising significant control over the legislative, judicial, and
electoral functions.” A.R. 55 (quoting a U.S. Department of
State Human Rights Report for Nicaragua). Sandinista
government officials and security personnel, with widespread
impunity, have imposed “arbitrary arrest and detention of
suspects; . . . multiple obstacles to freedom of speech and the
press, including government intimidation; . . . and partisan
restrictions on freedom of peaceful assembly.” Id. (same). In
recent years, according to a report by human rights observers,
“police generally protected or otherwise gave preferential
treatment to progovernment [Sandinista] demonstrations while
disrupting or denying registration for opposition groups” and
“did not protect opposition protesters when progovernment
supporters harassed or attacked them.” A.R. 56.
Petitioner’s experience, according to testimony the IJ
deemed credible, was a case in point. Before she fled to the
United States, Petitioner was the leader and president of an
opposition group for Liberal Party youth and was “deeply
involved” in local politics. A.R. 183. As a result, she was
subjected to a pattern of threatening words and conduct that
she claimed rose to the level of persecution.
3
The first occurred during the 2017 mayoral election in
her town, when Petitioner was working at a polling station and
armed Sandinistas gathered outside threatening to “kill” or
“steal” from Petitioner and the other Liberal Party workers
inside. A.R. 162. Despite this intimidation, the Liberal Party
candidate won the election, but that only escalated the conflict.
The same evening, while Petitioner was out celebrating the
candidate’s victory, Sandinistas burned down her family’s
home.
The following day, faced with this and other similar acts
of violence, Petitioner and other Liberal Party activists traveled
in a two-truck convoy to spread the word of the attacks to
opposition-group colleagues in neighboring towns. But
violence followed them: On their way home, Sandinistas shot
at the convoy and killed the mayor-elect’s nephew. And when
Petitioner returned to her hometown and began preparing the
local auditorium for the mayor’s inauguration, armed
Sandinistas attacked the gathering and stole computers and the
town’s radio transmitter at gunpoint.
Petitioner also learned of two attacks that had recently
occurred in her provincial department in which Sandinistas
ransacked Liberal Party towns and murdered or critically
injured its members. Considering this news, the incidents she
had witnessed, and the threats she had received to that point,
Petitioner believed she “could be next,” A.R. 174, and was
“afraid” to leave her house because she thought “[the
Sandinistas] might do something bad to [her].” A.R. 180.
Her fear intensified a few months later when Petitioner
left her home to go to the supermarket and was confronted by
Sandinistas who told her to “be thankful [that] there were many
people there” and that they would kill her if they found her
4
alone because her political advocacy had caused them to lose
the mayoral election. A.R. 180–81. At that point, Petitioner
concluded she would be killed for her leadership role in the
Liberal Party if she stayed in the country and that she “had no
other alternative” but to flee Nicaragua. A.R. 181. Even after
she left, Sandinistas repeatedly visited her family’s home
demanding to know where she had gone.
Petitioner arrived in the United States the following
month and filed a claim for political asylum, alleging she had
been subjected to past persecution and thus was entitled to a
presumption of future persecution necessary to establish an
asylum claim. The evidence consisted primarily of her
testimony. Of the three elements of a claim of past
persecution—“(1) an incident, or incidents, that rise to the level
of persecution; (2) that is on account of one of the statutorily-
protected grounds; and (3) is committed by the government or
forces the government is either unable or unwilling to control,”
Sheriff v. Att’y Gen., 587 F.3d 584, 589 (3d Cir. 2009) (internal
quotation marks and citation omitted)—there was no dispute
that the latter two were satisfied. The Government did not
dispute that Petitioner was targeted on account of her political
opinion, see 8 U.S.C. § 1101(a)(42), or by members of the
ruling Sandinista Party, see Shardar v. Att’y Gen., 503 F.3d
308, 311, 318 (3d Cir. 2007) (finding that the petitioner made
out a prima facie case for asylum where he was menaced by
the “ruling party”).
As to the first prong, however, the IJ concluded that
Petitioner’s experiences did not “rise to the level of past
persecution.” A.R. 53. Although he did “not doubt
[Petitioner’s] support of the Liberal party and her subjective
fear of returning to Nicaragua as a result of her political
opinion,” A.R. 52, the IJ held as a matter of law that Petitioner
5
was not “persecuted” because she “was never physically
harmed,” “never arrested or imprisoned by authorities,” and
“[n]ever threatened by a government official.” A.R. 53–54, 56.
