Lydia Garcia-Milian v. Eric Holder, Jr. ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYDIA GARCIA-MILIAN, No. 09-71461
Petitioner,
Agency No.
v. A096-180-239
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 9, 2013—Pasadena, California
Filed September 18, 2013
Before: Diarmuid F. O’Scannlain, Richard A. Paez, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge Paez
2 GARCIA-MILIAN V. HOLDER
SUMMARY*
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ decision denying asylum, withholding
of removal, and protection under the Convention Against
Torture to a native and citizen of Guatemala because
substantial evidence supported the determinations that
petitioner was not persecuted on account of an imputed
political opinion and that the attack she suffered did not occur
with the acquiescence of the Guatemalan government.
The panel explained that masked mens’ statements that
they were looking for petitioner’s common-law husband
because he had been in a guerilla group did not establish
whether the men imputed a political opinion to petitioner or
merely wanted to extract information from her about her
husband’s whereabouts, and that the evidence in the record
did not raise the inference that the men sought to punish
petitioner for her association with her husband. The panel
held that the evidence therefore did not compel the
conclusion that petitioner was persecuted on account of an
imputed political opinion.
The panel held that petitioner’s testimony that the police
declined to investigate the masked men’s attack because they
lacked sufficient information did not compel the conclusion
that the police acquiesced in the attack, and that evidence that
the government had been generally ineffective in preventing
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GARCIA-MILIAN V. HOLDER 3
or investigating criminal activities, absent evidence of
corruption or other inability or unwillingness to oppose
criminal organizations, did not raise an inference that public
officials were likely to acquiesce in future torture.
Concurring in part and dissenting in part, Judge Paez
agreed with the majority that the Board did not err in denying
petitioner’s CAT claim, but wrote that he believed the
evidence in the record compelled the conclusion that
petitioner was attacked and raped because of her
ex-husband’s political opinions.
COUNSEL
Joubin P. Nasseri, Nasseri Law Group, Los Angeles,
California, for Petitioner.
Tony West, Assistant Attorney General, Emily Anne
Radford, Assistant Director, Nicole Murley and Jesse L.
Busen (argued), Trial Attorneys, Office of Immigration
Litigation, United States Department of Justice, Civil
Division, Washington, D.C., for Respondent.
OPINION
IKUTA, Circuit Judge:
Lydia Garcia-Milian, a native and citizen of Guatemala,
petitions for review of the denial of her applications for
asylum, withholding of removal, and relief under the
Convention Against Torture (CAT) by the Board of
Immigration Appeals (BIA). Because substantial evidence
4 GARCIA-MILIAN V. HOLDER
supports the BIA’s determinations that Garcia-Milian was not
persecuted on account of an imputed political opinion and
that the attack she suffered did not occur with the
acquiescence of the Guatemalan government, we deny her
petition.
I
Garcia-Milian entered the United States illegally in June
2003. After the government initiated removal proceedings,
she conceded removability and, on May 3, 2004, applied for
asylum, withholding of removal, and CAT relief. See
8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 208.18.
Garcia-Milian testified at the removal proceedings and the
IJ concluded that her testimony was credible. According to
Garcia-Milian, she lived in Salama, Guatemala, a small city
of approximately 15,000 people. Between 1985 and 1989,
she lived with Noe Garcia, her common law husband.1 As a
truck driver, Garcia was frequently away from Salama and
would stay with Garcia-Milian for only two days each month.
During the time they were together, Garcia never discussed
politics or the ongoing civil war in Guatemala with Garcia-
Milian, and never told her that he was in a guerilla group or
organization. In approximately 1989, Garcia married another
woman and did not return to Salama. Garcia-Milian did not
have any further contact with him from that time forward.
1
We use the term “common law husband” because Garcia-Milian
testified that Noe was her husband but that they were never formally
married. The record does not reveal the exact legal status of their
relationship.
GARCIA-MILIAN V. HOLDER 5
Around 2000, Garcia-Milian noticed two masked men
following her when she was out shopping or going to school.
