Moris Quiroz Parada v. Jefferson Sessions, III , 902 F.3d 901 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MORIS ALFREDO QUIROZ PARADA, No. 13-73967
Petitioner,
Agency No.
v. A072-525-513
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 14, 2017
San Francisco, California
Filed August 29, 2018
Before: Sidney R. Thomas, Chief Judge, Richard A. Paez,
Circuit Judge, and Timothy J. Savage, * District Judge.
Opinion by Judge Paez
*
The Honorable Timothy J. Savage, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
2 QUIROZ PARADA V. SESSIONS
SUMMARY **
Immigration
The panel granted Moris Alfredo Quiroz Parada’s
petition for review of the Board of Immigration Appeals’
denial of asylum, withholding of removal, and protection
under the Convention Against Torture, in a case in which
Quiroz Parada, a citizen of El Salvador, sought relief after
he and his family were the victims of threats, home
invasions, beatings, and killings at the hands of Frente
Farabundo Martí para la Liberación Nacional guerillas.
The panel held that the record compelled a finding of
past persecution. The panel explained that the Board
mischaracterized what Quiroz Parada endured as simply
threats against his family and attempts to recruit him, and
ignored, among other evidence, his brother’s assassination,
the murder of his neighbor as a result of Quiroz Parada’s own
family being targeted, his experience being captured and
beaten to the point of unconsciousness, repeated forced
home invasions, and specific death threats toward his family.
The panel concluded that the harm Quiroz Parada and his
family suffered rose to the level of past persecution.
Applying pre-REAL ID Act standards, the panel held
that the harm Quiroz Parada suffered bore a nexus to a
protected ground, as the FMLN guerillas were motivated, at
least in part, by his family’s government and military
service. The panel noted that it was immaterial that the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
QUIROZ PARADA V. SESSIONS 3
FMLN’s attempted conscription of Quiroz Parada would
have served the dual goal of filling their ranks in order to
carry on their war against the government and pursue their
political objectives, because their additional goal of
retaliating against the Quiroz Parada family was a protected
ground.
The panel held that substantial evidence did not support
the agency’s determination that the government successfully
rebutted the presumption of future persecution. The panel
noted that by the time the IJ considered the country
conditions information submitted into the record it was five
years out of date, and predated the FMLN’s rise to power in
government. The panel explained that the government
cannot meet its burden of rebutting the presumption by
presenting evidence of the Salvadoran government’s human
rights record at a time when the government was run by a
different political party, particularly when at the time of the
IJ hearing it was run by the very same FMLN who
persecuted the Quiroz Parada family. The panel joined the
Second Circuit in holding that reliance on significantly or
materially outdated country reports cannot suffice to rebut
the presumption of future persecution.
The panel concluded that the agency erred as a matter of
law in denying Quiroz Parada’s application for CAT relief
because it ignored pertinent evidence in the record and erred
by construing the “government acquiescence” standard too
narrowly. The panel explained that acquiescence does not
require actual knowledge or willful acceptance of torture,
and that awareness and willful blindness will suffice. The
panel further explained that the acquiescence standard is met
where the record demonstrates that public officials at any
level, even if not at the federal level, would acquiesce in the
torture the petitioner is likely to suffer, and that evidence
4 QUIROZ PARADA V. SESSIONS
showing widespread corruption of public officials, as the
record revealed in this case, can be highly probative on this
point. The panel noted that the country conditions reports
and exhibits submitted by Quiroz Parada indicate the
acquiescence of the Salvadoran government, or at least parts
of the Salvadoran government, in the rampant violence and
murder perpetrated by the Mara Salvatrucha gang, at whose
hands Quiroz Parada fears that he will be killed.
The panel remanded for reconsideration of his CAT
claim, an exercise of discretion whether to grant asylum
relief, and an appropriate order withholding Quiroz Parada’s
removal.
COUNSEL
Christopher J. Stender (argued), Federal Immigration
Counselors AZ PC, Phoenix, Arizona, for Petitioner.
Janette L. Allen (argued) and Laura Halliday Hickein, Trial
Attorneys; Shelley R. Goad, Assistant Director; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
QUIROZ PARADA V. SESSIONS 5
OPINION
PAEZ, Circuit Judge:
Moris Alfredo Quiroz Parada fled his native El Salvador
in 1991 at the age of seventeen after he and his family were
the victims of threats, home invasions, beatings, and killings
at the hands of Frente Farabundo Martí para la Liberación
Nacional (FMLN) guerillas. Twenty-four years after he first
applied for asylum, Quiroz Parada petitions for review of a
decision of the Board of Immigration Appeals (BIA)
affirming the denial of his application for asylum,
withholding of removal, and protection under the
Convention Against Torture (CAT). We conclude that the
record compels a finding of past persecution, and that
substantial evidence does not support the agency’s
determination that the government successfully rebutted the
presumption of future persecution. We also conclude that
the agency erred as a matter of law in denying Quiroz
Parada’s application for CAT relief. Accordingly, we grant
the petition and hold that Quiroz Parada is eligible for
asylum and entitled to withholding of removal, and remand
for reconsideration of his CAT claim.
I.
A.
Quiroz Parada, a native and citizen of El Salvador,
entered the United States without authorization on May 25,
1991 at the age of seventeen. Quiroz Parada has
continuously resided in the United States for the last twenty-
seven years, and currently lives in Arizona with his wife and
three children, the latter of whom are United States citizens.
