Reyes-Hoyes v. Garland ( 2023 )


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  • Case: 20-60133        Document: 00516725246             Page: 1      Date Filed: 04/25/2023
    United States Court of Appeals
    for the Fifth Circuit
    United States Court of Appeals
    Fifth Circuit
    FILED
    April 25, 2023
    No. 20-60133                                 Lyle W. Cayce
    Clerk
    Darlin Maribel Reyes-Hoyes; Antony Josue Hernandez-
    Reyes,
    Petitioners,
    versus
    Merrick Garland, U.S. Attorney General,
    Respondent.
    Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA No. A208 981 842
    BIA No. A208 981 844
    Before Dennis and Higginson, Circuit Judges. †
    Per Curiam: *
    Darlin Maribel Reyes-Hoyes (“Reyes-Hoyes”) and her minor child
    Antony Josue Hernandez-Reyes (“Antony”) petitioned this court to review
    the denial of their applications for asylum. For the following reasons, the
    petition for review is GRANTED in part and DISMISSED in part. The
    †
    This appeal is being decided by a quorum. 
    28 U.S.C. § 46
    (d).
    *
    This opinion is not designated for publication. See 5th Cir. R. 47.5.
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    No. 20-60133
    decision of the Board of Immigration Appeals (“BIA”) is VACATED, and
    the case is REMANDED to the BIA for further proceedings.
    I. Background
    Reyes-Hoyes and Antony are natives and citizens of Guatemala. They
    entered the United States without inspection on May 2, 2016. Reyes-Hoyes
    conceded removability and applied for asylum, withholding of removal, and
    relief under the Convention Against Torture (“CAT”). Antony was listed
    as a derivative on the application. Reyes-Hoyes briefly explained in her
    application that her common-law husband, Federico Alfonso Hernandez
    Barrios (“Federico”), was a political candidate who was shot and killed
    during his campaign for mayor of their town, Pajapita, and that she feared she
    would be killed as well if she returned to Guatemala either on account of her
    political opinion or because of her membership in the particular social group
    (“PSG”) comprised of “Family Members” or “Domestic Partners of
    Politicians in Guatemala running for office within the Government.”
    In support of the application, Reyes-Hoyes submitted numerous
    documents, including:
    • A death certificate showing that Federico was killed by a gunshot
    wound on November 10, 2010;
    • An affidavit from Reyes-Hoyes explaining that she and Federico lived
    together in a common-law marriage prior to Federico’s murder;
    • Affidavits from (1) Reyes-Hoyes’s neighbor in Pajapita, (2) the
    minister of her church, and (3) the Deputy Secretary of El Torito Civic
    Committee, the political party to which Federico belonged, all stating
    that Federico was murdered for political reasons and that Reyes-
    Hoyes received threats, including death threats; and
    • An affidavit from Reyes-Hoyes’s older son Kevin, attesting that his
    father was murdered in November 2010; that his family thereafter left
    Pajapita because they lacked protection and were afraid; and that his
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    family was immediately threatened and beaten upon returning to
    Pajapita in January 2016.
    Reyes-Hoyes also submitted country condition evidence, including:
    • The State Department’s Guatemala 2016 Human Rights Report and
    Amnesty International’s 2017/2018 Report, both of which discuss
    corruption among the police and judiciary;
    • Various newspaper articles reporting on corruption, organized crime,
    and political violence directed against candidates and activists,
    including the murder of local candidates;
    • Newspaper articles reporting on drug trafficking and anti-drug police
    activity; and
    • Newspaper articles reporting on the assassinations of politicians,
    including mayors and mayoral candidates, as well as death threats and
    attacks directed at their families.
    At a hearing held on April 5, 2018, Reyes-Hoyes testified in support
    of her application. She stated that she and Federico had three children, an
    older son and daughter—twins Kevin and Fanny—and a younger son,
    Antony. Federico belonged to the El Torito political party and ran for mayor
    of the town of Pajapita in 2010; Reyes-Hoyes helped him and campaigned
    alongside him. During the last two weeks of Federico’s life, he received
    threatening voicemail and text messages stating that he should end his
    mayoral campaign. Two weeks after the threats began, Federico was shot
    and killed.
    Reyes-Hoyes testified that she went to the police after Federico’s
    murder and told them that she recognized the voice on one of the threatening
    voice messages as belonging to Marvin DeLeon, the son of a rival candidate
    for mayor, Isidro DeLeon. Based on the messages, Reyes-Hoyes told police
    that she believed the DeLeons were responsible for Federico’s murder. A
    policeman named “Polito” told her “you better leave the things the way they
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    are if you don’t want the same thing that happened to your husband to
    happen to you.” El Torito members asked Reyes-Hoyes to take Federico’s
    place as a party leader, but she declined. Isidro DeLeon won the mayoral
    election that year.
    Reyes-Hoyes testified that, after she made her complaint to the police,
    she began to receive threatening text messages and letters telling her to
    “leave the things as they were” and “stop doing everything.” People passed
    by her house and shot guns into the air. Later, Marvin DeLeon and another
    man attempted to kidnap Reyes-Hoyes’s daughter outside of her school.
    Other girls and their mothers intervened and prevented the kidnapping.
    Reyes-Hoyes did not report the attempted kidnapping to the police because
    she thought it would be futile—“I already reported the first time and I didn’t
    receive any support”—or would make things worse. She testified that “I
    think the biggest mistake that I made was to go to the police to make a
    complaint” because “after I made the complaint to the police the threats
    began.”
