Mario Flores Molina v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO RAJIB FLORES MOLINA, Nos. 19-73028
Petitioner, 20-71774
v. Agency No.
A215-879-596
MERRICK B. GARLAND, Attorney
General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 14, 2021
Pasadena, California
Filed June 13, 2022
Before: Richard A. Paez and Lawrence VanDyke, Circuit
Judges, and Edward R. Korman, * District Judge.
Opinion by Judge Paez;
Concurrence by Judge Korman;
Dissent by Judge VanDyke
*
The Honorable Edward R. Korman, United States District Judge
for the Eastern District of New York, sitting by designation.
2 FLORES MOLINA V. GARLAND
SUMMARY **
Immigration
The panel (1) granted Mario Rajib Flores Molina’s
petition for review of the Board of Immigration Appeals’
decision affirming an immigration judge’s denial of asylum
and related relief, and remanded, holding that the record
compelled a finding that Flores Molina’s past experiences
constituted persecution and that the Board erred in its
analysis of other issues; and (2) dismissed as moot Flores
Molina’s petition for review of the Board’s denial of his
motion to reopen.
Flores Molina was publicly marked as a terrorist and
threatened with torture over social media by Nicaraguan
government operatives, repeatedly verbally threatened with
death by supporters of the Ortega regime, received a death
threat painted on his home by masked men likely affiliated
with the government, and received a second death threat—
this time during a direct confrontation—after he was
seriously beaten by six members of the Sandinista Youth.
Flores Molina also had a near confrontation with an armed
paramilitary group that located him at a hideaway. The
panel explained that the threats were credible given the
history and context of the Ortega regime’s killing and torture
of its political opponents.
The panel observed that this court has stated in various
opinions that both the de novo and the substantial evidence
standard of review apply to the question of whether
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
FLORES MOLINA V. GARLAND 3
particular acts constitute persecution. The panel wrote that
it need not address the nuances of the two standards, or
which standard should apply, because the harm Flores
Molina suffered rose to the level of persecution under the
more deferential substantial evidence standard of review.
The panel held that the record compelled the conclusion
that Flores Molina’s experiences in Nicaragua constituted
persecution. First, the panel wrote that this court has
consistently recognized that being forced to flee from one’s
home in the face of an immediate threat of severe physical
violence or death is squarely encompassed within the rubric
of persecution. Here, Flores Molina was forced to flee three
separate times after being personally targeted with violence
and threatened with death for his political views.
Second, the panel wrote that this court has repeatedly
held that threats may be compelling evidence of past
persecution, particularly when they are specific and
menacing and are accompanied by evidence of violent
confrontations, near-confrontations and vandalism, as was
the case here. Moreover, this court has consistently held that
death threats alone can constitute persecution. The panel
concluded that any reasonable adjudicator would be
compelled to hold that the repeated and specific threats that
Flores Molina experienced, amid violence and menacing
confrontations, amount to persecution.
Third, the panel wrote that that an applicant may suffer
persecution based on the cumulative effect of several
incidents, even if no single incident rises to the level of
persecution. The panel explained that this is a fact-bound
endeavor that is not reducible to a set formula, but rather
requires that the relevant facts be evaluated in combination
with each other to form a sufficiently negative portrait of the
4 FLORES MOLINA V. GARLAND
petitioner’s experience in his or her own country that not
only allows a finding of past persecution but requires it.
Here, Flores Molina was repeatedly threatened and subjected
to violence, in an escalating fashion, all within the well-
documented backdrop of the Ortega regime’s violent
crackdown on members of the political opposition.
Turning to the issue of Flores Molina’s claim that he has
a well-founded fear of future persecution, the panel held that
the Board erred by failing to address highly probative
evidence. The panel explained that the Board cited the
record selectively, relying on two news reports of the Ortega
regime’s release of 100 prisoners and its intention to release
more, to support its assertion that Flores Molina’s fear of
future persecution was speculative, while ignoring other
evidence that documented the conditions released prisoners
faced, delays in releasing political prisoners, the detention
and disappearance of additional activists and protesters in
the interim, and gross human rights violations in Nicaragua.
Moreover, the Board failed to discuss whether the repeated
death threats and threats of violence Flores Molina faced
were sufficient to inspire a well-founded fear of future
persecution. Likewise, the Board failed to address highly
probative evidence concerning the likelihood of torture.
The panel remanded for the Board to consider the
remaining elements of past persecution, Flores Molina’s
claim for humanitarian asylum, and all of the probative
evidence concerning whether Flores Molina established a
well-founded fear of future persecution or clear probability
of torture.
Because it granted Flores Molina’s petition as to the
denial of asylum and related relief, the panel dismissed as
FLORES MOLINA V. GARLAND 5
moot Flores Molina’s petition as to the denial of his motion
to reopen.
Concurring, District Judge Korman wrote separately to
address the standard of review applicable to the Board’s past
persecution determination. Judge Korman wrote that
although this court owes deference under the substantial
evidence standard to the administrative findings of fact,
whether particular facts constitute persecution for asylum
purposes is a legal question reviewed de novo. Judge
Korman explained that the substantial evidence standard is
not a good fit for questions, like the one presented in this
case, regarding the application of a legal standard to settled
facts. Judge Korman agreed with the majority that the
decision in this case would be the same regardless of which
standard applied, but noted that he would also have
concurred in a majority opinion concluding that the Board
legally erred in concluding that Flores Molina’s hardships
did not amount to persecution.
Dissenting, Judge VanDyke would deny the petition
because the record does not compel the conclusion that
(1) the past harassment Molina suffered rose to the level of
past persecution, or that (2) such harassment—together with
the most recent country conditions evidence that was before
the agency—demonstrated a well-founded fear of future
persecution. Judge VanDyke would also hold that the record
does not compel a contrary conclusion with respect to Flores
Molina’s remaining applications for withholding of removal,
humanitarian asylum, or protection under CAT, and that the
Board did not abuse its discretion in denying Flores Molina’s
motion to reopen.
Judge VanDyke addressed the three interconnected
layers of deference this court owes to immigration agency
6 FLORES MOLINA V. GARLAND
decisions, which combine to form what should be one of the
most deferential standards of review in our legal system.
First, the scope of the court’s review is tightly circumscribed
by the extraordinarily deferential standard that Congress has
commanded—yielding to the agency’s determinations
unless a different conclusion is compelled. Second, the court
applies that extreme deference to the extraordinarily difficult
and often indeterminate factual inquiries that the agency
alone is charged with making. And third, as the Supreme
Court recently reiterated in Garland v. Dai, 141 S. Ct. 1669(2021), the agency enjoys extraordinary discretion in making
the difficult determinations of how much credibility, weight,
and persuasiveness to afford different parts of the record in
reaching its factual conclusions.
Judge VanDyke wrote that his view of Flores Molina’s
past harms is not far from that of his colleagues— the facts
present a close call, and he is sympathetic to the majority’s
view that Flores Molina may have suffered past persecution.
Judge VanDyke wrote that he diverges with the majority
regarding its approach to the agency’s decision and the
record, explaining that the majority admittedly travels a
well-trodden path looking for a basis to overturn the agency
instead of scouring the record as a whole looking for a way
to uphold the agency if even a single reasonable factfinder
could agree with its ultimate conclusion. Judge VanDyke
wrote that this court’s edifice of immigration caselaw has
obfuscated the correct standard of review, making the proper
approach harder to see and even harder to execute. These
small differences of opinion, as illustrated in this case, have
been multiplied over time in many decisions, leading to the
lopsided edifice that is currently improperly driving much of
this court’s immigration caselaw.
FLORES MOLINA V. GARLAND 7
COUNSEL
Mary-Christine Sungaila (argued) and Joshua R. Ostrer,
Buchalter APC, Irvine, California; Paula M. Mitchell,
Attorney; Tina Kuang (argued) and Natalie Kalbakian
(argued), Certified Law Students, Loyola Law School, Los
Angeles, California; for Petitioners.
Jeffrey R. Leist (argued), Senior Litigation Counsel;
Anthony C. Payne, Assistant Director; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
OPINION
PAEZ, Circuit Judge:
Petitioner Mario Rajib Flores Molina (“Flores Molina”)
participated in demonstrations against the ruling regime in
his native Nicaragua, where he witnessed the murder of his
friend and fellow protester by police and paramilitary
members. Thereafter, he was publicly marked as a terrorist,
threatened with torture and death by government operatives,
and forced to flee his home. Flores Molina, however, was
tracked down at his hideaway by armed paramilitary
members, and was forced to flee for his life a second time.
Flores Molina still was not safe. He was discovered, yet
again, assaulted, and threatened with death by a government-
aligned group. Flores Molina ultimately fled a third time—
from Nicaragua altogether—out of fear for his safety. He
eventually presented himself to authorities at the United
States border and sought asylum and other relief.
8 FLORES MOLINA V. GARLAND
When Flores Molina sought asylum, withholding of
removal and protection under the Convention Against
Torture (“CAT”), an Immigration Judge (“IJ”) and the Board
of Immigration Appeals (“BIA”) determined that his past
experiences in Nicaragua did not rise to the level of
persecution. They also determined that Flores Molina did
not establish a well-founded fear of future persecution. The
IJ and BIA denied all forms of relief and ordered Flores
Molina’s removal to Nicaragua. Flores Molina petitions for
review of the BIA’s denial of his appeal of the IJ’s decision,
as well as of the BIA’s subsequent denial of his motion to
reopen proceedings. Because the record compels a finding
that Flores Molina’s past experiences constitute persecution
and because the BIA erred in its analysis of the other issues,
we grant the first petition and remand for further
proceedings. Accordingly, we dismiss the second petition as
moot.
I. Factual and Procedural Background
A. Political Context: 2018 Protests and Violent
Suppression in Nicaragua
The Sandinista National Liberation Front or “Frente
Sandinista de Liberación Nacional” (“FSLN”) regained
control of the Nicaraguan government in 2007 under Daniel
Ortega. The FSLN maintains power in part through Citizen
Power Councils (“CPCs”), FSLN party-based grassroots
organizations that operate in neighborhoods and districts
across Nicaragua. The CPCs function as intelligence-
gathering entities for the Nicaraguan government. They also
assist the government in suppressing dissent. CPCs and
police work with paramilitary groups associated with the
Sandinista Party to target the homes of protesters. In recent
years, they have abducted and detained protesters, and raided
homes of suspected protesters across Nicaragua.
FLORES MOLINA V. GARLAND 9
In April 2018, political opposition groups, university
students and farmers organized protests against pension
reform and government corruption. The protests developed
into a wider movement in opposition to the Ortega regime,
which was met with violent suppression by the FSLN, CPCs,
police and paramilitary groups. Shortly after the
commencement of the protest movement, the Nicaraguan
parliament passed a law enabling the Ortega regime to
prosecute protesters as terrorists, and to impose harsh
penalties. The Guardian reported that between April and
July 2018, it was estimated that over 300 protesters were
killed by the police and government operatives.
B. Flores Molina’s Participation in Protests and the
Consequences
Flores Molina is a graduate of the Autonomous National
University of Nicaragua, married, and the father of two
children. He has been an active member of the opposition
Liberal Party since 2006. In April 2018, Flores Molina
began to participate in the opposition protest movement in
the city of Estelí. At the second protest he attended that
month, police and paramilitary personnel shot bullets into
the crowd of demonstrators. As he fled the shooting, Flores
Molina learned that his friend, and fellow demonstrator,
Franco Valdivia, had been shot in the head. Flores Molina
stopped, turned around, and tended to Valdivia as he lay in a
pool of his own blood, before Valdivia ultimately died of his
injuries.
Flores Molina participated in protests in Estelí
throughout May 2018, as police and paramilitary members
regularly shot at, wounded and killed demonstrators. As
Flores Molina’s presence at the protests continued, he
received escalating threats on his life from government
operatives and paramilitary members.
