Stephen Fon v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN TAMUFOR FON, No. 20-73166
Petitioner,
Agency No.
v. A203-679-900
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 7, 2021 *
San Francisco, California
Filed May 18, 2022
Before: Susan P. Graber and Daniel P. Collins, Circuit
Judges, and Jennifer Choe-Groves, ** Judge.
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
2 FON V. GARLAND
Opinion by Judge Graber;
Concurrence by Judge Graber;
Concurrence by Judge Collins;
Partial Concurrence and Partial Dissent by
Judge Choe-Groves
SUMMARY ***
Immigration
Granting in part and denying in part Stephen Tamufor
Fon’s petition for review of a decision of the Board of
Immigration Appeals, and remanding, the panel held that:
(1) the record compelled a finding of past persecution;
(2) the agency’s flawed reasoning as to nexus precluded
meaningful review of that determination; and (3) substantial
evidence supported the denial of relief under the Convention
Against Torture.
While tending to the wounds of a separatist fighter at a
local hospital, Cameroonian soldiers punched Fon, attacked
him with a knife (requiring him to seek medical attention and
leaving a three-inch scar), and threatened to kill him if they
ever caught him treating separatists again. Although Fon did
not return to his job at the hospital, he continued treating
separatist fighters at his home. Cameroonian soldiers later
went looking for Fon and ransacked his home. The panel
held that the harm Fon suffered, including the physical
injury, the specific death threats connected to the physical
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
FON V. GARLAND 3
harm, and evidence of the country’s political and societal
turmoil, compelled the finding of past persecution.
The agency concluded that Fon failed to establish a
nexus to a protected ground for two reasons: (1) because he
had not provided any declarations from coworkers or family
members regarding what happened to him in Cameroon; and
(2) because he had not testified as to what happened to a
hospital coworker who helped Fon treat the wounded
separatist. The panel held that the first reason was invalid
because the immigration judge failed to give Fon advance
notice of what additional corroborating evidence was
required, and an opportunity to produce it, or to explain why
it was not available. The panel wrote that the IJ’s second
reason was vague, because it was not directly responsive to
Fon’s argument that, due to the medical assistance he
provided, Cameroonian soldiers perceived him as working
with the opposition. The panel wrote that it also was not
clear whether this reason rested on the flawed findings of
fact concerning past persecution or whether this reason (like
the first one) faulted Fon for not providing corroborative
evidence. In light of these ambiguities, the panel concluded
that it could not conduct a meaningful review of the agency’s
nexus determination, and it remanded for a clear
explanation.
The panel held that substantial evidence supported the
denial of CAT relief because Fon did not suffer past torture,
and the record contained no evidence of an individualized
future risk of torture.
Concurring, Judge Graber wrote separately to discuss
this circuit’s standard, and to note a circuit split concerning
the proper standard to use, when the court reviews the
Board’s determination that a particular set of facts does or
4 FON V. GARLAND
does not rise to the level of persecution. Judge Graber wrote
that this circuit has found a middle way by recognizing that
this is a mixed question of law and fact, and that although at
first glance there appears to be some inconsistency in this
circuit’s precedent, in her view, no true inconsistency exists.
Judge Graber explained that not all mixed questions are
alike, and that the applicable standard depends on whether
answering the mixed question entails primarily legal or
factual work. Judge Graber wrote that determining whether
an applicant’s harm crosses the persecution threshold
usually involves very little legal work, rather it requires
measuring the severity of the alleged harms that the
applicant has suffered, looking at the cumulative effect of all
the incidents, and comparing the facts of the applicant’s case
with those of similar cases. For that reason, the substantial
evidence standard usually applies. However, Judge Graber
wrote that in rare cases, answering the mixed question entails
very little factual work, such as cases involving the agency’s
evidentiary rules for showing past persecution, or the legal
nature or significance of the harm suffered, in which case de
novo review applies. Although in Judge Graber’s view this
circuit’s law is consistent, and more nuanced than that of
other circuits applying only substantial evidence or de novo
review to all cases, she shares Judge Collins’s view that
Supreme Court guidance on this important, recurring topic
would be welcome.
Concurring, Judge Collins agreed that the record
compelled the conclusion that Fon suffered past persecution.
Writing separately to respond to Judge Graber’s
concurrence, Judge Collins stated that Judge Graber made a
number of good points in favor of her position that, except
in rare cases, substantial evidence is the correct standard for
assessing whether a petitioner’s abuse rises to the level of
past persecution. However, in Judge Collins’s view, the
FON V. GARLAND 5
question is actually quite a bit more complicated than Judge
Graber’s concurrence suggests, and overlooks several
significant complicating considerations.
First, Judge Collins wrote that Judge Graber’s proposed
solution implicates a further intra-circuit split concerning the
standard of review for mixed questions of law and fact,
including whether standards for reviewing judicial decisions
are applicable in the administrative context. Second, Judge
Graber’s proposed resolution of these intra-circuit conflicts
does not fit well with the terms of the Immigration and
Nationality Act (INA), which states only that the
administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to
the contrary, but does not say that any other determinations
are subject to this highly deferential standard of review.
Third, resolution of these intra-circuit conflicts may also
require considering how traditional administrative law
principles bear on the question. For example, failing
properly to distinguish between the Board’s legal holdings
and its factual conclusions obscures the question of what
role, if any, principles of Chevron deference should play in
this area. Moreover, although some of this circuit’s cases
have assumed that the traditional “substantial evidence”
principles of administrative review require that the court
review mixed questions of law and fact only for substantial
evidence, this also raises the possibility that perhaps the
court should apply a different form of “substantial evidence”
review from the specific one that the INA expressly
establishes for findings of fact. Fourth, treating the question
of whether certain undisputed harms rise to the level of past
persecution as a factual finding, subject to the INA’s highly
deferential standard of review, seems hard to square with the
agency’s own view of the matter, where the Board has
squarely held that the clearly erroneous standard governing
6 FON V. GARLAND
factual findings does not apply to the application of legal
standards, such as whether the facts established by an alien
amount to past persecution or a well-founded fear of
persecution.
Judge Collins wrote that the level of internal
inconsistency and intellectual confusion in this circuit’s
caselaw has become so great that only the en banc court can
straighten it out (unless the Supreme Court decides to
address the existing circuit split). Judge Collins suggested
that the en banc court should take up these issues in an
appropriate case in which the standard of review would
make a difference. However, because the standard of review
would not affect the outcome in this case, Judge Collins
wrote that this is not that case.
Concurring in part and dissenting in part, Judge Choe-
Groves agreed with the majority’s denial of Fon’s request
for CAT relief. However, because in her view substantial
evidence supported the Board’s denial of Fon’s applications
for asylum and withholding of removal, Judge Choe-Graves
dissented from the remainder of the majority’s opinion
granting the petition in part and remanding to the Board.