    Reyes-Hoyes testified that, following the attempted kidnapping, she
    and her three children moved away to another town, Mesata, because she was
    afraid to stay in Pajapita. She testified that she lived in Mesata without harm
    for two years. Then, two of Isidro DeLeon’s sons appeared in the market in
    Mesata where Reyes-Hoyes worked selling clothes. When they saw Reyes-
    Hoyes, they approached her, threw her merchandise on the ground, and beat
    her, cursing and calling her a “wicked bitch.” After the attack, Reyes-Hoyes
    and her children moved to another town, Raul, because she feared she would
    be found and harmed again if she stayed in Mesata. Reyes-Hoyes testified
    that her family lived unmolested in Raul for a little less than two years. Reyes-
    Hoyes then spotted Marvin DeLeon in Raul but was unsure if his presence
    was coincidental or not. She decided to move her family again, to Guatemala
    City, where she and her children lived with her brother-in-law, but because
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    was not adequate space or other housing available for her and her three
    children, they did not stay for long.
    Reyes-Hoyes testified that, in January 2016, Reyes-Hoyes moved back
    to her unoccupied house in Pajapita, hoping that the danger had passed. But
    the same day that Reyes-Hoyes returned home, the DeLeon sons came and
    attacked her. She was beaten in the presence of her children, and her older
    son Kevin had a pistol pointed at his head. The next day, she went to Mexico
    with all three of her children, where they stayed for three months. Reyes-
    Hoyes and her youngest child, Antony, then came to the United States.
    Reyes-Hoyes testified that the DeLeon family was affiliated with a
    gang, Los Pupas, that operated in Pajapita, and that Marvin DeLeon
    frequently went to San Marcos and Chilla because the gang “would move to
    those places.” In January of 2017, after Reyes-Hoyes came to the United
    States, one of the DeLeon sons, Guillermo, was shot and killed in a
    confrontation with Guatemalan police during a nationwide series of drug
    raids when he attacked an officer with a machete. By then, Isidro DeLeon
    was no longer the mayor.
    The IJ denied Reyes-Hoyes’s application on April 6, 2018.             IJ
    expressed some doubts about Reyes-Hoyes’s credibility, although he did not
    explicitly find her uncredible, and ultimately the IJ stated he was not denying
    relief “based on a lack of sufficiency of proof.” Without elaboration, the IJ
    stated that the harm Reyes-Hoyes had suffered in the past did not rise to the
    level of persecution. The IJ also concluded that Reyes-Hoyes did not have a
    well-founded fear of future persecution because she had not carried her
    burden of showing that relocation within Guatemala was unreasonable. The
    IJ characterized the DeLeons as part of “a criminal organization involved in
    drugs,” murder, and other activities, a “gang” referred to as “Los Pupas”
    that operates in three towns, “[Pajapita] and also San Marcos and Chala.”
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    The IJ stated that Reyes-Hoyes had been able to successfully relocate to
    Mesata and Raul, and that she could avoid harm within Guatemala because
    Los Pupas only operated in three towns.
    The IJ also found Reyes-Hoyes did not show that any persecution was
    inflicted by the government or by private parties that the government is
    unable or unwilling to control. The IJ said that the DeLeons were part of a
    criminal gang; that Reyes-Hoyes did not report many of the attacks to the
    police; that the police did investigate Federico’s death and that Polito’s
    statement to “leave things as they are” could have been a “legitimate
    warning” or a “friendly warning,” rather than a threat; and that five years
    later Guillermo DeLeon had been killed by the police. Therefore, the IJ
    reasoned that the police had performed their duties and the government did
    not condone the attacks against Reyes-Hoyes. 1
    Reyes-Hoyes appealed to the BIA, which dismissed her appeal on
    January 22, 2020. The BIA found that Reyes-Hoyes did not prove that she
    suffered past harm rising to the level of persecution. After noting that she
    was therefore not entitled to a presumption of a well-founded fear of
    persecution, the BIA agreed with the IJ that Reyes-Hoyes did not show that
    the Guatemalan government either condoned the harm or was completely
    helpless to protect her. The BIA further found that Reyes-Hoyes did not
    demonstrate that she could not avoid further persecution by relocating within
    1
    The IJ also determined that Reyes-Hoyes had not proven nexus, i.e. that she had
    been persecuted on account of a protected ground, and, relatedly, concluded that her
    proposed PSG of “family members” or “domestic partners of politicians” was not socially
    distinct or defined with particularity. Last, the IJ determined that Reyes-Hoyes was not
    eligible for relief under the CAT.
    6
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    Guatemala. 2 The BIA did not mention credibility in its decision, nor did it
    adopt the IJ’s findings. Reyes-Hoyes filed a timely petition for review.
    II. Standard of Review
    We review the BIA’s decision and consider the immigration judge’s
    decision only to the extent it influenced the BIA. Singh v. Sessions, 
    880 F.3d 220
    , 224 (5th Cir. 2018). Factual findings are reviewed for substantial
    evidence, and legal determinations are reviewed de novo. Lopez-Gomez v.
    Ashcroft, 
    263 F.3d 442
    , 444 (5th Cir. 2001). Under the substantial evidence
    standard, we may not reverse a factual finding unless the evidence
    “compels” such a reversal—i.e., the evidence must be “so compelling that
    no reasonable factfinder could conclude against it.” Wang v. Holder, 
    569 F.3d 531
    , 536–37 (5th Cir. 2009). It is the petitioner’s burden to demonstrate that
    the evidence compels a contrary conclusion. Zhao v. Gonzales, 
    404 F.3d 295
    ,
    306 (5th Cir. 2005).
    III. Discussion
    Reyes-Hoyes raises five issues on appeal. She asserts that substantial
    evidence does not support the BIA’s determinations regarding (1) past
    persecution, (2) state action, (3) internal relocation, (4) nexus, and (5) PSG.