He is the sole provider for his family.
6 QUIROZ PARADA V. SESSIONS
During the Salvadoran civil war of the 1980s and early
1990s, Quiroz Parada and his family were subjected to
threats, home invasions, beatings, and killings by FMLN
guerillas. 1 Quiroz Parada’s family was targeted largely
because of his brother’s military service during the civil war,
and potentially also because of his father’s work as an
assistant marshal, a role akin to a sheriff. The FMLN
apparently found out about the Quiroz Paradas’ government
connections because some of the family’s neighbors were
relatives of the guerillas.
In June 1989, FMLN guerillas sought out and murdered
Quiroz Parada’s brother while he was on leave from the
military. Following his brother’s assassination, FMLN
guerrillas broke into the Quiroz Parada family home on at
least three occasions. The guerillas sought to kill other
members of the Quiroz Parada family, and, on one occasion,
to kidnap Quiroz Parada with the apparent intent to forcibly
conscript him.
The Quiroz Paradas knew the guerillas were specifically
targeting their family largely because the FMLN guerillas
would begin calling out their family’s name upon entering
the Quiroz Paradas’ village. Although the FMLN’s
announcements were terrifying, they at least gave the family
enough time to hide in the family’s well and thus avoid harm
during the first several invasions. On another occasion,
however, the family did not hear the guerillas approaching
in time to hide before the guerillas broke into their home.
Quiroz Parada attempted to flee, but was struck by the
1
Because Quiroz Parada “was found credible and his testimony is
thus accepted as undisputed, the facts recounted here are derived from
his testimony” and asylum application. Baballah v. Ashcroft, 367 F.3d
1067, 1071 n.1 (9th Cir. 2004).
QUIROZ PARADA V. SESSIONS 7
guerillas, tied up, carried out of his home, and beaten; the
guerillas apparently intended to forcibly conscript him. He
was only able to escape because the army suddenly arrived
at his village, which caused the guerillas to flee—but not
before they beat Quiroz Parada, causing him to lose
consciousness. Quiroz Parada testified that his family
realized after this attack that they were being targeted
because of his brother’s military service. 2
The FMLN guerillas’ targeting of the Quiroz Parada
family also led to collateral consequences for those around
the family. On one occasion, a different group of FMLN
guerillas than had committed the previous home invasions
mistakenly entered the home of the Quiroz Paradas’
neighbors instead. The guerillas kidnapped the neighbor’s
sons and, upon discovering they had kidnapped the wrong
family’s sons, returned and murdered the mother in anger
over their mistake. 3
Quiroz Parada fled to the United States in 1991 after
these incidents, but his family members who remained in El
2
The record is not entirely clear as to whether the Quiroz Parada
family was targeted solely on the basis of Quiroz Parada’s brother
military service, or whether it was a combination of his brother’s military
service and his father’s position as an assistant marshal. For example,
the guerillas who kidnapped and beat Quiroz Parada apparently knew of
his brother’s military service, but were not aware of his father’s status as
an assistant marshal. We need not resolve this ambiguity, as our analysis
would be the same either way.
3
There is also some ambiguity in the record about whether the
neighbor’s mother was murdered as reprisal for wrongly leading the
guerillas to believe they were kidnapping members of the Quiroz Parada
family, or whether she was murdered because the guerillas believed her
to be a member of the Quiroz Parada family. Whichever the guerillas’
true motive, it is immaterial to our analysis.
8 QUIROZ PARADA V. SESSIONS
Salvador continued to suffer harm even after the end of the
civil war. In 2000, his father received a death threat from a
former FMLN guerilla’s son, who had become a Mara
Salvatrucha (MS) gang member in the intervening years.
This familial transition from FMLN guerilla to MS member
was apparently common; Quiroz Parada’s family members
have told him that many sons of former FMLN guerillas are
now part of the MS gang. These FMLN descendants have
long memories: the MS member who threatened Quiroz
Parada’s father told him “You are going to die. Because
your family was in the military and killed someone from my
family. And one way or another you will die.” Quiroz
Parada’s father was killed five years later in a suspicious hit-
and-run, which Quiroz Parada believes to have been carried
out by the MS member who threatened his father or one of
his associates. The threats did not end with his father’s
death, either: Quiroz Parada’s mother was forced to flee their
family home after receiving threats from MS gang members
whose fathers were FMLN guerillas.
Quiroz Parada’s family members have warned him not
to return to El Salvador because “history will repeat itself”—
meaning that Quiroz Parada will face kidnapping or death at
the hands of the MS gang members who are descendants of
FMLN guerillas. As of Quiroz Parada’s hearing before an
immigration judge (IJ) in 2012, all of his siblings had fled El
Salvador. 4
4
Prior to fleeing, two of his sisters and their families were threatened
with murder and rape by MS members. It is unclear, however, whether
these threats were connected to the Quiroz Paradas’ government service
during the civil war, or to one sister’s status as a gang informant and the
other’s status as the mother of a police officer.
QUIROZ PARADA V. SESSIONS 9
B.