10 FLORES MOLINA V. GARLAND
Government operatives publicly circulated posts on
social media identifying Flores Molina as an instigator of
hate and violence and threatened to send him to “El Chipote”
prison, notorious as a site for torture. Flores Molina
continued to receive threats over WhatsApp and was aware
of at least five public posts on Facebook that were widely
circulated identifying him as a dangerous opponent of the
government. The public posts galvanized Ortega supporters
to locate and drive to Flores Molina’s home and verbally
threaten him. Then, in June, Flores Molina found his home
vandalized, with the words “Bullets to Strikers” spray
painted on the walls by a group of masked individuals who
arrived in an unmarked truck commonly known as the type
of vehicle used by government operatives.
The escalating digital and verbal threats, the death threat
painted on his house, and the increasing number of killings
of protesters by the Ortega regime forced Flores Molina to
flee his home for safety. But five months after Flores Molina
fled to a hideaway, a truck full of police officers and
paramilitary members arrived at his refuge wearing ski
masks, army jackets and carrying assault rifles. The
paramilitary squad demanded that Flores Molina come out,
climbed on the roof, and looked through the windows.
Flores Molina hid in the backyard to evade detection;
immediately after, he fled, for the second time, to a new
hideaway.
On November 20, 2018, six masked members of the pro-
Ortega Sandinista Youth assaulted Flores Molina as he
returned to his second hideaway. They struck him in the
head, causing him to lose a tooth and leaving scarring on his
lip. As they beat him, the attackers warned Flores Molina,
“This is what happens to the ones that want to be part of the
coup. And at the next encounter, we’re going to kill you.”
FLORES MOLINA V. GARLAND 11
Flores Molina could not see a doctor because the hospital
entrance was full of police and the paramilitary members.
The United States Department of State Country Report on
Human Rights Practices in Nicaragua for 2018 (“2018 State
Department Report”) shows that the Ortega regime directed
the Ministry of Health to deprive protesters of medical
attention and instructed public hospitals and clinics not to
provide medical care to wounded protesters.
Flores Molina fled Nicaragua and ultimately arrived at
the United States-Mexico border. He presented himself at a
port of entry and requested protection.
C. Administrative Proceedings
Flores Molina appeared pro se and testified before an IJ
on June 10, 2019, where he requested asylum, withholding
of removal and protection under CAT. At the hearing, Flores
Molina and the Department of Homeland Security
submitted, as exhibits, news articles and country conditions
reports on Nicaragua and the 2018 protest movement. The
IJ found Flores Molina’s testimony consistent with the
declaration he submitted in support of his application for
relief, but determined that he had not shown that his past
experiences constituted persecution for the purposes of
asylum and withholding of removal. The IJ also held that,
because Flores Molina failed to show past persecution, he
had not demonstrated a well-founded fear of future
persecution. The IJ denied Flores Molina’s application for
asylum, withholding of removal and CAT protection.
In November 2019, the BIA dismissed Flores Molina’s
appeal, finding that “[t]he claimed past harm, cumulatively
considered, [did] not rise to the level of past persecution”
and that the “threats are not the sort of ‘extreme’ or
‘especially menacing’ threats necessary to establish past
12 FLORES MOLINA V. GARLAND
persecution.” The BIA also concluded that Flores Molina
lacked an objectively well-founded fear of future
persecution because he was physically assaulted only once,
and because the number of political activists detained in
Nicaragua is small compared to the number of individuals
who participated in the protest movement. As for CAT
relief, the BIA determined that the past harm Flores Molina
experienced did not rise to the level of torture and that the
risk he would be tortured upon removal to Nicaragua was
too speculative to merit relief. The BIA affirmed the IJ’s
denial of asylum, withholding of removal and CAT
protection.
In June 2020, the BIA denied Flores Molina’s motion to
reopen his removal proceedings to seek a continuance while
the United States Citizenship and Immigration Services
(“USCIS”) adjudicated his pending application for an
immigrant visa.
Flores Molina timely petitioned for review of the BIA’s
denial of asylum, withholding of removal and CAT
protection (No. 19-73028), and the BIA’s denial of his
motion to reopen (No. 20-71774). We address both petitions.
II. Standards of Review
“Where the BIA conducts its own review of the evidence
and law, rather than adopting the IJ’s decision, our review is
limited to the BIA’s decision, except to the extent the IJ’s
opinion is expressly adopted.” Rodriguez v. Holder,
683 F.3d 1164, 1169 (9th Cir. 2012) (citation and quotation
marks omitted). Here, the BIA dismissed Flores Molina’s
appeal, agreeing with several of the immigration judge’s
findings while adding its own reasoning. Thus, we review
the decisions of both the BIA and the immigration judge to
FLORES MOLINA V. GARLAND 13
the extent that the BIA agreed with the immigration judge’s
conclusions. Id.“We review factual findings for substantial evidence and
legal questions de novo.” Guerra v. Barr, 974 F.3d 909, 911
(9th Cir. 2020). In particular, “[w]e review denials of
asylum, withholding of removal, and CAT relief for
substantial evidence.” Guo v. Sessions, 897 F.3d 1208, 1212
(9th Cir. 2018) (citation and quotation marks omitted).
Those findings are “conclusive unless any reasonable
adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). Where the BIA does
not consider all the evidence before it, either by “misstating
the record [or] failing to mention highly probative or
potentially dispositive evidence,” its decision is legal error
and “cannot stand.” Cole v. Holder, 659 F.3d 762, 772 (9th
Cir. 2011).
III. Discussion
We address the two petitions in turn. We first review the
BIA’s denial of asylum, withholding of removal, and CAT
relief to Flores Molina. 1
1
Our dissenting colleague sharply criticizes our court’s immigration
jurisprudence. This is not the first time he has expressed such views.
See, e.g., Nababan v. Garland, 18 F.4th 1090, 1096, 1103 (9th Cir. 2021)
(VanDyke, J., dissenting) (expressing “perpetual[] embarrass[ment]” by
“[o]ur circuit’s immigration jurisprudence” and describing it as a “nasty
habit” that we “should at least try to kick”); Reyes v. Garland, 11 F.4th
985, 998 (9th Cir. 2021) (VanDyke, J., dissenting) (lamenting that “the
Ninth Circuit’s abysmal and indefensible immigration precedents are the
gifts that keep on taking”); id. at 1007 (discussing some “of our more
blatant recent immigration gaffes” and describing the majority as
“missing an opportunity to right our circuit’s badly listing immigration
ship”); Avila-Arias v. Garland, 847 F.App’x 468, 472–73 (9th Cir. 2021)
14 FLORES MOLINA V. GARLAND
A. Asylum
To be statutorily eligible for asylum, Flores Molina must
show that he is a refugee. 8 U.S.C. § 1158(b)(1). A refugee
is one who is “unable or unwilling to avail himself or herself
of the protection of [his or her native] 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.” Id. § 1101(a)(42)(A).
“Persecution is defined as ‘the infliction of suffering or harm
. . . in a way regarded as offensive.’” Mendoza-Pablo v.
Holder, 667 F.3d 1308, 1313 (9th Cir. 2012) (quoting Li v.
Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc)).
“Either past persecution or a well-founded fear of future
persecution provides eligibility for a discretionary grant of
asylum.” Ratnam v. INS, 154 F.3d 990, 994 (9th Cir. 1998).
An individual “who establishes past persecution is presumed
to have a well-founded fear of persecution.” Id. (citation
omitted).
(VanDyke, J., dissenting) (advocating for our court “to emulate the BIA”
more and to pay special attention to deferring to the BIA when the
petitioner has a criminal history); Aguilar-Osorio v. Garland, 991 F.3d
997, 1000–01 (9th Cir. 2021) (per curiam) (declaring that the majority’s
remand for the BIA to consider an issue in the first instance was
“lawless” and that “[w]e make it very difficult, if not impossible, for the
BIA to properly do the job Congress gave it”); Sanchez Rosales v. Barr,
980 F.3d 716, 721 (9th Cir. 2020) (VanDyke, J., dubitante) (writing
separately “because [our] precedent is silly and well illustrates our
court’s nasty habit of muddying immigration law”). While we note the
dissent’s critique, it fails to engage with our analysis of the issues in this
case. Our task is to apply existing precedent—whether or not we agree
with it—as we faithfully do here.
FLORES MOLINA V. GARLAND 15
The BIA determined that Flores Molina did not
experience past persecution and concluded that his fear of
future persecution was “too speculative” to be well-founded.
1. Past Persecution
We hold that the BIA’s determination that Flores Molina
did not suffer past persecution in Nicaragua is not supported
by substantial evidence. 2 To show past persecution, Flores
Molina “has the burden of establishing that (1) his treatment
rises to the level of persecution; (2) the persecution was on
account of one or more protected grounds; and (3) the
persecution was committed by the government, or by forces
that the government was unable or unwilling to control.”
Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.
2010) (citation omitted). Here, the BIA ended its analysis at
the first element, determining that Flores Molina’s past
experiences did not rise to the level of persecution.
Applying our court’s binding caselaw to the record evidence,
2
We have previously stated that “[w]hether particular acts constitute
persecution for asylum purposes is a legal question reviewed de novo.”
Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir. 2021) (alterations
adopted) (citation omitted). We have also stated that we “review for
substantial evidence the BIA’s particular determination that a
petitioner’s past harm ‘does not amount to past persecution.’” Sharma v.
Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (alteration adopted) (citation
omitted). We need not address whether de novo review should apply, or
discuss the nuances of the two standards, because the harm Flores
Molina suffered rose to the level of persecution under the more
deferential “substantial evidence” standard of review. See Fon v.
Garland, — F.4th —, 2022 WL 1562281 at *4 n.1 (9th Cir. May 18,
2022) (applying the “substantial evidence” standard of review and
declining to address whether de novo review applies because the
outcome was the same under any standard). See generally id. at *7–8
(Graber, J., concurring) (discussing the proper standard of review as
applied to whether acts rise to the level of persecution); id. at *9–12
(Collins, J., concurring) (same).
16 FLORES MOLINA V. GARLAND
there are three bases that compel our conclusion that Flores
Molina’s past experiences constitute persecution.
a.
First, “[a]s we have consistently recognized, being
forced to flee from one’s home in the face of an immediate
threat of severe physical violence or death is squarely
encompassed within the rubric of persecution, as long as the
persecutors’ actions are motivated” by a protected ground.
Mendoza-Pablo, 667 F.3d at 1314 (citation omitted) (finding
past persecution because petitioner “fled from her home
village as a result of her (eminently-reasonable) belief that
her life . . . was in severe and immediate danger because
Guatemalan military forces had specifically targeted the
village’s inhabitants on the basis of their racial and ethnic
background”); see also Knezevic v. Ashcroft, 367 F.3d 1206,
1211–12 (9th Cir. 2004) (finding past persecution where
ethnically Serbian petitioners fled their hometown to escape
hostile Croatian forces because they “realized the threat of
harm—and possibly death—was imminent”).
Here, Flores Molina was forced to flee three separate
times after being personally targeted for his political views
with violence and threatened with death. 3 He was forced to
3
The dissent disregards our holdings in Mendoza-Pablo and
Knezevic by arguing that those petitioners only suffered persecution
because their homes were “completely destroyed.” Dissent 49. To be
sure, various homes were burned after the petitioner’s mother fled in
Mendoza-Pablo. 667 F.3d at 1311, 1314. In Knezevic, the petitioners’
home was also destroyed after they fled and partially restored later.
367 F.3d at 1212. While their homes were subsequently destroyed, that
was not the lynchpin of our holdings in those cases. Rather, we held that
the petitioners were persecuted because, like Flores Molina, they fled “in
the face of an immediate threat of severe physical violence or death.”
Mendoza-Pablo, 667 F.3d at 1314.