COUNSEL
Danielle Beach-Oswald, Beach-Oswald Immigration Law
Associates PC, Washington, D.C., for Petitioner.
Brian Boynton, Assistant Attorney General; Cindy S.
Ferrier, Assistant Director; Sarai M. Aldana, Trial Attorney;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Respondent.
FON V. GARLAND 7
OPINION
GRABER, Circuit Judge:
Petitioner Stephen Tamufor Fon, a native and citizen of
the United Republic of Cameroon, seeks review of the Board
of Immigration Appeals’ (“BIA”) denial of his applications
for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). The BIA denied
asylum and withholding of removal on the grounds that
Petitioner had (a) failed to demonstrate past persecution and
(b) failed to prove a nexus between the feared harm and a
protected ground. We conclude that the record compels a
finding of past persecution and that the agency’s flawed
reasoning as to nexus leaves us unable to conduct a
meaningful review of that determination. We therefore grant
the petition in part and remand for further proceedings as to
asylum and withholding of removal. But substantial
evidence supports the agency’s denial of relief under CAT,
so we deny the petition in part.
BACKGROUND
Cameroon contains both an English-speaking region and
a French-speaking region. In October 2016, activists in the
English-speaking region campaigned to expand the use of
the English language in schools and courtrooms. The
campaign turned violent and, when separatist fighters
declared the English-speaking region’s independence, the
violence escalated into an ongoing war with the government
of Cameroon. According to the 2018 Country Report from
the United States Department of State, both sides have
committed human rights abuses, including torture, rape,
kidnappings, and indiscriminate killings of civilians.
8 FON V. GARLAND
Petitioner lived in Cameroon’s English-speaking region.
He worked as a laboratory assistant at a local hospital, and
part of his work included cleaning patients’ wounds. In
December 2018, the hospital treated a patient who Petitioner
suspected was a separatist fighter. While Petitioner tended
to the wounds, four soldiers from the Cameroonian military
“bashed into the ward” and “seized” the patient. Two
soldiers took the patient away. The remaining two soldiers
shouted at Petitioner and threatened to kill him if they caught
him treating separatist fighters again. They then punched
Petitioner and attacked him with a knife, leaving him with a
three-inch scar on his left side.
Petitioner never returned to work at the hospital. But he
continued to treat separatist fighters in his home. On two
occasions, three separatist fighters knocked on Petitioner’s
door in the middle of the night, seeking medical treatment.
Petitioner treated them. In January 2019, Petitioner’s
neighbor told him that Cameroonian soldiers “had come
looking for” him and had ransacked his home. Assuming
that the soldiers had “credible information” that “I had
treated people at my place,” and mindful of the earlier threat
at the hospital, Petitioner hid at his friend’s house. He
returned home once to collect his things, but he otherwise
lived with his friend until he left Cameroon in February
2019.
Six months later, in August 2019, Petitioner arrived in
the United States. He applied for asylum, withholding of
removal, and relief under CAT. In January 2020, an
immigration judge (“IJ”) expressly found him credible but
denied all three applications. The BIA affirmed the denials,
and this petition ensued.
FON V. GARLAND 9
DISCUSSION
We address, in turn, the BIA’s denial of asylum,
withholding of removal, and relief under CAT.
A. Asylum
To qualify for asylum, Petitioner must demonstrate that
he “is unable or unwilling” to return to Cameroon “because
of persecution or a well-founded fear of persecution on
account of . . . [his] political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). If Petitioner demonstrates past
persecution, “then fear of future persecution is presumed.”
Deloso v. Ashcroft, 393 F.3d 858, 863 (9th Cir. 2005). Here,
the BIA concluded that Petitioner did not suffer past
persecution and, without a presumption of future
persecution, had not established a well-founded fear of
future persecution. The BIA also held that Petitioner failed
to show a nexus between his feared harm and a protected
ground. See, e.g., Navas v. I.N.S., 217 F.3d 646, 656 (9th
Cir. 2000) (explaining that an asylum applicant must show
harm “that is ‘on account of’ one of the statutorily-protected
grounds”). We address below the agency’s findings
pertaining to past persecution and nexus.
1. Past Persecution
To establish past persecution, Petitioner must show past
harm of a severity “that rise[s] to the level of persecution[.]”
Id. The BIA rejected Petitioner’s argument that the severity
of the harms that he experienced rose to the level of
persecution. We “review for substantial evidence the BIA’s
particular determination that a petitioner’s past harm ‘do[es]
not amount to past persecution.’” Sharma v. Garland,
10 FON V. GARLAND
9 F.4th 1052, 1060 (9th Cir. 2021) (alteration in original)
(citation omitted). 1
“This circuit has defined persecution as the infliction of
suffering or harm upon those who differ (in race, religion[,]
or political opinion) in a way regarded as offensive.”
Korablina v. I.N.S., 158 F.3d 1038, 1043 (9th Cir. 1998)
(internal quotation marks omitted). But “persecution is an
extreme concept that does not include every sort of treatment
our society regards as offensive.” Ghaly v. I.N.S., 58 F.3d
1425, 1431 (9th Cir. 1995) (citation omitted). Accordingly,
“some circumstances that cause petitioners physical
discomfort or loss of liberty do not qualify as persecution,
despite the fact that such conditions have caused the
petitioners some harm.” Mihalev v. Ashcroft, 388 F.3d 722,
729 (9th Cir. 2004).
“[A] good starting point for determining whether
substantial evidence supports the BIA’s resolution of the
issue” are the seven non-exhaustive factors identified in
Sharma. Sharma, 9 F.4th at 1063. Although those factors
are not determinative, they “often arise in these types of
cases” and they “guide our analysis.” Id. at 1061.
Three of those factors are present here: physical injury,
specific threats, and evidence of the country’s political and
societal turmoil. Id. at 1061–63. Soldiers stabbed Petitioner
in the stomach, causing him to bleed enough that he required
stitches, and leaving a three-inch scar. Petitioner testified
1
Because we would reach the same conclusion under any standard
of review, we need not address whether a less deferential standard should
pertain. See Xue v. Lynch, 846 F.3d 1099, 1104–06 & n.11 (10th Cir.
2017) (noting a circuit split as to whether substantial evidence review or
de novo review applies to the question whether particular facts rise to the
level of persecution).
FON V. GARLAND 11
that the soldiers threatened him that, “[i]f they catch me
treating [separatist fighters], they will treat – they will kill
me.” In his written application, Petitioner stated that the
soldiers “warned me if caught again, I will be killed.” 2 Over
the next few weeks, Petitioner treated more separatist
fighters at his house. Soldiers then came to his home, did
not find him, and ransacked the home. Finally, undisputed
evidence describes the English-speaking region of
Cameroon as mired in a “crisis” that “developed into an
armed conflict,” which has triggered “serious human rights
violations and abuses by” both sides.