This occurred around twenty times. Garcia-Milian did not
report these incidents to the police because she did not think
that the police would help her. Subsequently, in May 2003,
the two masked men came to her home at night and
demanded that she open the door. When she did so, they told
her that they were looking for Noe Garcia because he had
been in a guerilla group and ordered her to tell them his
current whereabouts. Although she did not know where he
lived, she lied and told them he was living in San Miguel (a
non-existent city). The men subsequently beat and raped her.
Before leaving, they told Garcia-Milian that if they could not
find Garcia, they would return and kill her.
After the men left, Garcia-Milian took a taxi to her
mother’s home in another town. Garcia-Milian did not seek
treatment at a hospital because she was afraid that the men
would find out and kill her. Two days later, she reported the
incident to the Salama police, who told her they could not
investigate the incident because she could not identify her
assailants. Fearing for her life, Garcia-Milian left Guatemala
for Mexico, and then paid a “coyote” to smuggle her across
the border into the United States.
In addition to testifying at the proceeding, Garcia-Milian
submitted a State Department report on Guatemala titled
Country Reports on Human Rights Practices – 2006, and four
Amnesty International reports. The reports indicate that
Guatemalan police had minimal training or capacity for
investigating or assisting victims of sexual crimes, and that
the Guatamalan government had been ineffective in
investigating violence against women and homicides
6 GARCIA-MILIAN V. HOLDER
generally, due to weaknesses throughout the criminal justice
and law enforcement system.
The IJ denied Garcia-Milian’s applications for asylum,
withholding of removal, and CAT relief. The BIA affirmed
the IJ’s decision. It noted that “[w]hile the respondent
appears to have been the victim of criminal acts on the
several occasions described, she has not established a nexus
between any incident and a protected ground under the Act.”
Based on its review of the record, the BIA concluded that
there was “no evidence the respondent ever expressed a
political opinion and no evidence to suggest that she was
harmed based on any real or imputed political opinion.” As
a result, the BIA denied Garcia-Milian’s asylum and
withholding of removal claims. The BIA also rejected
Garcia-Milian’s CAT claim. It held that the record did not
establish that “it is more likely than not that the respondent
will face torture by or with the acquiescence or willful
blindness of an officer of the government of Guatemala.”
II
We have jurisdiction under 8 U.S.C. § 1252 to review
final orders of removal. Li v. Holder, 656 F.3d 898, 904 (9th
Cir. 2011). We review the BIA’s denials of asylum,
withholding of removal, and CAT relief for “substantial
evidence” and will uphold a denial supported by “reasonable,
substantial, and probative evidence on the record considered
as a whole.” Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th
Cir. 2010) (internal quotation marks omitted) (asylum);
Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir. 2011)
(internal quotation marks omitted) (withholding of removal);
see Haile v. Holder, 658 F.3d 1122, 1130–31 (9th Cir. 2011)
(CAT relief). In order to reverse the BIA, we must determine
GARCIA-MILIAN V. HOLDER 7
“that the evidence not only supports [a contrary] conclusion,
but compels it—and also compels the further conclusion” that
the petitioner meets the requisite standard for obtaining relief.
INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). The
agency’s “[f]indings of fact are conclusive unless ‘any
reasonable adjudicator’ would be compelled to conclude to
the contrary.” Kamalyan, 620 F.3d at 1057 (quoting 8 U.S.C.
§ 1252(b)(4)(B)).
A
We begin by considering Garcia-Milian’s challenge to the
BIA’s denial of her asylum application.
Applicants for asylum bear the burden of proving
eligibility for asylum. 8 C.F.R. § 208.13(a). In order to carry
this burden, an applicant must first establish “refugee” status,
8 U.S.C. § 1158(b)(1) (2000), by proving past persecution or
well-founded fear of future persecution “on account of race,
religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (2000).2
Persecution is “on account of” a protected ground only where
the persecution occurred “because of” that ground.
