Jorge Regalado-Escobar v. Eric Holder, Jr.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ALBERTO REGALADO - No. 09-72964
ESCOBAR,
Petitioner, Agency No.
A070-451-936
v.
ERIC H. HOLDER, JR., Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 9, 2012—San Francisco, California
Filed June 5, 2013
Before: Andrew J. Kleinfeld and Marsha S. Berzon,
Circuit Judges, and William E. Smith, District Judge.*
Opinion by Judge Smith;
Dissent by Judge Kleinfeld
*
The Honorable W illiam E. Smith, District Judge for the U.S. District
Court for the District of Rhode Island, sitting by designation.
2 REGALADO -ESCOBAR V . HOLDER
SUMMARY**
Immigration
The panel granted in part and denied in part a petition for
review of the Board of Immigration Appeals’ denial of
asylum, withholding of removal, and protection under the
Convention Against Torture to a native and citizen of El
Salvador, and remanded for the Board to address in the first
instance whether petitioner’s opposition to violence
constitutes a political opinion and whether he established a
claim for future persecution on that basis.
The panel granted the petition with respect to petitioner’s
applications for asylum and withholding of removal because
the Board failed to address whether petitioner established a
well-founded fear or sufficient likelihood of future
persecution on account of a protected ground. The panel
directed the Board on remand to re-evaluate whether
petitioner’s opposition to the strategy of the National
Liberation Front for Farabundo Marti (“FMLN”) of using
violence constitutes a political opinion.
The panel held that substantial evidence supported the
finding of no past persecution because the record did not
compel the conclusion that petitioner was attacked on account
of any principled opposition to the FMLN or its violence,
rather than on account of his failure to cooperate in the
FMLN’s recruitment efforts, and that substantial evidence
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
REGALADO -ESCOBAR V . HOLDER 3
supported the Board’s determination that petitioner failed to
establish a clear probability of future torture.
Dissenting, Judge Kleinfeld wrote that after determining
that petitioner failed to establish that his past harm was
connected to his political opinion, there was no reason for the
Board to speculate further about such a possible nexus in the
future, and that there is no need for either this court or the
Board to reach the issue of when, if ever, views on violence
constitute a political opinion.
COUNSEL
Roger Green (argued) and Jenny Tsai, Green & Tsai,
Attorneys at Law, San Francisco, California, for Petitioner.
Tony West, Assistant Attorney General, Civil Division,
Cindy S. Ferrier, Senior Litigation Counsel, and Kimberly A.
Burdge (argued), Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C., for Respondent.
OPINION
SMITH, District Judge:
Jorge Alberto Regalado-Escobar petitions for a review of
the decision of the Board of Immigration Appeals (BIA)
4 REGALADO -ESCOBAR V . HOLDER
denying his application for asylum,1 withholding of removal,2
and relief under the Convention Against Torture.3 We review
questions of law de novo and the BIA’s factual findings,
including whether an applicant was persecuted on account of
his political opinion, under the substantial evidence standard.
See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Under this standard, this court must uphold the BIA’s
findings unless “the evidence [the applicant] presented was so
compelling that no reasonable factfinder could fail to find the
requisite fear of persecution.” Id. at 483–84. For the reasons
stated below, we deny in part, and grant and remand in part,
the petition.
Background and Procedural History
A
Regalado is a native and citizen of El Salvador who came
to the United States in February 2006 to escape the National
Liberation Front for Farabundo Marti (FMLN).4 His conflicts
with the FMLN began in 2002, when several men showed up
1
8 U.S.C. § 1158.
2
8 U.S.C. §1231(b)(3).
3
United Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty
Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R.
§ 1208.18.
4
Regalado had previously come to the U nited States in 1989, also to
escape the FMLN, and applied for asylum. To his knowledge, this first
application was never adjudicated. He returned to El Salvador in 2000 to
attend to his sick mother, who died in May 2005.
REGALADO -ESCOBAR V . HOLDER 5
at Regalado’s house and asked him to join an FMLN
demonstration that involved burning tires in the street and
breaking windows. Regalado said that he was opposed to
these activities and refused to join the FMLN demonstration.
Before the Immigration Judge (IJ), Regalado stated that he
refused to join because he had “always been a neutral person
[and does not] agree with parties that use violence to resolve
their political problems.” He further testified that he “didn’t
agree with [the FMLN’s] political activities,” or with their
“system” generally, adding that he has “never liked violence”
and “never participated with [the FMLN].” The FMLN
members said they would “settle this later,” and attacked
Regalado on the streets a few days later. They beat Regalado
with sticks and rocks and told him that if he did not
cooperate, “next time would be worse.”