Quiroz Parada applied for asylum 5 and withholding of
removal on September 27, 1994. If he is removed to El
Salvador, Quiroz Parada fears he will be persecuted on
account of his family status and political opinion. The
source of that feared persecution is twofold: the MS gang
members seeking revenge on behalf of their FMLN guerilla
parents, as well as the FMLN itself—despite the fact that the
FMLN is currently a political party, rather than a violent
revolutionary movement. Because the FMLN is now the
ruling political party, Quiroz Parada does not believe he can
safely reside in any part of the country without falling victim
to retribution by the FMLN. Moreover, simply laying low
is not an option: Quiroz Parada believes the FMLN will learn
of his return to the country and have the ability to locate him
because he no longer has any Salvadoran documentation and
would thus be required to renew all of his documents upon
arriving in El Salvador. Quiroz Parada also testified that he
is opposed to the FMLN’s “leftist wing” form of democracy
and that he would feel compelled to speak out against the
FMLN-run government’s policies, which he fears would
result in persecution by the government. While Quiroz
Parada is aware that the civil war ended several decades ago,
he does not believe that the Salvadoran government would
prosecute former FMLN guerillas if “they murder people, or
behave badly.” 6
5
Because Quiroz Parada applied for asylum prior to the effective
date of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, the one-year bar for asylum applications does not apply.
See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a).
6
Regrettably, as with many critical pieces of his testimony, Quiroz
Parada’s explanation for why he does not believe in the Salvadoran
10 QUIROZ PARADA V. SESSIONS
Thirteen years passed before the government took any
action on Quiroz Parada’s 1994 asylum application. In May
2007, a Department of Homeland Security (DHS) officer
finally interviewed Quiroz Parada. On May 31, 2007,
Quiroz Parada’s asylum case was referred to an immigration
judge; DHS simultaneously issued a notice to appear,
charging him with removability under 8 U.S.C.
§ 1182(a)(6)(A)(I) for being present in the United States
without being admitted or paroled. At a master calendar
hearing in February 2008, an IJ sustained the charge of
removability. Quiroz Parada requested relief in the form of
asylum, withholding of removal, CAT protection, and
cancellation of removal.
The delays for Quiroz Parada didn’t end there: nearly
five years passed between his February 2008 hearing and his
merits hearing before an IJ in November 2012. The
government submitted its hearing exhibits back in 2008,
including a 2007 Department of State Country Report and a
2007 Department of State Profile on El Salvador. Yet for
unknown reasons, the government did not update their
exhibits during the years that passed between submission of
their exhibits and the actual hearing—despite the fact that
the country conditions reports were five years out of date by
the time of the merits hearing.
Quiroz Parada, by contrast, submitted his exhibits
approximately one week before the November 2012 hearing.
In addition to a written statement describing his past
persecution and fear of future persecution, Quiroz Parada
submitted a number of other exhibits corroborating his
government’s ability or willingness to prosecute former FMLN members
who murder or otherwise attack their former enemies is transcribed as
“[indiscernible] and [indiscernible].”
QUIROZ PARADA V. SESSIONS 11
claims. For example, he submitted a 2010 letter from his
sister—written prior to her fleeing the country—imploring
him to not return to El Salvador for any reason because of
the risk that he will be kidnapped or killed by MS. The letter
explained that the “police do[] not help, and they even get
killed,” and warned that if he were to come back to the
country, “history would repeat itself.” Another one of his
sisters sent him a copy of a handwritten threat she received
from MS members, which said they knew she “snitched on
the barrio” and warned her that if she failed to leave the area
by a particular date, her “daughters will suffer the
consequences.” His exhibits also included several
newspaper articles about the violence perpetrated by MS in
Quiroz Parada’s home region; these articles echoed a letter
from the National Civil Police of El Salvador describing
MS’s crimes, the gang’s pervasiveness in Quiroz Parada’s
home region, and how the rampant violence has forced many
families to flee.
The long-awaited hearing in November 2012 did not
begin on a promising note. Prior to hearing any testimony
from Quiroz Parada or argument from his attorney, the IJ
conveyed his belief that Quiroz Parada’s asylum claim “may
be a lost cause.” Nonetheless, despite the IJ’s significant
skepticism, he allowed Quiroz Parada’s attorney to present
Quiroz Parada’s case for asylum. On February 8, 2013, the
IJ issued a written decision denying Quiroz Parada’s
requests for asylum, withholding of removal, CAT
protection, and cancellation of removal. The IJ first found
that Quiroz Parada was credible under both the pre-REAL
ID Act and REAL ID Act standards. 7 The IJ then
7
Although the REAL ID Act governs Quiroz Parada’s claim for
cancellation of removal, it does not govern his claims currently on
12 QUIROZ PARADA V. SESSIONS
determined that Quiroz Parada had not shown past
persecution, but further concluded that even if he had, DHS
had rebutted the presumption with evidence of changed
country conditions. The IJ also found that Quiroz Parada
had not shown an independent well-founded fear of future
persecution. Because the IJ determined that Quiroz Parada
had not established eligibility for asylum through either past
persecution or a well-founded fear of future persecution,
Quiroz Parada necessarily failed to meet the higher bar
required to obtain withholding of removal. The IJ also
rejected Quiroz Parada’s claim for CAT relief.
Quiroz Parada appealed the IJ’s decision to the BIA,
which dismissed his appeal. In its decision, the BIA
affirmed the IJ’s determinations on Quiroz Parada’s asylum,
withholding, and CAT claims, including the IJ’s alternative
holding that even if Quiroz Parada had established past
persecution, the government had rebutted the presumption of
a well-founded fear of future persecution. The BIA denied
relief to Quiroz Parada, but granted him voluntary departure.
