Selvin Saban-Cach v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-2378
_____________
SELVIN HERALDO SABAN-CACH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA
_______________
On Petition for Review of a Final Order of the
Board of Immigration Appeals
No. A206-689-150
Immigration Judge: Pallavi S. Shirole
_______________
Argued: March 2, 2022
Before: McKEE ∗, AMBRO, and SMITH, Circuit Judges.
(Opinion filed: January 25, 2023)
∗ Judge McKee assumed senior status on October 21, 2022.
Stephanie E. Norton [Argued]
Seton Hall University School of Law
Center for Social Justice
833 McCarter Highway
Newark, NJ 07102
Counsel for Petitioner
Merrick B. Garland
John B. Holt
Victor M. Lawrence, I
Jane T. Schaffner [Argued]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION
_______________
McKEE, Circuit Judge.
Based on past experiences, if returned to Guatemala,
Selvin Heraldo Saban-Cach fears being persecuted by a local
gang because of his identity as an indigenous person.
Accordingly, he seeks withholding of removal under the
Immigration and Nationality Act and protection from removal
under the Convention Against Torture. The Immigration Judge
denied his applications and ordered his removal, and the Board
of Immigration Appeals affirmed. This petition for review
followed. For the reasons that follow, we will grant the
petition, vacate the BIA’s decision, and remand for further
proceedings consistent with this opinion.
I.
Saban-Cach was born and grew up in the Montufar
neighborhood of Sacatepéquez, Guatemala. He is of Kaqchikel
Mayan indigenous ethnicity and was one of the few Kaqchikel
2
living in Montufar. 1 Kaqchikel Mayans stand out from the
majority population because of their names, language, physical
appearance, and dress.
During Saban-Cach’s adolescence in Montufar, a local
gang associated with the international MS-13 gang was
growing in strength. The gang began to harass and act
aggressively toward Saban-Cach, including insulting him
based on his ethnicity. Gang members threw stones at him and
kicked him. His father stated that “[m]any times [Saban-Cach]
came home with cuts and bruises from getting beaten up by
[the gang].” 2 Saban-Cach did not report these attacks to the
police because of fear of gang retaliation and the belief “that
[he] was never going to get any . . . protection from [the
police].” 3 The gang’s conduct was designed to recruit him into
the gang. Gang members warned him: “[W]e’re not going to
stop attacking you until you’re part of us and, if not, until we
take your life away. We’re going to take your life away if you
don’t belong to us.” 4
Because of this abuse, around age fifteen, Saban-Cach
dropped out of school and fled to San Pedro, Sacatepéquez—
about an hour and a half away from Montufar. Despite
relocating to San Pedro, the gang still harassed him. He
testified that, “[a]fter [he] got out of school they attacked [him]
four times,” 5 each time while he was visiting Montufar.
The worst of these attacks occurred when Saban-Cach
went to Montufar to visit his parents. Gang members screamed
at him until he turned around. They then got in front of him
saying, “Damn indigenous, silly indigenous” and reiterating
that they would not “leave [him] in peace” until he “belong[ed]
to [them].” 6 One of the members then hit Saban-Cach with a
glass bottle—breaking it over his right eye—causing him to
fall bleeding to the floor. The gang kicked him while he was
1
Saban-Cach testified that he, his grandmother, parents, and
siblings were the only indigenous people living in Montufar.
2
AR 276.
3
AR 137.
4
Id.
5
AR 140.
6
AR 140.
3
on the ground and stabbed him in the lower back with the
broken bottle. He fell unconscious and awoke in his home,
covered in blood.
Because the hospital was far away, his grandmother
treated his wounds with natural medicines. Saban-Cach
showed the Immigration Judge multiple scars from these
attacks. These scars are on his right eyebrow, mid chest, right
arm, and lower back. After showing the IJ the scars on his right
eyebrow and mid chest, Saban-Cach stated, “I have some
mark[s] on the arms that you can see pieces of flesh that came
out because of all the kicking that I received. And over here . .
. I have a very big scar where they inserted, like put in the part
of the bottle.” 7 As was true of the other attacks, this attack was
not reported to the police because Saban-Cach believed that it
would be futile. The police did not respond to the complaints
of indigenous people.
Saban-Cach also testified that, while he was living in
San Pedro, gang members came looking for him on
approximately three occasions. After visiting family in his
hometown, he reported that the gang followed him back to San
Pedro. He spotted three gang members behind him in the street,
but managed to hide and, after waiting a long time, lose them.
Fearing for his and his family’s safety, Saban-Cach decided to
leave Guatemala.
He first attempted to enter the United States in April
2014. He was detained at the border, subjected to an expedited
removal order, and sent back to Guatemala. He subsequently
explained that he did not realize that he could apply for asylum
at the time. 8 He also testified that, when he returned to
Guatemala, members of the gang continued to stalk and
persecute him. This harassment led him to make a second
attempt to enter the United States only a month later. He was
again detained at the border, removed pursuant to a reinstated
7
AR 142–43.
8
Saban-Cach testified that he informed immigration officers
“what [he] had gone through [and] where [he] lived, and they
ignore [sic] it. They never told me anything. I never had
access to a Judge. I never had access to anything. Nothing.”
AR 165.
4
order of removal, and returned to Guatemala. 9 Back in San
Pedro, Saban-Cach continued to face aggression from gang
members. By then, the gang had grown in numbers and
strength. After a few months, in 2015 Saban-Cach again tried
to enter the United States. He was successful, and he entered
without inspection or apprehension. He left behind his wife,
two daughters, parents, and siblings.
The gang also targeted Saban-Cach’s immediate family
members. When Saban-Cach was sixteen and was still living
in Guatemala, gang members threatened his father, stating,
“[Y]our son is against us. You’re not welcome either.” 10 They
beat him in the street and one of the gang members cut him
with sharp spines of a plant, drawing blood. Even though
Saban-Cach told his father to call the police to report the attack,
his father refrained because he “knew that would be pointless
or dangerous,” as the police discriminated against indigenous
people and were paid by the gang. 11
Saban-Cach testified that, after he left Guatemala, the
gang kidnapped, beat, and raped his 16-year-old sister. They
held her at a house for more than a month. “The gang members
told her that since [Saban-Cach] escaped[, his] family was
going to have to pay.” 12 This time, his father did make a
complaint to the police and even identified the sister’s attacker.
But, according to Saban-Cach, the police ignored the
complaint. Gang members also threatened the lives of Saban-
Cach’s wife and children. His wife also complained to the
police, but again the police did nothing. In 2018, as a result of
these experiences, Saban-Cach’s wife, father, mother, and
sister all fled Guatemala for the United States. His only
immediate family member remaining in Guatemala is his
9
Saban-Cach testified that he again informed immigration
officers that he was trying to escape his country, but they
ignored this information.