Acknowledging the truck-convoy shooting was “harrowing”
and the threats were “not insignificant,” the IJ deemed them
insufficient, because they were “not so menacing as to cause
actual physical suffering or harm.” A.R. 53.
The BIA adopted the IJ’s analysis and likewise held that
Petitioner’s experiences did not constitute “past persecution.”
A.R. 3. Citing precedent in which we described threats
sufficient to constitute “persecution” as “sufficiently
imminent,” “concrete,” and “menacing,” the BIA likewise
concluded “the threats [she] faced here were [not] so menacing
as to cause significant actual suffering or harm.” A.R. 4 (citing
Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 343 (3d Cir.
2008)). Herrera-Reyes timely petitioned for review.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over Herrera-Reyes’s petition for
review of her final order of removal under 8 U.S.C.
§ 1252(a)(5), and the “final order we review is that of the BIA.”
Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (internal
quotation marks omitted). “Because here ‘the BIA adopted
and affirmed the IJ’s decisions and orders as well as
[conducted] an independent analysis, we review both the IJ’s
and the BIA’s decisions and orders.’” S.E.R.L. v. Att’y Gen.,
894 F.3d 535, 543 (3d Cir. 2018) (quoting Ordonez-Tevalan v.
Att’y Gen., 837 F.3d 331, 340–41 (3d Cir. 2016)). We look to
the IJ’s opinion “where the BIA has substantially relied on that
opinion.” Id. (quoting Camara v. Att’y Gen., 580 F.3d 196, 201
(3d Cir. 2009)).
6
While we review for substantial evidence the BIA’s
factual findings, INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992), we review the BIA’s legal determinations de novo,
“including both pure questions of law and applications of law
to undisputed facts,” Rranci v. Att’y Gen., 540 F.3d 165, 171
(3d Cir. 2008). Neither party disputes the facts underlying
Petitioner’s past-persecution claim. So we will review the
BIA’s application of our past-persecution standard to those
facts de novo.
III. DISCUSSION
The IJ and BIA erred when they held that the threats
experienced by Petitioner did not meet our standard for past
persecution. By finding it dispositive that Petitioner “was
never physically harmed,” A.R. 53, and “the threats [she] faced
here were [not] so menacing as to cause significant actual
suffering or harm,” A.R. 4 (emphasis added), the IJ and BIA
treated our approach to unfulfilled threats as an exception to
the general rule that incidents of alleged past persecution must
be considered cumulatively. And by purporting to ground that
treatment in cases where we described threats as “imminent
[or] concrete” and “menacing,” A.R. 4, the IJ and BIA
suggested the test for persecution in a threat case is different
from the one used in other persecution cases. See A.R. 4 (citing
Gomez-Zuluaga, 527 F.3d at 343); A.R. 53 (citing Chavarria
v. Gonzalez, 446 F.3d 508, 518 (3d. Cir. 2006), and Zhen Hua
Li v. Att’y Gen., 400 F.3d 157, 164–65 (3d Cir. 2005)). Neither
proposition is supported by our precedent.
We first review our threat cases in the context of our
past persecution case law. We then examine how the BIA’s
misconception of our threat cases resulted in two legal errors.
And finally, correcting for those errors, we turn to the
7
implications of our case law for the proper disposition of this
case.
A. Our Threat Cases in the Context of Broader
Precedent
As a general matter, we have described “persecution” as
including “treatment like death threats, involuntary
confinement, [and] torture” that rises to the level of a “severe
affront[] to the life or freedom of the applicant.” Gomez-
Zuluaga, 527 F.3d at 341. To determine whether a set of
experiences rises to the level of a “severe affront[] to the life
or freedom of the applicant,” id., the “cumulative effect of the
applicant’s experience must be taken into account because
[t]aking isolated incidents out of context may be misleading.”