Quiroz Parada timely petitioned us for review.
II.
We examine the BIA’s “legal conclusions de novo and
its factual findings for substantial evidence.” Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017)
(en banc) (citations omitted). Substantial evidence review
means that we may only reverse the agency’s determination
where “the evidence compels a contrary conclusion from
that adopted by the BIA.” Afriyie v. Holder, 613 F.3d 924,
931 (9th Cir. 2010). While this standard is deferential,
appeal, which were filed prior to May 11, 2005. See Joseph v. Holder,
600 F.3d 1235, 1240 n.3 (9th Cir. 2010).
QUIROZ PARADA V. SESSIONS 13
“deference does not mean blindness.” Nguyen v. Holder,
763 F.3d 1022, 1029 (9th Cir. 2014) (quoting Li v. Ashcroft,
356 F.3d 1153, 1158 (9th Cir. 2004) (en banc)). “Where, as
here, the BIA has reviewed the IJ’s decision and
incorporated portions of it as its own, we treat the
incorporated parts of the IJ’s decision as the BIA’s.”
Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002).
III.
To be eligible for asylum, Quiroz Parada must establish
that he is a refugee—namely, that he is unable or unwilling
to return to El Salvador “because of persecution or a well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion.” Melkonian v. Ashcroft, 320 F.3d 1061,
1064 (9th Cir. 2003) (quoting 8 U.S.C. § 1101(a)(42)(A)).
“The source of the persecution must be the government or
forces that the government is unwilling or unable to
control.” 8 Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir.
2007). To be well-founded, an asylum applicant’s “fear of
persecution must be both subjectively genuine and
objectively reasonable.” Sael v. Ashcroft, 386 F.3d 922, 924
(9th Cir. 2004). “An applicant ‘satisfies the subjective
component by credibly testifying that [he] genuinely fears
persecution.’” Id. (quoting Mgoian v. INS, 184 F.3d 1029,
1035 (9th Cir. 1999)). The objective component can be
established in two different ways, one of which is to prove
past persecution. Id. at 924–25. Past persecution “giv[es]
rise to a rebuttable presumption that a well-founded fear of
8
The parties have not disputed that Quiroz Parada’s previous harms
were inflicted by forces that the government was either unable or
unwilling to control. See Lopez v. Ashcroft, 366 F.3d 799, 803 n.4 (9th
Cir. 2004).
14 QUIROZ PARADA V. SESSIONS
future persecution exists.” See Ladha v. INS, 215 F.3d 889,
897 (9th Cir. 2000) (internal quotation marks and citation
omitted), overruled on other grounds by Abebe v. Mukasey,
554 F.3d 1203, 1208 (9th Cir. 2009) (en banc).
A.
We first conclude that substantial evidence does not
support the BIA’s determination that the harms Quiroz
Parada previously suffered did not rise to the level of
persecution. Our conclusion is largely driven by the fact that
the BIA mischaracterized what Quiroz Parada endured as
simply “threats against his family and attempt[s] to recruit
him.” This glib characterization ignores, among other
evidence, his brother’s assassination, the murder of his
neighbor as a result of his own family being targeted, his
experience being captured and beaten to the point of
unconsciousness, repeated forced home invasions, and
specific death threats toward his family.
It is clear that the harms Quiroz Parada and his family
actually suffered—murder, physical assault, home
invasions, and specific death threats—rise to the level of
persecution under our precedent. It is, of course, “well
established that physical violence is persecution under
8 U.S.C. § 1101(a)(42)(A).” Li v. Holder, 559 F.3d 1096,
1107 (9th Cir. 2009). Quiroz Parada was beaten into
unconsciousness, which we have held is “clear[ly]”
sufficient to show past persecution. See Gafoor v. INS,
231 F.3d 645, 650 (9th Cir. 2000) (holding it was “clear” that
petitioner who had been kidnapped and beaten until bleeding
and unconscious suffered persecution). Moreover, we have
consistently held that petitioners whose family members
have been murdered—particularly when the petitioners
themselves have also suffered physical injury—have
suffered persecution. See, e.g., Rios v. Ashcroft, 287 F.3d
QUIROZ PARADA V. SESSIONS 15
895, 900 (9th Cir. 2002) (holding that petitioner suffered
persecution where guerillas had kidnapped and wounded
her, attempted to kidnap her son, and murdered her husband
and brother); Salazar-Paucar v. INS, 281 F.3d 1069, 1075
(9th Cir. 2002) (“[E]vidence of harm to Petitioner’s family
supports a finding of past persecution.”). Thus, the BIA’s
threshold determination—that Quiroz Parada had not
suffered “persecution”—is not supported by substantial
evidence.
We next address whether the agency’s determination on
the issue of nexus—that is, whether Quiroz Parada’s
persecution was “on account of race, religion, nationality,
membership in a particular social group, or political
opinion,” 8 U.S.C. § 1101(a)(42)(A)—was supported by
substantial evidence. Because the BIA’s decision affirmed
the IJ’s overall findings on past persecution but did not
specifically address the IJ’s determination on nexus, we
review the IJ’s decision “as a guide to what lay behind the
BIA’s conclusion.” See Ornelas-Chavez v. Gonzales,
458 F.3d 1052, 1058 (9th Cir. 2006) (internal quotation
marks and citation omitted); see also Morgan v. Mukasey,
529 F.3d 1202, 1206 (9th Cir. 2008).
For reasons that are difficult to ascertain, the IJ divided
the harms Quiroz Parada and his family suffered into two
categories: (1) “threats” against him and his family, which
the IJ determined had a nexus to his brother’s military
service and possibly also to his father’s position as a
marshal, and (2) attempts to forcibly conscript Quiroz
Parada via home invasions, which the IJ viewed as lacking a
nexus to his family’s government service. We conclude that
the agency’s decision that Quiroz Parada only established
nexus for some of the harms he suffered is unsupported by
substantial evidence.