10
AR 276.
11
AR 276.
12
AR 267.
5
younger brother who is currently living in hiding after
surviving an attack by the same gang. 13
The Department of Homeland Security encountered
Saban-Cach in New Jersey in 2020 and subsequently issued a
Notice of Intent/Decision to Reinstate a Prior Order. After he
expressed a reasonable fear of returning to Guatemala, Saban-
Cach was placed in withholding-only proceedings and filed an
application for withholding of removal and relief under the
Convention Against Torture. He thereafter presented his
claims in a merits hearing before an IJ.
The IJ found Saban-Cach’s testimony credible,
explaining that, because of “his responses to questions, [and]
his demeanor[,] . . . [he] sufficiently corroborated his
claims.” 14 Despite this finding, the IJ concluded that Saban-
Cach did not establish a clear probability of persecution on
account of a protected ground and thus did not qualify for
withholding of removal. 15
The IJ first explained that Saban-Cach had not satisfied
his burden of demonstrating that he had suffered harm rising to
the level of past persecution. The IJ also concluded that, even
if the harm rose to the level of persecution, Saban-Cach had
not established that any such persecution was on account of a
protected ground. 16 The IJ concluded that “young Guatemalan
13
Saban-Cach’s father reported that, despite his other son’s
attempts to hide, a gang member attempted to run him over
with a car.
14
AR 103.
15
See also INS v. Cardoza-Fonesca, 480 U.S. 421, 430
(1987).
16
The BIA did not address the IJ’s conclusion that Saban-
Cach failed to establish he was a member of a cognizable
social group and the nexus between the persecution and the
group. Rather, it affirmed the IJ’s conclusions that Saban-
Cach had not established past persecution and that he was
able to reasonably relocate. Inasmuch as that was dispositive,
the BIA affirmed denial of withholding of removal. AR 5
(citing Matter of J-G, 26 I. & N. Dec. 161, 170 (BIA 2013)
(stating that courts and agencies are not generally required to
6
men who are recruited by a gang and publicly refuse to join”
are not a cognizable social group because this group is neither
particular nor socially distinct. 17 The IJ also concluded that
there was insufficient evidence to show that the attacks were
motivated by a political opinion. The IJ explained, “while the
gang may have sought the respondent’s race as being useful to
their agenda, the gang only harmed [him] when [he] refused to
succumb to those recruitment efforts.” 18 Consequently, the IJ
concluded that Saban-Cach failed to establish any nexus
between a protected ground and future persecution.
The IJ also found that Saban-Cach failed to establish
that it would be unreasonable for him to relocate internally if
returned to Guatemala. The IJ noted that he had been able to
live “without suffering any further physical harm” in San
Pedro. The IJ reasoned, “[although] he saw gang members in
San Pedro, he was always able to avoid them.” 19 The IJ also
pointed out that Saban-Cach’s brother continued to live in
Guatemala. Accordingly, the IJ found that Saban-Cach had not
established a well-founded fear of future persecution.
The IJ also found that Saban-Cach had not shown that
the government would inflict, consent to, or acquiesce in, any
future torture. The IJ reasoned that Saban-Cach never filed any
official complaints with police, nor did he ever request any
assistance from the government. Finally, the IJ also concluded
that the evidence of generalized discrimination in Guatemala
directed toward indigenous people failed to qualify as torture.
On appeal, the BIA affirmed the IJ’s conclusions that
Saban-Cach failed to establish past persecution, that he could
reasonably internally relocate, and he had not satisfied his
burden for establishing CAT protection. 20
make findings on issues the decision of which is unnecessary
to the result they reached)).
17
AR 5.
18
AR 106.
19
AR 108.
20
Because it affirmed the IJ’s decision on dispositive issues,
the BIA’s decision does not address Saban-Cach’s challenges
to the IJ’s findings that the Guatemalan government could not
control the gang and that Saban-Cach was not persecuted on
7
The BIA affirmed the IJ’s denial of withholding of
removal and relief under the CAT. The BIA recognized that
gang members had attacked Saban-Cach on multiple occasions
and that the worst attack left him unconscious after he was
stabbed with a broken glass bottle. However, the BIA agreed
with the IJ that, in the aggregate, this abuse did not rise to the
level of persecution. The BIA explained that, “because most of
the incidents did not involve physical injuries, and because the
worst attack did not require him to seek professional medical
care for his physical injuries, the applicant did not establish
harm rising to the level of past persecution.” 21 The BIA further
agreed with the IJ that, because there was no past persecution,
there is no presumption of future persecution.
The BIA also concluded that, since the attacks all
occurred in Montufar and Saban-Cach had been able to live
safely in San Pedro for four years, he could reasonably
internally relocate.
Finally, the BIA agreed with the IJ’s conclusion that
neither Saban-Cach’s past harm nor the societal discrimination
that indigenous people in Guatemala experience rises to the
level of torture. This conclusion relied in part on the fact that
Saban-Cach did not claim that the government ever personally
harmed or threatened him and that neither Saban-Cach nor his
father reported their attacks to the police. 22 Consequently, the
BIA agreed with the IJ that Saban-Cach had not established
governmental involvement or acquiescence in the attacks, and
it affirmed the IJ’s decision. This petition for review followed.
II. 23
account of his race, particular social group, or political
opinion.
21
AR 4.
22
The BIA also noted that there are discrepancies between the
police report that Saban-Cach’s father filed about his sister’s
assault and his father’s assertions that a gang member
kidnapped and raped her.
23
Our jurisdiction is governed by 8 U.S.C. § 1252. Where the
BIA “affirmed and partially reiterated” the IJ’s decisions, we
review both. Blanco v. Att’y Gen., 967 F.3d 304, 310 (3d Cir.
2020) (quoting Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d
8
Although the BIA need not write an overly detailed
explanation of its review of an IJ’s decision, it must provide an
adequate explanation of its ruling and afford us an opportunity
to review it. Here, the BIA did neither. At times, the IJ’s
decision completely conflicts with the record. Yet, for reasons
that are not at all apparent, the BIA affirmed the IJ’s decision
in its entirety.