Regalado was attacked a second time in early 2003. He
was waiting for a bus when two men began to beat him with
sticks. They identified themselves as members of the FMLN
and they told Regalado that if he did not join them, he and his
family “would regret it.” After this incident, Regalado went
to live with his father in another town but returned to his
home in Bosque del Rio periodically to visit his wife and
kids.
Regalado was attacked a third time in 2005. As he was
exiting a bus, two men approached Regalado, identified
themselves as FMLN members and began beating him.
Regalado testified to the IJ that he almost died from this
beating and one of his attackers told him that next time they
would kill him.
6 REGALADO -ESCOBAR V . HOLDER
B
The FMLN is a recognized political party in El Salvador
that has significant representation in both national and local
governments. The reports of the U.S. Department of State
submitted by both Regalado and the Government describe
incidents of violence perpetrated by members of the FMLN.
C
The IJ denied Regalado’s application for asylum, stating
that he failed to demonstrate that he was attacked on account
of a protected ground under asylum law. Rather, the IJ found
that Regalado was “either the victim of recruitment by what
appears to be, essentially, a guerilla operation, or simply the
victim of criminal activity.” In the alternative, the IJ denied
Regalado’s asylum application because Regalado failed to
demonstrate that the government of El Salvador is either
unable or unwilling to prevent the harm he suffered and the
future persecution he fears. The IJ noted that Regalado did
not report the attacks to the police and, during his second
attack, fear of the police is the only reason his attackers fled
as soon as they did. Lastly, the IJ found that Regalado failed
to show that he could not safely relocate within El Salvador.
The IJ also stated that, as Regalado failed to satisfy the
burden required for asylum eligibility, he necessarily failed
to meet the higher burden required for withholding of
removal. Moreover, the IJ held that Regalado failed to
demonstrate that he was more likely than not to be tortured if
he returned to El Salvador, so he was not eligible for relief
under the Convention Against Torture.
REGALADO -ESCOBAR V . HOLDER 7
D
The BIA upheld the IJ’s conclusions that Regalado is
ineligible for asylum, withholding of removal and relief under
the Convention Against Torture. The BIA held that Regalado
did not have a political opinion that could serve as the basis
for an asylum claim because he was not “politically or
ideologically opposed to the ideals espoused by the FMLN.”
Rather, Regalado merely showed that he was opposed to the
FMLN’s violent activities for which he was being recruited,
including demonstrations involving the burning of tires and
breaking of windows. Further, the BIA held that Regalado
did not show that he was persecuted on account of a political
opinion. The BIA concluded that Regalado “failed to
establish that at least one central reason for the FMLN
members’ conduct toward him was tied to his actual or
imputed political opinions, rather than to his mere refusal to
join their ranks and assist them in their violent activities.”
Finally, the BIA found that Regalado was ineligible for relief
under the Convention Against Torture because he did not
show that he was more likely than not to be tortured if
returned to El Salvador or that any torture would be inflicted
at the instigation of or with the consent of public officials.
Discussion
To be eligible for asylum, Regalado must prove that he is
a refugee; that is, that he is an alien “who is unable or
unwilling to return to, and is unable or unwilling to avail
himself . . . of the protection of, [a] country because of
persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). In order to establish past persecution, an
8 REGALADO -ESCOBAR V . HOLDER
applicant must show that he or she suffered harm that rises to
the level of persecution “on account of” a statutorily
protected ground. “To demonstrate a nexus between the harm
[an asylum applicant] suffered and his political opinion, [the
applicant] must show (1) that he held, or his persecutors
believed that he held, a political opinion; and (2) that he was
harmed because of that political opinion.” Zhiqiang Hu v.
Holder, 652 F.3d 1011, 1017 (9th Cir. 2011) (quoting
Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.
2010)). Even without having suffered past persecution, an
applicant may establish eligibility for asylum based on a well-
founded fear of future persecution. See Lopez-Galarza v.
I.N.S., 99 F.3d 954, 958 (9th Cir. 1996) (“Past persecution
and a well-founded fear of future persecution provide
separate avenues for establishing eligibility for asylum.”).
We grant Regalado’s petition and remand with respect to
his applications for asylum and withholding of removal.
With respect to asylum eligibility, the BIA failed to address
whether Regalado established a well-founded fear of future
persecution on account of a protected ground, and with
respect to withholding of removal, the BIA also neglected to
address the likelihood of future persecution on such ground.
This court’s review of a BIA decision is limited to the
decision itself, and does not include the IJ’s decision, except
to the extent that the BIA expressly adopted the IJ’s opinion.