16 QUIROZ PARADA V. SESSIONS
Under pre-REAL ID Act law, where an asylum-seeker’s
testimony is deemed credible, direct, and specific,
corroboration is not required to establish the facts to which
the applicant testifies. See Ladha, 215 F.3d at 899–901.
And under pre-REAL ID Act law, so long as the applicant
produces evidence from which it is reasonable to believe that
the persecutor’s actions were motivated at least in part by a
protected ground, the applicant is eligible for asylum. See
Borja v. INS, 175 F.3d 732, 736–37 (9th Cir. 1999) (en
banc).
Here, Quiroz Parada’s credible testimony establishes
that the persecution he and his family suffered was “on
account of” his family’s government and military service—
which constitutes persecution on account of a protected
ground in two ways. As we recently reiterated, “the family
remains the quintessential particular social group.” Rios v.
Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015). That is, an
asylum-seeker who has suffered persecution “on account of
th[eir] familial relationship” has suffered persecution by
reason of membership in a particular social group. Id.
(citation omitted). As Quiroz Parada testified without
contradiction, FMLN members specifically sought out the
“particular social group” of his family, even shouting the
Quiroz Parada family name as the guerillas entered the
family’s village.
Quiroz Parada’s persecution on account of his family’s
government service also amounts to persecution on account
of imputed political opinion. In a similar case, we concluded
that guerillas imputed a political opinion to the petitioner on
account of her husband’s and brother’s service in the
Guatemalan military. See Rios, 287 F.3d at 900–01.
Likewise, in Meza-Manay v. INS, 139 F.3d 759 (9th Cir.
1998), we held that the petitioner’s husband’s work with a
QUIROZ PARADA V. SESSIONS 17
Peruvian counter-insurgency police force caused Shining
Path guerillas to impute a political opinion to the petitioner,
separate and independent from her actual political views. Id.
at 764; see also Navas v. INS, 217 F.3d 646, 657–61 (9th Cir.
2000) (holding that Salvadoran military imputed pro-
guerilla political opinion to petitioner due to his aunt and
uncle’s political affiliations); Lopez-Galarza v. INS, 99 F.3d
954, 959–60 (9th Cir. 1996) (concluding that Sandinistas
imputed political opinion to petitioner based on her family’s
ties to the former government); Silaya v. Mukasey, 524 F.3d
1066, 1070–71 (9th Cir. 2008) (“[E]vidence ‘that the alleged
persecutor acted because of a petitioner’s family’s political
associations is sufficient’ to satisfy the motive requirement.”
(alteration omitted) (quoting Kebede v. Ashcroft, 366 F.3d
808, 812 (9th Cir. 2004))).
Finally, we note that the agency made much of the
attempted conscription of Quiroz Parada as a potential
motivating factor behind the FMLN guerillas’ invasions of
the Quiroz Parada family home. It is true, of course, that
conscription by a non-governmental group does not
necessarily constitute persecution on account of a protected
ground. See, e.g., Melkonian, 320 F.3d at 1068 (citing INS
v. Elias-Zacarias, 502 U.S. 478, 482 (1992)) (explaining that
under Elias-Zacarias, forced conscription does not always
amount to persecution on account of a protected ground, but
holding that petitioner who was targeted for forced
conscription on account of his ethnicity and religion had
been persecuted). But where, as here, there is uncontradicted
evidence that the attempted forced conscription was on
account of Quiroz Parada’s family association and imputed
political opinion based on his brother’s military service—
both protected grounds—that attempted conscription is
persecution within the meaning of our asylum laws. See id.
We reiterate that because Quiroz Parada’s claim is governed
18 QUIROZ PARADA V. SESSIONS
by pre-REAL ID Act law, he need only demonstrate that his
persecutors were motivated in part by a protected ground—
which he has amply done. See Borja, 175 F.3d at 736–37;
Navas, 217 F.3d at 661. Thus, it is immaterial that the
FMLN’s attempted conscription of Quiroz Parada would
have served the dual goals of “fill[ing] their ranks in order to
carry on their war against the government and pursue their
political goals,” Elias-Zacarias, 502 U.S. at 482, and of
retaliating against the Quiroz Parada family—the latter is a
protected ground, even if the former is not.
B.
Having concluded that the evidence compels a finding
that Quiroz Parada established past persecution on account
of his familial relationship and imputed political opinion, we
next address whether the agency erred in its alternative
conclusion that even if Quiroz Parada had established past
persecution, the government had successfully rebutted the
attendant presumption of future persecution. It is on this
issue that the severe delays Quiroz Parada experienced in the
government’s processing of his claims for relief become
most relevant; those delays ultimately produced an agency
decision unsupported by substantial evidence.
A petitioner who has suffered past persecution is
presumed to have a well-founded fear of future persecution.