Elias-Zacarias, 502 U.S. at 483; Parussimova v. Mukasey,
555 F.3d 734 739 (9th Cir. 2009). Accordingly, the
persecutor’s motive is “critical” and the applicant must come
2
Under the REAL ID Act of 2005, an applicant for asylum must
establish that a protected ground “was or will be at least one central reason
for persecuting the applicant,” in addition to proving that persecution was
or will be “on account of” a protected ground. 8 U.S.C. § 1158(b)(1)(B)(i)
(2006); Parussimova v. Mukasey, 555 F.3d 734, 738 (9th Cir. 2009).
Because Garcia-Milian filed her asylum application before May 11, 2005,
the effective date of the REAL ID Act, the pre-REAL ID standard applies
to her case. Sinha v. Holder, 564 F.3d 1015, 1021 n.3 (9th Cir. 2009).
8 GARCIA-MILIAN V. HOLDER
forward with “some evidence of [motive], direct or
circumstantial.” Elias-Zacarias, 502 U.S. at 483.
Here, Garcia-Milian based her asylum claim on the
ground that the masked men persecuted her on account of her
political opinion. Although she does not claim to have any
political opinion of her own, an applicant “can also establish
persecution on account of imputed political opinion—that is,
on account of a political opinion attributed to him by his
persecutors.” Navas v. I.N.S., 217 F.3d 646, 658 (9th Cir.
2000). “In establishing an imputed political opinion, the
focus of inquiry turns away from the views of the victim to
the views of the persecutor.” Sangha v. I.N.S., 103 F.3d
1482, 1489 (9th Cir. 1997). Therefore, the applicant for
asylum must present evidence of the persecutor’s views. A
persecutor’s statements attributing political views to the
applicant may be persuasive evidence. “For example, one
party to a conflict may insist to the victim that the victim is
aligned with the other side.” Id. (citing Singh v. Ilchert,
63 F.3d 1501, 1509 (9th Cir. 1995)). Similarly, persecutors’
statements that they are retaliating against the victim for the
political views of the victim’s family would support an
imputed political opinion claim. Kebede v. Ashcroft,
366 F.3d 808, 812 (9th Cir. 2004). In the absence of such
direct evidence, an alien may point to “the applicant’s
association with, or relationship to, people who are known to
hold a particular political opinion” in order to raise the
inference that the persecutors have imputed a political view
to the alien. Navas, 217 F.3d at 660. For example, evidence
that “the applicant is a member of a large, politically active
family many of whom have already been persecuted for their
political beliefs” may raise the inference that persecutors
have imputed or would impute the same political opinion to
the applicant. Sangha, 103 F.3d at 1489.
GARCIA-MILIAN V. HOLDER 9
By contrast, we have upheld the BIA’s denial of an
asylum application based on imputed political opinion where
there was neither direct evidence of the persecutor’s
viewpoint, nor indirect evidence sufficient to compel a
conclusion contrary to that reached by the BIA. In Molina-
Estrada, for example, the BIA denied the alien’s asylum
claim because he failed to show persecution on account of a
protected ground. Molina-Estrada v. INS, 293 F.3d 1089,
1094 (9th Cir. 2002). On appeal, the alien pointed to his
testimony that guerillas had attacked his family’s house in
Guatemala and threatened members of his family because his
father was a high ranking officer in the armed forces. Id. at
1092, 1094. Noting that the petitioner “offered no evidence
that his father held particular political beliefs, that the
guerillas knew of or assumed any such beliefs, or that they
had made any statements suggesting that they attacked his
father’s home because of his father’s political beliefs,” id. at
1094–95, we concluded that petitioner’s testimony was not
enough to “compel any reasonable factfinder to conclude that
Petitioner was subject to persecution because of imputed
political beliefs.” Id. at 1094 (internal quotation marks
omitted).