FLORES MOLINA V. GARLAND 17
flee, first, after a series of escalating threats culminated in a
death threat painted on his home, second, after being
discovered at his hideaway and narrowly evading detection
by a group of armed paramilitary members, and third, after
being assaulted and threatened with death by a gang of
Sandinista Youth. The “severe and immediate danger” that
he faced arose within the broader context of mass killings
and violent reprisals by the Ortega regime and its affiliates
against protestors like him, including the killing of his friend
Valdivia that he witnessed firsthand. The repeated incidents
in which Flores Molina fled were each “in the face of an
immediate threat of severe physical violence or death,” and
thus rise to the level of persecution. Mendoza-Pablo,
667 F.3d at 1314. 4
b.
Second, we have “repeatedly held that threats may be
compelling evidence of past persecution, particularly when
they are specific and menacing and are accompanied by
evidence of violent confrontations, near-confrontations and
vandalism.” Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th
Cir. 2004) (holding that a single written death threat was
“strong evidence of persecution” particularly in light of the
broader violence and escalating harm); see also Ruano v.
Ashcroft, 301 F.3d 1155, 1160–61 (9th Cir. 2002) (finding
past persecution where petitioner experienced multiple death
threats, “near face-to-face confrontations” with armed
persecutors, and persecutors directly confronted his family);
Baballah v. Ashcroft, 367 F.3d 1067, 1074 (9th Cir. 2004)
(“Threats and attacks can constitute persecution even where
an applicant has not been beaten or physically harmed.”
4
The BIA did not address the fact that Flores Molina was forced to
repeatedly flee in the wake of violence and death threats.
18 FLORES MOLINA V. GARLAND
(citations omitted)); Del Carmen Molina v. INS, 170 F.3d
1247, 1249 (9th Cir. 1999) (finding past persecution where
the petitioner’s family had been killed by guerrilla forces and
the petitioner received two threatening notes related to their
killing). And we have “consistently held that death threats
alone can constitute persecution.” Navas v. INS, 217 F.3d
646, 658 (9th Cir. 2000) (emphasis added) (collecting cases);
see also Kaur v. Wilkinson, 986 F.3d 1216, 1227 (9th Cir.
2021) (reiterating that death threats “alone” can constitute
persecution “because murder is perhaps the ultimate threat
to bodily integrity” (citing Lim, 224 F.3d at 936)).
Flores Molina was publicly marked as a terrorist and
threatened with torture over social media by government
operatives, repeatedly verbally threatened with death by
supporters of the Ortega regime, received a death threat
painted on his home by masked men likely affiliated with the
government, and received a second death threat—this time
during a direct confrontation—after he was seriously beaten
by six members of the Sandinista Youth. In addition, Flores
Molina had a near confrontation with an armed paramilitary
group that located him at a hideaway. The threats were
credible given the history and context of the Ortega regime’s
killing and torture of its political opponents. Indeed, Flores
Molina witnessed the killing of his friend and fellow
protester when his friend was shot in the head at a
demonstration. See Salazar-Paucar v. INS, 281 F.3d 1069,
1075 (9th Cir.), as amended, 290 F.3d 964 (9th Cir. 2002)
(holding that “[e]vidence of harm to individuals who held
the same political positions” to the petitioner supported a
finding of past persecution). Such “[r]epeated death threats,
especially when those threats occurred in conjunction with
other forms of abuse, require a finding of past persecution.”
Smolniakova v. Gonzales, 422 F.3d 1037, 1049 (9th Cir.
2005); see also Aden v. Wilkinson, 989 F.3d 1073, 1082 (9th
FLORES MOLINA V. GARLAND 19
Cir. 2021) (“[W]hen the incidents have involved physical
harm plus something more, such as credible death threats,
we have not hesitated to conclude that the petitioner suffered
persecution.” (emphasis in original)).
The BIA cited two cases to support its determination that
the threats Flores Molina experienced did not constitute
persecution. The BIA’s reliance on those cases, however, is
misplaced. The BIA cited Lim v. INS, 224 F.3d 929, 936
(9th Cir. 2000) for its conclusion that “these threats are not
the sort of ‘extreme’ or ‘especially menacing’ threats
necessary to establish past persecution.” But the Lim court
declined to find past persecution precisely because “[n]either
Lim nor his family was ever touched, robbed, imprisoned,
forcibly recruited, detained, interrogated, trespassed upon,
or even closely confronted.” Id. Flores Molina, by contrast,
was publicly singled out on multiple occasions, his home
was trespassed upon, and he was closely confronted and
beaten, at the behest of a coordinated campaign by a brutal
regime that credibly acted on its threats against other
similarly situated political opponents. This is not a situation
as the one the Lim court described where “[t]hreats
themselves are sometimes hollow.” Id. Lim is not on-point.
See also Ruano, 301 F.3d at 1160 (distinguishing Lim
because Ruano had been “closely confronted” and pursued
“by men he knew were armed”).
Next, the BIA cited Gu v. Gonzales, 454 F.3d 1014, 1020
(9th Cir. 2006) for the proposition that the physical harm
Flores Molina suffered at the hands of six Sandinista Youth
assailants was insufficient to constitute past persecution.
The BIA referred to Gu as holding that “a single instance of
detention and beating, which resulted in non-serious
injuries” was insufficient to establish past persecution, but
ignored the surrounding circumstances that are relevant to
20 FLORES MOLINA V. GARLAND
Flores Molina’s claim. Flores Molina does not contend that
he experienced past persecution on the sole basis of his
beating by a group of Sandinista Youth, but rather based on
the sequence of escalating threats and the broader context of
violence targeted at him and other political dissidents like
him. The BIA’s citation to Gu does not support its analysis
and does not relieve it of its obligation to consider the
“totality of the circumstances” in deciding whether past
persecution is shown. Guo v. Ashcroft, 361 F.3d 1194, 1203
(9th Cir. 2004); see also Aden, 989 F.3d at 1082–84
(distinguishing Gu, 545 F.3d at 1020, where Aden was
physically assaulted only once but also received repeated
threats within the context of “political and social turmoil” in
Somalia). Further, “it is the conduct of the persecutor” that
is relevant to evaluating whether past treatment rises to the
level of persecution—not “the level of harm” or “subjective
suffering” the petitioner experienced. Kaur, 986 F.3d
at 1226 (citations omitted). Accordingly, the severity of
Flores Molina’s injuries is not dispositive to whether the
threats and violence constituted persecution. Id.
Any reasonable adjudicator would be compelled to hold
that the repeated and specific death threats that Flores
Molina experienced, amid the violence and menacing
confrontations to which he was subjected, amount to
persecution.
c.
The third basis for our holding is that “[a]n applicant may
suffer persecution because of the cumulative effect of
several incidents,” even if no single incident rises to the level
of persecution. Chand v. INS, 222 F.3d 1066, 1074 (9th Cir.
2000). “[T]he key question is whether, looking at the
cumulative effect of all the incidents that [Flores Molina]
suffered, the treatment he received rises to the level of
FLORES MOLINA V. GARLAND 21
persecution.” Sharma v. Garland, 9 F.4th 1052, 1061 (9th
Cir. 2021) (citation omitted). Our inquiry is “a fact-bound
endeavor that is not reducible to a set formula,” but rather
requires that the relevant facts “be evaluated in combination
with each other to form a sufficiently negative portrait of the
petitioner’s experience in his or her own country that not
only allows a finding of past persecution but requires it.” Id.(citations omitted).
Flores Molina was repeatedly threatened, in an
escalating fashion—from threats and public blacklisting on
social media by government operatives, to a spray-painted
death threat on the walls of his home forcing him to flee, to
armed paramilitary members searching for him at his first
hideaway and forcing him to flee again, to a gang of
Sandinista Youth beating and threatening to kill him near his
second hideaway location. See Cordon-Garcia v. INS,
204 F.3d 985, 991 (9th Cir. 2000) (“The determination that
actions rise to the level of persecution is very fact-dependent,
though threats of violence and death are enough.” (citations
omitted)). The progression of threats and violence that
Flores Molina experienced was set against the well-
documented backdrop of the Ortega regime’s violent
crackdown on members of the political opposition. Where
“evidence of a specific threat on [a petitioner’s] life, and here
there were many, is presented in conjunction with evidence
of political and social turmoil, the [petitioner] has succeeded
in establishing a prima facie eligibility for asylum.”
Korablina v. INS, 158 F.3d 1038, 1045 (9th Cir. 1998); see
also Aden, 989 F.3d at 1083–84 (concluding that the
evidence of political and social turmoil, along with the
persecutors’ physical assault and continued pursuit of the
applicant, compelled a finding a past persecution).
22 FLORES MOLINA V. GARLAND
The two citations the BIA provided as examples of cases
where the “cumulative effect of several incidents” was
insufficient bear no resemblance to the threats and violence
that Flores Molina experienced. In Wakkary v. Holder, we
held that the petitioner’s experiences of “being beaten by
youths and robbed of his sandals and pocket money in 1985
and 1990 (seventeen and twelve years, respectively, before
he filed his asylum application), and being accosted by a
threatening mob while his family was driving to Bible school
in 1998,” did not “cumulatively amount to past persecution.”
558 F.3d 1049, 1059–60 (9th Cir. 2009). And in Hoxha v.
Ashcroft, we relied on Lim, 224 F.3d at 936, to hold that the
nonspecific and “unfulfilled” threats by various individuals
with no connection to the government constituted
“harassment rather than persecution.” 319 F.3d 1179, 1182
(9th Cir. 2003). Although we acknowledged that physical
violence “ordinarily” establishes persecution, the one
instance of violence the petitioner faced “was not connected
with any particular threat,” there was “no evidence
indicating that the incident was officially sponsored,” and
there was “no evidence that the attackers knew who [the
petitioner] was or that they showed any continuing interest
in him.” Id. at 1182, 1182 n.5. Neither of these factual
scenarios are close to the sustained, repeated, specific,
government-aligned, and politically motivated threats and
violence to which Flores Molina was subjected.
In sum, applying our caselaw to the record evidence,
there are three bases that would compel any reasonable
adjudicator to find that Flores Molina’s past experiences
“rose to the level of persecution.” Baghdasaryan, 592 F.3d
at 1023. On remand, the BIA must address the remaining
FLORES MOLINA V. GARLAND 23
elements of past persecution. 5 If Flores Molina establishes
the remaining elements, “a rebuttable presumption of a well-
founded fear arises, 8 C.F.R. § 208.13(b)(1), and the burden
[then] shifts to the government to demonstrate that there has
been a fundamental change in circumstances such that the
applicant no longer has a well-founded fear.” Tawadrus v.
Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (citation and
quotation marks omitted).
2. Fear of Future Persecution
Because Flores Molina also challenges the BIA’s
determination that he failed to demonstrate a well-founded
fear of future persecution, we proceed to address that issue.
The BIA was “required to evaluate all relevant evidence in
the record” to determine whether Flores Molina carried his
burden. Davila v. Barr, 968 F.3d 1136, 1143 (9th Cir. 2020)
(citation omitted). In rejecting Flores Molina’s claim that he
has a well-founded fear of future persecution, the BIA erred
by failing to address highly probative evidence.
The BIA cited the record selectively to support its
assertion that Flores Molina’s fears of future persecution
were speculative. See id. (concluding that “the BIA’s
extreme selectivity in using the Country Report evidence
belie[d] any attempt” to evaluate all relevant evidence). The
BIA cited two May 2019 news reports about the Ortega
5
The BIA must determine whether the persecution Flores Molina
experienced was on account of one or more protected grounds, and
whether the persecution was committed by the government, or by forces
that the government was unable or unwilling to control. Baghdasaryan,
592 F.3d at 1023. The record evidence strongly suggests that Flores
Molina was persecuted on account of his political opinion by individuals
affiliated with Nicaragua’s ruling Ortega regime. However, that is a
determination the agency must make in the first instance.