See 8 C.F.R. § 1208.13(b)(1). The government may rebut
that presumption if it establishes by a preponderance of the
evidence that either (1) there “has been a fundamental
change in circumstances such that the applicant no longer
has a well-founded fear of persecution,” or (2) the “applicant
could avoid future persecution by relocating to another part
of the applicant's country of nationality.” Id. The
presumption only applies to fear of persecution “on the basis
of the original claim,” such that if the fear of future
QUIROZ PARADA V. SESSIONS 19
persecution is “unrelated to the past persecution,” the
petitioner bears the burden of establishing he has a well-
founded fear. Id.
Where the government submits “evidence of changed
country conditions tending to rebut the presumption of a
well-founded fear of persecution, the IJ must make an
‘individualized determination’ of how the changed
circumstances affect the alien's specific situation.” Ali v.
Holder, 637 F.3d 1025, 1030 (9th Cir. 2011) (quoting
Marcos v. Gonzales, 410 F.3d 1112, 1120–21 (9th Cir.
2005)). “Where past persecution has been established,
generalized information from a State Department report on
country conditions is not sufficient to rebut the presumption
of future persecution.” Id. (emphasis omitted) (quoting
Kamalyan v. Holder, 620 F.3d 1054, 1059 (9th Cir. 2010)).
1.
Although the agency9 determined that Quiroz Parada had
not established past persecution, it alternatively concluded
that even if he had established past persecution, DHS had
rebutted the presumption. Specifically, the IJ considered the
2007 Department of State country conditions report
adequate evidence that Quiroz Parada would “no longer
face[] any fear related to the civil war or the FMLN” were
he to return to El Salvador. The IJ did not acknowledge that
by the time of the hearing, the country conditions report was
five years out of date. The IJ did, however, briefly
acknowledge that the FMLN had come to power “in recent
9
Because the BIA’s discussion of whether the government rebutted
the presumption was limited to a brief, conclusory affirmance of the IJ’s
determination, we review the IJ’s decision “as a guide to what lay behind
the BIA’s conclusion.” See Ornelas-Chavez, 458 F.3d at 1058 (internal
quotation marks and citation omitted).
20 QUIROZ PARADA V. SESSIONS
years,” but stated that “there was no evidence presented to
the Court indicating that it participates in the killing,
disappearance, forced conscription, or even discrimination
against any individuals formerly affiliated with the
government, such as the respondent and his family.” Today,
we join the Second Circuit and hold that reliance on
significantly or materially outdated country reports cannot
suffice to rebut the presumption of future persecution; as
such, the agency’s determination must be reversed. See
Tambadou v. Gonzales, 446 F.3d 298, 302–04 (2d Cir.
2006); Yang v. McElroy, 277 F.3d 158, 163 (2d Cir. 2002).
Unlike fine wine, reports on country conditions do not
improve with age—a reality that our colleagues on the
Second Circuit have repeatedly acknowledged. In
Tambadou, for example, the court granted a petition for
review where the BIA’s 2002 decision relied upon a 1996
country conditions report to determine that conditions had
adequately changed in Mauritania such that the presumption
of future persecution had been rebutted. 446 F.3d at 302–
04. Given the six-year delay between the report’s
publication and the BIA’s decision, the Second Circuit aptly
observed that “it is difficult to see how the Report could be
said to describe ‘current’ conditions.” Id. at 303. Similarly,
in Yang, the court granted a petition for review of a BIA
decision affirming an IJ’s determination that the petitioner
had not established a well-founded fear of future
persecution, because the IJ’s decision had relied heavily on
a 1993 country conditions report. 277 F.3d at 163. Noting
that “current country conditions bear vitally as to asylum,”
the court reversed and remanded because “the administrative
record is silent as to China's contemporary treatment of
persons with backgrounds similar to [petitioner’s].” Id.
(internal quotation marks and citation omitted). The Second
Circuit observed that while it was possible conditions had
QUIROZ PARADA V. SESSIONS 21
not changed in the eight years between the 1993 country
report and the time of its decision, “the consequences of
deportation are simply too grave to leave this solely to
surmise.” Id.
The circumstances here are even more extreme and even
more demanding of reversal than those in Yang and
Tambadou. The country reports at issue in this case were
already a half-decade out-of-date by the time of the IJ
hearing—unlike in Yang and Tambadou, where the country
conditions reports were relatively current at the time of the
IJ hearings and only became out-of-date while the petitioners
waited for their cases to be heard by the BIA and then the
federal courts of appeals. The government gave no
explanation for why it failed to submit more recent reports
before the IJ hearing in 2012, nor can we discern any from
our review of the record. The reports are now more than a
decade out-of-date—although we note that the eleven-year
gap between the reports’ publication and our opinion today
is still not as long as the thirteen years it took for DHS to
process Quiroz Parada’s asylum application.