We compare those facts to those in our recent decision
in Aden v. Wilkinson, 989 F.3d 1073 (9th Cir. 2021). There,
members of Al-Shabaab, a group in Somalia, raided a movie
theater owned by the petitioner’s brother. Id. at 1083. They
beat the petitioner “and cudgeled him on the head with the
butt of a rifle, causing him to bleed profusely.” Id. To
ensure that the theater remained closed, they stole equipment
from the theater. Id. And, two weeks later, the petitioner’s
brother received a phone call from Al-Shabaab with a death
threat aimed at the petitioner. Id. The petitioner never
returned to his job at the theater, remained in hiding, and fled
Somalia within two months. Id. We emphasized that, “[i]n
addition to physically beating [the petitioner], members of
Al-Shabaab kept tabs on him by contacting his brother and
warn[ing] they would kill [the petitioner] and his brother if
2
The BIA commented that Petitioner “characteriz[ed] the soldiers’
threats as a joke.” The BIA clearly misread Petitioner’s testimony.
Petitioner testified in both his oral and written testimony that the soldiers
“made a joke about me playing Jesus Christ by trying to save the patient.”
The joke was not the threat made by the soldier; rather, the soldier
mocked Petitioner as purportedly thinking that he was a messianic figure.
Petitioner plainly took the threat seriously and not as a joke. After the
soldiers came to his house, he abandoned his home and fled the country.
12 FON V. GARLAND
they continued to disobey Al-Shabaab’s command.” Id.Finally, the country-conditions evidence confirmed that Al-
Shabaab remained a major force in the country and a danger
to many. Id. at 1084. We concluded that, “[t]ogether, this
evidence compels the conclusion that [the petitioner]
suffered persecution while in Somalia.” Id.We see no meaningful distinction between the extent of
harm in Aden and the extent of harm suffered by Petitioner.
Here, as in Aden, Petitioner experienced a single episode of
bloody physical violence, with Petitioner’s assault resulting
in a visible scar. Here, as in Aden, the death threat was
connected to the physical harm. And here, as in Aden, after
receiving the death threat, Petitioner never returned to work
and fled the country instead. If anything, Petitioner may
have suffered greater harm than did the petitioner in Aden,
because the knife wound in his abdomen required medical
treatment, whereas the beating in Aden did not. And the
soldiers followed up on their death threat to Petitioner,
whereas Al-Shabaab did not.
To be sure, as the dissent notes, the effect of the death
threat in Aden differs from the effect here. There, the “chain
of events reveals that Al-Shabaab intended to coerce Aden
to submit to its new political and religious order, and used
offensive strategies—beatings, destruction of property, and
death threats—to achieve this goal.” Id. By contrast, here,
the strategies “did not coerce Fon into abandoning his lawful
beliefs[.]” Dissent at p. 33. But that distinction misses the
mark. “What matters in assessing the sufficiency of the
threat to establish persecution[] is whether the group making
the threat has the will or the ability to carry it out—not
whether it is, in fact, carried out.” Aden, 989 F.3d at 1083
(internal quotation marks omitted). Here, as in Aden, the
persecutors harmed Petitioner physically and threatened
FON V. GARLAND 13
him. The persecutors showed that they had the will or the
ability to carry out their death threat by visiting Petitioner’s
home and ransacking it. Thus, the combination of physical
harm and threat here sufficed to establish persecution. See
id. at 1082 (“[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 omitted)). Considering the facts
here in the context of the country-conditions evidence, we
conclude that the record compels the conclusion that
Petitioner suffered past persecution.
Our other decisions are not to the contrary. For example,
in Hoxha v. Ashcroft, 319 F.3d 1179, 1181 (9th Cir. 2003),
the petitioner suffered a one-time beating and experienced
threats. In rejecting Petitioner’s argument that the record
compelled a finding of past persecution, we emphasized that
the single incident of physical violence “was not connected
with any particular threat” and that there was “no evidence
that the attackers knew who [the petitioner] was or that they
showed any continuing interest in him.” Id. at 1182. By
contrast, here, a connection exists between the physical harm
and the death threat because the soldiers made the threat
while they stabbed Petitioner. In addition, because the
soldiers later came to Petitioner’s home and looked for him
there, the record contains further “evidence that the attackers
knew who [the petitioner] was” and that they showed
“continuing interest in him.” Id.; see also Gu v. Gonzales,
454 F.3d 1014, 1019–21 (9th Cir. 2006) (holding that a one-
time beating did not compel a finding of past persecution);
Prasad v. I.N.S., 47 F.3d 336, 339–40 (9th Cir. 1995)
(holding that a one-time beating plus another incident that
caused damage to the petitioner’s home did not compel a
finding of past persecution).
14 FON V. GARLAND
In sum, the incidents that Petitioner suffered compel a
finding that Petitioner experienced past persecution.
2. Nexus
To prevail on an asylum claim, an applicant also must
demonstrate that the persecution was “on account of” a
statutorily protected ground. Parussimova v. Mukasey, 555
F.3d 734, 739 (9th Cir. 2009). To meet this “nexus”
requirement, an applicant must show that the protected
ground was “at least one central reason” why the applicant
was persecuted. 8 U.S.C. § 1158(b)(1)(B)(i). “[A] motive
is a ‘central reason’ if the persecutor would not have harmed
the applicant if such motive did not exist.” Parussimova,
555 F.3d at 741.
Here, the BIA wrote in full: “Contrary to his contentions
on appeal, [Petitioner] did not establish any nexus between
his mistreatment and a protected ground, including his status
as an Anglophone or an imputed political opinion contrary
to the government.” The BIA provided no further
explanation, but it cited the IJ’s discussion of this point. The
BIA’s lack of analysis, along with the citation to the IJ’s
opinion, “suggests that the BIA gave significant weight to
the IJ’s findings.” Avetova-Elisseva v. I.N.S., 213 F.3d 1192,
1197 (9th Cir. 2000). Thus, we may “look to the IJ’s oral
decision as a guide to what lay behind the BIA’s
conclusion.” Id.The IJ addressed Petitioner’s “nexus” argument that,
because he was an Anglophone, he would be perceived as
“working with the opposition group” and that, therefore, “he
has an imputed political opinion.” The IJ rejected
Petitioner’s “nexus” arguments for two reasons: because
Petitioner had “not provided any declarations from
coworkers or family members regarding what happened to
FON V. GARLAND 15
him in Cameroon” and because he had not testified as to
“what happened to his coworker that was helping him with
this individual who was wounded.”
The first reason was invalid. The IJ could not rely on the
absence of corroborative evidence to reject a finding of
nexus without having given Petitioner advance notice of
what additional evidence was required and an opportunity to
produce it or to explain why it was not available. Bhattarai
v. Lynch, 835 F.3d 1037, 1042–43 (9th Cir. 2016) (citing Ren
v. Holder, 648 F.3d 1079, 1093 (9th Cir. 2011)). Because
that did not occur here, “we must grant the petition and
remand.” Id. at 1043.