Fei Mei Cheng v. Att’y Gen., 623 F.3d 175, 192 (3d Cir. 2010)
(alteration in original) (internal quotation marks and citation
omitted). “[M]istreatment amount[ing] to persecution” may be
“actual or threatened,” and “[e]ven if one incident of
mistreatment is not, in and of itself, severe enough to constitute
persecution, a series of incidents of physical or economic
mistreatment could, taken together, be sufficiently abusive to
amount to persecution.” Id. at 192–93. Pursuant to this
principle, each incident must be “weigh[ed] . . . in conjunction
with . . . prior incidents,” Toure v. Att’y Gen., 443 F.3d 310,
318 (3d Cir. 2006), and “assessed within the ‘overall trajectory
of the harassment,’” Fei Mei Cheng, 623 F.3d at 193 (quoting
Gomez-Zuluaga, 527 F.3d at 343).
We have had three occasions to consider the
significance of threats in making that assessment. The first was
Zhen Hua Li v. Attorney General, where we considered
whether verbal threats, “standing alone,” constituted past
persecution. See 400 F.3d at 164–65. In that case, government
8
officials threatened that the petitioner would be captured and
beaten for violating China’s one-child policy. Id. at 164. As a
threshold matter, we noted that this threat was “unfulfilled”
because the petitioner was never actually captured or beaten.
Id. We then observed that, to constitute past persecution,
unfulfilled threats must be “of a highly . . . menacing nature”
as well as “sufficiently imminent or concrete,” id. at 164–65
(citing Boykov v. INS, 109 F.3d 413, 416–17 (7th Cir. 1997)),
and that the threat in that case—uncorroborated by the
surrounding circumstances—fell short: “neither [petitioner]
nor any of [his] family members were actually . . . physically
harmed,” and petitioner’s only evidence that the threat was
more than bluster was that one worker at a neighboring factory
had allegedly been arrested and beaten for violating the one-
child policy. Id.
By contrast, in Chavarria v. Gonzalez, the petitioner did
suffer past persecution when he was threatened within the
surrounding context of violent conduct. 446 F.3d at 519–20.
An initial incident in which paramilitary troops simply
surveilled the petitioner’s home was not a “concrete and
menacing” threat, id., but that threshold was crossed when
armed men forced the petitioner into a car, robbed him at
gunpoint, and threatened to kill him if they ever saw him again.
Id. at 520. Together, these experiences constituted past
persecution because the petitioner had not experienced a
“merely verbal” threat but a threat that, in the context of the
surrounding mistreatment, was sufficiently substantiated for
petitioner to “suffer[] harm.” Id. We described a threat
meeting that threshold as “concrete and menacing.” Id.
In our third threat case—Gomez-Zuluaga v. Attorney
General—we built on Chavarria to hold that a threat was
sufficiently concrete and menacing when substantiated by both
9
contemporaneous physical violence and by the petitioner’s
previous encounters with her persecutors. See 527 F.3d at
342–34. The first two incidents—during which guerrillas
verbally threatened the petitioner at gunpoint during a “brief”
detention, the petitioner “was not physically injured or
robbed,” and “the guns were [not] brandished or used in . . . [a]
threatening manner,” id. at 342—were “more similar to the
situation in Li, where the threats were oblique and not
imminent, and the petitioner was not appreciably harmed.” Id.
But the third and final incident—in which the petitioner was
abducted, confined for eight days while blindfolded and bound,
and threatened repeatedly—did rise to the level of persecution.
Id. Taking into account both the contemporaneous abduction
and the previous threats and looking to the “overall trajectory
of the harassment against [the petitioner],” we held the final
threat sufficiently “concrete and menacing” to constitute past
persecution. Id. at 342–43.
From Chavarria, Zhen Hua Li, and Gomez-Zuluaga, we
draw three lessons. First, our threat cases are not an exception
to the general rule of cumulative analysis but simply
applications of it. In Zhen Hua Li, the lack of any
corroborating harm to the petitioner or those close to him
generally was dispositive, 400 F.3d at 165; in Chavarria, the
threat was made concrete by the violent context in which it
occurred, 446 F.3d at 520; and in Gomez-Zuluaga, the final
threat was substantiated by the “overall trajectory” of the
petitioner’s mistreatment, 527 F.3d at 343.
Second, in evaluating whether a threat within that
“overall trajectory” suffices to establish persecution, we
consider whether the threat is “concrete” and “menacing.”