A. Withholding of Removal
A noncitizen qualifies for withholding of removal if
s/he establishes a “clear probability” of persecution upon
removal. 24 In other words, the noncitizen must show that it is
more likely than not that s/he would be persecuted if returned
home. 25 This analysis starts with the question of whether the
petitioner can establish past persecution. To make this
showing, the petitioner must prove that the harm suffered in
the past rises to the level of persecution based upon a protected
status or trait. 26 These include “race, religion, nationality,
membership in a particular social group, [or] political
opinion.” 27 The noncitizen must show that the protected
ground “was or will be at least one central reason” for
persecution. 28
If a noncitizen establishes past persecution, a
presumption arises that his/her life or freedom would be
threatened in the future unless the government can show that
internal relocation would be reasonable. 29 That burden is with
Cir. 2009)). We review only the grounds upon which the BIA
denied relief. Id. We review legal determinations de novo and
factual findings for substantial evidence. Id.24
Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 591 (3d
Cir. 2011) (citing INS v. Stevic, 467 U.S. 407, 429–30
(1984)).
25
Id.26
8 U.S.C. § 1231(b)(3).
27
Id.28
8 C.F.R. § 1208.16(b)(1); Matter of D-I-M-, 24 I. & N.
Dec. 448, 450 (BIA 2008).
29
Id. § 1208.16(b)(1)(i), (b)(3)(ii). This burden-shifting
regime was amended effective January 11, 2021. Under
current law, the applicant bears the burden of establishing that
internal relocation would be unreasonable. See Procedures for
9
the government, which must then show, by a preponderance of
the evidence, that the noncitizen could reasonably and safely
relocate to another part of the proposed country of removal or
that there has been a fundamental change in circumstances. 30
If a petitioner cannot show past persecution, s/he can still prove
future persecution by “establish[ing] that it is more likely than
not that s/he would be persecuted on account of [a protected
trait] upon removal.” 31
1. Past Persecution 32
We first consider whether the BIA erred in finding that
Saban-Cach did not experience past persecution. Saban-Cach
argues the BIA: (1) committed legal error by conditioning a
finding of past persecution on seeking—or sustaining injuries
that require—professional medical care, and (2) that it failed to
appropriately consider the cumulative effects of his
mistreatment. We agree and address both arguments below.
We also address the IJ’s finding that Saban-Cach’s persecution
was not due to his status as a member of a protected group.
a. Legal Error
We turn first to Saban-Cach’s argument that the BIA
committed legal error in finding that the harm he suffered did
not rise to the level of persecution. The BIA specifically held
Asylum and Withholding of Removal; Credible Fear and
Reasonable Fear Interview. 85 Fed. Reg. 80274, 80340
(placing the burden on an applicant to establish that it would
be unreasonable to relocate, regardless of past persecution,
when the persecutor is non-governmental). This amendment,
however, only applies prospectively, id., and thus does not
apply to Saban-Cach because he applied for withholding of
removal in November 2020. Id.30
8 C.F.R. § 1208.16(b)(3)(ii).
31
8 C.F.R. § 1208.16(b)(2).
32
The government argues that we should apply the
substantial-evidence standard to our past persecution analysis.
It is true that, because “persecution” is a finding of fact, we
generally review it under the deferential substantial evidence
standard. Doe v. Att’y Gen., 956 F.3d 135, 140 (3d Cir. 2020).
But where factual findings “are based on a misunderstanding
of the law, we will review the abstract legal determination de
novo.” Id. at 141.
10
that it did not rise to this level because “his worst attack did not
require him to seek medical care for his physical injuries,” and
“most of the incidents did not involve physical injuries.” 33
Both conclusions are based upon a misunderstanding of the law
we recently clarified in Doe v. Attorney General. 34
i. The Necessity of Professional Medical Care
In Doe, we held that a finding of past persecution cannot
be conditioned “on whether the victim required medical
attention . . . or even whether the victim was physically harmed
at all.” 35 Instead, there must be a case-by-case, fact-specific
inquiry into “whether a petitioner’s cumulative experience
amounts to a severe affront[ ] to [that petitioner’s] life or
freedom.” 36
In response to Saban-Cach’s claim that the BIA
committed legal error, the government argues that the BIA did
not condition a finding of past persecution on the absence of
medical attention. 37 Instead, the government explains, Saban-
Cach “not seek[ing] professional medical attention was just
one of several factors supporting the [BIA]’s adverse finding
on past persecution.” 38
This argument is disingenuous. The following sentence
is the entirety of the BIA’s explanation for rejecting Saban-
Cach’s claim that he demonstrated past persecution:
We agree with the [IJ] that, because most of the
incidents did not involve physical injuries, and
because the worst attack did not require him to
seek professional medical care for his physical
injuries, the applicant did not establish harm
rising to the level of past persecution. 39
33
AR 4.
34
956 F.3d 135 (3d Cir. 2020).
35
Id. at 145.
36
Herrera-Reyes v. Att’y Gen., 952 F.3d 101, 110 (3d Cir.
2020) (quoting Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330,
341 (3d Cir. 2008)) (internal quotations omitted).
37
Government Br. at 23.
38
Id.39
AR 4; cf. AR 104–05 (The IJ’s relevant analysis states,
“While the respondent testified to having scars from the worst
11
The plain meaning of the BIA’s analysis is that Saban-Cach
did not establish past persecution because he did not suffer
physical harm that required professional medical care. This
reasoning directly contradicts Doe’s determination that a
finding of past persecution does not rely on whether the victim
sought medical attention. 40
Furthermore, neither the IJ nor the BIA bothered to
inquire what, if any, professional medical care was available. 41
Instead, the BIA assumed that, after being stabbed with a
broken bottle, Saban-Cach “did not need sutures or surgeries
or any further medical treatment.” 42 Yet nothing on this record
establishes that “sutures or surgeries” were available to him.
The record does not establish that Saban-Cach would have
been able to see a medical professional of any kind. Rather, the
evidence in the record only indicates one option for
professional medical treatment—a hospital that was far away.
And it seems unlikely that Saban-Cach could have called an
Uber (or similar ride-sharing service) to take him there.
Moreover, even if the legal standard required the
petitioner to have injuries warranting such care, the record does
not support the BIA’s factual conclusion that Saban-Cach’s
injuries “did not require him to seek professional medical
attack that occurred, there is insufficient evidence to show
that there was any lasting injury that rises to the level of
persecution. The respondent did not seek any professional
medal[sic] attention, nor did he require any professional
medical care.”).
40
Doe v. Attorney General, 956 F.3d 135, 145 (3d Cir. 2020).
41
Matthias S. Geck et al., Traditional Herbal Medicine in
Mesoamerica: Toward Its Evidence Base for Improving
Universal Health Coverage, Frontiers in Pharmacology, July
31, 2020,
https://www.frontiersin.org/articles/10.3389/fphar.2020.0116
0/full (“[A] considerable proportion of the population of each
country [in Mesoamerica] has no de facto access to healthcare
provision from the public sector; a deficit partially
compensated for…by traditional healers embedded in long-
standing ethnomedical systems.”).