See Zhiqiang Hu, 652 F.3d at 1016. “In reviewing the
decision of the BIA, we consider only the grounds relied
upon by that agency. If we conclude that the BIA’s decision
cannot be sustained upon its reasoning, we must remand to
allow the agency to decide any issues remaining in the case.”
Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004).
REGALADO -ESCOBAR V . HOLDER 9
Regalado argued before both the BIA and this court that
he has a well-founded fear of future persecution on a
protected ground, independent of his alleged past
persecution. The BIA rejected this contention without
explanation. There is no indication, for example, that the BIA
considered the FMLN’s transition from a guerilla group to a
recognized political party with seats in government when
evaluating the objective basis for Regalado’s fear of future
persecution. Absent any reasoning from the BIA, we cannot
find that substantial evidence supports the conclusion that
Regalado has not established a well-founded fear of future
persecution or that he is more likely than not to be persecuted
if he returns to El Salvador. Therefore, we remand to the BIA
to determine whether Regalado is eligible for asylum or
withholding of removal in view of his avowed fear. See
Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 870 (9th Cir.
2003) (“[I]t is not for us to determine in the first instance
whether [the applicant] has shown a well-founded fear of
persecution.”).
Upon remand, when the BIA determines whether
Regalado has a well-founded fear of future persecution on the
basis of a protected ground, the BIA must re-evaluate whether
Regalado’s opposition to the violent activities of the FMLN
constitutes a political opinion. In its prior decision, the BIA
erred as a matter of law in holding that opposition to the
FMLN’s violence could not be a political opinion.
When a political organization has a pattern of committing
violent acts in furtherance of, or to promote, its politics, such
strategy is political in nature; it advances a political goal
through certain means rather than others. Therefore,
opposition to the strategy of using violence can constitute a
political opinion that is a protected ground for asylum
10 REGALADO -ESCOBAR V . HOLDER
purposes. Cf. Grava v. I.N.S., 205 F.3d 1177, 1181 (9th Cir.
2000) (“When the alleged corruption is inextricably
intertwined with governmental operation, the exposure and
prosecution of such an abuse of public trust is necessarily
political.”); Reyes-Guerrero v. I.N.S., 192 F.3d 1241, 1245
(9th Cir. 1999) (finding that death threats against a prosecutor
who was pursuing an embezzlement case against members of
an opposing political party amounted to persecution on the
basis of a political opinion because it was difficult to
differentiate political from non-political crimes involving
government officials in the applicant’s home country). In
Grava and Reyes-Guerrero, this court found that where
corruption was endemic to a political organization, opposition
to the corruption amounted to opposition to the political
organization, even though the point of contention was not
purely political. Grava, 205 F.3d at 1181. Similarly,
opposition to a political party’s violent activities may amount
to opposition to the political party itself, if the violence is
integral to the party and inextricably linked to its political
activities, rather than constituting mere unrelated acts of
violence perpetrated by individuals who happen to be part of
a political group.5
5
In cases decided after Elias-Zacarias, this court has held beliefs about
the use of violence to be political opinions. See Borja v. INS, 175 F.3d
732, 736 (9th Cir. 1999) (en banc) (construing an asylum applicant’s
revulsion at an armed group’s violence against women and children as a
political opinion), superseded by statute on other grounds as stated by
Parussimova v. Mukasey, 555 F.3d 734, 739 (9th Cir. 2009); Lazo-Majano
v. INS, 813 F.2d 1432, 1435 (9th Cir. 1987) (holding that a belief that the
armed forces are responsible for lawlessness, rape, torture, and murder
constitutes a political opinion), overruled on other grounds by Fisher v.
INS, 79 F.3d 955 (9th Cir.1996). Like this court, the Second Circuit has
rejected an “impoverished” view of what may constitute a political
opinion. See e.g., Zhang v. Gonzales, 426 F.3d 540, 546–49 (2d Cir. 2005)
(citing Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994)); accord Manzur v.
REGALADO -ESCOBAR V . HOLDER 11
Because the BIA erred as a matter of law, it did not
conduct the necessary factual inquiry as to whether Regalado
had a protected political opinion. Namely, because it did not
recognize that opposition to the FMLN’s violent activities
could amount to a political opinion, the BIA did not examine
whether those violent activities were in furtherance of the
FMLN’s politics or merely apolitical acts of violence.
Additionally, the BIA did not determine the extent to which
violence is characteristic of the FMLN’s political activities.
These factual issues are not for us to determine here. See
Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.
2007) (holding that this court may not decide a claim unless
the BIA has done so in the first instance (citing I.N.S. v.