24 FLORES MOLINA V. GARLAND
regime’s release of 100 prisoners and announcement of the
regime’s intentions to release more. But the BIA ignored
news reports that documented the conditions released
prisoners faced, delays in releasing political prisoners, and
that the Ortega regime detained and disappeared additional
activists and protesters in the interim. The BIA also ignored
the 2018 State Department Report, Amnesty International’s
2018 report on political persecution within Nicaragua, and
the Inter-American Commission of Human Rights’ 2018
report on gross human rights violations in Nicaragua.
Moreover, the BIA failed to discuss whether the repeated
death threats and threats of violence Flores Molina faced
were sufficient to “inspire a well-founded fear of future
persecution.” Lim, 224 F.3d at 937 (emphasis deleted); see
also id. at 936–37 (discussing cases where threats that were
insufficient to establish past persecution were, nonetheless,
sufficient to demonstrate a well-founded fear of future
persecution); Kaiser v. Ashcroft, 390 F.3d 653, 658 (9th Cir.
2004) (“Threats on one’s life, within a context of political
and social turmoil or violence, have long been held sufficient
to satisfy a petitioner’s burden of showing an objective basis
for fear of persecution.” (citation omitted)). All this record
evidence contextualizes the Nicaraguan government’s
actions and Flores Molina’s specific fears of persecution
upon removal. 6 Where the BIA fails to consider highly
6
The BIA’s assertion that Flores Molina is not sufficiently at risk of
future persecution because the “number of detained activists” in
Nicaragua “is relatively small when considering that upwards of a
million people participated in the aforementioned protests,” makes no
sense. Assessing the threat of political persecution to Flores Molina
depends on his personal circumstances, including the threats, violence
and targeting he experienced prior to fleeing Nicaragua. The BIA’s
calculation of the percentage of activists who have been detained as a
portion of those who protested is meaningless for the purpose of
assessing whether Flores Molina’s fear of future persecution is well-
FLORES MOLINA V. GARLAND 25
probative record evidence, its “decision cannot stand.” Cole,
659 F.3d at 771–72.
3. Humanitarian Asylum
The BIA denied Flores Molina humanitarian asylum,
pursuant to 8 C.F.R. § 1208.13(b)(1)(iii), because it
determined he failed to make “a showing of past
persecution.” Because the BIA erred in its finding that
Flores Molina failed to show he suffered past persecution,
we vacate the denial of humanitarian asylum and remand for
further consideration.
Flores Molina further contends that we should remand
his humanitarian asylum claim to the IJ to fully develop the
record related to the elements of that relief. Because the BIA
failed to analyze the merits of Flores Molina’s humanitarian
asylum claim, however, we remand to the BIA to assess the
merits of this claim in the first instance (which the BIA may
remand to the IJ in its discretion).
B. Withholding of Removal
The BIA’s sole basis for denying Flores Molina’s claim
for withholding of removal was because it determined he had
“not established eligibility for asylum.” Because the BIA
erred in its denial of asylum, we remand Flores Molina’s
withholding of removal claim for further consideration.
founded, in light of the evidence that Flores Molina himself had been
targeted. The BIA’s unreasonably deficient analysis on this point
constitutes reversible error on its own. Tadevosyan v. Holder, 743 F.3d
1250, 1252–53 (9th Cir. 2014) (“The BIA abuses its discretion when it
acts arbitrarily, irrationally, or contrary to the law, and when it fails to
provide a reasoned explanation for its actions.” (internal quotation marks
omitted)).
26 FLORES MOLINA V. GARLAND
Moreover, if the BIA determines that Flores Molina
experienced past persecution on account of a protected
ground, the BIA must credit Flores Molina with a rebuttable
presumption of eligibility for withholding of removal.
8 C.F.R § 1208.16(b)(l)(i); Ahmed v. Keisler, 504 F.3d 1183,
1199 (9th Cir. 2007). Finally, even if the BIA determines
that Flores Molina is not entitled to a presumption of
eligibility for withholding of removal, it must consider all
probative evidence related to Flores Molina’s fear of future
persecution. See supra Discussion § I(B).
C. Convention Against Torture
To qualify for CAT relief, an applicant must establish
that it is “more likely than not” that he would be tortured if
removed to the proposed country of removal. See 8 C.F.R.
§ 1208.16(c)(2). In assessing whether it is more likely than
not an individual would be tortured, “all evidence relevant
to the possibility of future torture shall be considered.”
§ 1208.16(c)(3); Maldonado v. Lynch, 786 F.3d 1155, 1162
(9th Cir. 2015) (en banc).
Just as the BIA legally erred in rejecting Flores Molina’s
well-founded fear of future persecution by failing to examine
relevant evidence, it repeated the error in rejecting his CAT
claim. See supra Discussion § I(B). The BIA failed to
mention highly probative country conditions reports which
reflect the Nicaraguan government’s continued jailing and
mistreatment of political protesters like Flores Molina,
including immediate arrests of activists at the airport as soon
as they returned to the country. See Aguilar-Ramos v.
Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“The failure of
the IJ and BIA to consider evidence of country conditions
FLORES MOLINA V. GARLAND 27
[when assessing a CAT claim] constitutes reversible error.”
(citations omitted)). 7
Of particular relevance to Flores Molina’s CAT claim,
the 2018 State Department Report states that cases of torture
are well documented and “public officials intentionally
carried out acts that resulted in severe physical or mental
suffering for the purposes of securing information, inflicting
punishment, and psychologically deterring other citizens
from reporting on the government’s actions or participating
in civic actions against the government.” The report furthers
states that “[m]embers of civil society and student leaders
involved in the protests that began [in April 2018] were more
likely than members of other groups to be subjected to such
treatment.” Flores Molina is a member of the opposition
Liberal Party, participated in the April 2018 protests, and his
stance against the Ortega regime was repeatedly publicized
online by government operatives. The BIA’s failure to
consider relevant evidence of country conditions in
connection with Flores Molina’s CAT claim is reversible
error. Id. We therefore grant Flores Molina’s petition for
review as to his CAT claim and remand for further
consideration.
D. Motion to Reopen
Flores Molina’s second petition (No. 20-71774) seeks
review of the BIA’s denial of his motion to reopen
proceedings to seek a continuance while the United States
Citizenship and Immigration Service adjudicates his
7
The BIA’s gesture to “the totality of the record,” without
mentioning or discussing these country reports, does not insulate the BIA
from reversal. “[W]here there is any indication that the BIA did not
consider all of the evidence before it, a catchall phrase does not suffice,
and the decision cannot stand.” Cole, 659 F.3d at 771–72.
28 FLORES MOLINA V. GARLAND
application for an immigrant visa. Because we grant Flores
Molina’s first petition (No. 19-73028), upon remand to the
BIA for further proceedings, Flores Molina will no longer be
subject to a final order of removal. Upon remand, Flores
Molina may request that the BIA remand his case to the IJ
so that he may pursue his application for an immigrant visa.
Accordingly, we dismiss his second petition as moot.
* * *
In sum, we grant petition No. 19-73028 and hold that
(1) the record evidence compels the conclusion that Flores
Molina’s past experiences rise to the level of persecution,
(2) the BIA legally erred by failing to consider highly
probative evidence of future harm that Flores Molina may
suffer in its analysis of his asylum, withholding of removal
and CAT claims, and, thus, (3) the BIA’s denials of asylum,
humanitarian asylum, withholding of removal, and CAT
relief are remanded for further consideration. We dismiss as
moot petition No. 20-71774.
Petition 19-73028 GRANTED and REMANDED.
Petition 20-71774 DISMISSED as moot.
KORMAN, District Judge, concurring:
I concur in the majority opinion. I write separately to
address an issue raised by Judge VanDyke’s dissent and left
unresolved in the majority opinion—specifically, the
standard of review that applies to the BIA’s past persecution
decision. The dissent attacks the manner in which this circuit
and the majority opinion apply the substantial evidence
standard provided by the Immigration and Nationality Act
FLORES MOLINA V. GARLAND 29
(“INA”), which requires that “the administrative findings of
fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). The majority opinion opens the door to
such a critique because it vacates the BIA’s past persecution
finding based on reasoning that “the BIA’s determination
that Flores Molina did not suffer past persecution in
Nicaragua is not supported by substantial evidence.”
Majority Opinion at 15. Yet there is no need to apply the
substantial evidence standard to our review of the “BIA[’s]
. . . analysis . . . determining that Flores Molina’s past
experiences did not rise to the level of persecution.” Id. at 15.
In this case, the BIA did not base its past persecution
finding on a rejection of the veracity of Flores Molina’s
description of his past experiences. Rather, the BIA held that
Flores Molina’s “claimed past harm, cumulatively
considered, does not rise to the level of past persecution.”
(Emphasis added). 1 Although we owe deference under the
substantial evidence standard to “the administrative findings
of fact,” 8 U.S.C. § 1252(b)(4)(B), “[w]hether particular acts
constitute persecution for asylum purposes is a legal
question reviewed de novo,” Kaur v. Wilkinson, 986 F.3d
1216, 1221 (9th Cir. 2021) (alterations adopted) (quoting
Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir.
2005)); see also Pitcherskaia v. INS, 118 F.3d 641, 646 (9th
1
Thus, contrary to Judge VanDyke’s suggestion, this is not a case
in which “we don’t know if the agency discounted Molina’s factual
account of his past experiences” in denying his claims. Dissent at 41 n.3.
Whether or not “the agency [will] f[i]nd [that] version of facts fully
persuasive” on remand remains to be seen, id., but it strains credulity to
suggest that it based the decision before us on a different set of facts than
the one put forward by Flores Molina. Not to mention that such a “path
may [not] reasonably be discerned” from the BIA’s opinion. Garland v.
Ming Dai, 141 S. Ct. 1669, 1679 (2021).
30 FLORES MOLINA V. GARLAND
Cir. 1997) (“The meaning of ‘persecution’ . . . is a legal
question reviewed de novo.”); Mendoza-Alvarez v. Holder,
714 F.3d 1161, 1163 (9th Cir. 2013) (similar).
Nevertheless, there are cases that have applied
substantial evidence review to such questions without
substantial discussion or analysis of the issue. See, e.g.,
Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021). But
the substantial evidence standard is not a good fit for
questions, like the one presented in this case, regarding the
application of a legal standard to settled facts. No case
explains how a reviewing court can ascertain whether or how
a reasonable adjudicator could make the determination
prescribed by 8 U.S.C. § 1252(b)(4)(B) without making a
separate determination whether the law was correctly
applied by the agency to the facts it found. On its own terms,
moreover, the substantial evidence standard applies only to
the agency’s “findings of fact,” 8 U.S.C. § 1252(b)(4)(B),
not its application of a legal standard to those facts. Indeed,
the Supreme Court held in an analogous context that “the
statutory phrase ‘questions of law’” in 8 U.S.C.
§ 1252(a)(2)(D), “includes the application of a legal
standard to undisputed or established facts.” Guerrero-
Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020). See also Fon
v. Garland, — F.4th —, No. 20-73166, 2022 WL 1562281,
at *9–12 (9th Cir. May 18, 2022) (Collins, J., concurring)
(providing additional reasons that support applying de novo
review to “the question whether [a] [p]etitioner’s harms rose
to the level of persecution”); id. at *7 (Graber, J., concurring)
(acknowledging that de novo review applies to such
questions where “answering [it] entails primarily legal . . .
work”).