42
AR 104.
12
care.” 43 His testimony was that he did not go to the hospital
because it was far away and that his grandmother instead
treated him with natural medicines. Regrettably, the
government’s response brief doubles down on this inaccuracy,
stating that “the [BIA]’s statement that [Saban-Cach] did not
seek ‘professional medical attention’ is accurate and supported
by the record.” 44 But this truncated quote misrepresents the
BIA’s own explanation, which was that, “the worst attack did
not require him to seek professional medical care.” 45 Thus, the
government seeks to equate the decision to not seek
professional medical care with the conclusion that medical care
was not required. This is the kind of imprecise analysis that we
rejected in Doe. 46
Finally, the IJ and the BIA ignored the realities of the
Guatemalan healthcare system, and the role traditional
medicine plays in it. Both decisions placed substantial weight
on the fact that Saban-Cach “did not seek any professional
medical attention after [the most serious] attack.” 47 Both noted
that he “was simply treated with some herbal medicine by his
grandmother.” 48 However, neither the IJ nor the BIA bothered
to consider that, in Saban-Cach’s community, the herbal
medicine that his grandmother administered may well have
been accepted as the only treatment realistically available even
for very serious injuries.
We have previously cautioned IJs and the BIA against
ethnocentric evaluations of petitioners’ resources. Petitioners
primarily come from countries in the poorest and most
dangerous regions of the world. Any presumption that they
enjoy the same kinds of resources as their adjudicators is
shortsighted and unfair. Unless the record supports it, IJs and
43
AR 4.
44
Government Br. at 23.
45
AR 4 (emphasis added).
46
Doe, 956 F.3d at 146 (pointing out the BIA’s error in
equating petitioner not seeking medical treatment with not
requiring medical treatment as “[a]ll we know from his
testimony is that he did not seek medical care because he
feared for his well-being”) (emphasis in original).
47
AR 104.
48
AR 3–4, 104.
13
the BIA should not assume that their own views of appropriate
medical care and its ready accessibility make up a universal
reality.
Petitioners for relief under the asylum system must be
afforded the just hearing that due process and basic fairness
demands. The immigration system can only provide a fair and
neutral determination of the claims of people from different
cultural and economic circumstances if adjudicators diligently
avoid unrealistic assumptions about petitioners’
circumstances.
ii. Multiple Attacks Involving Physical Injuries
We next address the BIA’s finding that “most of the
incidents did not involve physical injuries” 49 and the
government’s related argument that, without evidence of
multiple physical attacks, Saban-Cach cannot establish past
persecution. The government attempts to distinguish Saban-
Cach’s case from Doe v. Attorney General, 50 suggesting it is
more analogous to Thayalan v. Attorney General. 51 A
comparison of the facts of Doe and Thayalan, however, reveals
that Saban-Cach’s experience is more like the former than the
latter.
In Doe, the petitioner, a Ghanaian citizen, hid his
homosexuality for twelve years until his father discovered the
petitioner in an intimate encounter with another man. 52 This
discovery led to a violent mob dragging the couple into the
courtyard, beating them, and discussing whether to kill them
by burning or beheading. 53 Fearing for his life, the petitioner
fled the country. Soon after arriving here, the Department of
Homeland Security began removal proceedings. 54 We
concluded that this harm met the requisite level of persecution
because, “[i]n combination with these violent acts of
intimidation and his injuries, the death threats were sufficiently
49
AR 4.
50
956 F.3d 135 (3d Cir. 2020).
51
997 F.3d 132 (3d Cir. 2021).
52
956 F.3d at 139.
53
Id.
54
Id.
14
‘concrete and menacing,’ to transform this incident from a
‘simple beating,’ into outright persecution.” 55
In Thayalan, we examined whether a single incident
wherein the petitioner was forcibly taken to an army camp
where he was held for two hours, had his head hit against a
wall, and was punched in the stomach established past
persecution. 56 In affirming the BIA’s finding that Thayalan’s
abuse did not rise to the level of past persecution, we
distinguished Doe. 57 We reasoned that Thayalan’s argument
for past persecution was undermined because his abuse was a
true “one-off,” not coupled with concrete or menacing threats.
He decided that he did not need any kind of medical attention,
and he remained in the country for more than a decade after his
detention. These factors combined to undermine his claim of
past persecution. 58
Saban-Cach’s experiences are significantly more
analogous to the facts of Doe. Indeed, the physical harm he
suffered was arguably more severe than in Doe. Doe was
severely beaten but was ultimately able to run away. In
contrast, Saban-Cach was left unconscious after his attack—he
was struck in the face with a glass bottle so hard that it broke,
stabbed in the back with a shard of broken bottle, and was
kicked repeatedly until “pieces of flesh [] came out.” 59 His
attackers only stopped after neighbors intervened. Saban-Cach
“woke up in [his] house . . . blood everywhere.” 60 His
grandmother treated him with natural medicine. He still has
visible scars on his forehead, back, and arms from this attack.
He quite reasonably argues that if onlookers had not
intervened, he “might very well be dead;” 61 the record is not to
the contrary. Thayalan’s injuries were, in contrast, much less
severe. Thayalan did not seek medical care because he did not
think he needed it. Saban-Cach, in contrast—unconscious and
55
Id. at 144 (citations omitted).
56
997 F.3d 132 at 136.
57
Id. at 141–42.
58
Id.59
AR 140, 143.
60
AR 141.
61
Reply Br. at 11 (quoting Doe, 956 F.3d at 144).
15
bleeding—needed medical care and received it from his
grandmother.
Moreover, Thayalan’s physical attack was a true “one-
off.” Saban-Cach was physically attacked on at least four
occasions, and he was threatened numerous other times. 62 And
whereas Thayalan remained in his country for more than a
decade following his attack, Saban-Cach fled the country a few
years later, after first trying to relocate internally.
This is not to say that one incident cannot establish past
persecution. “[T]he existence of multiple incidents is not a
requirement” when determining whether the requisite level of
harm has been met. 63 Indeed “a single incident, if sufficiently
egregious, may constitute persecution.” 64 Accordingly,
although Saban-Cach was targeted on multiple occasions, the
attack in which he was brutally beaten and stabbed with a
broken bottle may, by itself, reach the required standard of
harm for establishing past persecution. To find this incident
insufficient to rise to the level of persecution suggests that
egregiousness must go beyond being stabbed, kicked into
unconsciousness, and left bleeding with pieces of flesh hanging
out. Merely stating such a proposition is sufficient to refute it.
b. Failure to Consider Cumulative Effects
The BIA must also consider “the cumulative effect of
the applicant’s experience” when determining “whether a set
of experiences rises to the level of a ‘severe affront[] to the life
or freedom of the applicant.’” 65 Saban-Cach claims that, by
focusing on only a single instance of abuse, the BIA did not
consider the psychological harm he suffered, his experiences
in light of his young age, and the threats he received.