The IJ’s second reason is vague. Petitioner argued that
the Cameroonian soldiers perceived him as working with the
opposition group because he personally had provided
medical treatment to separatist fighters. The IJ’s second
reason is not directly responsive to that argument. It also is
not clear whether this reason rested on the flawed findings
of fact concerning past persecution or whether this reason
(like the first one) faulted Petitioner for not providing
corroborative evidence. In light of these ambiguities, we
cannot know whether there are valid grounds on which the
BIA rejected Petitioner’s nexus argument. “Without
knowing the basis of the [BIA]’s decision, we cannot
conduct a meaningful review. We therefore remand to the
BIA for a clear explanation.” Delgado v. Holder, 648 F.3d
1095, 1108 (9th Cir. 2011) (en banc).
In sum, a remand is required.
B. Withholding of Removal
The BIA denied withholding of removal for the same
reasons it denied asylum—lack of past persecution and lack
16 FON V. GARLAND
of nexus. We therefore grant the petition as to the claim for
withholding of removal and remand for further proceedings
as to this form of relief.
C. CAT Relief
Substantial evidence supports the BIA’s determination
that Petitioner failed to show that it is “more likely than not
that he . . . would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 208.16(c)(2). Petitioner did
not suffer past torture, and the record contains no evidence
of individualized future risk of torture. We therefore deny
the petition as to CAT relief.
PETITION GRANTED IN PART, DENIED IN
PART, AND REMANDED. Each party shall bear its
own costs on appeal.
GRABER, Circuit Judge, concurring:
I write separately to discuss our standard of review in
cases of this kind. As noted in the opinion, there is a circuit
split concerning the proper standard to use when we review
the BIA’s determination that a particular set of facts does or
does not rise to the level of persecution. Our circuit has
found a middle way by recognizing that this is a mixed
question of law and fact.
In general, “[p]etitions for review from BIA decisions in
asylum cases are reviewed under the substantial evidence
standard.” Chand v. I.N.S., 222 F.3d 1066, 1073 (9th Cir.
2000). Under this standard, “[t]he [agency]’s decision must
be affirmed unless the petitioner can establish ‘that the
evidence he presented was so compelling that no reasonable
FON V. GARLAND 17
factfinder could fail to find [eligibility for asylum].” Pal v.
I.N.S., 204 F.3d 935, 937 n.2 (9th Cir. 2000) (third alteration
in original) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478,
483–84 (1992)). “This strict standard bars a reviewing court
from independently weighing the evidence and holding that
the petitioner is eligible for asylum, except in cases where
compelling evidence is shown.” Kotasz v. I.N.S., 31 F.3d
847, 851 (9th Cir. 1994).
Our cases contain, at first glance, an apparent
inconsistency. In scores of cases, both published and
unpublished, we have held that we “review for substantial
evidence the BIA’s particular determination that a
petitioner’s past harm ‘do[es] not amount to past
persecution.’” Sharma v. Garland, 9 F.4th 1052, 1061 (9th
Cir. 2021) (alteration in original) (citation omitted). 1 But in
two cases, we held that we review de novo “[w]hether
particular acts constitute persecution for asylum purposes.”
Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir. 2021);
accord Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th
Cir. 2005). In my view, no true inconsistency exists.
Whether facts meet a legal standard presents a mixed
question of law and fact. See U.S. Bank Nat’l Ass’n ex rel.
CWCapital Asset Mgmt. LLC v. Village at Lakeridge, LLC,
1
Accord Villegas Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir.
2021); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028–29 (9th Cir.
2019); Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009);
Karapetyan v. Mukasey, 543 F.3d 1118, 1124–25 (9th Cir. 2008),
superseded by statute on other grounds as stated in Owino v. Holder,
575 F.3d 956, 958 (9th Cir.2009) (per curiam); Gu v. Gonzales, 454 F.3d
1014, 1018–19 (9th Cir. 2006); Mansour v. Ashcroft, 390 F.3d 667, 672
(9th Cir. 2004); Mihalev v. Ashcroft, 388 F.3d 722, 726, 730 (9th Cir.
2004); Singh, 134 F.3d at 967–69; Prasad v. I.N.S., 47 F.3d 336, 339–40
(9th Cir. 1995).
18 FON V. GARLAND
138 S. Ct. 960, 966 (2018) (holding that “whether the
historical facts found satisfy the legal test” presents a “mixed
question of law and fact” (internal quotation marks
omitted)). “Mixed questions are not all alike.” Id. at 967.
Which standard we apply “all depends—on whether
answering [the mixed question] entails primarily legal or
factual work.” Id. If answering the mixed question is
primarily a legal exercise, then we review de novo. See
Cordoba v. Holder, 726 F.3d 1106, 1113 (9th Cir. 2013)
(“[W]e review de novo both purely legal questions and
mixed questions of law and fact requiring us to exercise
judgment about legal principles.” (quoting Mendoza-Pablo
v. Holder, 667 F.3d 1308, 1312 (9th Cir. 2012))). But if
answering the mixed question is primarily factual, then we
review with deference to the fact-finder. See also Cha Liang
v. Att’y Gen., 15 F.4th 623, 626–30 (3rd Cir. 2021) (Jordan,
J., concurring) (opining that past persecution is a mixed
question of law and fact).
Usually, determining whether an applicant’s harm
crosses the persecution threshold involves very little legal
work. See, e.g., Singh v. I.N.S., 134 F.3d 962, 967 (9th Cir.
1998) (“This inquiry is heavily fact-dependent . . . .”);
Cordon-Garcia v. I.N.S., 204 F.3d 985, 991 (9th Cir. 2000)
(“The determination that actions rise to the level of
persecution is very fact-dependent . . . .”). In those
circumstances, our task is to measure the severity of the
alleged harms that the applicant has suffered, and then,
“looking at the cumulative effect of all the incidents[,] . . .
compar[e] the facts of [the p]etitioner’s case with those of
similar cases.” Singh, 134 F.3d at 967–68. In other words,
we “take[] a raft of case-specific historical facts, consider[]
them as a whole, balance[] them one against another—all to
make a determination” as to whether the facts in our case
compare favorably to the facts in other cases. Village at
FON V. GARLAND 19
Lakeridge, LLC, 138 S. Ct. at 968 (footnote omitted). “That
is about as factual sounding as any mixed question gets.” Id.For those reasons, generally we “review for substantial
evidence the BIA’s particular determination that a
petitioner’s past harm does not amount to past persecution.”
Sharma, 9 F.4th at 1060 (internal quotation marks omitted).