Ventura, 537 U.S. 12, 16 (2002) (per curiam))). The BIA
must make this determination upon remand as part of its
evaluation of whether Regalado has a well-founded fear of
future persecution on the basis of a political opinion.
The BIA further held that Regalado was not in the past
persecuted “on account of” his opposition to the FMLN’s
violence. Substantial evidence supports this conclusion
because, even if the BIA had correctly held that opposition to
a political organization’s violent activities can constitute a
political opinion, the record does not compel us to hold that
Regalado was attacked on account of any principled
opposition to the FMLN or its violence, rather than on
account of his failure to cooperate in the FMLN’s recruitment
efforts. Under the REAL ID Act of 2005, an asylum
applicant must show that the protected activity was “at least
one central reason” in the minds of the persecutors for
attacking the applicant. 8 U.S.C. § 1158(b)(1)(B)(i); see also
Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009).
U.S. Dept. of Homeland Sec., 494 F.3d 281, 294 (2d Cir. 2007).
12 REGALADO -ESCOBAR V . HOLDER
Regalado presented little evidence that his attackers were
motivated by anything other than his refusal to join them,
increase their ranks, and participate in their violent activities.
To have successfully demonstrated past persecution on the
basis of a political opinion, Regalado must have shown that
he was attacked because of his opposition to the FMLN’s
ideology or their violent methods of promoting that ideology.
Regalado offered no evidence to show that his attackers were
even aware of his political beliefs. See Sangha v. I.N.S.,
103 F.3d 1482, 1488 (9th Cir. 1997) (“[T]he applicant must
. . . show that this opinion was articulated sufficiently for it to
be the basis of his past or anticipated persecution.” (quoting
Ramos-Vasquez v. I.N.S., 57 F.3d 857, 863 (9th Cir. 1995)
(internal quotation marks omitted))).
With respect to Regalado’s claim for relief under the
Convention Against Torture, substantial evidence supports
the BIA’s conclusion that Regalado failed to show that he is
more likely than not to be tortured “by or at the instigation of
or with the consent or acquiescence of a public official or
other person acting in an official capacity” if he returns to El
Salvador. 8 C.F.R. § 1208.18(a)(1). Regalado has not shown
that public officials were aware of the attacks by the FMLN
or that public officials would cause or acquiesce in FMLN
attacks on Regalado in the future. See Ornelas-Chavez v.
Gonzales, 458 F.3d 1052, 1060 (9th Cir. 2006) (holding that
public officials acquiesce in torture if they “could have
inferred the alleged torture was taking place, remained
willfully blind to it, or simply stood by because of their
inability or unwillingness to oppose it”). Therefore, we deny
Regalado’s petition with respect to his claim for relief under
the Convention Against Torture.
REGALADO -ESCOBAR V . HOLDER 13
Conclusion
We reverse the BIA’s denial of Regalado’s applications
for asylum and withholding of removal, and remand for the
BIA to determine whether Regalado has a well-founded fear
of persecution on account of a political opinion or whether he
is more likely than not to be persecuted on account of a
political opinion. We deny the petition with regards to
Regalado’s claims for relief under the Convention Against
Torture.
Each party shall bear its own costs on appeal.
Petition GRANTED AND REMANDED in part;
DENIED in part.
KLEINFELD, Senior Circuit Judge, dissenting:
I respectfully dissent.
The majority concludes correctly that despite the vicious
beatings Regalado-Escobar suffered, substantial evidence
supported the BIA’s conclusion that he was beaten for
declining to join up, not because of his political opinion,
toward which the FMLN was evidently indifferent. As the
majority correctly points out, “the record does not compel us
to hold that Regalado was attacked on account of any
principled opposition to the FMLN or its violence, rather than
14 REGALADO -ESCOBAR V . HOLDER
on account of his failure to cooperate in the FMLN’s
recruitment efforts.”1
The majority nevertheless remands for findings on future
persecution. This makes no sense, since “Regalado offered
no evidence to show that his attackers were even aware of his
political beliefs.”2 The majority concludes that the BIA has
failed to understand that opposition to violence may itself be
a political opinion for which someone might be persecuted.
That would be an irrelevant inquiry on this record, which
doubtless explains why the BIA articulated no philosophical
views on the question. Neither they nor we need reach the
issue of when, if ever, views on violence constitute a political
opinion. Once absence of a factual nexus connecting the
beatings to Regalado-Escobar’s political opinion was
established by substantial evidence on the record taken as a
whole, there was no good reason for the BIA to speculate
further about such a possible nexus in general or in the future.