62
AR 3.
63
Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005).
64
Doe, 956 F.3d at 145.
65
Herrera-Reyes, 952 F.3d at 106; see also Cheng v. Att’y
Gen., 623 F.3d 175, 192 (3d Cir. 2010) (“[T]he Board may
not, in determining whether an asylum applicant suffered past
persecution, take a single instance of mistreatment . . . from a
larger pattern of abuse and confine its persecution analysis to
the question of whether that single instance was, in and of
itself, persecutory.”).
16
Saban-Cach asserts that he suffered psychological harm
as a consequence of the gang’s abuse of his family and that
such harm should have been considered in the BIA’s
cumulative analysis of his claim for relief. We have previously
explained the significance of a petitioner’s psychological harm
resulting from harm to a family member when the petitioner
was present during the infliction of harm. 66 Although, here, the
record does not support a finding that Saban-Cach was present
when the gang inflicted harm on members of his family, the
psychological trauma of knowing what happened to them,
especially his sister, could nevertheless be substantial.
Accordingly, the BIA should have considered what, if any,
emotional or psychological harm Saban-Cach suffered as a
result of his family’s mistreatment. The harm Saban-Cach
endured from learning of the violence inflicted upon a family
member was certainly relevant to an inquiry into the
reasonableness of any fear of future persecution if he were
returned to Guatemala.
Saban-Cach also claims that the BIA erred in failing to
consider his experiences in the context of his youthful age. He
argues that, “[a]lthough the initial attacks were not as violent
as those he experienced later, they were still frightening
enough to cause [him] to quit school before graduating for fear
of his safety.” 67
Several courts of appeals have concluded that age can
be a critical factor in determining whether a petitioner’s
experiences meet the threshold of past persecution. 68 These
66
See, e.g., Camara v. Att'y Gen. of U.S., 580 F.3d 196, 204
(3d Cir. 2009), as amended (Nov. 4, 2009).
67
Petitioner Br. at 22.
68
See Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir. 2004)
(“[A]ge can be a critical factor in the adjudication of asylum
claims and may bear heavily on the question of whether an
applicant was persecuted or whether she holds a well-founded
fear of future persecution.”); Hernandez-Ortiz v. Gonzales,
496 F.3d 1042, 1046 (9th Cir. 2007) (holding the IJ should
look at the events from the applicants’ perspective and
measure the degree of their injuries by their impact on
children of their ages); Ordonez-Quino v. Holder, 760 F.3d
80, 92 (1st Cir. 2014) (noting “the BIA failed to address the
harms Ordonez-Quino and his family experienced
17
courts differ in discerning the extent to which the BIA must
consider a young petitioner’s age. For example, in Ordonez-
Quino v. Holder, the Court of Appeals for the First Circuit
found the BIA committed legal error by failing to show that it
“considered the harms [the petitioner] suffered . . . from his
perspective as a child.” 69 In contrast, the Court of Appeals for
the Seventh Circuit in Liu v. Ashcroft held that the BIA’s
discussion of the petitioner’s expulsion from school was
sufficient to infer that the BIA was aware of the petitioner’s
age; thus a more comprehensive treatment was not required. 70
We have never addressed the degree to which the BIA
and IJ are required to consider incidents of claimed past
persecution in light of the petitioner’s age, 71 and we need not
provide a definitive answer here. However, by way of
guidance, we note that the higher threshold adopted by the
Court of Appeals for the First Circuit requiring an explicit
evaluation of a petitioner’s claims in light of age would help
ensure the BIA considered all relevant circumstances and the
context of a petitioner’s experience. Here, we need only note
that the BIA should have explicitly considered what effect, if
any, these experiences had on Saban-Cach given his youth.
Finally, Saban-Cach argues that neither the BIA nor the
IJ mention nor discuss that gang members threatened him
numerous times. Threats that are concrete and menacing may
be sufficient to establish past persecution, particularly when
coupled with incidents of physical harm. 72 A threat is concrete
cumulatively and from the perspective of a child); Jorge-Tzoc
v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006) (same).
69
760 F.3d at 92–93.
70
380 F.3d at 314.
71
But see Perez Muniz v. Att’y Gen., 363 F. App’x 973, 980
n.4 (3d Cir. 2010) (declining to consider whether the BIA
erred in failing to consider incident in light of petitioner’s age
because he was unable to establish motive); Razzak v. Att’y
Gen., 287 F. App’x 208, 213 (3d Cir. 2008) (per curiam)
(concluding the IJ acknowledged the minor petitioners’ status
as children).
72
See Blanco, 967 F.3d at 311–12 (holding threats that are
concrete and menacing are sufficiently serious to constitute
persecution).
18
and menacing “where the aggregate effect of a petitioner’s
experiences, including or culminating in the threat in question,
placed a petitioner’s life in peril or created an atmosphere of
fear so oppressive that it severely curtailed the petitioner’s
liberty.” 73 To meet this test, the threat must reflect an intent to
inflict harm, but temporal proximity to other acts is not
required. 74
Saban-Cach asserts that gang members made several
threats that should be considered concrete and menacing when
considered cumulatively and in context with the totality of the
evidence. As noted earlier, he testified that, while he was in
school, gang members told him: “[W]e’re not going to stop
attacking you until you’re part of us and, if not, until we take
your life away. We’re going to take your life away if you don’t
belong to us.” 75 He further testified that immediately before the
worst attack, a gang member told him, “[W]e told you until you
don’t [sic] belong to us we’re not going to leave you in
peace.” 76 In his declaration, Saban-Cach also stated the gang
members told him, “You know that if you don’t join us we’re
not going to leave you alone. We’re going to get you the same
way we got your dad.” 77 Following this threat, he was beaten
with a bottle, stabbed and left unconscious and bleeding.
Finally, while boarding a bus from Montufar to San Pedro,
after being returned to Guatemala following his second failed
attempt to enter the United States, gang members told him that
“they were going to find . . . and kill [him].” 78
The government’s justification of the BIA’s failure to
consider these threats is unpersuasive. It characterizes the
threats as “vague and unspecific.” 79 That characterization can
only be described as excessive adversarial zeal rather than an
honest description of the record. When a pattern of actual
violence substantiates threats of violence, the threats are
73
Herrera-Reyes, 952 F.3d at 108.
74
Id.
75
AR 137.
76
AR 140.
77
AR 265.
78
AR 266.