True, we have sometimes used the phrase “highly imminent,
concrete and menacing,” Chavarria, 446 F.3d at 520
10
(emphasis added), but more frequently we have used the terms
“concrete” and “imminent” interchangeably or in the
disjunctive—describing a threat amounting to persecution as
“menacing” and “sufficiently imminent or concrete,” Zhen
Hua Li, 400 F.3d at 164–65 (emphasis added); Gomez-
Zuluaga, 527 F.3d at 341 (emphasis added). And on
inspection, that is with good reason: “Imminence” is a
misnomer here. We have neither required that the threat
portend immediate harm nor that it be in close temporal
proximity to other acts of mistreatment. See infra Section
III.B.2. Indeed, our interest is not the imminence of the threat
at all, but rather the likelihood of the harm threatened—a
concept subsumed in the inquiry as to whether the threat is
“concrete.” We therefore refer to the standard going forward
simply as “concrete and menacing.”
Third, our cases teach that “concrete and menacing” is
not a unique persecution standard for threat cases, but rather a
term that reflects the court’s ultimate determination that the
cumulative effect of the threat and its corroboration presents a
“real threat to [a petitioner’s] life or freedom,” Chang v. INS,
119 F.3d 1055, 1066 (3d Cir. 1997). A threat is “concrete”
when it is “not abstract or ideal,” Concrete, Merriam-Webster
Unabridged, https://unabridged.merriam-
webster.com/unabridged/concrete (last visited Feb. 5, 2020),
but is corroborated by credible evidence, see, e.g., Gomez-
Zuluaga, 527 F.3d at 343 (finding a threat corroborated by
“[t]he overall trajectory of the harassment against [the
petitioner]”). And a threat is “menacing” where it “show[s] . .
. intention to inflict harm,” see Menace, Merriam-Webster
Unabridged, https://unabridged.merriam-
webster.com/unabridged/menace (last visited Feb. 5, 2020).
See, e.g., Chavarria, 446 F.3d at 520 (finding a threat
11
“menacing” because the petitioner was threatened with death
at gunpoint). Thus, a threat is “concrete and menacing,”
constituting past persecution, where the aggregate effect of a
petitioner’s experiences, including or culminating in the threat
in question, placed a petitioner’s life in peril or created an
atmosphere of fear so oppressive that it severely curtailed the
petitioner’s liberty. In short, a threat that is “concrete and
menacing” is simply one that—considered in the context of the
full record—poses a “severe affront[] to the [petitioner’s] life
or freedom.” Gomez-Zuluaga, 527 F.3d at 341.
With these principles in mind, we turn now to the
analyses of the IJ and BIA.
B. The Agency’s Legal Errors
We conclude the IJ and BIA misapplied our precedent
in two respects: First, although they purported to consider the
incidents “cumulatively,” A.R. 3, 53, in practice they evaluated
the threats to Petitioner in isolation and without accounting for
the broader campaign of intimidation, harassment, and
violence substantiated by the record; second, they treated the
absence of physical harm to Petitioner herself as fatal to her
claim without acknowledging the significance of violence to
Petitioner’s property and close associates. 1
1
While we sometimes accord Chevron deference to the
BIA’s interpretation of statutory terms, see, e.g., S.E.R.L. v.
Att’y Gen., 894 F.3d 535, 542 (3d Cir. 2018), we do not where,
as here, the BIA’s opinion is “unpublished, non-precedential[,
and] issued by a single BIA member,” Mahn v. Att’y Gen., 767
F.3d 170, 173 (3d. Cir. 2014); and the government concedes as
much. In this case, moreover, the BIA based its threat analysis
12
1. The IJ and BIA Failed to Consider the Aggregate
Effect of Petitioner’s Mistreatment.
Both the IJ and BIA failed to give the proper weight to
the cumulative effect of Petitioner’s experiences. The IJ’s
analysis began by considering the incidents one at a time and
concluding that none of the incidents, standing alone, rose to
the level of past persecution. First, the IJ, without elaboration,
concluded that the Sandinistas’ burning of Petitioner’s family’s
home, although “a terrible loss,” did not “rise[] to a level of
persecution.” A.R. 53. The IJ then considered the incident in
which the Sandinistas shot Petitioner’s convoy and killed her
compatriot and determined that, because this incident was a
“physical attack that d[id] not result in serious injury” to
Petitioner, it was not past persecution. Id. With respect to the
verbal threats Petitioner received—including the final incident
in which Sandinistas threatened to kill her at the grocery
store—the IJ purported to consider the record “cumulatively,”
but concluded that because “[s]he was never physically
harmed” and the threats “were not so menacing as to cause
actual physical suffering or harm,” these too did not amount
to past persecution. Id. 2
exclusively on our precedent—a body of authority we create
and are well qualified to interpret.