As we held in Zhiqiang Hu v. Holder, “the nexus inquiry
and the persecution inquiry are distinct.”3 If alleged
persecution – whether suffered in the past or feared in the
future – is not “on account of” one of the five protected
grounds, it cannot form the basis of a successful asylum
claim.4 Under the REAL ID Act, the applicant bears the
1
Maj. Op. at 11.
2
Maj. Op. at 12.
3
Zhiqiang Hu v. Holder, 652 F.3d 1011, 1020 (9th Cir. 2011).
4
8 U.S.C. § 1101(a)(42) (“The term ‘refugee’ means . . . any person
who is outside any country of such person’s nationality . . . and who is
unable or unwilling to return to . . . that country because of persecution or
REGALADO -ESCOBAR V . HOLDER 15
burden to show nexus by showing that a protected ground
was “one central reason” for his persecution.5 Regalad-
Escobar did not show that the FMLN knew of his political
opinion, let alone that it was “one central reason” for their
beating and threatening him. And he presented no evidence
whatsoever implying that the FMLN would likely become
aware of his political opinion in the future. His argument in
his brief is that his “Past Persecution Also Amounts to a
Well-Founded Fear of Future Persecution Based Upon His
Political Opinion.” Because he has not met his burden to
show a nexus connecting his political opinion to his past
beatings, Regalado-Escobar has no argument regarding future
persecution that the BIA needed to address.
It is hard to see why we are publishing an opinion in this
case at all, except to wade into ideological speculation about
whether a “strategy” of favoring or opposing violence “can
constitute a political opinion that is a protected ground,”
a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion
. . . .”). Likewise, to be eligible for withholding of removal, an applicant
must demonstrate that his “life or freedom would be threatened in [his
home] country because of [his] race, religion, nationality, membership in
a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3); 8
C.F.R. § 1208.16(b)(2); Zetino v. Holder, 622 F.3d 1007, 1015 (9th Cir.
2010).
5
8 U.S.C. § 1158(b)(1)(B)(i) (“The burden of proof is on the applicant
to establish that the applicant is a refugee, within the meaning of section
1101(a)(42)(A) of this title. To establish that the applicant is a refugee
within the meaning of such section, the applicant must establish that race,
religion, nationality, membership in a particular social group, or political
opinion was or will be at least one central reason for persecuting the
applicant.”); see also Parussimova v. Mukasey, 555 F.3d 734, 740–41 (9th
Cir. 2009).
16 REGALADO -ESCOBAR V . HOLDER
independently of the political goals meant to be advanced by
the “strategy.”6 The record does not require this speculation.
Although Regalado-Escobar did not want to join the FMLN
at least partly because he did not want “to burn tires in the
street, also to break windows in the city,” substantial
evidence, as the majority concedes, supported the BIA’s view
that the FMLN did not care what his opinions were, and beat
him “[b]ecause [he] didn’t join their party.” This record does
not require that the BIA do the case over to address whether
Regalado-Escobar’s opinions about the use of violence to
achieve political ends may themselves be a protected ground,
because his opinions were not the reason for the beatings.
The question whether a political opinion about the use of
violence in politics, independently of the political goal to be
achieved, is a protected ground, will be difficult, when and if
we ever have to address it. Congress just said “political
opinion,” and did not specify what kind of opinion in its
definition of “refugee.” If any political opinion suffices, then
persecution on account of favoring violence would entitle a
person to refugee status as much as persecution on account of
opposing violence. Favoring violence was a popular theme
in old anarchist advocacy by Johann Most and Michael
Bakunin, who supported “propaganda by the deed,”7 and
remains a theme in the more modern advocacy of Frantz
Fanon and perhaps Edward Abbey. There has long been a
romantic notion floating around in many radical movements,
favoring all sorts of ends, that violence “liberates creative
6
Maj. Op. at 9–10.
7
See Edmund W ilson, To the Finland Station: A Study in the W riting
and Acting of History 265–288 (1940); Gerald Runkle, Anarchism: Old
and New 27, 96–98 (1972).
REGALADO -ESCOBAR V . HOLDER 17
moral forces in human society which lead to social and
national renewal.”8 Did Congress intend to define persecuted
advocates of violence as refugees?
There is no need in this case to answer that question.
Without knowing that Regalado-Escobar had a political
opinion, the FMLN could not and cannot engage in
persecution – past or future – on account of his political
opinion. We can decide whether an advocate of terror
bombings persecuted for his opinion favoring violence, for
example, is entitled to refugee status, when we get the case.
We should deny the petition, not remand for examination
of the unnecessary and potentially thorny issue of whether
refugee status on account of persecution for political opinion
applies, where the opinion is not about some political end, but
about violence as such.
8
Fascism: An Anthology 139–140 (Nathanael Greene ed., 1968).