79
Government Br. at 25.
19
concrete. 80 Moreover, the government’s characterization of the
threats as “vague” is both puzzling and disappointing given the
beating and stabbing that left Saban-Cach unconscious and
could have partially blinded him.
The government also argues that “Saban did not argue
that the threats he received were ‘concrete and menacing,’ so
the [BIA] was not prompted with a need to address the issue in
any detail.” 81 This argument is as disappointing as it is
unconvincing. Saban-Cach did not use the words “concrete and
menacing,” but the brief filed with the BIA clearly states that
“[t]he IJ . . . failed to consider the cumulative effect of the many
threats and attacks against Respondent.” 82 This assertion is
certainly enough to prompt the BIA to focus on this issue.
Moreover, the government does not address the IJ’s failure to
discuss threats, and we can think of no persuasive reason for
such an omission. Accordingly, we can only conclude that the
BIA, by ignoring these threats, failed to conduct a proper
cumulative review of Saban-Cach’s experiences.
c. Saban-Cach’s Persecution as a Member of a Protected Group
Because the BIA found that Saban-Cach failed to
establish a likelihood of persecution, it thought it was
“unnecessary to address any of the remaining issues raised by
[Saban-Cach] on appeal, including whether [his] proposed
particular social group was cognizable and whether he
demonstrated the requisite nexus between past harm and future
fear and a protected ground under the Act.” 83 Saban-Cach had
challenged the IJ’s conclusion—that the harm he suffered was
not on account of any protected status—in his appeal to the
BIA.
The IJ determined that “[e]ven if the harm that [Saban-
Cach] suffered rose to the level of persecution, [he] has not
established that any such persecution was or would be on
account of a protected ground.” 84 First, the IJ concluded that
“young Guatemalan men who are recruited by a gang and
80
See Herrera-Reyes, 952 F.3d at 112.
81
Government Br. at 28.
82
AR 17.
83
AR 5.
84
AR 105.
20
publicly refuse to join[,]” is not a cognizable social group
because it is neither particular nor socially distinct. 85 And, even
if it were, the IJ reasoned, Saban-Cach has not shown that he
publicly renounced gangs or in a public manner refused to join
a gang. Second, the IJ concluded that there is insufficient
evidence to show that Saban-Cach held a specific political
opinion or that he was persecuted on account of that political
opinion. Finally, although the IJ recognized that the gang may
have sought Saban-Cach’s indigenous ethnicity as being useful
to their agenda, “the gang only harmed the respondent
specifically when he refused to succumb to those recruitment
efforts.” 86 The IJ thus concluded that Saban-Cach was not
harmed on account of his being an indigenous person, but
rather because of his refusal to join the gang.
That analysis misses the point. Saban-Cach has clearly
established membership in a particular social group as an
indigenous person in Guatemala. A particular social group is
“(1) composed of members who share a common, immutable
characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question.” 87 Saban-Cach’s
indigenous ethnicity—as indicated by his name, language, and
appearance—is an immutable characteristic that made him
socially distinct. 88 He established membership in a
particularized group as evidenced from the gang’s persecution
of him for refusing recruitment that was attempted because he
was of Kaqchikel Mayan indigenous ethnicity. This is reflected
in the gang’s threats, which included insults based on his
indigenous identity (e.g., “[I]ndigenous, Indian, terrible,
terrible, ugly, terrible, silly, stupid Indian indigenous.”). 89
85
AR 105.
86
AR 106.
87
Radiowala v. Att’y Gen., 930 F.3d 577, 583 (3d Cir. 2019).
88
Komarovas v. Att'y Gen., 219 F. App'x 207, 210 n.4 (3d
Cir. 2007) (noting that ethnicity is an immutable
characteristic). See also Negeya v. Gonzales, 417 F.3d 78, 83
(1st Cir. 2005) (“A social group is composed of members
who ‘share a common, immutable characteristic.’ Groups
satisfying this criterion typically include racial and ethnic
groups.”) (internal citations omitted).
89
AR 137.
21
The IJ simply overlooked this evidence that the harm
Saban-Cach suffered was due to his being identified as an
indigenous person. This focus ignored the testimony that the
gang wanted to recruit him solely to use him as “bait” because
he was an indigenous person. 90 Saban-Cach’s credible
testimony made clear that he was targeted because of his
indigenous ethnicity.
2. Internal Relocation
The BIA determined that Saban-Cach failed to prove
that he could not reasonably relocate. It relied on the fact that
“those who attacked him were gang members not associated
with the government, . . . the attacks were limited to one town,
and . . . the applicant was able to live safely in another town for
4 years.” 91
Substantial evidence does not support the finding that
he lived safely without problems in San Pedro. The BIA’s
rationale ignores that Saban-Cach credibly testified that the
gang members recognized and threatened him after he left his
hometown. He testified that he saw gang members in San
Pedro on three occasions. They were following or looking for
him, but he was able to run and hide from them. This was the
case both before his first attempt to enter the United States as
well as after he was removed from the United States to San
Pedro. Saban-Cach explained:
Although I returned to live with Evelyn’s family
in San Pedro Sacatepéquez, I did go to see my
family in San Juan Sacatepéquez twice. The
second time, when I was getting on the bus to go
90
AR 12. The BIA put this burden on Saban-Cach because it
and the IJ determined that he could not establish past
persecution. If it had found that Saban-Cach had suffered past
persecution, the burden would have shifted to the government
to show, by a preponderance of the evidence, that he could
reasonably and safely relocate to another part of the proposed
country of removal or that there had been a fundamental
change in circumstances. This burden-shifting regime was the
mechanism in place when Saban-Cach applied for asylum. It
has since been changed, but the changes were not retroactive.
See footnote 80.
91
AR 4.
22
back to San Pedro, people from the gang saw me
and yelled that they were going to find me and
kill me. They somehow managed to follow me
back to San Pedro, because again I saw them on
the street there. Fortunately, I was able to hide
from them, waiting a long time to go back to
Evelyn’s house. After this I did not go back to
San Juan Sacatepéquez again. 92
Moreover, the BIA failed to acknowledge that Saban-
Cach’s younger brother—his only immediate family member
still living in Guatemala—even refuses to tell Saban-Cach
where he is living because, after a gang member attempted to
run over him with a car, he fears further gang-related
persecution. The BIA also ignored the expert’s report that “it
is exceedingly difficult for individuals—particularly
indigenous individuals previously targeted by gangs—to move
from the area in which they have grown up and find a safe,
secure place to live.” 93 As we recently made clear in Nsimba v.