2
The IJ also relied on the fact that Petitioner was
“[n]ever threatened by a government official or anyone other
than Sandinista citizens who were in disagreement with her
over her political beliefs.” A.R. 54. But persecution includes
mistreatment by both the government and “forces the
government is either unable or unwilling to control.” Sheriff,
587 F.3d at 589 (internal quotation marks and citation omitted).
13
That was not a faithful application of our cumulative
approach to past persecution. Even if the IJ was correct that no
single incident in isolation rose to the level of past persecution,
he was still required to analyze whether the cumulative effect
of these incidents constituted a severe “threat to life or
freedom.” Fei Mei Cheng, 623 F.3d at 192–93 (citation
omitted). A cursory invocation of the word “cumulative” is
insufficient. By finding it dispositive that Petitioner herself
“was never physically harmed” and “never arrested or
imprisoned,” A.R. 53–54, and by failing to factor in the
cumulative effect of the destruction of Petitioner’s home, the
shooting of her convoy, the murder of her political compatriot,
the armed robbery of the inauguration preparations, and the
verbal death threat, the IJ erred.
The BIA similarly erred. It endorsed the IJ’s approach,
finding no erroneous conclusions of law or findings of fact and
agreeing that Petitioner did not experience past persecution.
Like the IJ, the BIA professed to have considered Petitioner’s
experiences “cumulatively,” A.R. 3, but did not acknowledge
or even discuss how the various instances of mistreatment
together might substantiate the threats and constitute past
persecution. Instead, it summarily concluded that “these
events were [not] so extreme as to rise to the level of past
Here, the record is replete with undisputed facts showing the
Nicaraguan government cannot or will not control the
Sandinistas. E.g., A.R. 55–56. So on de novo review, for the
reasons explained below, we conclude that Petitioner was
mistreated by forces the Nicaraguan government cannot
control. Indeed, the Government here concedes as much by
failing to dispute that Petitioner’s persecutors met this
requirement.
14
persecution.” Id. The BIA, like the IJ, thus paid lip service to
our cumulative approach, but determining past persecution
requires more than considering whether individual incidents
are sufficiently “extreme”; it requires meaningful
consideration of whether their aggregate effect poses a “severe
affront[] to the [petitioner’s] life or freedom,” Gomez-Zuluaga,
527 F.3d at 341. Petitioner’s experiences did not receive that
consideration here.
2. Persecution Can Be Established Without Physical
Harm to Petitioner.
The agency’s second error flows from its first: In failing
to look to the surrounding context of the threat, the IJ and BIA
placed undue emphasis on whether Petitioner herself
experienced physical harm and found its absence fatal to her
claim. See A.R. 4 (BIA opinion) (finding that the death threat
Petitioner received was insufficiently menacing because
Petitioner did not experience the same physical violence as the
petitioner in Gomez-Zuluaga); A.R. 53 (IJ opinion) (finding no
past persecution because, although Petitioner “faced some
threats,” she “was never physically harmed”). That was
contrary to our case law.
We have never reduced our persecution analysis to a
checklist or suggested that physical violence—or any other
single type of mistreatment—is a required element of the past
persecution determination. Instead, we have approached
asylum claims on a case-by-case basis and engaged in a fact-
specific analysis to determine whether a petitioner’s
cumulative experience amounts to a “severe affront[] to [that
petitioner’s] life or freedom,” Gomez-Zuluaga, 527 F.3d at
341. Neither our “concrete and menacing” standard for when
verbal threats constitute past persecution nor our other
15
persecution law suggests physical violence to the petitioner is
a prerequisite to a finding of past persecution. To the contrary,
both make clear it is not. 3
In evaluating whether a threat is “concrete and
menacing” in the absence of physical harm to a petitioner, we
have considered more broadly whether surrounding acts of
mistreatment had corroborated that threat with the ultimate
effect of placing the petitioner’s life or liberty in peril. See,
e.g., Gomez-Zuluaga, 527 F.3d at 342–43. We have not
required there to be physical harm when the petitioner is
threatened with imminent violence, see, e.g., Chavarria, 446
F.3d at 519–20 (finding a threat concrete and menacing where
the petitioner was forced into a car and threatened at gunpoint
but not physically injured), or that there be a threat that
physical harm will be inflicted in the immediate future, see,
e.g., id. (finding armed men’s threat that they would kill
petitioner if they “ever ca[ught] [him] again” concrete and
menacing). And we have not insisted that all surrounding
mistreatment be in close temporal proximity to the verbal
threat. See, e.g., Voci v. Gonzales, 409 F.3d 607, 614 (3d Cir.