While I agree with the majority opinion that our decision
in this case would be the same regardless of which standard
FLORES MOLINA V. GARLAND 31
applies, Judge VanDyke appears to take a different view. He
contends that the substantial evidence standard requires that
we uphold the BIA’s past persecution decision but
acknowledges that he may have reached a different
conclusion under a de novo standard of review. See Dissent
at 32 (“If I were the BIA-for-a-day . . . I may have been
persuaded that Molina’s hardships amounted to
persecution.”). I agree that, deferring to the BIA’s
construction of the facts, its decision that Flores Molina’s
hardships did not amount to persecution was legally
erroneous. And I would have also concurred in a majority
opinion that would have decided this case on that ground.
VANDYKE, Circuit Judge, dissenting:
We say it often: the review of agency immigration
decisions must be done with an extraordinarily high level of
deference. This deference demands more than mere lip
service to the standard of review and allows us to reverse
agency decisions in only the narrowest of circumstances—if
the record compels a different conclusion. Wang v. Sessions,
861 F.3d 1003, 1007 (9th Cir. 2017). To properly and
faithfully apply this extreme deference, we must search the
record as a whole for evidence that supports the agency’s
decision—and in doing so, resist the temptation to reweigh
evidence or rigidly quantify the qualitative inquiries that the
agency alone is tasked with answering. Our immigration
decisions should recognize (as the Supreme Court recently
reaffirmed in Dai) the wide discretion that Congress has
afforded the agency in weighing how sufficient, credible, or
persuasive it finds each part of the evidence and a
petitioner’s testimony. See Garland v. Dai, 141 S. Ct. 1669,
1680 (2021). Here, because the agency’s decision falls
32 FLORES MOLINA V. GARLAND
within the wide parameters of its discretion and the record
does not compel a different conclusion, we have no
authorization to remand to reach a different outcome (even
one that may be more palatable or equally reasonable).
This is the type of case where the agency certainly could
have granted relief from removal. If I were the BIA-for-a-
day, as our court so often likes to play, I may have been
persuaded that Molina’s hardships amounted to persecution
and found him eligible for asylum. 1 But the close cases are
where our deferential standard of review is most important
and where, unfortunately, this court too often disregards it in
favor of a preferred result. Once again, our court asks and
answers the wrong question—not whether the record or parts
therein could permit a different result—but whether the
record as a whole compels a different result. Reviewing the
agency’s decision in light of its wide discretion and the
extraordinary amount of deference we owe, I cannot
conclude the record here compels a different conclusion. So
I must respectfully dissent.
I. DISCUSSION
Before turning to the specifics of this case, it’s important
to review some fundamental features of immigration law and
our limited role as a reviewing court. To fully appreciate
just how far our court has strayed from the narrow role
Congress prescribed for us, we must first look back—far
1
Judge Korman in his concurrence purports to “agree” with me that,
if we (inappropriately) applied a de novo standard of review, the BIA’s
“decision that Flores Molina’s hardships did not amount to persecution
was legally erroneous.” I nowhere say that. To be clear, and consistent
with my intentional use of the word “may,” I remain studiously agnostic
because I can (and should) under the appropriately deferential standard
of review.
FLORES MOLINA V. GARLAND 33
back—from our court’s wayward precedents to the
deferential standard of review we are supposed to apply.
After limning the various factors affecting the
extraordinarily deferential review that our court should be
giving to agency immigration decisions, I then relate how we
have instead built a remarkably unbalanced edifice of circuit
precedents that enable and mask our frequent unwillingness
to properly defer to the agency—just like in this case.
A. The Extreme Deference Required in Immigration
Cases
In our review of immigration decisions, three
interconnected layers of deference combine to form what
should be one of the most deferential standards of review in
our legal system. First, the scope of our review is tightly
circumscribed by the extraordinarily deferential standard
that Congress has commanded—yielding to the agency’s
determinations unless a different conclusion is compelled.
Second, we apply that extreme deference to the
extraordinarily difficult and often indeterminate factual
inquiries that the agency alone is charged with making. And
third, as the Supreme Court recently reiterated in Dai, the
agency enjoys extraordinary discretion in making the
difficult determinations of how much credibility, weight,
and persuasiveness to afford different parts of the record in
reaching its factual conclusions.
1. Extraordinary Judicial Deference
In the Immigration and Nationality Act (INA), Congress
codified the highly deferential substantial evidence test and
established what should be our court’s guiding star in the
review of immigration decisions: that “administrative
findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
34 FLORES MOLINA V. GARLAND
INA § 242(b)(4)(B) (codified as 8 U.S.C. § 1252(b)(4)(B)
(emphasis added)). Congress later amended the INA by
passing the REAL ID Act, further reining in our role and
discretion as a reviewing court and stripping federal courts
of jurisdiction to hear certain immigration claims. See
Nasrallah v. Barr, 140 S. Ct. 1683, 1698 (2020) (Thomas,
J., dissenting). Over time, however, this court’s decisions
have chipped away at these statutory standards—broadening
the scope and standard of our review far beyond the limited
and deferential posture that Congress unmistakably set out
in the INA. See id.To properly apply our deferential standard of review, we
are supposed to scour the record to answer a single question:
could any reasonable adjudicator have agreed with the
agency’s result, or does the record as a whole compel a
different conclusion? See INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992) (explaining that substantial evidence review
requires that we review “the record considered as a whole”
and reverse the agency only if no reasonable factfinder could
agree with its conclusion); see also Prasad v. INS, 47 F.3d
336, 339 (9th Cir. 1995) (describing Elias-Zacarias as “the
touchstone” and “definitive statement of ‘substantial
evidence’ in the context of . . . factual determinations in
asylum cases”). On its face, this is an exceptionally
deferential standard of review. But there’s more.
2. Inherently Indeterminate Inquiries
Our deferential standard of review becomes even more
significant in light of what our court is tasked with
reviewing: agency answers to inherently imprecise and
difficult factual inquiries. The factual determinations
involved in immigration law are innately indeterminate—
difficult to answer quantitatively or reduce to precise legal
categorization—which underscores the importance of our
FLORES MOLINA V. GARLAND 35
deferential posture and limited role in reviewing agency
decisions.
I illustrate this with just one example, but others abound.
The inquiries at issue in this case—whether Molina’s past
hardships constitute “persecution” under the INA or whether
his fear of future persecution is “well-founded”—are
anything but self-evident and could be answered with a
range of reasonable views (any one of which we must defer
to if selected by the agency). There is no one objective
answer to the questions of whether a petitioner has suffered
real past “persecution,” or if his fear of future persecution is
“well-founded.”
Congress established the relief Molina seeks with the
Refugee Act of 1980, which gives the Attorney General
discretionary authority to grant asylum to an alien who is
unable or unwilling to return to his home 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). Unsurprisingly, courts have struggled to
articulate what constitutes persecution or a well-founded
fear of it, as they are inherently obscurant inquiries left
largely undefined by the INA or its implementing
regulations. See, e.g., INS v. Cardoza-Fonseca, 480 U.S.
421, 448 (1987) (recognizing “[t]here is obviously some
ambiguity in a term like ‘well-founded fear’” left undefined
by the Act); Mikhailevitch v. INS, 146 F.3d 384, 389 (6th
Cir. 1998) (observing that “[t]he Act provides no definition
of ‘persecution’”).
Despite this inherent ambiguity—or perhaps more
accurately, because of this inherent ambiguity (in order to
portray our review of these difficult questions as more
objective or unbiased)—our court has latched onto the
36 FLORES MOLINA V. GARLAND
concept that a 10% possibility of future persecution
constitutes a “well-founded fear” under the statute (when
accompanied by a genuine, subjective fear of future
persecution). See, e.g., Al-Harbi v. INS, 242 F.3d 882, 888
(9th Cir. 2001) (“[E]ven a ten percent chance of persecution
may establish a well-founded fear.”) (citing Cardoza-
Fonseca, 480 U.S. at 431). 2 But there are several problems
with this artificial threshold.
The first is that slapping a percentage threshold on an
inherently indeterminate question does not somehow
magically make it more determinate, because deciding
whether or not someone has a higher than 10% possibility of
persecution still remains an entirely qualitative inquiry. By
pretending to resolve these questions with numerical
exactitude, we are merely masking the nonquantifiable
nature of the inquiry. It is a barely disguised rhetorical ploy,
and nothing more.
Even putting that aside, our 10% test is itself a
misreading of Supreme Court precedent. It doesn’t come
from the statutory text or any implementing regulation, but
from a theoretical scenario from a law journal that the
Supreme Court cited in Cardoza Fonseca. It was an
academic thought-experiment for considering when a
petitioner may have a well-founded fear of future
persecution, even when the mathematical possibility of
persecution was less than 50%. See Cardoza-Fonseca,
480 U.S. at 448.
2
Because the majority concludes that Molina’s past hardships
amount to past persecution, it relies primarily on the rebuttable
presumption that arises in favor of a well-founded fear of future
persecution without directly examining whether Molina satisfied this
10% threshold. But the example illustrates my point nonetheless.
FLORES MOLINA V. GARLAND 37
The Supreme Court found that for a fear to be “well-
founded” in support of asylum eligibility there had to be a
“reasonable possibility” of future persecution—which it
decided (after looking at the statute’s structure, its legislative
history, and international law) was something less than the
more-likely-than-not standard used in withholding
proceedings. Cardoza-Fonseca, 480 U.S. at 427–49. The
Court stopped short of filling the statutory gap and declined
to dictate a specific percentage of persecution-possibility
that would be reasonable and therefore sufficient to establish
a well-founded fear—instead leaving it for the agency to fill
on a case-by-case basis. See id. at 448. But the Court did
offer an example, a hypothetical plucked from a law journal
article (published years before Congress passed the statutory
language at issue), to illustrate that, if a petitioner’s country
of origin was executing one out of every ten adult males, the
petitioner could still show a well-founded fear of future
persecution even though the mathematical possibility of
persecution did not meet the greater than 50% standard used
in withholding proceedings. Cardoza-Fonseca, 480 U.S.
at 431 (quoting 1A Grahl-Madsen, The Status of Refugees
in International Law). Latching onto the Court’s academic
musings in Cardoza-Fonseca, our court wasted no time
stepping over the agency to fill in the statutory gap with a
new categorical rule—just as Justice Scalia had feared—
thereby (again) expanding both asylum eligibility and our
role beyond that authorized by Congress. See id. at 453(Scalia, J., concurring); Blanco-Comarribas v. INS, 830 F.2d
1039, 1042 (9th Cir. 1987) (citing Cardoza-Fonesca for the
10% test); Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001)
(same).
Our reliance on this fictitious rule is problematic first and
foremost because it finds no basis or support in the statute
we are supposedly applying—and therefore expands the
38 FLORES MOLINA V. GARLAND
class of petitioners eligible for asylum beyond what
Congress authorized. The 10% standard is also problematic
because it essentially lowers the bar that petitioners must
surpass to establish eligibility for asylum—which, in turn,
effectively widens this court’s discretion. Today, under our
errant rule, we no longer ask whether the agency has
considered what the statute commands (i.e., if the
petitioner’s fear of persecution is well-founded), or what the
Supreme Court actually ruled in Cardoza-Fonseca (i.e., if
the petitioner faces a “reasonable possibility” of
persecution). 8 U.S.C. § 1101(a)(42)(A) (emphasis added);
Cardoza-Fonseca, 480 U.S. at 440 (emphasis added).
Instead, we ask if there is even a marginal, 10% chance that
the petitioner may face persecution.
Our reliance on these judge-made rules that purport to
quantify the unquantifiable questions in immigration law is
particularly problematic because it obfuscates what is
actually happening: the substitution of our own discretion in
place of the marked deference we owe the agency.
Immigration cases are both complicated and indeterminate.
But our court cannot resist the urge to gloss over these
complexities with a quantitative sheen that gives the
appearance of a mere technical application of the law when,
in reality, this faux quantification only aggrandizes our
discretion at the expense of the agency’s. We cannot and
should not ignore the fundamental complexities of
immigration inquiries—which produce a far wider range of
“reasonable” views to which we owe more deference than
our precedents suggest. But that’s still not all.