Attorney General, “[w]e know of no authority that interprets
‘safely relocate’ as a synonym for ‘relocate,’ and we refuse the
BIA’s invitation to ignore that important condition.” 94 In
Nsimba, we joined several other circuit courts of appeals in
concluding that the ability of a petitioner to relocate cannot
require him or her to live in hiding to avoid persecution. 95
Although published subsequent to the BIA’s decision here,
Nsimba clearly highlights the BIA’s error in concluding that
Saban-Cach could reasonably relocate internally because he
was able to run and hide from his persecutors while in San
Pedro.
B. Relief under the Convention Against Torture
The BIA also found no clear error in the IJ’s
determination that Saban-Cach failed to establish that the
government of Guatemala would willfully acquiesce to his
persecution. We held in Myrie v. Attorney General that the
determination of whether an applicant has met the burden for
relief under the CAT is subject to a two-pronged analysis. 96 In
92
AR 266.
93
AR 319.
94
21 F.4th 244, 255 (3d Cir. 2021) (emphasis in original).
95
Id.96
Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017).
23
the first prong, the IJ must answer two questions: “(1) what is
likely to happen to the petitioner if removed; and (2) does what
is likely to happen amount to the legal definition of torture?”97
The second prong is “assessing whether an applicant has
established that public officials will acquiesce to the feared
tortu[r]ous acts of a non-state actor.” 98 The IJ must again
engage in a two-part inquiry. S/he must determine: (1) how
public officials would likely react to the harms the petitioner
fears; and (2) whether this response qualifies as acquiescence
under the governing regulations. 99
Saban-Cach argues that the BIA erred under both
prongs of the Myrie inquiry. Under the first prong, he argues,
the BIA failed to consider whether he faces future torture if
removed. He also argues that the record contains ample
evidence that he would be subject to torture if removed. Under
the second prong he argues that the BIA erred in finding that
he did not establish that public officials will acquiesce to the
feared torturous acts of the gang.
1. Myrie Prong 1
Saban-Cach first argues that the BIA failed to consider
either part of the first prong under Myrie. We agree. As noted
above, the BIA had to answer the following questions under
the first prong: (1) what is likely to happen to Saban-Cach if
removed, and (2) does what is likely to happen amount to the
legal definition of torture? The entirety of the BIA’s relevant
analysis consists of the following: “[W]e agree with the [IJ]
that the harm that the applicant suffered in the past did not rise
to the level of torture. We also agree that the societal
discrimination against the Indigenous in Guatemala by itself
does not rise to the level of torture.” 100 As this shows, the BIA,
and by extension the IJ, did not consider what is likely to
happen if Saban-Cach is removed. It instead reviewed the harm
that he already suffered and asked whether that harm alone
constituted torture. 101 Whether a petitioner has been tortured
97
Id.98
Id.99
Id.100
AR 6 (citations omitted).
101
Ghanem v. Att’y Gen., 14 F.4th 237, 248–49 (3d Cir. 2021)
(“The agency took a much more circuitous route here . . .
24
before is a relevant consideration, but there are a number of
other factors that the BIA should consider when determining
the likelihood of future torture. 102 This alone warrants remand,
but is not the end.
The BIA and IJ also failed to make clear that they
“consider[ed] ‘all evidence relevant to the possibility of future
torture.’” 103 Of course, “the IJ and BIA need not discuss every
piece of evidence mentioned,” but neither can they “ignore
evidence favorable to the [noncitizen]” without any
explanation for the omission. 104 In adopting the IJ’s analysis,
the BIA overlooked significant evidence that Saban-Cach is
likely to face torture if removed to Guatemala. At oral
argument, the government acknowledged that the relevant
objective evidence was more than a thousand pages. Yet,
despite the voluminous evidence, the pertinent portion of the
IJ’s analysis consisted of only the following:
The Court finds that the respondent has failed to
establish that it is more likely than not that he
would suffer tortured [sic] . . . . The respondent’s
objective evidence goes to generalized brutality
in Guatemala rather than the respondent’s
personal risk of torture. The Court does not find
that the respondent has been tortured in the past
because the harm he has suffered does not rise to
the level of severe physical or mental pain or
suffering. While there is evidence to show that
some general discrimination against the
rather than first analyzing ‘what is likely to happen’ under the
initial Myrie inquiry.”) (emphasis in original).
102
8 CFR § 1208.16(c)(3) (“[A]ll evidence relevant to the
possibility of future torture shall be considered, including but
not limited to: (i) evidence of past torture inflicted upon the
applicant; (ii) evidence that the applicant could relocate to a
part of the country of removal where he or she is not likely to
be tortured; (iii) evidence of gross, flagrant or mass violations
of human rights within the country of removal; and (iv) other
relevant information regarding conditions in the country of
removal.”).
103
Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir. 2019).
104
Id.25
indigenous people exists in Guatemala, there is
insufficient evidence to show that this
discrimination alone rises to the level of torture
as described by the law.
....
While the Court recognizes that country
conditions in Guatemala show that gang violence
exists, the Court does not find that the respondent
has met the high burden to establish that he
himself would be singled out for torture if
returned to his home country. 105
The government argues that the IJ’s reference to Saban-Cach’s
objective evidence shows that she considered the expert report
and evidence of country conditions. But merely using the
words “objective evidence” does not establish that the IJ
actually considered this evidence, given the flaws in the IJ’s
analysis here.
The IJ’s conclusion that the “objective evidence goes to
generalized brutality in Guatemala rather than the respondent’s
personal risk of torture” suggests she did not undertake a
thorough analysis of the objective evidence, including the
expert report. The report explains that “it is exceedingly
difficult for individuals—particularly indigenous individuals
previously targeted by gangs—to move from the area in which
they have grown up and find a safe, secure place to live.” 106
The country report concludes that “[b]ased on all the
information available . . . , both from this particular case as well
as the general conditions in Guatemala, . . . Selvin Gerardo
Saban[-Cach] faces continued harassment, threats, and serious
bodily harm should he be returned to Guatemala.” 107 This
objective evidence is relevant to Saban-Cach’s specific risk of
torture.
The evidence establishing that Guatemalan gang
violence still runs rampant supports the idea that the gang-
105
AR 69 (citation omitted).
106
AR 319.
107
AR 319.
26
related violence Saban-Cach suffered in the past is likely to
continue if he returns. That is, he would be at risk of being
beaten or killed because the gang that targeted him is still
operating and has, in fact, grown in strength and numbers. We
are thus convinced that there is substantial evidence that
Saban-Cach is likely to face similar harm if returned. 108
We also believe that this record supports a conclusion
that the harm that probably awaits him constitutes torture. An
act constitutes torture if “severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for
such purposes as” punishment, intimidation, coercion “or for
any reason based on discrimination of any kind.” 109 Given the
gang’s previous death threats and beatings, the harm that the
gang would likely subject Saban-Cach to if he were returned to
Guatemala could rise to the level of torture as it is intentionally
inflicted for the purposes of intimidation as well as coercion
and punishment for refusing to join the gang.