3
Our sister circuits have likewise recognized that verbal
threats substantiated by other kinds of mistreatment may be
sufficient. See, e.g., De Santamaria v. U.S. Att’y Gen., 525
F.3d 999, 1009 (11th Cir. 2008) (“[W]e have not required
serious physical injury where the petitioner demonstrates
repeated threats combined with other forms of severe
mistreatment.”); Tamara-Gomez v. Gonzales, 447 F.3d 343,
348, 349 n.8 (5th Cir. 2006) (holding that the petitioner was
persecuted when threats were “considered in context” and
noting that “physical harm is not always a requirement for
asylum”).
16
2005) (finding that verbal threats to the petitioner and his
family unaccompanied by physical violence contributed to a
pattern of persecution when those threats were made credible
by separate incidents of physical violence to the petitioner).
Nor have we limited that mistreatment to physical as opposed
to, for instance, economic harm. See, e.g., Fei Mei Cheng, 623
F.3d at 193–95 (finding past persecution where the petitioner
experienced a pattern of “escalating and consummated threats”
involving both verbal threats and the seizure of her family
farm). And while past mistreatment of a petitioner or her
property may be sufficiently corroborative and substantiating,
depending on the facts of the case, e.g., Gomez-Zuluaga, 527
F.3d at 342–43 (previous threats of violence), so too may be
mistreatment of a petitioner’s family members, e.g., Camara v.
Att’y Gen., 580 F.3d 196, 204–05 (3d Cir. 2009) (threats
corroborated by the “forcible seizure and removal” of the
petitioner’s father); Fei Mei Cheng, 623 F.3d at 193–95
(threats corroborated by economic sanctions of the petitioner’s
family).
As relevant to this case and as logically flows from this
precedent, physical harm to a petitioner’s close associates may
also, in combination with verbal threats, establish past
persecution. This harm—no less than destruction of personal
property and physical or economic harm to a petitioner’s
family—can contribute to an overall experience of past
persecution by rendering verbal threats “concrete and
menacing,” establishing a “severe affront[] to the [petitioner’s]
life or freedom,” Gomez-Zuluaga, 527 F.3d at 341–42; see
Tamara-Gomez v. Gonzales, 447 F.3d 343, 346, 348–49 (5th
Cir. 2006) (finding that a petitioner suffered past persecution
when verbal threats were corroborated by the murders of his
compatriots); see also Caushi v. Att’y Gen., 436 F.3d 220, 227
17
(3d Cir. 2006) (finding that “the violence, intimidation, and
assassinations” directed at the petitioner’s political party
contributed to his experience of past persecution); Li Wu Lin v.
INS, 238 F.3d 239, 244 (3d Cir. 2001) (finding that the
government’s attempt to arrest the petitioner was more likely
to be political persecution because his fellow student activists
“were beaten, incarcerated, and subjected to forced labor ‘for
their student movement activities’”). 4
In sum, the IJ and BIA erred in failing to meaningfully
consider the combined effect of the incidents in the record and
in conditioning a finding of past persecution based on verbal
threats on a showing of physical violence to Petitioner. When
a petitioner has suffered a pattern of conduct that includes
threats that are “concrete and menacing” because they are
substantiated by physical or economic harm to herself, her
family, her property, or those in a close relationship to her, the
cumulative effect of that conduct “constitute[s] a real threat to
life or freedom,” Chang, 119 F.3d at 1066, and she has suffered
past persecution.