As in Molina-Estrada, the record here does not compel
the conclusion that the masked men imputed a political
opinion to Garcia-Milian. First, there is no direct evidence
that they did so. The masked men did not make any
statements attributing political views to Garcia-Milian or
indicating that they were retaliating against her due to the
views of her ex-husband. Further, Garcia-Milian points to
only a single piece of indirect evidence: the masked men’s
statement that they were looking for Noe Garcia because he
had been in a guerilla group. In the circumstances of this
case, however, this single statement sheds little light on the
10 GARCIA-MILIAN V. HOLDER
masked men’s motives for attacking Garcia-Milian: it does
not establish whether the men imputed a political opinion to
Garcia-Milian or merely wanted to extract information from
her about Noe Garcia’s whereabouts. If anything, the record
raises a stronger inference that the masked men wanted
information; they had been following Garcia-Milian for
approximately three years and would have known that she no
longer lived with or even associated with Noe Garcia. Unlike
the victim in Kebede, therefore, Garcia-Milian failed to
identify circumstantial evidence in the record raising a
compelling inference that the masked men were imputing
Noe Garcia’s political opinions to her. For the same reason,
the evidence in the record does not raise the inference that the
men sought to punish Garcia-Milian for her association with
Noe Garcia. Because Garcia-Milian’s single piece of indirect
evidence provides little or no support for her claim that she
was persecuted for an imputed political opinion, it clearly
does not compel that conclusion, and we must uphold the
BIA’s holding to the contrary.3
3
In the circumstances of this case, the fact that Garcia-Milian had not
associated with Noe Garcia in over a decade, and that the masked men had
followed her long enough to learn this fact, weakens any inference that the
masked men were retaliating against her because of her association with
Garcia or that they imputed Garcia’s political opinion to her. Cf. Belayneh
v. I.N.S., 213 F.3d 488, 491 (9th Cir. 2000) (holding that the record was
“devoid of any suggestion that the alleged persecutors have imputed to
[the petitioner] her former husband’s views” in part because “the two have
been divorced for more than fifteen years”). The dissent’s argument that
we should not consider this evidence because “[w]e simply do not know
what [the masked men] knew or believed,” Dis. op. at 21, merely
underlines our point that there is no “compelling circumstantial evidence”
of the masked men’s motive, Deloso v. Ashcroft, 393 F.3d 858, 864 (9th
Cir. 2005), and therefore we are not compelled to overturn the conclusion
of the BIA. See Molina-Estrada v. INS, 293 F.3d at 1094.
GARCIA-MILIAN V. HOLDER 11
Because Garcia-Milian did not present evidence of
imputed political opinion that “would compel any reasonable
factfinder to conclude that Petitioner was subject to
persecution because of imputed political beliefs,” Molina-
Estrada, 293 F.3d at 1094 (internal quotation marks omitted),
we conclude that substantial evidence supports the BIA’s
conclusion that Garcia-Milian was not persecuted “on
account of” a protected ground. Accordingly, we reject
Garcia-Milian’s challenge to the BIA’s denial of her asylum
application.4
B
We turn to Garcia-Milian’s claim that the BIA erred in
denying her CAT claim. To qualify for CAT relief, an alien
must establish that “it is more likely than not that he or she
would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 208.16(c)(2); see also Nuru v.
Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005). Torture is
“an extreme form of cruel and inhuman treatment,” 8 C.F.R.