    While we agree with Reyes-Hoyes on the issue of past persecution if she is
    credible, we must vacate and remand for a determination of credibility, which
    the BIA failed to assess. Further, we vacate the BIA’s decision on the internal
    relocation and state action issues, as the BIA failed to meaningfully consider
    2
    The BIA explicitly declined to consider Reyes-Hoyes’s arguments regarding PSG
    and nexus. Having affirmed the denial of asylum, the BIA also affirmed the IJ’s findings
    that Reyes-Hoyes could not meet the higher burden for withholding of removal.
    Additionally, the BIA found that Reyes-Hoyes did not meaningfully challenge the IJ’s
    denial of protection under the CAT, and thus, deemed that issued waived. On appeal to
    this court, Reyes-Hoyes does not advance a CAT claim.
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    relevant evidence. We lack jurisdiction to consider the remainder of Reyes-
    Hoyes’s petition. 3 Therefore, the petition for review will be GRANTED in
    part and DISMISSED in part; the BIA’s decision VACATED; and the
    case REMANDED to the BIA for further proceedings.
    A. Persecution
    To establish eligibility for asylum, an applicant must prove that he or
    she qualifies as a “refugee.” 
    8 U.S.C. § 1158
    (b)(1)(A), (B)(i). “A refugee is
    a person who is outside his or her country and is unwilling or unable to return
    ‘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.’” Sharma v. Holder, 
    729 F.3d 407
    , 411 (5th Cir. 2013)
    (quoting 
    8 U.S.C. § 1101
    (a)(42)(A)).                 The statute does not define
    “persecution,” and the question of when harassment, harm, or abuse
    becomes sufficiently serious, severe, or extreme enough to constitute
    “persecution” has proven difficult to answer with consistency. See Sirbu v.
    Holder, 
    718 F.3d 655
    , 659 (7th Cir. 2013) (“Our cases reviewing denials of
    asylum can read like grim exercises in measuring the precise extent of human
    cruelty and misery.”).
    “Persecution is the ‘infliction of suffering or harm, under government
    sanction, upon persons who differ in a way regarded as offensive . . . , [and]
    in a manner condemned by civilized governments. The harm or suffering
    need not be physical,’ but the persecutor must be said to have engaged in
    3
    The issues of nexus and PSG are not properly before us because the BIA expressly
    declined to address those issues. See Singh, 
    880 F.3d at 224
    . The BIA will have the
    opportunity to consider those issues on remand. Further, we lack jurisdiction to consider
    Reyes-Hoyes’s argument that she can establish a well-founded fear of future persecution
    based on a “pattern or practice” of persecution against persons in Guatemala similarly
    situated to her, as this argument was not exhausted before the BIA as required. 
    8 U.S.C. § 1252
    (d)(1); Wang v. Ashcroft, 
    260 F.3d 448
    , 452-53 (5th Cir. 2001).
    8
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    ‘extreme conduct.’” Morales v. Sessions, 
    860 F.3d 812
    , 815 (5th Cir. 2017)
    (quoting first Abdel-Masieh v. I.N.S., 
    73 F.3d 579
    , 583 (5th Cir. 1996) (internal
    quotations omitted), then Tesfamichael v. Gonzales, 
    469 F.3d 109
    , 116 (5th
    Cir. 2006)). “Examples of persecution include, but are not limited to,
    ‘threats to life, confinement, torture, and economic restrictions so severe
    that they constitute a threat to life or freedom.’” 
    Id.
     (quoting Fei Mei Cheng
    v. Attorney Gen. of U.S., 
    623 F.3d 175
    , 192 (3d Cir. 2010) (internal quotations
    omitted)).
    Persecution “requires more than a few isolated incidents of verbal
    harassment or intimidation, unaccompanied by any physical punishment,
    infliction of harm, or significant deprivation of liberty.” Eduard v. Ashcroft,
    
    379 F.3d 182
    , 187 n.4 (5th Cir. 2004) (citation omitted). “An applicant may
    establish past persecution on the basis of the cumulative effects of multiple
    incidents even if each incident, considered in isolation, would not rise to the
    level of persecution.” Lin v. Holder, 
    478 F. App’x 219
    , 227 (5th Cir. 2012)
    (citing Eduard, 
    379 F.3d at 188
    ).
    Reyes-Hoyes testified to a pattern of incidents and acts of harm over
    a five-year time period, from shortly after Federico’s murder in November
    2010 to January 2016 when she fled Guatemala with her children. These
    include: (1) Reyes-Hoyes receiving an unspecified number of text messages
    and letters saying that she “needed to leave thing as they were”; (2) people
    passing by Reyes-Hoyes’s house and shooting guns in the air; (3) Marvin
    DeLeon and another man attempting to kidnap her daughter after school; (4)
    the DeLeons beating Reyes-Hoyes and throwing her merchandise on the
    ground when they saw her at the market in Mesata; and (5) the DeLeons
    9
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    beating her when she returned to her home in Pajapita and holding a gun to
    her older son Kevin’s head. 4
    While this testimony was accurately recounted in the IJ’s decision, the
    BIA’s decision, which is the decision before us for review, misstated the
    record and erroneously referred to a “single beating”—the one the occurred
    at the market in Mesata—inexplicably omitting any mention of the second
    beating that occurred in Reyes-Hoyes’s home upon her return to Pajapita.
    The BIA also failed to consider the testimony that a pistol was held to Reyes-
    Hoyes’s older son Kevin’s head during the same incident. This was a
    significant procedural error on the part of the BIA. In addition to reviewing
    whether substantial evidence supports the BIA’s decisions, “we generally
    also review the BIA’s decision ‘procedurally’ to ensure that the complaining
    alien has received full and fair consideration of all circumstances that give rise
    to his or her claims.” Abdel-Masieh, 
    73 F.3d at 585
     (quotation omitted).