3. Extraordinary Agency Discretion
Lastly, it is not only how we are to review agency
decisions (with a very limited scope and deferential posture)
or what we are reviewing (answers to inherently
FLORES MOLINA V. GARLAND 39
indeterminate questions) that undergird the super-deference
Congress has commanded we apply. The Supreme Court
also recently, and unanimously, reemphasized that
Immigration Judges and the BIA enjoy wide discretion in
how they arrive at, and articulate, the conclusion and
supporting grounds that we review. See Dai, 141 S. Ct.
at 1677–81.
Before being reversed in Dai, our court followed a self-
made rule that severely limited the agency’s discretion in
answering the indeterminate inquiries presented in
immigration applications. See id. Our court, in its “deemed-
true-or-credible-rule,” decided that any agency decision
issued without an explicit adverse credibility determination
must mean that the agency not only found the petitioner’s
testimony 100% credible but also gave it 100% weight and
found it 100% persuasive. In other words, whatever the
agency decided on credibility, so too (we assumed) went the
determinations on weight and persuasiveness. This
presumption essentially narrowed the agency’s wide
discretion to two options: either find the petitioner explicitly
noncredible and reject 100% of his testimony, or our court
would assume the agency accepted 100% of the petitioner’s
testimony as true. See id.
In Dai, the Supreme Court stated the obvious: that our
judge-made rule was wholly irreconcilable with the INA and
had “no proper place in a reviewing court’s analysis.” Id. at
1677. Dai emphasized that in answering the indeterminate
and ambiguous inquiries described above, the agency does
so with an extraordinary amount of discretion as to how
credible, weighty, and persuasive it finds different parts of
the record. Id. at 1680–81. In other words, how much
weight and persuasive value the agency affords various parts
of the record is done on a dial with a range of reasonable
40 FLORES MOLINA V. GARLAND
allocations; it does not always follow or correlate to the
on/off switch of credibility as our pre-Dai regime wrongly
assumed.
The agency is afforded this wide discretion not only
because of the nature of inquiries being assessed but also
because of the practical realities at play in immigration
cases. A petitioner’s testimony about what happened in a
foreign country is often practically impossible to verify, and
petitioners are usually strongly motivated to avoid
deportation, which predictably often results in the
embellishment of their own past hardships and other
testimony. Separating the wheat from the chaff under these
conditions is more of an art than a science, which is just one
reason why an Immigration Judge may ultimately conclude
that an alien is generally credible, but still not give full
weight to his testimony. These fact-heavy determinations
are complex and murky and present precisely the kind of
questions that Congress has entrusted the agency alone to
answer.
And as Dai illustrated, we are supposed to consider the
record as a whole, and diligently search for grounds to affirm
the agency’s determination. We are bound to uphold agency
decisions, even those of “less than ideal clarity if the
agency’s path may be reasonably discerned.” Zamorano v.
Garland, 2 F.4th 1213, 1222 (9th Cir. 2021) (quoting Dai,
141 S. Ct. at 1679). The overworked agency is not required
to show every step of its work, or “follow a particular
formula or incant ‘magic words’” in exercising its discretion.
It is not required to disclose exactly what parts of the record
it found persuasive or quantify how much of the petitioner’s
testimony may have been discounted or even why. See id.
Indeed, Dai makes clear that the agency may exercise its
wide discretion in making these determinations implicitly,
FLORES MOLINA V. GARLAND 41
and we must consider this possibility in searching through
the record for support of the agency’s decision. See Dai,
141 S. Ct. at 1680–81. 3
3
Recognizing the difficulty in justifying the majority’s decision
under substantial evidence review, Judge Korman’s separate
concurrence proposes a solution both simple and elegant: just don’t
defer. The concurrence acknowledges a divide within our circuit (and
amongst the circuits) as to what standard of review should apply when
determining whether certain facts constitute persecution, and expresses
a preference for characterizing them as legal questions that we review de
novo. Judge Korman argues for de novo review because “the BIA did
not base its past persecution finding on a rejection of the veracity of
Flores Molina’s description of his past experiences [i.e., an explicit
adverse credibility determination]. Rather, the BIA held that Flores
Molina’s ‘claimed past harm, cumulatively considered, does not rise to
the level of past persecution.’” But Judge Korman seems to have missed
the Supreme Court’s clear message in Dai. As explained above, Dai
unmistakably directed that when reviewing agency decisions, even if no
adverse credibility determination was explicitly made, we must account
for the possibility that the agency did not give every factual assertion
made by the petitioner full weight or persuasive value. Converting every
question of what facts constitute persecution into a legal one that we
review de novo does not allow for this possibility because it wrongly
assumes the agency found a petitioner’s version of facts fully persuasive.
Here, as in other cases where the agency did not explicitly reject the
veracity of a petitioner’s testimony, we don’t know if the agency
discounted Molina’s factual account of his past experiences. De novo
review, as Judge Korman would prefer, cannot account for this
possibility. Nor can Judge Korman avoid Dai by attempting to constrain
its implications to only those cases that present a wholly “different set of
facts than the one put forward by” the petitioner. The Supreme Court in
Dai repeatedly chastised our court for failing to consider whether the
agency had implicitly determined that some of the evidence in that case
was “outweighed” by other facts in the record. Dai, 141 S. Ct. at 1681.
Dai thus requires us to consider whether the agency may have implicitly
given reduced weight to some of the facts in the record vis-à-vis others,
and if so, defer to the agency’s conclusion. There is no way to do that
under Judge Korman’s de novo approach—it is, in fact, just our old,
42 FLORES MOLINA V. GARLAND
B. Our Court’s Replacement of Extraordinary
Deference with an Imposing Edifice of Lopsided
Immigration Precedents
The three nested tiers of deference just discussed
reinforce one another when we properly apply the substantial
evidence test and ask only if the record compels a contrary
conclusion. Viewed synergistically, (1) our extraordinarily
deferential standard of review, carried out with (2) a
recognition that we are reviewing inherently indeterminate
and fact-intensive questions, in light of (3) the wide range of
discretion Congress has given the agency in answering these
difficult inquiries, should combine to present one of the most
deferential standards of review we apply as judges.
But not in the Ninth Circuit. Our failure to defer begets
more (and worsening) failures to defer, as our court keeps
relying on its own distorted immigration precedent to justify
a downward spiral. Every once in a while, the Supreme
Court corrects us in a decision like Dai, where anyone with
any common sense (including the unanimous Supreme
Court) wonders how we could have strayed so far afield from
our statutory mandate. But like a meandering elephant being
smacked with a flyswatter, our court lumbers on. Unaffected
by the occasional reversal, our ever-growing pile of
perfidious immigration precedents make it harder and harder
for judges to properly defer to the agency without seemingly
conflicting with some precedent (while still following other
discredited “deemed-credible-or-true” approach under a different guise.
As my dissent explains, reviewing agency determinations as to what
facts constitute persecution for substantial evidence is the only practical
way of effectuating the Supreme Court’s instructions in Dai and not
substituting judges’ own weighing of the factual record for the agency’s.
FLORES MOLINA V. GARLAND 43
precedent—more on that below). The mechanics of how this
works merits further elaboration.
Despite the importance of this highly deferential and
narrow scope of review to which Congress has anchored us,
our court simply cannot resist the sirens of sympathy. So we
frequently set our discretion free from the constraints of this
hyper-deferential regime and reverse the agency in favor of
a more palatable result. Each time a panel breaks free from
the INA’s anchor of deference, it publishes a precedential
decision that elevates its own discretion over the agency’s.
The first panel to do so erected a buoy of caselaw that is only
a stone’s throw away from the statutory anchor that should
have tied the panel to the agency’s decision and commanded
deference. But the next panel, drawn again to the sirens of
sympathy or the lure of its own discretion, no longer starts
from the original anchor of deference that Congress set. It
instead starts from the bobbing buoy of our last wayward
precedent. The process is foreseeable and plays out once
again in this case—the majority latches onto a handful of
similar facts from previous panel decisions that overruled the
agency, and now erects its own new buoy of precedent, just
a little further out to sea for the next sympathetic panel to
analogize to (and stray further from). Eventually we are
surrounded by precedential buoys that make any decision to
reverse the agency appear like just routine reliance on
precedent, even if it means the INA’s statutory anchor of
deference is by this point far out of sight.
Unmoored from the extremely deferential standard of
review Congress has tied us to, we are now essentially lost
at sea in our review of agency immigration decisions and
tend to grab onto the nearest buoys of friendly caselaw
closest to our facts (irrespective of whether the prior
precedent was properly deferential). This is not how our
44 FLORES MOLINA V. GARLAND
“extremely” deferential standard of review should work. We
should remain anchored to the standard of review Congress
has dictated, and under that deferential regime I cannot say
the record compels a different result with respect to Molina’s
claims here. Instead of respecting our deferential role and
looking for ways to affirm agency decisions, our court has
covered over the statutory standard of review with a
common-law edifice of our own precedent that continues to
obfuscate what proper application of the INA’s substantial
evidence review should look like.
This case follows and perpetuates the trend I’ve
described. The majority recounts the standard of review, but
then purports to follow it by cherry-picking immigration
cases that justify its interpretation and preferred weight of
the evidence (i.e., that Molina’s past harms amount to
persecution). The mostly unspoken reality—because our
court maintains a large immigration docket and sometimes
applies the deferential standard but often does not—is that
for the facts of almost any immigration case there is usually
somewhat “analogous” precedent that supports both denying
and granting the petition. Justice Scalia’s oft-cited concerns
with respect to the indeterminate use of legislative history
aptly apply in this context—that our huge court’s
inconsistent application of the deferential standard of review
has resulted in immigration precedent that offers a little
“something for everybody.” ANTONIN SCALIA, A MATTER
OF INTERPRETATION 36 (1997). Given that reality, judges
can point to our precedent as justification for either result.
The majority here analogizes to precedent that it argues
shows the agency erred. But as I demonstrate below, our
court’s precedents (including those cited by the BIA) can be
just as easily applied to support the agency’s decision. Of
course, in this situation—and in light of our extremely
FLORES MOLINA V. GARLAND 45
deferential standard of review—a tie should go to the
agency. But it often doesn’t in our court.
One problem exacerbating this troubling trend is that
decisions from our court that properly defer to the agency
are usually resolved in unpublished dispositions with no
precedential value. See, e.g., Islam v. Sessions, 743 Fed.
App’x 734, 736 (9th Cir. 2018) (finding, in an unpublished
disposition, that the petitioner’s past harm, including a
beating and threats similar to what Molina suffered, “d[id]
not evince actions so severe as to compel a finding of past
persecution,” and that the petitioner failed to establish a
well-founded fear of future persecution because he failed to
show a “reasonable possibility” of persecution) (citing
Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003)). By
contrast, decisions granting the petition by extending prior
precedents are typically published. So even if one was
inclined to engage in this inappropriate game of picking
friendly precedents from a crowded and diverse room, the
game is rigged and lopsided against proper deference. 4
Looking to our circuit’s enormous, slanted edifice of
deviant immigration precedents perpetuates our court’s
regretful trend of granting ourselves massive discretion
instead of granting massive deference to the agency. The
4
It shouldn’t matter much for purposes of precedent whether a
circuit decision ruling on behalf of the BIA is published or not. The
proper question is whether this record compels a result different than the
agency’s. And if in a similar case the panel concluded that the record
did not compel a different result, that conclusion—whether published or
not—is a strong indication that this record also does not compel
otherwise. The very fact that two or more judges previously reached that
conclusion in a comparable case is powerful evidence that the REAL ID
Act’s high standard hasn’t been met, whether or not the previous
decision is technically binding on subsequent panels.