§ 208.18(a)(2), “that either (1) is not lawfully sanctioned by
that country or (2) is lawfully sanctioned by that country, but
defeats the object and purpose of CAT,” Nuru, 404 F.3d at
1221. In addition, 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.” Zheng
v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003) (quoting
8 C.F.R. § 208.18(a)(1)) (emphasis and internal quotation
4
For the same reasons, we reject Garcia-Milian’s challenge to the BIA’s
denial of her claim for withholding of removal. An applicant who fails to
satisfy the standard of proof for asylum also fails to satisfy the more
stringent standard for withholding of removal. Farah v. Ashcroft,
348 F.3d 1153, 1156 (9th Cir. 2003).
12 GARCIA-MILIAN V. HOLDER
marks omitted). “Thus relief under the Convention Against
Torture requires a two part analysis—first, is it more likely
than not that the alien will be tortured upon return to his
homeland; and second, is there sufficient state action
involved in that torture.” Tamara-Gomez v. Gonzales,
447 F.3d 343, 351 (5th Cir. 2006).
In addressing the state-action prong of her CAT claim,
Garcia-Milian points to her testimony that the police were
unwilling to investigate the attack by the masked men which
occurred before she left the country, implicitly arguing that
because the police previously acquiesced in torture, the police
are likely to acquiesce in future instances of torture. See
Reyes-Sanchez v. Atty. Gen., 369 F.3d 1239, 1242 n.7 (11th
Cir. 2004). She has also submitted evidence that the
Guatemalan government has been generally ineffective in
preventing or investigating violence against women. We
must determine whether this evidence compels the conclusion
that the Guatemalan government would acquiesce in torture
if Garcia-Milian returned to Guatemala.
Public officials acquiesce in torture if, “prior to the
activity constituting torture,” the officials: (1) have awareness
of the activity (or consciously close their eyes to the fact it is
going on); and (2) breach their legal responsibility to
intervene to prevent the activity because they are unable or
unwilling to oppose it. Ornelas-Chavez v. Gonzales,
458 F.3d 1052, 1059 (9th Cir. 2006) (quoting 8 C.F.R.
§ 208.18(a)(7)); see also Cole v. Holder, 659 F.3d 762, 771
(9th Cir. 2011). By contrast, “[a] government does not
acquiesce in the torture of its citizens merely because it is
aware of torture but powerless to stop it.” Mouawad v.
Gonzales, 485 F.3d 405, 413 (8th Cir. 2007) (internal
quotation marks omitted).
GARCIA-MILIAN V. HOLDER 13
Evidence that the police were aware of a particular crime,
but failed to bring the perpetrators to justice, is not in itself
sufficient to establish acquiescence in the crime. Instead,
there must be evidence that the police are unable or unwilling
to oppose the crime. Otherwise, “a person could obtain CAT
relief merely because he was attacked by a gang of
neighborhood thugs whom the police were unable to
apprehend.” Reyes–Sanchez, 369 F.3d at 1243. In Rreshpja
v. Gonzales, for example, the applicant claimed that the
police had acquiesced in her attempted kidnaping because
when she reported the crime, the police told her “that the
information she had provided was insufficient to identify or
arrest the man who had attacked her.” 420 F.3d 551, 553 (6th
Cir. 2005). The court upheld the BIA’s denial of her CAT
claim because the police’s inability to solve a crime under
those circumstances did not constitute acquiescence in the
crime. Id. at 557. Similarly, in this case, Garcia-Milian’s
testimony that the police declined to investigate the masked
men’s attack because they lacked sufficient information does
not compel the conclusion that the police acquiesced in the
attack, and therefore does not support Garcia-Milian’s claim
that it is more likely than not the police will acquiesce in any
future attacks if she returns to Guatemala.
Nor does evidence that a government has been generally
ineffective in preventing or investigating criminal activities
raise an inference that public officials are likely to acquiesce
in torture, absent evidence of corruption or other inability or
unwillingness to oppose criminal organizations. In Tamara-
Gomez, for example, the court rejected the petitioner’s claim
that the Columbian government acquiesced in attacks by a
narco-terrorist organization, even though the police informed
the petitioner that it lacked the resources to protect individual
families, and the record contained significant evidence that
14 GARCIA-MILIAN V. HOLDER
the Columbian government was unable to prevent the terrorist
group’s crimes. 447 F.3d at 346. The court held that “neither
the failure to apprehend the persons threatening the alien, nor
the lack of financial resources to eradicate the threat or risk
of torture constitute sufficient state action for purposes of the
Convention Against Torture.” Id. at 351. Similarly, in
Menjivar v. Gonzales, the court rejected a petitioner’s claim
for CAT relief despite her evidence that she had been
attacked by a gang member and the record included
newspaper articles detailing the government’s difficulty in
controlling gangs. 416 F.3d 918, 922–23 (8th Cir. 2005).