In rare cases, though, answering the mixed question
entails very little factual work. For example, in Kaur, 986
F.3d at 1219, a group of men attempted to gang-rape the
petitioner. The petitioner sought asylum, but the BIA
rejected her claim, concluding that “the attempted gang rape
could not rise to the level of persecution unless [the
petitioner] produced evidence of treatment for psychological
harm or further specific testimony regarding ongoing issues
stemming from the attack.” Id. at 1221, 1222 (internal
quotation marks omitted). On de novo review, we rejected
the agency’s evidentiary rule. Id. at 1222. But, unlike in
other persecution cases, we did not compare the factual
severity of the attempted rape of petitioner with similar facts
in other cases. Instead, we analogized the nature of
attempted rape to the “highly offensive” nature of rape itself.
See id. at 1224 (“Attempted rape, like rape itself, carries the
hallmarks of persecutory conduct.”). And we concluded that
the BIA erred as a matter of law “by diminishing this serious
sexual violence and insisting that [the petitioner] produce
evidence of additional or ongoing harms.” Id. at 1227.
Similarly, in Boer-Sedano, our analysis centered on the
legal nature of sexual assault. 418 F.3d at 1088 (“We have
held that sexual assault, including forced oral sex, may
constitute persecution. Therefore, there can be no doubt that
the nine sex acts that [the petitioner] was forced to perform
rise to the level of persecution.” (internal citation omitted)).
Boer-Sedano cited Hernandez-Montiel v. I.N.S., 225 F.3d
20 FON V. GARLAND
1084 (9th Cir. 2000), overruled on other grounds by Thomas
v. Gonzales, 409 F.3d 1177 (9th Cir. 2005), vacated, 547
U.S. 183 (2006), for the proposition that de novo review was
appropriate. Hernandez-Montiel held that the BIA had erred
as a matter of law by ruling that sexual assault by police
officers did not count as persecution. Id. at 1097–98.
Hernandez-Montiel, in turn, cited Pitcherskaia v. I.N.S., 118
F.3d 641, 646 (9th Cir. 1997), which reviewed de novo the
meaning of the statutory term “persecution” and held that an
intent to punish the petitioner is not a necessary element.
Pitcherskaia cited Fisher v. I.N.S., 79 F.3d 955, 961 (9th Cir.
1996) (en banc), which reviewed the BIA’s legal
interpretations of the immigration statutes de novo but
reviewed for substantial evidence the BIA’s determination
that the petitioner failed to establish that she suffered past
persecution. In other words, if one follows the entire trail of
citations, the originating precedent, Fisher, reviewed for
substantial evidence the BIA’s ruling that the petitioner had
failed to establish past persecution. Thus, the provenance of
Boer-Sedano’s method of analysis is questionable.
Regardless of that transformation, though, Boer-Sedano,
like Kaur, illustrates the unusual circumstance in which the
focal point of the analysis of a mixed question was not the
factual nature of the specific harm that the petitioner had
suffered, but rather the legal significance of that kind of
harm. In Kaur, we also analyzed the legal nature of what
additional evidence the BIA could demand which, similarly,
is not a factual issue. Because those analyses pertained to
“developing auxiliary legal principles of use in other cases,”
Village at Lakeridge, LLC, 138 S. Ct. at 967, we reviewed
de novo the mixed question whether the general category of
harm qualifies to meet the persecution threshold.
FON V. GARLAND 21
The pertinent issue in this case is primarily factual, not
legal. No one disputes that the general forms of harm that
Petitioner experienced—a stabbing, the ransacking of a
home, and credible death threats—can amount to
persecution. Instead, the parties dispute whether the
particular events that Petitioner experienced were severe
enough, factually, to rise to the level of past persecution. We
review that determination for substantial evidence. Sharma,
9 F.4th at 1061.
In sum, our circuit’s law is consistent. Moreover, our
precedent is, wisely, more nuanced than that of the circuits
that have chosen substantial-evidence review in all cases or
de novo review in all cases. That said, I share the view
expressed in Judge Collins’s concurrence that Supreme
Court guidance on this important, recurring topic, on which
the circuits have taken inconsistent positions, would be
welcome.
COLLINS, Circuit Judge, concurring:
I concur in the panel opinion, which correctly holds that
“the record compels the conclusion that Petitioner suffered
past persecution.” See Opin. at 13. I am unaware of any
case in which we or any other circuit court has held that a
stabbing—much less one with a 2–3-inch scar that required
stitches and a hospital stay—does not entail a level of
physical abuse sufficient to qualify as “persecution.” 1
1
The dissent ignores the deferential standard of review that applies
to the agency’s factual findings when it downplays the severity of
Petitioner’s injury based on the dissent’s own assessment of the record
evidence concerning the nature of that injury. In his ruling, the
22 FON V. GARLAND
Indeed, as the opinion notes, we have held that comparable
violence constitutes persecution. See Hoque v. Ashcroft, 367
F.3d 1190, 1193, 1198 (9th Cir. 2004) (petitioner who was
abducted, beaten with sticks, and stabbed established past
persecution); see also Kaur v. Wilkinson, 986 F.3d 1216,
1222 (9th Cir. 2021) (noting that we have generally
“concluded that physical violence is persecution”) (citations
and internal quotation marks omitted); see also Li v. Holder,
559 F.3d 1096, 1107 (9th Cir. 2009) (“It is well established
that physical violence is persecution.”); Chand v. INS, 222
F.3d 1066, 1073 (9th Cir. 2000) (“Physical harm has
consistently been treated as persecution.”). Accordingly,
even if the question whether Petitioner’s harms rose to the
level of persecution is reviewed under the deferential
standard of substantial-evidence review set forth in
§ 242(b)(4)(B) of the Immigration and Nationality Act
(“INA”), see 8 U.S.C. § 1252(b)(4)(B), the petition here
must be granted. I therefore agree with the opinion’s
conclusion that we need not decide whether that is in fact the
correct standard of review.
I write separately only to respond to Judge Graber’s
concurrence, which argues that substantial evidence is the
Immigration Judge (“IJ”) credited Petitioner’s testimony and found that
he “was stabbed with a knife on his left midsection” (emphasis added).
The IJ made that finding after personally examining the scar in court and
explaining that it “appeared to be a two-and-a-half to three-inch scar on
the left side of his midsection.” The dissent suggests that the better
reading of the record is that Petitioner was only “cut” and not stabbed,
see Dissent at 34, but we lack the authority to set aside the IJ’s finding
that Petitioner was stabbed. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he
administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”).
Moreover, given the size of the scar, and the need for stitches and a
hospital stay, the dissent’s characterization of the resulting wound as a
“minor physical injury” is plainly incorrect. See Dissent at 33.