But the staleness of the country conditions reports is not
the most troubling part of the government’s handling of
Quiroz Parada’s asylum claim. Quiroz Parada suffered past
persecution by the FMLN on the basis of his family
association and imputed political opinion. At the time of the
2007 country conditions reports, the FMLN had been
reconstituted as a political party, but did not have control of
either the Salvadoran legislature or the presidency. But in
2009—two years after the publication of the country
conditions reports, and three years prior to the IJ hearing—
22 QUIROZ PARADA V. SESSIONS
the FMLN rose to power. 10 The IJ correctly observed that
the 2007 country conditions reports did not mention any
politically-motivated killings by the government or any
mistreatment by the government of people whose families
had fought against the FMLN in the civil war. But this does
not mean that there was any evidence in the record to rebut
Quiroz Parada’s fear that an FMLN-run government would
engage in such persecution, because the FMLN had not yet
taken power at the time of the 2007 reports. Common sense
dictates that the government cannot meet its burden of
rebutting the presumption by presenting evidence of the
Salvadoran government’s human rights record at a time
when the government was run by a different political party—
particularly when the government is now run, as it was at the
time of the IJ hearing, by the very same FMLN who
persecuted the Quiroz Parada family. The agency’s
determination that the presumption had been rebutted thus
lacks substantial evidence.
2.
Because the agency’s determination that the government
successfully rebutted the presumption of future persecution
is unsupported by substantial evidence, we hold that the
presumption has not been rebutted and that Quiroz Parada is
statutorily eligible for asylum and entitled to withholding of
removal, and remand for the Attorney General to exercise
his discretion under 8 U.S.C. § 1158(b) as to whether to
grant asylum. See Baballah v. Ashcroft, 367 F.3d 1067,
1078 n.11, 1078–79 (9th Cir. 2004); Ndom v. Ashcroft,
384 F.3d 743, 756 (9th Cir. 2004); Mashiri v. Ashcroft,
383 F.3d 1112, 1123 (9th Cir. 2004). Particularly where, as
10
Because the IJ noted that the FMLN had come to power “in recent
years,” we need not take judicial notice of this fact.
QUIROZ PARADA V. SESSIONS 23
here, the government took thirteen years to process the
asylum application and then another five years to hold a
hearing before an IJ—during which time the government had
every opportunity to submit more up-to-date evidence of
changed country conditions, but failed to do so—“to provide
the [government] with another opportunity to present
evidence of changed country conditions . . . would be
exceptionally unfair.” Ndom, 384 F.3d at 756 (quoting
Baballah, 367 F.3d at 1078 n.11). Such circumstances
implicate our previously-expressed concern that “constant
remands to the BIA to consider the impact of changed
country conditions occurring during the period of litigation
of an asylum case would create a ‘Zeno’s Paradox’ where
final resolution of the case would never be reached.”
Baballah, 367 F.3d at 1078 n.11 (quoting Hoxha v. Ashcroft,
319 F.3d 1179, 1185 n.7 (9th Cir. 2003)) (alteration
omitted). 11
IV.
We next address whether the BIA erred in determining
that Quiroz Parada failed to establish eligibility for CAT
protection. We conclude that we have jurisdiction to review
his CAT claim and that the agency committed several
reversible errors in its analysis.
A.
As an initial matter, we reject the government’s
contention that we lack jurisdiction to consider Quiroz
11
Because we conclude that the unrebutted presumption of future
persecution makes Quiroz Parada eligible for asylum and entitled to
withholding of removal, we need not address whether substantial
evidence supports the IJ’s determination that Quiroz Parada did not
establish an independent well-founded fear of future persecution.
24 QUIROZ PARADA V. SESSIONS
Parada’s CAT claim because he did not raise it before the
BIA. Although Quiroz Parada did not specifically appeal his
CAT claim to the BIA, the agency addressed the merits of
the claim. It is well-established that we may review any
issue addressed on the merits by the BIA, regardless of
whether the petitioner raised it before the agency. See
Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir.
2013), cert. denied, 135 S. Ct. 355 (2014). Accordingly, we
have jurisdiction to review the claim.
B.
The BIA’s 12 adjudication of Quiroz Parada’s CAT claim
requires reversal because the agency ignored pertinent
evidence in the record—in violation of our precedent and
CAT’s implementing regulations—and erred by construing
the “government acquiescence” standard too narrowly. To
obtain relief under CAT, a petitioner must prove that it is
more likely than not that he or she will be tortured in the
country of removal. 8 C.F.R. § 1208.16(c)(2). The torture
must be “inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person
acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).
For those not subject to mandatory denial of withholding,
CAT eligibility entitles the petitioner to withholding of
removal under 8 C.F.R. § 1208.16(c). See Hosseini v.
Gonzales, 471 F.3d 953, 958 (9th Cir. 2006).
The agency’s first error was its failure to consider all
relevant evidence. CAT’s implementing regulations
12
As the BIA’s discussion of Quiroz Parada’s CAT claim was
limited to a single sentence affirming the IJ’s conclusion, we review the
IJ’s decision “as a guide to what lay behind the BIA’s conclusion.” See
Ornelas-Chavez, 458 F.3d at 1058 (internal quotation marks and citation
omitted).
QUIROZ PARADA V. SESSIONS 25
explicitly require the agency to consider “all evidence
relevant to the possibility of future torture,” and we have
repeatedly reversed where the agency has failed to do so.
See, e.g., Cole v. Holder, 659 F.3d 762, 770–72 (9th Cir.
2011) (“[W]here there is any indication that the BIA did not
consider all of the evidence before it, a catchall phrase [that
the agency has considered all of the evidence] does not
suffice, and the decision cannot stand.”); Aguilar-Ramos v.
Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“The failure of
the IJ and BIA to consider [relevant evidence] constitutes
reversible error.”). Relevant evidence includes the
petitioner’s testimony and country conditions evidence. See
Cole, 659 F.3d at 771–72. Moreover, a petitioner’s credible
testimony “may be sufficient to sustain the burden of proof
without corroboration.” 8 C.F.R. § 1208.16(c)(2).