The court explained that “[t]he newspaper articles at most
demonstrate that the government has a problem controlling
gang activity of which it is aware,” but such evidence did not
compel a finding that the police acquiesced, or would
acquiesce in the future, to gang members’ criminal activities.
Id. By contrast, evidence that police officials were corrupt,
and worked on behalf of criminals or gangsters, may establish
that the government has acquiesced in criminal activities. See
Madrigal v. Holder, 716 F.3d 499, 510 (9th Cir. 2013)
(holding that the petitioner had a plausible CAT claim based
on the Mexican government’s inability to control the Los
Zetas drug cartel where “[v]oluminous evidence” showed
“that corruption of public officials in Mexico remains a
problem, particularly at the state and local levels of
government, with police officers and prison guards frequently
working directly on behalf of drug cartels”); see also
Ramirez-Peyro v. Holder, 574 F.3d 893 (8th Cir. 2009)
(holding that petitioner had a plausible CAT claim where the
evidence showed “wide-scale police participation in harmful
actions on behalf of” Mexican drug traffickers).
In this case, the record shows that the Guatemalan
government and the police have taken steps to combat
GARCIA-MILIAN V. HOLDER 15
violence against women including imposing hefty penalties
for the crime of rape, establishing a Special Prosecutor for
Crimes against Women, establishing a Special Unit for Sex
Crimes, and prosecuting crimes against women. Even
though, as a practical matter, these steps have not achieved
the desired goals of resolving crimes and protecting citizens,
they support the BIA’s determination that the government is
not wilfully blind to attacks on women in Guatemala. See
Tamara-Gomez, 447 F.3d at 351; Menjivar, 416 F.3d at 923.
Accordingly, the reports submitted by Garcia-Milian do not
compel the conclusion that the Guatemalan government has
acquiesced in torture against women, whether as a result of
corruption or through cooperation with criminals. Therefore,
substantial evidence supports the BIA’s determination that
Garcia-Milian has failed to establish the state action
necessary for CAT relief.5
PETITION FOR REVIEW DENIED.
PAEZ, Circuit Judge, concurring in part and dissenting in
part:
Although I agree with the majority that the Board of
Immigration Appeals (“BIA”) did not err in denying Garcia-
Milian’s CAT claim, I respectfully dissent from the
majority’s decision to deny her petition with respect to her
claims for asylum and withholding of removal. In my view,
the evidence in the record compels the conclusion that
5
Because we decide on this basis, we do not address whether the record
compels the conclusion that it would be more likely than not that
Garcia-Milian would be tortured upon her return to Guatemala.
16 GARCIA-MILIAN V. HOLDER
Garcia-Milian was attacked and raped because of her ex-
husband’s political opinions. I would therefore grant the
petition and remand to the BIA for further proceedings on
Garcia-Milian’s asylum and withholding of removal claims.
I.
The majority effectively requires Garcia-Milian to
produce direct evidence of the reasons for her persecution.
First, the majority holds that the record “does not compel the
conclusion that the masked men imputed a political opinion”
to Garcia-Milian because the attackers “did not make any
statements attributing political views to Garcia-Milian.” Maj.
Op. at 9. But we have never required asylum applicants to
establish a nexus solely through direct evidence. To the
contrary, an asylum applicant can establish a nexus between
the act of persecution and the relevant political opinion by
presenting “direct or circumstantial evidence” of her
attackers’ motivations. I.N.S. v. Elias-Zacarias, 502 U.S.
478, 483 (1992) (emphasis added); see also, e.g., Deloso v.
Ashcroft, 393 F.3d 858, 864 (9th Cir. 2005) (“An applicant
need not present direct evidence of a persecutor’s motives if
there is compelling circumstantial evidence.”); Gafoor v.