FON V. GARLAND 23
correct standard of review for assessing whether a
petitioner’s abuse rises to the level of past persecution,
except in “rare cases” in “which the focal point of the
analysis of a mixed question was not the factual nature of the
specific harm that the petitioner had suffered, but rather the
legal significance of that kind of harm.” See J. Graber
Concurrence at 19–20. Judge Graber makes a number of
good points in favor of that position, but I think that the
question is actually quite a bit more complicated than her
concurrence suggests. At some point, it will fall to the en
banc court, or perhaps the Supreme Court, to straighten out
this area of the law.
As an initial matter, our caselaw on this specific issue is
internally inconsistent. In Kaur, we stated that “[o]nly the
BIA’s findings of fact are reviewed for substantial evidence”
and that, consequently, “[w]hether particular acts constitute
persecution for asylum purposes is a legal question reviewed
de novo.” 986 F.3d at 1221 (simplified). We made the same
observation in Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th
Cir. 2005), even using italics to underscore the point:
“Whether particular acts constitute persecution for asylum
purposes is a legal question, which we review de novo.” Id.
at 1088. In support of that view, Boer-Sedano relied on
Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000),
where we stated that de novo review applies to “the legal
question of the meaning of persecution.” Id. at 1097(citation omitted). 2 By contrast, in a different line of
decisions, we have endorsed the exact opposite view that,
even if the underlying facts are undisputed, the question
2
Hernandez-Montiel was overruled on other grounds in Thomas v.
Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc), and Thomas was in
turn vacated and remanded on other grounds, see Gonzales v. Thomas,
547 U.S. 183 (2006).
24 FON V. GARLAND
whether the petitioner’s harms “rise to the level of past
persecution” is reviewed only for substantial evidence. See
Villegas Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir.
2021) (citing Prasad v. INS, 47 F.3d 336, 339 (9th Cir.
1995)); see also, e.g., Sharma v. Garland, 9 F.4th 1052, 1060
(9th Cir. 2021) (citing Villegas Sanchez and Prasad).
Judge Graber argues that these conflicting lines of cases
can be reconciled by viewing them as appropriately applying
different standards of review to this “mixed question of law
and fact.” See J. Graber Concurrence at 17–20. Relying on
the standards that the Supreme Court has set forth for
reviewing the findings of lower courts, see U.S. Bank N.A.
ex rel. CWCapital Asset Management LLC v. Village of
Lakeridge, LLC, 138 S. Ct. 960 (2018), Judge Graber argues
that if the question whether a petitioner’s past mistreatment
rises to the level of “persecution” is one that “involves very
little legal work,” then it should be reviewed only for
substantial evidence, but if it “entails very little factual
work,” then it should be reviewed de novo. See J. Graber
Concurrence at 18–19. There is some force to this position,
but it overlooks several significant complicating
considerations.
First, Judge Graber’s proposed solution implicates a
further intra-circuit split. We have said many times that
“[w]e review de novo the BIA’s determinations on questions
of law and mixed questions of law and fact.” Conde
Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020)
(emphasis added); see also Medina-Rodriguez v. Barr, 979
F.3d 738, 744 (9th Cir. 2020) (same); Cordoba v. Barr, 962
F.3d 479, 481–82 (9th Cir. 2020) (“We review the agency’s
factual findings for substantial evidence, but review ‘de novo
both purely legal questions and mixed questions of law and
fact requiring us to exercise judgment about legal
FON V. GARLAND 25
principles.’”) (citation omitted); Cordoba v. Holder, 726
F.3d 1106, 1113 (9th Cir. 2013) (“We review the BIA’s
purely factual determinations for substantial evidence.
However, we review de novo both purely legal questions and
mixed questions of law and fact requiring us to exercise
judgment about legal principles.”) (citation omitted);
Khunaverdiants v. Mukasey, 548 F.3d 760, 765–66 (9th Cir.
2008) (after identifying issue as a “mixed question of law
and fact,” court held that “[w]e review the agency’s
application of legal standards de novo”).
But, once again, we have also said the exact opposite in
a different set of cases. See Haile v. Holder, 658 F.3d 1122,
1125 (9th Cir. 2011) (“Questions of law are reviewed de
novo. We review factual findings and determinations of
mixed questions of law and fact for substantial evidence.”)
(citations omitted); Zumel v. Lynch, 803 F.3d 463, 471 (9th
Cir. 2015) (“‘We review agency factual findings and
determinations of mixed questions of law and fact for
substantial evidence,’ and legal questions de novo.”)
(citation omitted); Khan v. Holder, 584 F.3d 773, 776 (9th
Cir. 2009) (“We review agency factual findings and
determinations of mixed questions of law and fact for
substantial evidence.”). This additional intra-circuit conflict
only underscores the need for en banc review, in an
appropriate case, to restore coherence to our caselaw in this
area.
Judge Graber apparently believes that U.S. Bank already
resolves these intra-circuit conflicts, but that assumes that
U.S. Bank’s standards for reviewing judicial findings are
directly applicable to this administrative context. The
Supreme Court itself has not yet taken that step, however.
See Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020)
(holding that “the application of law to undisputed facts”
26 FON V. GARLAND
qualifies as a “question of law” that courts may review under
INA § 242(a)(2)(D), but expressly declining to address
whether U.S. Bank applies to such a “mixed question of law
and fact,” noting that the cases before it “present no such
question involving the standard of review”) (citation
omitted).
More importantly, Judge Graber ignores the gloss that
the Supreme Court itself put on U.S. Bank in its subsequent
decision in Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183(2021). Addressing the standards for reviewing a mixed
question of law and fact, the Google Court “explained that a
reviewing court should try to break such a question into its
separate factual and legal parts, reviewing each according to
the appropriate legal standard. But when a question can be
reduced no further, we have added that ‘the standard of
review for a mixed question all depends—on whether
answering it entails primarily legal or factual work.’” Id. at
1199 (quoting U.S. Bank, 138 S. Ct. at 967) (emphasis
added). The U.S. Bank rule that Judge Graber invokes thus
applies only if the predicate question cannot first be broken
down into “separate factual and legal parts.” Id. As two
judges of the Third Circuit have argued, this aspect of
Google supports the view that the standard of review here is
de novo, contrary to the view reached by Judge Graber’s
concurrence. See Liang v. Attorney General, 15 F.4th 623,
626–27 (3d Cir. 2021) (Jordan, J., joined by Ambro, J.,
concurring); see also id. at 629 (criticizing another Third
Circuit case that appeared to endorse a position similar to the
one Judge Graber adopts). They concluded that, once the
factual and legal components are separated as Google
requires, “the question of whether those events meet the
legal definition of persecution is reviewed de novo because
it is plainly an issue of law.’’ Id. at 627 (simplified); see also
id. (concluding that Google requires de novo review
FON V. GARLAND 27
because, “when it comes to the determination of past
persecution, the factual and legal parts are separate and
distinct”).