4
Our decision in Zhen Hua Li is not to the contrary. In
that case, we found that petitioner had received unfulfilled
threats that did not rise to the level of past persecution despite
the petitioner’s testimony that someone in his community who
engaged in the same activity as the petitioner had been arrested
and beaten for this conduct. Zhen Hua Li, 400 F.3d at 164. But
the petitioner in that case did not actually witness the
mistreatment; he only had anecdotal knowledge of it. Id. And
the alleged harm did not befall anyone with whom the
petitioner was closely associated, but merely someone in his
community. Id.
18
C. Application to Petitioner’s Case
Applying our case law to the undisputed facts here,
Petitioner suffered past persecution.
Considered within the entire context of Petitioner’s
experience, the Sandinistas’ threat to Petitioner that they would
murder her if she were ever caught alone was undoubtedly
“concrete and menacing.” That context included the
Sandinistas’ verbal threats to Petitioner while she was
volunteering at a polling table on the day of the election; the
burning of her family’s home after the election; the shooting of
her convoy and the murder of her close compatriot, the mayor’s
nephew; and the robbery of her workspace at gunpoint while
she was preparing for the mayor’s inauguration. These
incidents, like those in Gomez-Zuluaga, 527 F.3d at 342–43,
and Fei Mei Cheng, 623 F.3d at 193–95, reflect an escalating
pattern of mistreatment toward both Petitioner herself and the
other local leaders of the Liberal Party that placed Petitioner in
a constant state of oppressive fear and that culminated in the
final death threat she received in the supermarket.
We need not decide whether those prior incidents,
individually or collectively, would suffice to establish
persecution because the final death threat, considered in that
context, surely did. That death threat to Petitioner was
“concrete” because it was substantiated by a pattern of
harassment encompassing property damage, threats of
violence, and actual violence; and it was “menacing” because
the Sandinistas’ murder of her political compatriot showed
Petitioner that they were willing and able to add murder to the
abuse they inflicted on her. The pattern of incidents, in other
words, constituted a “severe affront[] to . . . life or freedom,”
Gomez-Zuluaga, 527 F.3d at 341.
19
* * *
Because Petitioner was subjected to past persecution,
she was entitled to a rebuttable presumption of a well-founded
fear of future persecution. 8 C.F.R. § 208.13(b)(1). But as the
IJ erroneously found to the contrary and the BIA affirmed,
neither determined whether the presumption of future
persecution could be rebutted, and that determination lies with
the agency in the first instance. See id. § 208.13(b)(1)(i). We
will therefore grant Herrera-Reyes’s petition, vacate the BIA’s
order below, and remand to the agency for further proceedings
consistent with our opinion. 5
5
We will also vacate the BIA’s order affirming the
denial of Petitioner’s CAT claim for the “reasons provided in
[the IJ’s] decision.” A.R. 5. The IJ erred in failing to consider
and discuss why the record did not suffice to establish the
element of government acquiescence as we have required. See
Myrie v. Att’y Gen., 855 F.3d 509, 517–18 (3d Cir.
2017). Although the record here demonstrates that
government officials routinely acquiesce in severe
mistreatment of political opponents, the IJ simply stated that
Petitioner failed to “present[] persuasive evidence that the
government of Nicaragua would consent, acquiesce or exercise
willful blindness to any hypothetical torture.” A.R. 64. In
addition, in concluding that Petitioner had not “suffered past
‘severe physical or mental pain or suffering’” and failed to
demonstrate a greater than fifty percent likelihood of torture
upon removal, the IJ appears to have relied, at least in part, on
his observation that Petitioner “lived without harm or threat in
Nicaragua in December of 2017 up to April of 2018 and only
faced on[e] verbal threat in April shortly before her
departure.” A.R. 63–64. As with the IJ’s asylum analysis, this
20
explanation misses the mark to the extent the IJ considered this
fact in isolation and without accounting for its significance in
context. Specifically, the IJ’s analysis does not acknowledge
Petitioner’s credible testimony that she was afraid to leave her
house during that period due to the escalating pattern of threats
and violence and that when she did leave the house at the end
of that period, she received the death threat that prompted her
to finally flee the country. On reconsideration of Petitioner’s
CAT claim on remand, the agency should consider the record
in its entirety and in context and should provide the explanation
required for the decision it ultimately reaches.