Here, the relevant evidence included Quiroz Parada’s
credible testimony, the 2007 country conditions reports, and
exhibits submitted by Quiroz Parada. Yet the IJ summarily
dismissed Quiroz Parada’s CAT claim, stating:
Based on the respondent’s testimony and the
evidence in the record, the Court finds that
the respondent has not shown that he is “more
likely than not” to be tortured if he is
removed to El Salvador. In addition, to be
eligible for CAT relief, the respondent must
establish that the torture feared would be
inflicted by or with the acquiescence of a
public official or other person acting in an
official capacity. Matter of S-V-, 22 I&N
Dec. 1306, 1311 (BIA 2000), disagreed with
on other grounds by Zheng v. Ashcroft,
332 F.3d 1186 (9th Cir. 2003). “Article 3 of
the Convention Against Torture does not
26 QUIROZ PARADA V. SESSIONS
extend protection to persons fearing entities
that a government is unable to control.” Id.
at 1312. The respondent has not alleged that
he fears torture inflicted by any governmental
entities in El Salvador, nor by any other entity
with the acquiescence of any government
official. Thus, he has not established
eligibility for CAT relief.
This conclusion ignored significant evidence in the record
demonstrating that 1) Quiroz Parada credibly feared death at
the hands of the MS gang, and 2) the country conditions
reports and other evidence in the record established not only
that the government “acquiescence[d]” in the MS gang’s
violence, but also that Salvadoran security forces engaged in
torture on a regular basis—as the IJ himself found in a
section of his decision summarizing the country conditions
evidence:
[P]rotection of human rights was undermined
by widespread violent crime, rampant
judicial and police corruption, intimidation
by the ubiquitous violent street gangs, and
violence against witnesses. Criminal gangs
are a serious, widespread, and pervasive
socio-economic challenge to the security,
stability, and welfare of El Salvador. Indeed,
gangs are blamed for the bulk of crimes and
murders in El Salvador. While the
government's fight against the gangs has met
with some success in areas, El Salvador
remains an exceptionally violent country
because of the pervasive gang violence.
QUIROZ PARADA V. SESSIONS 27
Although arbitrary arrest, prolonged
detention, and torture are prohibited in El
Salvador, Salvadoran security forces
apparently continue to participate in such
practices on a regular basis. Conditions in
detention are degrading and extremely
dangerous. Many officials throughout all
levels of government engage in corruption
with impunity despite a recent increased
emphasis on enforcement.
Thus, while the IJ did “consider” the country conditions
reports, the significant and material disconnect between the
IJ’s quoted observations and his conclusions regarding
Quiroz Parada’s CAT claim indicate that the IJ did not
properly consider all of the relevant evidence before him.
See Cole, 659 F.3d at 771–72 (explaining that indications of
the agency’s failure to properly consider all of the relevant
evidence “include misstating the record and failing to
mention highly probative or potentially dispositive
evidence”).
The agency’s second error was its overly narrow
construction of the “acquiescence” standard. In a similar
case, we reversed and remanded where the agency “erred by
construing ‘government acquiescence’ too narrowly,”
noting that “acquiescence does not require actual knowledge
or willful acceptance of torture; awareness and willful
blindness will suffice.” Aguilar-Ramos, 594 F.3d at 705–06
(citing Zheng v. Ashcroft, 332 F.3d 1186, 1194–95 (9th Cir.
2003)). In Aguilar-Ramos, we found “evidence in the record
that suggests that gangs and death squads operate in El
Salvador, and that its government is aware of and willfully
blind to their existence.” Id. at 706. So too here.
28 QUIROZ PARADA V. SESSIONS
Moreover, we have held that the acquiescence standard
is met where the record demonstrates that public officials at
any level—even if not at the federal level—would acquiesce
in torture the petitioner is likely to suffer. Madrigal v.
Holder, 716 F.3d 499, 509–10 (9th Cir. 2013). Evidence
showing widespread corruption of public officials—as the
record reveals here—can be highly probative on this point.
See id. at 510 (noting that “[v]oluminous evidence in the
record explains that corruption of public officials in Mexico
remains a problem”). As in Madrigal, the country
conditions reports and exhibits submitted by Quiroz Parada
indicate the acquiescence of the Salvadoran government (or
at least parts of the Salvadoran government) in the
“rampant” violence and murder perpetrated by the MS
gang—at whose hands Quiroz Parada fears that he will be
killed. And as we have previously held, “torture” under CAT
includes killings. See Cole, 659 F.3d at 771.
Because the agency erred by failing to consider all
relevant evidence and by improperly construing the
government acquiescence standard, we reverse the BIA’s
determination that Quiroz Parada is not eligible for CAT
relief and remand to the agency for further consideration of
his claim.
V.
We conclude that Quiroz Parada suffered past
persecution on account of his family association and imputed
political opinion, and that the presumption of future
persecution has not been rebutted. Under these
circumstances, he is eligible for asylum, and entitled to
withholding of removal. We remand to the BIA for the
agency to reconsider Quiroz Parada’s claim for relief under
CAT, for the Attorney General to exercise his discretion as
QUIROZ PARADA V. SESSIONS 29
to whether to grant Quiroz Parada asylum, and for an
appropriate order withholding Quiroz Parada’s removal.
PETITION GRANTED; REMANDED.