Second, Judge Graber’s proposed resolution of these
intra-circuit conflicts does not fit well with the terms of the
INA. In setting forth the standard of review we are to apply
in deciding petitions for review in immigration cases,
§ 242(b)(4)(B) of the INA states only 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) (emphasis added).
It does not say that any other determinations are subject to
this highly deferential standard of review. “Congress is
presumed to know the law,” see Miranda B. v. Kitzhaber,
328 F.3d 1181, 1189 (9th Cir. 2003), which has long
distinguished between pure questions of law, mixed
questions of law and fact, and factual findings, see Pullman-
Standard v. Swint, 456 U.S. 273, 288–90 & n.19 (1982). But
Congress chose only to subject “findings of fact” to this
deferential standard of review.
Third, resolution of these intra-circuit conflicts may also
require considering how “traditional administrative law
principles” bear on the question. Garland v. Ming Dai, 141
S. Ct. 1669, 1679 (2021) (stating that, in addition to the
specific rules set forth in the INA, “reviewing courts remain
bound by traditional administrative law principles”). For
example, failing properly to distinguish between the BIA’s
legal holdings and its factual conclusions obscures the
question of what role, if any, principles of Chevron
deference should play in this area. See INS v. Aguirre-
Aguirre, 526 U.S. 415, 425 (1999) (stating that “the BIA
should be accorded Chevron deference as it gives ambiguous
statutory terms ‘concrete meaning through a process of case-
28 FON V. GARLAND
by-case adjudication’”) (citation omitted). Moreover, some
of our cases have assumed that the traditional “substantial
evidence” principles of administrative review applied in INS
v. Elias-Zacarias, 502 U.S. 478 (1992), require that we
review “mixed questions of law and fact” only “for
substantial evidence.” See, e.g., Khan, 584 F.3d at 776. That
may or may not be correct, but it also raises the possibility
that perhaps we should apply a different form of “substantial
evidence” review from the specific one that the INA
expressly establishes for “findings of fact.” Cf. Ahearn v.
Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (holding that the
“substantial evidence” review applicable in social security
cases is distinct from the “compelled to conclude” standard
of INA § 242(b)(4)(B)); but cf. Elias-Zacarias, 502 U.S. at481 & n.1 (equating the Court’s “compelled” standard—
which had not yet been added to the INA—to traditional
“substantial evidence” review generally).
Fourth, treating the question here—i.e., whether certain
undisputed harms rise to the level of past persecution—as a
factual finding subject to § 242(b)(4)(B)’s highly deferential
standard of review seems hard to square with the agency’s
own view of the matter. In reviewing a decision of an IJ, the
Board of Immigration Appeals (“BIA”) operates under an
analogous distinction between deferential review of factual
findings and de novo review of legal conclusions. The
applicable regulations state that “[t]he Board will not engage
in de novo review of findings of fact determined by an
immigration judge. Facts determined by the immigration
judge, including findings as to the credibility of testimony,
shall be reviewed only to determine whether the findings of
the immigration judge are clearly erroneous.” 8 C.F.R.
§ 1003.1(d)(3)(i). By contrast, the “Board may review
questions of law, discretion, and judgment and all other
issues in appeals from decisions of immigration judges de
FON V. GARLAND 29
novo.” Id. § 1003.1(d)(3)(ii). Notably, in applying these
rules, the BIA has squarely held that “[t]he clearly erroneous
standard therefore does not apply to the application of legal
standards, such as whether the facts established by an alien
amount to past persecution or a well-founded fear of
persecution.” In re A–S–B–, 24 I. & N. Dec. 493, 496–97
(BIA 2008) (simplified) (emphasis added), overruled in part
on other grounds by In re Z–Z–O–, 26 I. & N. Dec. 586, 589–
91 (BIA 2015).
As the Tenth Circuit has aptly noted, “[i]t is certainly
odd, to say the least, for this court to review for substantial
evidence a determination the BIA itself has concluded is
legal in nature,” and that “is especially true when the BIA’s
governing regulations forbid it from engaging in
factfinding.” Xue v. Lynch, 846 F.3d 1099, 1105 (10th Cir.
2017) (declining to decide the issue, because it had not
properly been raised in the petition for review); see also
Liang, 15 F.4th at 627 (Jordan, J., joined by Ambro, J.,
concurring) (noting that the BIA’s treatment of the issue as
a question of law supports applying de novo review in the
court of appeals). Treating the question here as a “factual
finding[]” subject to § 242(b)(4)(B) would effectively
require us to say that what is concededly a question of law
in the BIA somehow transmogrifies into a question of fact
when the case leaves the BIA and comes before our court.
That does not make much sense. The dissonance is all the
more striking given that the courts of appeals are sometimes
called upon to uphold and enforce the BIA’s treatment of
such questions as questions of law. See, e.g., Maldonado v.
Barr, 776 F. App’x 29, 30 (2d Cir. 2019) (holding that BIA
properly applied de novo review in reversing IJ’s conclusion
that alien’s mistreatment “rose to the level of persecution”).
30 FON V. GARLAND
On top of all these considerations, there is a significant
circuit split on this issue, as Judge Graber acknowledges in
her concurrence. See J. Graber Concurrence at 16; see also
Xue, 846 F.3d at 1105 n.11 (“The circuits are split as to the
standard of review applicable to the question whether an
undisputed set of facts constitute persecution.”).
* * *
As the foregoing discussion makes clear, our caselaw on
this subject is a bit of a mess. It is not my purpose in this
concurrence to take a position as to how these issues should
ultimately be resolved. My point is that the level of internal
inconsistency and intellectual confusion in our caselaw has
become so great that only the en banc court can straighten it
out (unless the Supreme Court decides to address the
existing circuit split). Accordingly, in my view, the en banc
court should take up these issues in an appropriate case in
which the standard of review would make a difference. But
given that the Petitioner here prevails even if we apply a
more deferential standard of review to the agency’s decision,
this is not that case.
Subject to these observations, I concur in the panel
opinion in this case.
CHOE-GROVES, Judge, concurring in part and dissenting
in part:
I concur with the majority in denying Petitioner’s request
for relief under the Convention Against Torture (“CAT”).
Because substantial evidence supports the Board of
Immigration Appeals’ (“BIA”) denial of Petitioner’s
applications for asylum and withholding of removal, I
FON V. GARLAND 31
respectfully dissent from the remainder of the majority’s
opinion and decision to grant the petition in part and remand
to the BIA.
To succeed on a claim for asylum, Petitioner must
demonstrate that he is unable or unwilling to return to his
home country because of past persecution or a well-founded
fear of future persecution. Garcia v. Wilkinson, 988 F.3d
1136, 1142–43 (9th Cir. 2021). Petitioner must also
demonstrate a nexus between the persecution and a
statutorily protected ground: race, religion, nationality,
membership in a particular group, or political opinion. Id. at
1143. The majority concludes that the record demonstrates
that Petitioner suffered past persecution and that the BIA’s
analysis of whether a nexus exists between the alleged
persecution and a protected ground was inadequate and
flawed. I disagree that the record compels a conclusion that
the harms alleged by Petitioner amount to persecution.