    “While we do not require that the BIA address evidentiary minutiae or write
    any lengthy exegesis, its decision must reflect meaningful consideration of
    the relevant substantial evidence supporting the alien’s claims.” 
    Id.
     (internal
    citation omitted). “[T]he BIA’s failure to consider relevant substantial
    evidence is a ‘fail[ure] to comply with its responsibilities.’” Morales Lopez v.
    4
    We assume the murder of Reyes-Hoyes’s husband does not establish past
    persecution because there is no suggestion his murder was intended to cause her harm. See
    Morales, 
    860 F.3d at 816
     (“Neither we nor the BIA has ever held that an alien can seek
    asylum based upon the alleged past-persecution of another.”). But the parties analyze the
    attempted kidnapping of Reyes-Hoyes’s daughter and the harm suffered by her older son
    during the second beating (to the degree it was addressed, see infra) as being intended to
    cause her harm. In our analysis, we adopt this understanding that the harm suffered by
    Reyes-Hoyes’s children was inflicted with the intention that it cause emotional harm to
    her. See Martinez-Lopez v. Barr, 
    943 F.3d 766
    , 771 (5th Cir. 2019) (recognizing that harm
    inflicted on petitioner’s friend or relative can constitute persecution if persecutor inflicts
    harm for purpose of causing emotional harm to petitioner herself); Kane v. Holder, 
    581 F.3d 231
    , 239 (5th Cir. 2009) (same).
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    Garland, 
    852 F. App’x 758
    , 767 (5th Cir. 2021) (quoting Sanon v. I.N.S., 
    52 F.3d 648
    , 652 (7th Cir.1995)). In this case, by failing to address credible
    testimony of significant harm—a beating in one’s home, with one’s children
    present, and with a gun held to one child’s head—the BIA fell short.
    In its appellate brief, the Government then also misstated the record
    by asserting that Reyes-Hoyes only suffered “one beating.” Unlike the BIA,
    however, the Government’s brief referred to the second beating that
    occurred in January 2016 in Pajapita. At oral argument, the Government
    initially maintained that Reyes-Hoyes had only been beaten once, before
    admitting its error after it was brought to counsel’s attention by the court.
    Counsel for the Government nonetheless appeared to maintain that
    substantial evidence still supported the BIA’s determination that the harm
    inflicted upon Reyes-Hoyes did not rise to the level of persecution, before
    suggesting that if the court disagreed it should vacate and remand to the BIA
    for reconsideration of the issue. We disagree that substantial evidence
    supports the BIA’s determination if Reyes-Hoyes is credible, but because the
    BIA failed to assess her credibility, we must remand for that determination.
    Here, Reyes-Hoyes was beaten twice, and these incidents were
    serious. One of the beatings occurred in her home, in the presence of her
    children, while a gun was held to her older son’s head. The Government was
    not able to identify any case holding that two beatings, including one in the
    home with children present, was insufficiently severe to constitute
    persecution. Furthermore, the two beatings were not the only relevant
    incidents of persecution.
    Acts of persecution take many forms. In Tamara-Gomez v. Gonzalez,
    we held that evidence that the petitioner had been repeatedly targeted with
    credible death threats, coupled with vandalism to his home and threats to his
    family, compelled a conclusion of persecution, even though the petitioner
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    had not been physically harmed at all. 
    447 F.3d 343
    , 348 (5th Cir. 2006). 5
    There are factual similarities between Tamara-Gomez and this case. In both
    cases, the petitioner was subjected to credible threats and targeted at his or
    her home. 
    Id. at 345-46
    . Further, in both cases family members were also
    targeted with threats or were harmed.                 In Tamara-Gomez, persecutors
    threatened to kidnap the petitioner’s sons and force them to join a guerilla
    group. 
    Id. at 346
    . Here, the DeLeons attempted to kidnap Reyes-Hoyes’s
    daughter, and they held a gun to her older son’s head in her presence. 6
    There are also factual differences. In Tamara-Gomez, the persecutors
    targeted the petitioner with continued threats after he moved to a new town
    in an attempt to escape them, while Reyes-Hoyes testified that she was not
    sure whether the DeLeons sought her out in Raul or were there by
    coincidence.      But the DeLeons did target Reyes-Hoyes at her home
    immediately upon her return to Pajapita, attacking her and her family on the
    very same day they returned. And the persecution in this case occurred over
    a longer time period that in Tamara-Gomez. Reyes-Hoyes was last attacked
    more than five years after the persecution began, while the persecution in
    Tamara-Gomez occurred for a year before the petitioner fled the country. 
    Id. at 345-46
    . And, of course, in Tamara-Gomez the petitioner suffered no direct
    physical harm, while Reyes-Hoyes was beaten twice and her children were
    also threatened with imminent harm, including once in her presence when a
    gun was held to her son’s head.
    5
    Ultimately, our court denied the petition for review in Tamara-Gomez because
    the petitioner could not establish nexus. 
    447 F.3d at 349-50
    . Here, the BIA explicitly
    declined to address the IJ’s nexus finding, so this issue is not before us on appeal.
    6
    Moreover, in both cases the petitioner’s claims were consistent with, and
    corroborated by, country condition reports and evidence of similar attacks against similarly-
    situated persons. Tamara-Gomez, 
    447 F.3d at 346-348
    .
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    Tamara-Gomez emphasizes a key facet of our persecution
    jurisprudence: that repeat incidents, a pattern of incidents, or a showing that
    a petitioner was targeted over a period of time makes it more likely that the
    evidence will compel the conclusion that he or she suffered persecution. 
    Id.
    at 348–49; see also Gjetani v. Barr, 
    968 F.3d 393
    , 398 (5th Cir. 2020). In other
    words, evidence of harm that is systematic, sustained, or targeted is more
    likely to compel a conclusion of persecution than harm that is isolated or
    sporadic.