I.N.S., 231 F.3d 645, 650 (9th Cir. 2000) (“Because it is so
difficult to prove motives with any precision, the Supreme
Court teaches that an applicant does not have to provide
direct evidence that his persecutors were motivated by one of
the protected grounds; instead, compelling circumstantial
evidence is sufficient.”), superseded by statute on other
grounds, REAL ID Act of 2005, Pub. L. No. 109-13, div. B,
GARCIA-MILIAN V. HOLDER 17
§ 101(h)(2), 119 Stat. 231, 305 (2005).1 Our case law thus
requires us to look beyond the fact that the masked men did
not directly tell Garcia-Milian they were attributing any
political views to her, and consider whether the circumstantial
evidence nevertheless compels the conclusion that they
targeted her because of her association with her ex-husband.
See 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.” (internal quotation marks
and alteration omitted)); see also Zhang v. Gonzales,
408 F.3d 1239, 1246 (9th Cir. 2005); Kebede v. Ashcroft,
366 F.3d 808, 812 (9th Cir. 2004).
The majority also provides a second, related reason for
concluding that Garcia-Milian has failed to establish a nexus:
her attackers did not “indicat[e] that they were retaliating
against her due to the views of her ex-husband.” Maj. Op. at
9. Here, again, the majority errs by requiring Garcia-Milian
to provide direct evidence of motive. We have explicitly held
that an applicant is not required to present evidence of her
1
We have recognized that compelling evidence of imputed political
opinion may include, inter alia, the persecutor’s “conduct or statements,”
Navas v. I.N.S., 217 F.3d 646, 659 (9th Cir. 2000), “the timing and
substance of the persecution,” Singh v. Gonzales, 439 F.3d 1100, 1111
(9th Cir. 2006), the location of the persecution, Donchev v. Mukasey,
553 F.3d 1206, 1222 (9th Cir. 2009), “the applicant’s association with, or
relationship to, people who are known to hold a particular political
opinion,” Navas, 217 F.3d at 659, and “obvious signs connecting
persecutory acts to the alleged persecutors and suggesting the alleged
persecutors’ motives,” Karouni v. Gonzales, 399 F.3d 1163, 1174 (9th Cir.
2005) (internal quotation marks and alteration omitted). “We have also
found . . . persecution [on the basis of political opinion] when there is no
other logical reason for the persecution.” Sangha v. I.N.S., 103 F.3d 1482,
1490 (9th Cir. 1997).
18 GARCIA-MILIAN V. HOLDER
attackers’ own stated reasons for attacking her. Garcia-
Martinez v. Ashcroft, 371 F.3d 1066, 1075 (9th Cir. 2004)
(“By seizing upon the soldiers’ failure explicitly to state why
they were raping Garcia, the IJ appeared to require that
Garcia provide direct evidence of the soldiers’ motive, when
we have consistently allowed circumstantial evidence to
suffice.”). Indeed, in Garcia-Martinez, we held that it would
be “patently unreasonable” to “rely solely upon . . . a
persecutor’s own statements regarding motive” when
deciding if a nexus exists. Id. at 1076. Thus, we concluded,
“the fact that the soldiers failed explicitly to inform Garcia
that they were raping her on account of a protected ground
[was] not highly relevant.” Id.; see also Gafoor, 231 F.3d at
650 (“Persecutors do not always take the time to tell their
victims all the reasons they are being beaten or kidnapped or
killed.”).
II.
The majority next recites its duty to consider
circumstantial evidence, but fails to actually do so. First, the
majority states that the “single piece of indirect evidence” in
the record is “the masked men’s statement that they were
looking for [Garcia-Milian’s ex-husband] because he had
been in a guerrilla group.” Maj. Op. at 9. I disagree. The
masked men’s statement is not the “single” piece of indirect
evidence in support of Garcia-Milian’s claims. Consider the
facts of the case: at 11:00 p.m., the masked men began
“hitting the door very loudly,” demanding that Garcia-Milian
let them into her house. Thinking that they were the police,
Garcia-Milian opened the door. The men entered and told
Garcia-Milian they were looking for her ex-husband because
he was a member of a guerrilla organization. The following
events then occurred, as credibly described by Garcia-Milian:
GARCIA-MILIAN V. HOLDER 19
They asked me where my husband was, and I
don’t know where he is. I told them I didn’t
know because it had been more than 15 years
since we were separated; that I didn’t know
anything about him. They said I did know.