46 FLORES MOLINA V. GARLAND
remnants of our overturned Dai decision, and other clearly
wrong and manufactured rules that we have etched into this
edifice, echo throughout our caselaw, blatantly favoring
immigration relief and disguising our disdain for the
properly deferential role that Congress prescribed because
we can always say we are just following (or slightly
extending) precedent. We cite the obligatory deferential
language at the beginning of each new recalcitrant opinion,
masquerading as if we’re being deferential even though
we’re not. Deference to our own precedents? I suppose. But
not to the agency’s discretion that Congress has authorized
it to exercise and commanded that we defer to.
Unfortunately, this case will no doubt be another layer in our
leaning tower of precedents, encouraging further future
deviation from our properly deferential role.
II. ANALYSIS
A. Proper Deference in This Case
In this case, proper deference requires the panel to resist
reweighing the evidence (i.e., giving greater weight to
Molina’s claimed past harms in order to find they amount to
past persecution) and resist cherry-picking precedent to
justify a conclusion that, even if reasonable, is not compelled
by the record. Because, in applying the three-nested tiers of
deference described above, I cannot say the record before us
compels a contrary conclusion, I would affirm the agency’s
decision to dismiss Molina’s asylum claim.
The agency’s decision to deny Molina’s asylum claim
centered on his failure to demonstrate past persecution.
Navas v. INS, 217 F.3d 646, 655–56 (9th Cir. 2000) (“In
order to establish eligibility for asylum on the basis of past
persecution, an applicant must show: (1) an incident, or
incidents, that rise to the level of persecution; (2) that is on
FLORES MOLINA V. GARLAND 47
account of one of the statutorily-protected grounds; and
(3) is committed by the government or forces the
government is either unable or unwilling to control.”)
(quotation marks omitted).
The difficulty of reviewing agency determinations on
credibility, weight, and persuasiveness—and the
consequences of not properly deferring to those
determinations—is well-illustrated here. There is no
formula for how much weight or persuasive value to give
Molina’s testimony that six hooded assailants threatened his
life after giving him a bruised lip, and no formula for how
much to discount his fear of future persecution in light of the
evidence that conditions in Nicaragua seemed to be
improving when the agency considered this case. In
accordance with Dai, we must recognize that the absence of
an adverse credibility determination does not mean that the
agency also gave full weight and persuasive value to
Molina’s testimony. The majority’s decision does not
recognize or allow for this possibility, and instead implicitly
assumes that because Molina’s testimony was found to be
consistent, the agency must have also accorded full weight
and persuasive value to his testimony on past harms.
1. The Record Doesn’t Compel that Molina’s Past
Harms Evince Past Persecution.
Persecution is “an extreme concept that does not include
every sort of treatment our society regards as offensive.”
Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
2019) (quoting Nagoulko v. INS, 333 F.3d 1012, 1016 (9th
Cir. 2003)). Whether harm rises to the level of persecution
necessarily requires weighing the evidence—a task only the
agency is authorized to complete. Similarly, whether threats
like the kind Molina received rise to the level of persecution
(considering how direct, severe, repeated, etc.) is also a core
48 FLORES MOLINA V. GARLAND
function of the agency because it requires weighing the
evidence. 5
In the agency’s shoes, I may have allocated more weight
to the harm Molina experienced and found that he suffered
past persecution, or a well-founded fear of future
persecution. But the evidence does not allow for only that
view, as the majority claims. These fact-bound inquiries
involve judgment calls that only the agency can make and
we cannot reweigh the evidence as my colleagues in the
majority have implicitly done here. See Guo v. Sessions,
897 F.3d 1208, 1212 (9th Cir. 2018); see also Leon-
Hernandez v. INS, 926 F.2d 902, 904 (9th Cir. 1991).
a. The Majority’s Discretion Trumps Proper
Deference
The majority identifies three bases for its conclusion that
Molina’s past experiences amount to persecution: (1) he was
forced to flee; (2) he received death threats; and
(3) cumulatively, the effect of those incidents amount to
persecution. With respect to the first two bases, as is often
true, we have caselaw pointing in both directions, making
the majority’s conclusion possible but not compelled since
there are also circuit precedents evincing that threats
combined with a minor assault are not enough to compel a
finding of persecution. As to the third basis of the majority’s
decision, the agency explicitly conducted a cumulative
5
Sharma v. Garland, 9 F.4th 1052, 1061 (9th Cir. 2021)
(“Determining whether the facts compel a conclusion of past persecution
is ultimately a fact-bound endeavor that is not reducible to a set formula.
. . . Under our cases, [relevant facts] must be evaluated in combination
with each other to form a sufficiently negative portrait of the petitioner’s
experience in his or her own country that not only allows a finding of
past persecution but requires it.”).
FLORES MOLINA V. GARLAND 49
review of the evidence, which requires our deference even if
the majority disagrees with the result of that cumulative
analysis.
i. Forced to Flee
As the majority correctly notes, our court has recognized
that under certain circumstances “being forced to flee from
one’s home in the face of an immediate threat of severe
physical violence or death” can constitute persecution.
Mendoza-Pablo v. Holder, 667 F.3d 1308, 1314 (9th Cir.
2012). But the circumstances in which our court has found
that fleeing evidenced persecution were much more severe
than those faced by Molina. For example, in Mendoza-
Pablo, the petitioner’s village was burned to the ground and
its inhabitants massacred, including his immediate family
members who were locked in their homes and burned
alive—forcing his mother to flee to the mountains with him
while eight-months pregnant. Id. at 1311–13. And in
Knezevic, our court emphasized the “ethnic cleansing” that
forced petitioner to flee after his home and business were
destroyed while his hometown was shelled and bombarded
by hostile forces. Knezevic v. Ashcroft, 367 F.3d 1206,
1208–12 (9th Cir. 2004). Mendoza-Pablo and Knezevic do
not stand for the proposition that fleeing always, or even
usually, constitutes persecution, and those cases cannot be
read isolated from their extreme facts, which differ markedly
from Molina’s decision to relocate.
Molina chose to relocate after a threat was spray painted
on his house, and later after paramilitary members came
looking for him. But our precedent sets a higher bar for
persecution, including in the cases cited by the majority on
fleeing one’s home. The petitioners in Mendoza-Pablo and
Knezevic fled their homes, because, unlike Molina, their
homes were completely destroyed. At the end of the day,
50 FLORES MOLINA V. GARLAND
fleeing is one of many factors the agency considered, and
viewed in light of the record as a whole, one reasonable
conclusion (which the agency drew) is that Molina did not
suffer persecution even though he relocated after receiving
threats. The cases cited by the majority do not compel
otherwise.
ii. Death Threats
Just as with being forced to flee, our court has also
recognized that death threats can constitute persecution in a
“small category of cases,” but only “where threats are
repeated, specific and combined with confrontation or other
mistreatment.” Duran-Rodriguez, 918 F.3d at 1028 (citation
and quotation marks omitted) (determining that receiving
death threats from armed men and fleeing to another town
was not sufficient to compel a conclusion of past
persecution); Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000)
(holding that threats standing alone rarely constitute past
persecution and “only when the threats are so menacing as
to cause significant actual ‘suffering or harm’”) (citations
omitted).
Here, the record could be weighed, as the agency did, to
find that Molina’s threats fall outside the small category of
cases where threats constitute persecution, because the
threats were not repeated, specific, or severe enough. Other
than one instance, Molina’s threats were mostly indirect and
detached from physical harm. 6
6
While Molina was identified along with other protestors in social
media posts as a violence instigator, called despicable things like a “rabid
dog,” and told that “Chipote awaits,” those posts did not contain an
explicit death threat and were not sent to him directly. Molina did
receive a direct threat when “Bullets to the strikers (protesters)” was
FLORES MOLINA V. GARLAND 51
It is true that our court has pushed the boundary further
and further away from the core of “extreme” harm and
suffering. But even under our expansive caselaw, the
severity and frequency of Molina’s past harm does not
compel a conclusion different than the agency’s. See, e.g.,
Mashiri v. Ashcroft, 383 F.3d 1112, 1119–20 (9th Cir. 2004)
(petitioner and his family were plagued with death threats
and physical assaults for months, accompanied by slashed
tires and a ransacked home); Ruano v. Ashcroft, 301 F.3d
1155, 1160–61 (9th Cir. 2002) (petitioner received dozens of
death threats over the course of six years, was chased by
armed men on multiple occasions, and frequently followed
to his home and work); Navas v. INS, 217 F.3d 646, 658 (9th
Cir. 2000) (petitioner was threatened with death after two
members of his family were murdered, shot at by the same
perpetrators, and his mother beaten); Smolniakova v.
Gonzales, 422 F.3d 1037, 1041–42 (9th Cir. 2005)
(petitioner was attacked and almost strangled to death by
assailants who called her a “Jewish Bitch,” had her wrist
slashed, and received multiple death threats and anti-Semitic
harassment that the police refused to stop, including
profanities and human feces smeared on her apartment, fires
set in her mailbox, and repeated slashings of her front door).
So even under our oft-wayward precedents, whether
Molina’s threats and singular assault amount to persecution
may be a close call, but it is not compelled by the record or
our caselaw.
The majority distinguishes the cases relied on by the
BIA, claiming they are “not on-point” with the harm Molina
suffered. But the petitioner in Lim (though he was not
spray painted on his house. But—and without minimizing the gravity of
the spray-painted threat—it only occurred once and was not
accompanied by any physical harm.
52 FLORES MOLINA V. GARLAND
physically attacked) had colleagues murdered by the
dissident political group he infiltrated undercover, appeared
on their death list, and suffered two years of death threats
that prompted him to hire a personal bodyguard—a much
longer period of harm and much more direct threats than
Molina experienced. Lim, 224 F.3d at 932–35. Similarly,
the petitioner in Gu (though he did not receive an explicit
death threat) suffered more severe physical harm than
Molina’s lost tooth and bruised lip—he was struck ten times
with a rod when he was detained by the police. Gu v.
Gonzales, 454 F.3d 1014, 1020 (9th Cir. 2006). Yet our
court agreed that a finding of persecution was not compelled
in either case. Just as with the precedents relied on by the
majority, Lim and Gu are no doubt distinguishable in some
ways, but they illustrate how our court has affirmed findings
of no persecution despite more severe harm or threats than
Molina encountered, just as the BIA did here. Again, none
of the cases the majority cites compel a finding of
persecution, and Lim and Gu are more than enough to
support the BIA’s conclusion.
iii. Cumulative Effect
Finally, the majority argues that even if none of Molina’s
past incidents rise to the level of persecution, a finding of
persecution should be compelled given the “cumulative
effect” and “escalating fashion” of his harms. Overturning
an agency decision based on “cumulative effect” reasoning
is always particularly undeferential, because whether or not
disparate and independently insufficient harms cobbled
together somehow suffice to meet an already ambiguous
standard is really nothing more than the application of a “we
know it when we see it” standard—reminiscent of Justice
Stewart’s infamous search for the bounds of obscenity. See
Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J.,
FLORES MOLINA V. GARLAND 53
concurring). The only circumstance in which I could
imagine a court remanding an immigration case on
“cumulative effect” without abandoning its deferential role
would be if the agency obviously and completely failed to
consider cumulative effects altogether. But here, the agency
explicitly recounted and “cumulatively considered”
Molina’s past harms. And while the escalating nature of his
harms could support a finding of persecution, I do not see
how it compels a finding of persecution—and the majority
cites no case to show otherwise.
The most factually similar precedent to this case is
Hoxha v. Ashcroft, which was cited by the BIA in support of
its determination that Molina’s past harm, even cumulatively
considered, did not constitute past persecution. 319 F.3d
1179 (9th Cir. 2003). Hoxha, an ethnic Albanian from
Kosovo, received multiple threats since his early childhood
“that he would be harmed or killed if he chose to stay [in
Kosovo],” and he was beaten on one occasion when a group
of Serbs overheard he and a friend speaking Albanian.