    Though unpublished, Morales Lopez v. Garland also illustrates how a
    sustained pattern of threats, intimidation, and harm to family members can
    constitute persecution even absent severe physical harm to the petitioner,
    and it shares factual similarities with the present case. In Morales Lopez, the
    petitioner’s husband had been murdered by a gang after being threatened for
    two years. 852 F. App’x at 761. Shortly thereafter, the petitioner started
    receiving threatening phone calls. She was also threatened by gang members
    when she was leaving her mother-in-law’s house; her son was threatened by
    gang members while he was at school; her mother and brother were told to
    leave their homes by gang members; and her cousin was attacked with a
    machete. Id. at 761–62. Approximately nine months after her husband was
    murdered, the petitioner and her daughter left the country. Id. at 762. Our
    court concluded that the evidence compelled a conclusion of past
    persecution, and that, in concluding otherwise, the BIA erred by not
    considering the evidence as a whole. Id. at 770-71. In Morales Lopez, like in
    this case, the BIA also failed to consider uncontroverted evidence of
    persecution. Id. at 772.
    Applying the forgoing to the facts of this case, the evidence compels a
    conclusion that the harm suffered by Reyes-Hoyes was so severe as to
    constitute persecution. The harm that the DeLeons inflicted on Reyes-
    Hoyes clearly amounted to more than “isolated incidents of verbal
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    harassment or intimidation” and instead involved both “physical
    punishment” and other significant “infliction of harm.” See Eduard, 374
    F.3d at 187 n.4. The guns fired in the air outside of her house did not cause
    physical harm, but certainly went beyond mere threats and added an element
    of credibility to the threatening messages that Reyes-Hoyes was receiving at
    the time. See Tamara-Gomez, 
    447 F.3d at 348
     (in conjunction with threats,
    vandalism to home was act of persecution); Qorane v. Barr, 
    919 F.3d 904
    , 910
    (5th Cir. 2019) (suggesting that threats that are credible and have sense of
    immediacy may be acts of persecution). Further, two of the incidents (the
    beating in the market and the beating at her home) involved physical harm to
    Reyes-Hoyes, while one incident (the attempted kidnapping) involved
    physical harm to her daughter and one incident (the beating at her home)
    involved physical harm to her older son, in the form of a gun held to his head,
    in her presence. See Martinez-Lopez, 943 F.3d at 771 (harm inflicted on family
    member or friend can be act of persecution if intended to harm petitioner);
    Tamara-Gomez, 
    447 F.3d at 348
     (threat to kidnap son was act of persecution);
    Morales Lopez, 852 F. App’x at 761–62 (threats and harm to family was
    persecution).
    Additionally, the beating in the market occurred even though Mesata
    is more than seven hours away from Pajapita, and the beating in Reyes-
    Hoyes’s home in Pajapita took place on the very day that she returned to the
    town after an absence of more than five years (during which, as discussed in
    the next section, she moved three times in an attempt to avoid the DeLeons).
    The attack in Mesata, a distant locale, and the immediate attack upon her
    return to Pajapita, where the DeLeons sought her out at home, shows that
    her attackers continued to target her over a sustained period of time. Cf.
    Abdel-Masieh, 
    73 F.3d at
    581–84 (record did not compel finding of past
    persecution when two beatings were result of being detained while
    participating in mass demonstrations and there was no evidence that
    14
    Case: 20-60133        Document: 00516725246              Page: 15       Date Filed: 04/25/2023
    No. 20-60133
    persecutors otherwise attempted to locate or harm petitioner). In other
    words, the persecution was recurring, and not isolated. Cf. Gjetani, 968 F.3d
    at 395, 398-99 (“one-off incidents” that were “unlikely to recur” did not
    compel finding of persecution). 7
    Based on all of the evidence as a whole, and in light of the applicable
    caselaw, Reyes-Hoyes has made a compelling case of persecution.
    Nevertheless, we find a remand is necessary because the BIA did not make a
    determination as to Reyes-Hoyes’s credibility. The BIA did not mention
    credibility in its decision or express any doubts about the truth of Reyes-
    Hoyes’s testimony. The IJ did express some doubts about Reyes-Hoyes’s
    credibility, although he did not explicitly find her uncredible and ultimately
    stated he was not denying relief “based on a lack of sufficiency of proof.”
    However, the BIA did not adopt the IJ’s decision and thus did not
    incorporate any of the doubts the IJ had. “Generally speaking, a court of
    appeals should remand a case to an agency for decision of a matter that
    statutes place primarily in agency hands.” I.N.S. v. Orlando Ventura, 
    537 U.S. 12
    , 16 (2002). If Reyes-Hoyes is credible, she has shown persecution,
    but the credibility determination must be made by the factfinder, not by this
    court on appeal. See 
    8 U.S.C. § 1158
    (b)(1)(B)(iii); Avelar-Olivia v. Barr, 
    954 F.3d 757
    , 767 (5th Cir. 2020). Accordingly, the decision of the BIA is vacated
    in part, and we remand to the BIA for a determination on credibility.
    7
    We also note that the persecution in this case is consistent with country condition
    evidence describing a climate of political violence against politicians, including local
    candidates for mayor, and their families.
    15
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    No. 20-60133
    B. Internal Relocation
    Next, Reyes-Hoyes challenges the BIA’s conclusion that she failed to
    establish that she could not internally relocate to avoid future harm or that
    relocation would be unreasonable. An alien is not entitled to asylum if she
    could avoid future persecution by relocating to another part of her country
    “if under all the circumstances it would be reasonable to expect the applicant
    to do so.” 