2. Myrie Prong 2
Saban-Cach also argues that the BIA erred in
determining the second prong: assessing whether he
established that public officials would acquiesce to the feared
torturous acts of the gang. Again, the BIA had to engage in a
two-part inquiry. It had to decide (1) how public officials
would likely react to the harms Saban-Cach fears, and (2)
whether this response would qualify as acquiescence under the
governing regulations. Saban-Cach argues that the BIA’s
reliance on the fact that he did not report incidents of abuse to
the police is insufficient to support a finding that he failed to
establish the Guatemalan government would willfully
acquiesce to his torture.
In assessing this prong, the BIA concluded, “[W]e agree
with the [IJ] that there is insufficient evidence that the
government would instigate, consent to, or acquiesce in (to
include the concept of willful blindness), the applicant’s torture
108
See Ghanem, 14 F.4th at 249; Quinteros, 945 F.3d at 787;
Guzman, 956 F.3d at 181–82.
109
8 C.F.R. § 1208.18(a)(1). See Quinteros, 945 F.3d at 787
n.72.
27
upon his return to Guatemala.” 110 As support, the BIA pointed
out that Saban-Cach has never “been personally harmed or
threatened by a government official in Guatemala” and he “did
not report his problems with the gang members to the
police.” 111 In making this determination, the BIA appeared to
conflate both step two inquiries. Instead of first evaluating all
of the evidence to determine the government officials’ likely
response, and then asking whether that response constitutes
acquiescence, the BIA looked to some of the evidence to
determine whether it suggests the officials would acquiesce.
We made clear in Myrie, however, that to assess
whether a petitioner established that public officials would
acquiesce to the feared torturous acts, a two-part analysis must
be conducted. 112 Because this analysis includes first a question
of fact—how public officials would likely react to the harms
feared—and then a question of law—would this response
qualify as acquiescence under the governing regulations—the
BIA cannot consolidate these questions, as it must apply two
different standards of review. 113
This leads to another error related to the standard of
review. The BIA must review the first, factual question for
clear error and the second, legal question de novo. 114 In
affirming the IJ’s decision of the second question regarding
acquiescence, the BIA concluded that it found “no clear error
in the [IJ]’s predictive fact-finding.” 115 Accordingly, in
addition to not bifurcating the Myrie step-two inquiry, the BIA
also erred by applying this heightened standard of review to a
legal question. Because of these errors, “we have little insight
into the basis for [the BIA’s] determination that the IJ’s
opinion ‘clearly reflects that [s]he used the proper “willful
blindness” standard in relation to the issue of
acquiescence.’” 116 Accordingly, on remand the BIA needs to
reassess each question.
110
AR 6.
111
AR 6.
112
855 F.3d at 516–17.
113
Id.114
Id.115
AR 6.
116
Myrie, 855 F.3d at 517.
28
Moreover, the limited analysis the BIA supplied is
completely inconsistent with this record. Saban-Cach concedes
that he neither was harmed by a government official nor
reported his problems to the police, and the IJ was not wrong
in considering those facts when trying to determine how the
government officials might act. However, these facts provide
little insight into the potential actions (or inactions) of the
police. Yet the BIA relied exclusively on them and no other
facts in making its determination. Further review of the record
establishes that the government’s only response to Saban-
Cach’s wife’s complaints about the gang’s threatening
behavior and specifically to his sister’s abduction and rape was
consistent with acquiescence.
Finally, there is considerable evidence that would
support a finding that the government officials are willfully
blind to the violence of gang members, especially against
indigenous people. There is even evidence suggesting the
police are, themselves, involved with the gangs. For example,
the BIA should have considered the expert report that
described how “there are serious questions about the extent to
which Guatemalan officials are cooperating with the gangs.” 117
This report explained that gang members “include former
members of the Guatemalan . . . police forces.” 118 Allegations
of gang influence and corruption reach the highest levels of
local government. In fact, the mayor of the town in which
Saban-Cach lived was accused of being affiliated with the local
gang. Saban-Cach himself testified: “[the police] were
associated with [the gang]. . . . I felt that I was more at risk if I
denounced them. I know that I was never going to get any, any
protection from them.” 119
The expert report supported Saban-Cach’s conclusion,
noting, “[t]here is no indication that the quality of policing in .
. . San Juan Sacatepéquez has improved in the last ten years;
meanwhile there is clear evidence that the gangs have grown
larger and stronger.” 120 Finally, the report also described how
“racism is present throughout the [police] and, unfortunately it
117
AR 314–15.
118
AR 308.
119
AR 138.
120
AR 318.
29
can and does play out with indigenous people being ignored,
their complaints dismissed, or even assaulted for no other
reason than their ethnicity.” 121
The BIA did, however, consider Saban-Cach’s father’s
testimony that makes the same claim. In this testimony, his
father described how he had filed a complaint with the police
after a gang member kidnapped and raped Saban-Cach’s sister,
but the police did nothing. Yet the BIA explained that this
testimony was inconsistent with the complaint, which makes
no mention of a rape or a kidnapping and instead describes this
as a domestic violence incident with the sister’s boyfriend, a
member of the gang. Without further explanation, this is not
necessarily an inconsistency. Even in our country, there is a
sad history of authorities ignoring claims of rape between close
acquaintances and dismissing such incidents as merely
“domestic violence.” They thus ignore not only the seriousness
of the assault, but the underlying criminality. 122 It is clear that
the police failed to take any meaningful action to investigate
the complaint. Taken together, the police’s inaction with
regard to the complaint, the expert’s report, and the sworn
testimony of Saban-Cach that the police would not protect him
because he is indigenous, suggest that the police would likely
not be responsive. 123
III.
For the foregoing reasons, we will grant Saban-Cach’s
petition, vacate the BIA’s order, and remand to the BIA for
further proceedings consistent with this opinion.
121
AR 318.
122
See, e.g., Thurman v. City of Torrington, 595 F. Supp 1521(Dist. Ct. Conn. 1984) (highlighting for the first time how
police may be affording more protection to women who do
not know their abusers than women who are the victims of
domestic violence).
123
If on remand the BIA determines that the police would be
willfully blind to the gang’s future torture of Saban-Cach,
then that conclusion would be dispositive of the answer to the
second question under this prong: whether that response
would qualify as acquiescence. See Roye v. Att’y Gen., 693
F.3d 333, 343 (3d Cir. 2012).
30