Hoxha, 319 F.3d at 1180–81. Hoxha suffered two broken
ribs and extensive facial bruises from the beating. Id.
at 1181. This court acknowledged that “[a]lthough Hoxha’s
experiences are disturbing and regrettable, they do not
evince actions so severe as to compel a finding of past
persecution,” and concluded that substantial evidence
supported the BIA’s finding of no past persecution. Id.
at 1182. While there are some immaterial factual differences
between Hoxha and this case (as no two immigration cases
are the same), it is instructive here that evidence of multiple
54 FLORES MOLINA V. GARLAND
threats, together with a severe beating, did not compel a
conclusion that past persecution occurred in Hoxha. 7
The majority’s contention that the agency did not
conduct a cumulative analysis is, at bottom, a disagreement
with the result of the agency’s cumulative consideration of
Molina’s past harms. Could the agency have concluded that
Molina’s past harm cumulatively amounted to persecution?
Sure. And the majority does an excellent job of outlining
how our precedent could justify such a conclusion. But
neither the record, nor even our precedent, compels a finding
of past persecution.
The majority places a heavy emphasis on the escalating
nature of Molina’s harassment. But the reality, which after
Dai we must account for, is that the agency presumably
placed less weight on that consideration, and in reviewing
the agency’s decision we must consider the range of
permissible weight-allocations to see if any reasonable
adjudicator could find as the agency did. As the majority
recognizes, determining whether the facts compel a
conclusion of past persecution is ultimately “a fact-bound
endeavor that is not reducible to a set formula.” Because
7
One difference between Hoxha and the present case is that in
Hoxha an active summons had been issued for the petitioner to report to
the Serbian government and the country conditions evidence indicated
“grisly documentation of numerous atrocities committed against ethnic
Albanians” like Hoxha, that were not improving. Hoxha, 319 F.3d
at 1181–84. Those facts led the court to conclude that Hoxha had a well-
founded fear of future persecution. See id. Here, no summons has been
issued for Molina and the record is devoid of any other evidence
indicating that the government or government-aligned groups have an
active, ongoing interest in harming him. In the present case, the country
conditions evidence before the agency indicated that conditions for
political protestors in Nicaragua were improving.
FLORES MOLINA V. GARLAND 55
here the formula used by the agency in weighing the
evidence finds support in the record, I must defer to it.
b. How Proper Deference Should Work in This
Case
Mimicking the majority, I could hop from buoy to buoy
plucking different cases that support the agency’s decision,
given that there are many decisions that illustrate neither
death threats nor a single instance of physical harm, nor even
a combination of the two, compel a finding of persecution. 8
Indeed, the instances that our court has recognized as rising
to the extreme level of past persecution generally far surpass
8
See, e.g., Fuyong Cui v. Barr, 806 Fed. App’x 588, 590 (9th Cir.
2020) (petitioner failed to demonstrate past persecution even though he
was arrested while participating in a protest, detained, kicked, punched
in his face causing a tooth to fall out, and, after a subsequent protest, was
hit several times with a baton and shocked with an electric baton); Saenz
Martinez v. Barr, 818 Fed. App’x 767, 767–68 (9th Cir. 2020) (single
beating at the hands of Sandinista supporters, which did not require
medical treatment, and five or six unfulfilled threats did not rise to the
level of persecution); Wakkary v. Holder, 558 F.3d 1049, 1059–60 (9th
Cir. 2009) (petitioner’s past experiences, including two beatings, even
considered cumulatively, did not compel a finding of past persecution);
Gu, 454 F.3d at 1021–22 (a three-day detention, two hour interrogation,
and beating with a rod did not compel a conclusion of past persecution);
Hoxha, 319 F.3d at 1182 (harassment, threats, and “one incident of
physical violence” did not compel a finding of past persecution); Prasad,
47 F.3d at 339–40 (arrest, interrogation, beating, and other forms of
harassment including rocks thrown at his house and attempts to steal his
property were not enough to compel a finding of past persecution); see
also Samad v. Whitaker, 759 Fed. App’x 634, 636 (9th Cir. 2019) (threats
and beating did not rise to the level of persecution); Argieta-Chavarria
v. Barr, 780 Fed. App’x 519, 520 (9th Cir. 2019) (single beating and
subsequent harassment and threats did not rise to the level of
persecution); Dong v. Barr, 830 Fed. App’x 239, 239–40 (9th Cir. 2020)
(arrest, interrogation, beating, and 48-hour detention did not rise to the
level of persecution).
56 FLORES MOLINA V. GARLAND
what Molina experienced in Nicaragua. 9 But as already
explained, that is not the proper application of substantial
evidence review.
This case is a snapshot of how difficult it is to properly
defer under our court’s immigration precedent because we
have strayed so far from our limited role—gaining
confidence, even expertise, at second-guessing the agency
and reweighing the evidence—which is what the majority
reflexively does here. In short, the majority’s three bases in
support of its decision are simply three bases that could
support a finding of past persecution under a different
weighing of the evidence and emphasis on caselaw. But
none of the bases for the majority’s decision compels that
conclusion in the face of the agency’s authoritative decision
otherwise.
When analogous precedent goes both ways on an issue
(as it frequently does in our circuit’s immigration caselaw,
and does here on the scope of harms that constitute
persecution), deference should dictate our decision and we
9
See Parada v. Sessions, 902 F.3d 901, 909–10 (9th Cir. 2018)
(petitioner’s brother was assassinated, his neighbor murdered, and he
was captured and beaten to the point of unconsciousness, repeatedly
subjected to forced home invasions, and specific death threats toward his
family—which collectively rose to the level of persecution); Bondarenko
v. Holder, 733 F.3d 899, 908–09 (9th Cir. 2013) (three detentions and
one severe beating constituted past persecution); Guo v. Ashcroft,
361 F.3d 1194, 1197–98 (9th Cir. 2004) (multiple arrests, detentions
(including one for fifteen days), beatings, and inability to find work after
being fired rose to the level of persecution); Guo, 897 F.3d at 1215
(beating which left petitioner unable to stand on his own and required
medical attention, coupled with being unable to practice his faith
constituted persecution). Accordingly, while Molina’s “experiences are
disturbing and regrettable, they do not evince actions so severe as to
compel a finding of past persecution.” Hoxha, 319 F.3d at 1182.
FLORES MOLINA V. GARLAND 57
should rely on precedent that supports the agency’s decision.
Just as Justice Scalia warned with respect to legislative
history, we should avoid the temptation to just “look over the
heads of the crowd and pick out your friends.” ANTONIN
SCALIA, A MATTER OF INTERPRETATION 36 (1997) (quoting
Judge Leventhal). Unless we are guided by some North Star,
our precedents will often support whatever conclusion we
want. That guidance—the tie-breaker between conflicting
precedents—is deference to the agency.
The majority cannot point to a single precedent that
would require any reasonable adjudicator to find that Molina
suffered persecution. Given the short duration of his harm,
the singular (and relatively minor) physical encounter, vague
threats, and evidence before the agency of improving
country conditions—a reasonable adjudicator could have
weighed the record as a whole to find that Molina suffered
harassment, but not persecution, which we reserve for
“extreme” suffering or harm. See Donchev v. Mukasey,
553 F.3d 1206, 1213 (9th Cir. 2009). “The possibility of
drawing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s finding from
being supported by substantial evidence.” Leon-Hernandez,
926 F.2d at 904 (citation omitted). The agency’s conclusion
may not be the result I would have reached or prefer, but
again, that’s not the question before us. Applying the very
deferential standard of review we should be anchored to, the
record does not compel the conclusion that various indirect
threats, combined with a single physical attack resulting in
minor injuries, constitutes past persecution. See Hoxha,
319 F.3d at 1181–82.
58 FLORES MOLINA V. GARLAND
2. The Record Doesn’t Compel that Molina’s Fear
of Future Persecution is Well-Founded.
Because the record as a whole does not compel a finding
of past persecution, Molina is not entitled to the presumption
of future persecution that the majority awards him. Davila
v. Barr, 968 F.3d 1136, 1141–42 (9th Cir. 2020). That
means Molina was required to demonstrate to the agency a
well-founded fear of future persecution. As already
discussed, what constitutes persecution or a well-founded
fear of it is an inherently ambiguous concept—underscoring
the importance of deferring to the agency’s determination on
those issues.
The majority claims that the BIA “selectively” cited
portions of the record and “ignored” other evidence of the
country conditions in Nicaragua that would have supported
Molina’s fear of future persecution. The majority’s position
is a classic demonstration of what I’ve outlined above—
looking for ways to reverse the agency’s decision instead of
looking for ways to uphold it.
Several reports on the conditions in Nicaragua were
offered to the agency, most from 2018, and some more
recent reports from 2019. The agency emphasized the more
recent reports that indicated conditions in Nicaragua were
improving—political prisoners were being released, and the
government had announced its intention to release “all
remaining political prisoners.” Whether correct or not, the
agency reasonably concluded based on the evidence in front
of it at the time that the political tide was turning in
Nicaragua, and given that “upwards of a million people”
participated in the protests but only a small fraction were
pursued by the government, Molina’s fear of future
persecution was too speculative to be well-founded.
FLORES MOLINA V. GARLAND 59
The majority claims that because the earlier reports,
which detailed the human rights abuses in Nicaragua during
2018, were not explicitly mentioned in the agency’s
decision, they were ignored—justifying reversal. But it is
the majority that ignores parts of the BIA’s decision in its
quest to overturn it. The agency’s actual analysis expressly
said it reviewed the entire record and explicitly
acknowledged that “human rights abuses occur in
Nicaragua.” It gleaned this fact from the parts of the record
the majority says the agency ignored. The agency didn’t
ignore any part of the record; it simply emphasized and gave
more weight to the more recent accounts that showed
conditions were improving, precisely what the agency is
permitted to do. Additionally, much of the country
conditions evidence that the majority claims was not
considered by the agency was largely focused on the
treatment of detainees in prison—not political protestors
such as Molina. The majority once again misconstrues the
agency’s obligations. It is not obligated to spell out every
piece of evidence it relies on or rejects, nor is it required to
explicitly state how much weight it gives various pieces of
the record or “incant ‘magic words’” in the exercise of its
discretion. Zamorano, 2 F.4th at 1222 (quoting Dai, 141 S.
Ct. at 1679).
III. CONCLUSION
Ultimately, my view of Molina’s past harms is not far
from that of my colleagues—as I noted above, the facts
present a close call, and I am sympathetic to the majority’s
view that Molina may have suffered past persecution.
Where we diverge is our approach to the agency’s decision
and the record. The majority admittedly travels a well-
trodden path in its approach: looking for a basis to overturn
the agency instead of scouring the record as a whole looking
60 FLORES MOLINA V. GARLAND
for a way to uphold the agency if even a single reasonable
factfinder could agree with its ultimate conclusion. Our
court’s edifice of immigration caselaw has obfuscated the
correct standard of review, making the proper approach
harder to see and even harder to execute. These small
differences of opinion, as illustrated in this case between my
position and that of my colleagues in the majority, have been
multiplied over time in many decisions, leading to the
lopsided edifice that is currently improperly driving much of
our court’s immigration caselaw.
Because the record does not compel the conclusion that
(1) the past harassment suffered by Molina rises to the level
of past persecution, or that (2) such harassment—together
with the most recent country conditions evidence that was
before the agency—demonstrates a well-founded fear of
future persecution, Molina’s petition for review of his
asylum claim should be denied. Likewise, the record does
not compel a contrary conclusion with respect to Molina’s
remaining applications for withholding of removal,
humanitarian asylum, or protection under CAT, and his
petition with respect to those claims should also be denied.
And finally, the BIA did not abuse its discretion in denying
Molina’s motion to reopen. I would therefore deny Molina’s
petitions for review.