    8 C.F.R. § 1208.13
    (b)(2)(ii); see also § 1208.13(b)(1)(i)(B). 8
    As recognized by this court in Singh v. Sessions, the regulations
    governing asylum include a two-step analysis that considers whether the
    applicant could both safely and reasonably relocate. 898 F.3d at 522. Singh
    relied on the BIA’s “excellent discussion” of internal relocation in Matter of
    M-Z-M-R-. Id. at 521 (citing Matter of M-Z-M-R-, 26 I & N. Dec. 28 (BIA
    2012)). In Matter of M-Z-M-R-, the BIA explained that the “regulation sets
    forth a two-step approach for determining an applicant’s ability to internally
    relocate and the reasonableness of expecting such relocation.” 26 I & N.
    Dec. at 32. “Under the first step, an Immigration Judge must decide whether
    ‘[t]he applicant could avoid future persecution by relocating to another part
    of the applicant’s country of nationality.’ The second step of the inquiry is
    whether ‘under all the circumstances, it would be reasonable to expect the
    applicant to do so.’” Id. (quoting 
    8 C.F.R. § 1208.13
    (b)(1)(i)(B)) (internal
    citations omitted).
    8
    A finding of past persecution gives rise to a rebuttal presumption that an applicant
    has a well-founded fear of future persecution based on the same grounds. See 
    8 C.F.R. § 1208.13
    (b)(1). Whether the alien or the government bears the burden of proof on the
    internal relocation issue depends on whether the alien has demonstrated past persecution
    and whether the persecutor is a government or government-sponsored. See 
    id.
    § 1208.13(b)(1)(ii), (b)(3).
    16
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    No. 20-60133
    First, “[f]or an applicant to be able to internally relocate safely, there
    must be an area of the country where he or she has no well-founded fear of
    persecution.” Id. at 33. The relocation area “must present circumstances
    that are substantially better than those giving rise to a well-founded fear of
    persecution,” because “the purpose of the relocation rule is not to require an
    applicant to stay one step ahead of persecution.” Id. “If the first step of the
    internal relocation analysis shows that an applicant is able to internally
    relocate, the Immigration Judge must next determine whether ‘under all the
    circumstances, it would be reasonable to expect the applicant to do so.’” Id.
    at 34 (quoting 
    8 C.F.R. § 1208.13
    (b)(1)(i)(B)). Matter of M-Z-M-R- also
    emphasized that IJs should assess the reasonableness of relocation by
    referring to the non-exhaustive list of factors contained in the regulations. 
    Id.
    at 34–35. At the time that Reyes-Hoyes’s case was decided, the regulations
    directed that, in assessing the reasonableness of internal relocations,
    adjudicators should consider, but are not limited to
    considering, whether the applicant would face other serious
    harm in the place of suggested relocation; any ongoing civil
    strife within the country; administrative, economic, or judicial
    infrastructure; geographical limitations; and social and cultural
    constraints, such as age, gender, health, and social and familial
    ties. Those factors may, or may not, be relevant, depending on
    all the circumstances of the case, and are not necessarily
    determinative of whether it would be reasonable for the
    applicant to relocate.
    
    8 C.F.R. § 1208.3
    (b)(3) (2020). 9
    9   Effective January 19, 2021, the regulation was amended to:
    adjudicators should consider the totality of the relevant circumstances
    regarding an applicant’s prospects for relocation, including the size of the
    country of nationality or last habitual residence, the geographic locus of
    the alleged persecution, the size, numerosity, and reach of the alleged
    17
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    No. 20-60133
    Reyes-Hoyes testified that she relocated three times. First, she moved
    to Mesata, a town more than seven hours away from Pajapita. After two years
    of living there, the DeLeons discovered her in the market in Mesata, where
    she sold clothing to make a living, and beat her. After this beating, Reyes-
    Hoyes moved to Raul, a town an hour and half away from Mesata. She lived
    there for a little less than two years until she saw Marvin DeLeon in town.
    Although he did not see her and she testified that his presence in the town
    may have been a coincidence, out of fear that she would be discovered again
    she moved a third time to Guatemala City. Reyes-Hoyes testified that while
    in Guatemala City she and her three children lived for a short time with her
    brother-in-law, but that “it was very difficult” because she “didn’t have
    space there” and “needed to work a lot” to support her three children, so
    she returned to live in her house in Pajapita, hoping that things had calmed
    down. On the day she returned, she and her children were attacked in her
    home by the DeLeons.
    The BIA concluded that internal relocation was reasonable because
    Reyes-Hoyes “lived in Guatemala for 5 years after her partner was murdered
    before she left” and “has not demonstrated that she could not avoid further
    harm by relocating to [Raul], the capital, or elsewhere within Guatemala or
    that it would be unreasonable to expect her to do so.” The BIA summarized
    Reyes-Hoyes’s testimony as such: “she lived in Mesata for 2 years until the
    incident at the market, then she lived in [Raul] without incident for almost 2
    years before moving to the capital, and then she moved back to her
    hometown.”
    persecutor, and the applicant’s demonstrated ability to relocate to the
    United States in order to apply for asylum.
    
    8 C.F.R. § 1208.3
    (b)(3) (2021).
    18
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    No. 20-60133
    Similar to its past persecution finding, we are concerned that the
    BIA’s internal relocation finding does not “reflect meaningful consideration
    of the relevant substantial evidence” in light of the applicable regulations.
    Abdel-Masieh, 
    73 F.3d at 585
    . First, the BIA failed to note that Reyes-Hoyes
    left Raul because she saw Marvin DeLeon there and became afraid that she
    would be discovered and attacked again. In other words, she did not live in
    Raul “without incident.” Second, the BIA failed to note the difficulties that
    Reyes-Hoyes testified she faced in finding adequate work and housing for her
    and her children in Guatemala City. As explained below, vacatur and remand
    on this issue is warranted because of the lack of factual findings on whether
    it was reasonable for Reyes-Hoyes to relocate in light of her testimony.