They took me inside, and they put a weapon
on my chest, and they kept telling me to tell
them, to tell them, and I said I didn’t know
anything. They insisted that . . . if I wouldn’t
tell them, they would kill me. After they
threw me on the floor, and when I felt they
were going to kill me, I mentioned a place,
but I knew he wasn’t there so they would
leave and they wouldn’t kill me. They began
to hit me. After they hit me a lot, they kicked
me very hard with their shoe. Then they
raped me. One was holding a weapon on my
head, and the other one was laughing. Then
the other one raped me, began to rape me. I
was unconscious. I couldn’t take it any
longer.
The record is thus replete with circumstantial evidence of
motive beyond the attackers’ own statements—namely, the
record shows that the attackers knew who Garcia-Milian was,
knew of her association with her ex-husband, knew where she
lived, visited her at her private home late at night, and
violently hit, kicked, and took turns raping Garcia-
Milian—while laughing—over the course of an interrogation
that focused on nothing other than information about her ex-
husband, whom the attackers sought to find because of his
political views.
20 GARCIA-MILIAN V. HOLDER
This leads me to my ultimate point of disagreement: I fail
to see how any reasonable fact-finder could conclude that the
circumstantial evidence in this case “sheds little light” on
why the masked men attacked Garcia-Milian, as the majority
concludes. Maj. Op. at 9–10. To the contrary, I would hold
that any reasonable fact-finder would be compelled to find
that Garcia-Milian was personally targeted because of her ex-
husband’s political beliefs. See Silaya, 524 F.3d at 1070–72.
Because “evidence that the alleged persecutor acted because
of a petitioner’s family’s political associations is sufficient to
satisfy the motive requirement,” id. at 1070–71 (internal
quotation marks and alteration omitted), and because Garcia-
Milian has provided compelling circumstantial evidence of
such a motive, I would further hold that Garcia-Milian has
established the requisite nexus. See Navas, 217 F.3d at 659
n.18 (“Where police beat and threaten the spouse of a known
dissident, it is logical, in the absence of evidence pointing to
another motive, to conclude that they did so because of the
spouse’s presumed guilt by association.”).
Finally, the majority claims that because the masked men
had followed Garcia-Milian for several years, they “would
have known that she no longer lived with or even associated
with [her ex-husband].” Maj. Op. at 10 (emphasis added).
This is both speculative and irrelevant. First, although
Garcia-Milian testified that the masked men followed her “a
lot,” she never stated that they provided constant surveillance
of her or her home. In fact, she did not testify to ever seeing
them at her home until the night of the attack; she testified
solely that the masked men had followed her while “shopping
or going to school” and on the street. Thus, we have no idea
to what extent the masked men knew who lived in or visited
her home. This is particularly true in light of Garcia-Milian’s
testimony that her ex-husband traveled frequently for work
GARCIA-MILIAN V. HOLDER 21
during the period they lived together—for all we know, the
attackers might have thought that Garcia-Milian’s ex-husband
was merely traveling for long stretches of time, as he had in
the past. We simply do not know what they knew or believed
about Garcia-Milian’s current relationship with her ex-
husband.
Second, even if the masked men did know that Garcia-
Milian no longer lived with her ex-husband, I fail to see how
this carries any legal relevance: the attackers told Garcia-
Milian that they had come to her home because they were
looking for her ex-husband. Whether or not the majority
thinks it made sense for the attackers to look for Garcia-
Milian’s ex-husband at her home years after he moved out,
Garcia-Milian credibly testified that they did so. In the end,
I do not see how the fact that the masked men may or may not
have known that Garcia-Milian’s ex-husband no longer lived
with her carries any significance.
III.
For the above reasons, I would hold that the record
compels the conclusion that Garcia-Milian was beaten and
raped because of her ex-husband’s political views, which
satisfies the requirements for showing “imputed political
opinion.” I would therefore grant the petition with respect to
Garcia-Milian’s claims for asylum and withholding of
removal and remand for further proceedings.