    We conclude first that the BIA’s internal relocation conclusion was at
    least in part not supported by substantial evidence. Reyes-Hoyes’s relocation
    to Mesata cannot be characterized as safe, given that it ended with her being
    found and beaten by the DeLeons. Similarly, her relocation to Raul was
    unsuccessful; even though she was not physical harmed, the fact that she saw
    Marvin DeLeon in Raul and therefore had a reasonable fear of being
    discovered and harmed again compels the conclusion that Raul was not a safe
    location either. That a petitioner remained in her home country for a period
    of time after the persecution began can suggest that safe relocation is
    possible, but “the purpose of the relocation rule is not to require an applicant
    to stay one step ahead of persecution.” Matter of M-Z-M-R-, 26 I & N. Dec.
    at 33. In this case, the evidence shows that Reyes-Hoyes had to move to a
    new town three times in four years in order to avoid the DeLeons—to
    Mesata, to Raul, and then to Guatemala City. The evidence compels the
    conclusion that relocation to Mesata and Raul was not reasonable per Matter
    of M-Z-M-R-, as neither location provided her with safety, much less with
    “circumstances that [were] substantially better than those giving rise to a
    well-founded fear of persecution” in the first place. 
    Id.
    19
    Case: 20-60133        Document: 00516725246               Page: 20       Date Filed: 04/25/2023
    No. 20-60133
    Unlike the relocations to Mesata and Raul, the evidence does not
    compel the conclusion that safe relocation in Guatemala City was impossible.
    However, neither the IJ nor the BIA addressed Reyes-Hoyes’s unchallenged
    testimony that relocation there was unreasonable. Reyes-Hoyes testified that
    living in Guatemala City was “very difficult” because of a lack of living space
    and the need for her to work a lot in order to support her children. These are
    the types of factors—economic, social, and familial—that Matter of M-Z-M-
    R- held are relevant to determining if relocation is reasonable. Id. at 34-35.
    Given the importance of this unresolved issue, we think that remand to the
    BIA to make findings and conclusions on whether relocation was reasonable
    in light of Matter of M-Z-M-R- is appropriate. 10 See Abdel-Masieh, 
    73 F.3d at 585
     (holding that, in appropriate circumstances, “[w]here an agency has
    failed to comply with its responsibilities, we should insist on its compliance
    rather than attempt to supplement its efforts” (quoting Sanon, 
    52 F.3d at 652
    )). Accordingly, the BIA’s decision is vacated in part.
    C. State Action
    Last, Reyes-Hoyes challenges the BIA’s conclusion that she did not
    establish past persecution or a well-founded fear of future persecution
    because she did not show that the Guatemalan government sponsored or
    sanctioned the persecution. To qualify for asylum “[t]he persecution must
    be inflicted under government sanction, including persecution by groups ‘the
    government is unable or unwilling to control.’” Garcia-Garcia v. Mukasey,
    
    294 F. App’x 827
    , 829 (5th Cir. 2008) (quoting Adebisi v. I.N.S., 
    752 F.2d 10
    We note also that whether Reyes-Hoyes or the Government will bear the burden
    of proof on this issue is uncertain at this juncture because allocation of the burden of proof
    is contingent on other findings, namely whether Reyes-Hoyes proves past persecution and
    whether her persecution was government sponsored or sanctioned, that will need to be
    made by the BIA in the first instance on remand. See 
    8 C.F.R. § 1208.13
    (b)(1)(ii), (b)(3).
    20
    Case: 20-60133     Document: 00516725246           Page: 21   Date Filed: 04/25/2023
    No. 20-60133
    910, 904 (5th Cir. 1992). On this issue of so-called “state action,” the BIA
    affirmed the IJ’s finding that the Guatemalan government did not condone
    the harm, nor was helpless to protect Reyes-Hoyes from the DeLeons. We
    vacate and remand.
    To support its conclusion, the BIA cited the following findings of the
    IJ: (1) the DeLeons were a “specific family which had ties to a criminal
    organization that operated in three towns”; (2) “the head of this family was
    elected mayor” after Federico’s murder “but is no longer the mayor”; (3)
    Reyes-Hoyes spoke with the police about Federico’s murder but did not
    report any other incidents to the police; and (4) the “documentary evidence
    indicate[d] that the police conducted a raid of the criminal organization and
    one of the sons of the ex-mayor was killed in a police confrontation in 2017.”
    The BIA erred procedurally by not addressing key testimony
    regarding Reyes-Hoyes’s interactions with the police. See Abdel-Masieh, 
    73 F.3d at 585
    . Reyes-Hoyes went to the police after Federico’s murder and was
    told by a policeman named Polito that “you better leave the things the way
    they are if you don’t want the same thing that happened to your husband to
    happen to you.”      The IJ—inexplicably, given the lack of conflicting
    evidence—said that he interpreted Polito’s message as “not necessarily a
    threat, it could be a legitimate warning” because “[c]onsidering the
    respondent’s testimony that this family of criminals, in her words, practically
    owned the town, this could have been a friendly warning on the part of this
    particular police officer.” This finding—that Polito was giving Reyes-Hoyes
    a “friendly warning”—is speculative and not based on evidence in the
    record. Moreover, even if Polito was offering a “friendly warning,” the IJ’s
    explanation for the warning—that the DeLeons owned the town and the head
    of the family had served a term as mayor—actually suggests that the
    authorities were “unable or unwilling” to control them. As either an express
    threat condoning future persecution, or as a “friendly warning” that the
    21
    Case: 20-60133     Document: 00516725246           Page: 22   Date Filed: 04/25/2023
    No. 20-60133
    government would or could do nothing to prevent future persecution, this
    statement from the police officer is evidence of state action. To the extent
    that the BIA implicitly relied on the IJ’s findings to conclude otherwise, its
    conclusion was not supported by the evidence.
    Additionally, Reyes-Hoyes explicitly linked her visit to the police with
    the beginning of the threats against her and her children: “After I made the
    complaint to the police the threats began.” And, when asked if she reported
    the attempted kidnapping of her daughter to the police, Reyes-Hoyes said no
    because “I already reported the first time and I didn’t receive any support.”
    Combined with Polito’s statement, Reyes-Hoyes’s testimony that she
    started to receive threats shortly after she made her report to the police
    provides an explanation for her not reporting the other incidents—she feared
    going to the police would be futile or would make the persecution worse. See
    Arevalo-Velasquez v. Whitaker, 
    752 F. App’x 200
    , 201–02 (5th Cir. 2019)
    (recognizing that “the BIA did not establish a rule that an applicant is
    required to report her abuse to establish the government is unable or
    unwilling to control her abuser” and that evidence could show that reporting
    would lead to “worsened” circumstances) (citing In re S-A-, 22 I & N Dec.
    1328, 1332–33, 1335 (BIA 2000)); see also Bringas-Rodriguez v. Sessions, 
    850 F.3d 1051
    , 1069 (9th Cir. 2017) (“Whether a victim has reported or
    attempted to report violence or abuse to the authorities is a factor that may
    be considered, as is credible testimony or documentary evidence explaining
    why a victim did not report.”). The BIA did not meaningfully address this
    testimony in its decision.
    Last, the BIA did not contextualize the documentary evidence
    concerning the police raid and the death of Guillermo DeLeon.             The
    newspaper article referred to a “confusing incident that arose during an
    operation”—part of a series of drug raids carried about by the National
    Police—during which Guillermo DeLeon “lost his life after attacking with a
    22
    Case: 20-60133        Document: 00516725246              Page: 23       Date Filed: 04/25/2023
    No. 20-60133
    machete the agents who would carry out a raid in the sector where he lived.”
    Further, the article states that the National Police “did not specify if the
    former mayor’s [Isidro DeLeon’s] house was one of the objectives of the
    operations.”      In addition to these ambiguities, the BIA should have
    considered whether National Police “drug raids” show that the Government
    is able and willing to combat political violence against Reyes-Hoyes,
    especially when the country condition evidence describing a climate of
    political violence against politicians and their families.
    Given the BIA’s failure to meaningfully consider this “key evidence,”
    we vacate the BIA’s decision on state action and remand for a more thorough
    consideration. See Abdel-Masieh, 
    73 F.3d at 585
    . 11
    11
    See, e.g., Matei v. Garland, No.22-60144, 
    2023 WL 2535259
    , at *4 (5th Cir. Mar.
    16, 2023) (per curiam) (unpublished) (holding the BIA procedurally erred when “when the
    only evidence cited comes from an older country report, that evidence is improperly
    attributed to more recent country reports, and there is no indication that the IJ considered
    the treatment of [the applicant] actually described in the more recent country reports”);
    Aguando-Cuevas v. Garland, No. 21-60574, 
    2022 WL 17546291
    , at *4 (5th Cir. Dec. 9,
    2022) (unpublished) (“Although it is possible that the BIA and IJ considered but declined
    to mention this portion of [the applicant’s] testimony, any such consideration is not
    apparent in the record. As such, the BIA erred by not applying the correct legal framework
    in which it must show that it meaningfully considered ‘relevant substantial evidence
    supporting the alien's claims.’” (quoting Abdel Masieh, 
    73 F.3d at 585
    )); Emmanuel-Tata v.
    Garland, No. 20-60487, 
    2022 WL 126982
    , at *3 (5th Cir. Jan. 12, 2022) (per curiam)
    (unpublished) (finding BIA's statement that the record did not contain relevant evidence,
    when the record did contain relevant evidence, weighed in favor of finding that the
    applicant “did not receive ‘meaningful consideration of the relevant substantial evidence
    supporting’ his claims.” (citing Abdel-Masieh, 
    73 F.3d at 585
    )); Adjonke v. Mukasey, 
    255 F. App'x 914
    , 915 (5th Cir. 2007) (per curiam) (unpublished) (stating court was “not
    convinced that [applicant] received full and fair consideration of the circumstances giving
    rise to his claims” when the IJ noted improvements in 2004 but did not discuss evidence
    of deterioration in 2005); cf. Ndifon v. Garland, 
    49 F.4th 986
    , 990 (5th Cir. 2022) (finding
    statement that applicant “points to no other objective evidence to support his . . . claim,”
    when applicant did present other evidence, to weigh in favor of concluding BIA did not
    adequately consider the evidence supporting CAT claim).
    23
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    No. 20-60133
    IV. Conclusion
    In sum, we conclude that, if Reyes-Hoyes is credible, the record
    compels the conclusion that Reyes-Hoyes suffered harm rising to the level of
    past persecution, but we remand for the BIA to consider her credibility in the
    first instance. We also conclude that the record compels the conclusion that
    safe internal relocation to parts of Guatemala—Mesata and Raul—was not
    possible. Additionally, we hold that the BIA procedurally erred in the
    remainder of its analysis concerning whether internal location was reasonable
    and whether Reyes-Hoyes had shown state action by not meaningfully
    considering the relevant substantial evidence. Finally, we lack jurisdiction
    over the remaining portions of Reyes-Hoyes’s petition.
    Accordingly, the petition for review is GRANTED in part and
    DISMISSED in part; the decision of the BIA is VACATED; and the case
    is REMANDED for further proceedings consistent with this opinion.
    24