The majority disagrees whether this case should be
reviewed de novo or under the substantial evidence standard,
but both Judges Graber and Collins acknowledge that the
caselaw on this issue does not provide a clear answer. See
J. Graber Concurrence at 17; J. Collins Concurrence at 22–
23. We review questions of law de novo and questions of
fact for substantial evidence. Bhattarai v. Lynch, 835 F.3d
1037, 1042 (9th Cir. 2016). Most of our prior cases
reviewing the BIA’s decisions to grant or deny asylum fall
into the latter of these categories. See, e.g., Sharma v.
Garland, 9 F.4th 1052, 1060 (9th Cir. 2021); Chand v. I.N.S.,
222 F.3d 1066, 1073 (9th Cir. 2000); Prasad v. I.N.S., 47
F.3d 336, 338–39 (9th Cir. 1995). I view the question before
us as straightforward: do the harms suffered by Petitioner
amount to past persecution? Because this is predominantly,
if not fully, a question of fact, the BIA’s asylum decision
32 FON V. GARLAND
should be reviewed for substantial evidence and affirmed
unless the evidence compels the conclusion that the decision
was incorrect. Gu v. Gonzales, 454 F.3d 1014, 1018 (9th
Cir. 2006). This standard is highly deferential to the BIA.
Sharma, 9 F.4th at 1060.
As the majority correctly notes, persecution is an
“extreme concept” and not every circumstance that causes
an asylum seeker pain or loss of liberty rises to the level of
persecution. Gu, 454 F.3d at 1019; Mihalev v. Ashcroft, 388
F.3d 722, 728–29 (9th Cir. 2004). We consider Petitioner’s
allegations as a whole to determine whether the incidents
cumulatively rise to the level of persecution. Sharma, 9
F.4th at 1061.
Petitioner suffered physical injury when he was
assaulted by four members of the Cameroonian military
while treating a separatist fighter at the hospital where he
worked. He testified that he was punched several times and
cut by a knife under his left rib, resulting in a two-and-a-half-
inch scar. Petitioner was treated for his injuries immediately
following the incident. During the assault, one of the
soldiers threatened Petitioner that he would be killed if he
continued to treat separatist fighters. A few weeks later, he
learned from a neighbor that soldiers had visited and
ransacked his home.
In analyzing whether Petitioner’s allegations rise to the
level of past persecution, the majority compares the facts of
this case to those in our recent decision in Aden v. Wilkinson,
989 F.3d 1073 (9th Cir. 2021). Aden was a citizen of
Somalia who lived in a town controlled by Al-Shabaab, a
militant terrorist organization affiliated with Al-Qaeda. Id.
at 1077. He worked in a theater owned by his brother that
screened American and Hindi films. Id. On two occasions,
members of Al-Shabaab visited the theater and demanded
FON V. GARLAND 33
that Aden’s brother stop showing the films, which Al-
Shabaab deemed “Satanic.” Id. Aden’s brother did not
comply with the demand and Al-Shabaab members later
raided the theater. Id. During the raid, Aden, his brother,
and others present at the theater were beaten with sticks and
the butt of a rifle and the equipment used to screen films was
taken. Id. Aden was struck in the head, resulting in profuse
bleeding. Id. Two weeks after the raid, while hiding with a
family member, Aden’s brother was contacted by members
of Al-Shabaab who threatened to kill both brothers if they
reopened the theater. Id. at 1077–78. Aden fled Somalia to
South Africa and eventually arrived in the United States. Id.
at 1078.
In reviewing the denial of Aden’s applications for
asylum and withholding of removal, a three-judge panel of
this Court concluded that the single physical beating and
subsequent death threat amounted to persecution because,
when viewed in the light of the societal and political turmoil
of Somalia, Al-Shabaab’s continued interest in Aden left
him with no choice other than to abandon his political and
religious beliefs or flee. Id. at 1083–84.
Unlike Aden, Fon experienced a single threat
accompanied by the minor physical injury of a stab wound.
The threat did not coerce Fon into abandoning his lawful
beliefs, and Fon’s only subsequent interaction with the
Cameroonian military was one instance of members of the
military visiting his home when he was not present. Because
of these distinctions, a reasonable factfinder would not be
compelled to reach the same conclusion as in Aden.
In most cases, an isolated incident resulting in a physical
injury does not rise to the level of persecution. See Gu, 454
F.3d at 1020–21 (finding no past persecution when petitioner
was detained and beaten once); Prasad, 47 F.3d at 339–40
34 FON V. GARLAND
(upholding the BIA’s determination that the petitioner
suffered no past persecution from a single incident of being
detained, interrogated, hit in his stomach, and kicked from
behind). The circumstances in which we have found past
persecution based on only a single incident of violence have
generally involved severe injuries or other extreme acts of
intimidation. See Sharma, 9 F.4th at 1061 (“[W]hen we have
granted petitions for review because the record compelled a
finding of past persecution, the petitioner often experienced
serious physical violence, among other indicators of
persecution.”); see also Hoque v. Ashcroft, 367 F.3d 1190,
1193, 1198 (9th Cir. 2004) (finding past persecution when
the petitioner had been kidnapped, taken to a camp, beaten
with an iron rod and stick, stabbed, and abandoned
unconscious on a street and required eight days of
hospitalization); Chanchavac v. I.N.S., 207 F.3d 584, 589–
91 (9th Cir. 2000) (finding that petitioner suffered past
persecution when he was severely beaten once and violent
acts and murder had been committed against his family and
neighbors).
The majority sees no meaningful distinction between the
harm suffered by Petitioner and the harm suffered by Aden
and notes that it is possible that Petitioner’s injuries were
more severe because they required medical treatment. Both
men suffered a beating. Aden was struck by the butt of a
gun, which caused him to bleed profusely but he did not
receive medical treatment. Aden, 989 F.3d at 1077. The
specific type of injury suffered by Petitioner is not clear from
the record. Petitioner testified during his removal
proceeding that the soldiers “cut me on my left side.” He
also referred to the injury as a cut in his declaration
supporting his asylum application. Petitioner later described
the injury as a stabbing in his appeal to the BIA and in his
brief to the Court. Petitioner’s brief in this proceeding does
FON V. GARLAND 35
not allege that his injury was life-threatening or required
medical treatment beyond stitches and a single day of rest.
The record does not compel a conclusion that Petitioner’s
injuries were more severe than those suffered by Aden.
Substantial evidence also supports the BIA’s
determination that the threat made against Petitioner by a
Cameroonian soldier during the assault did not raise the
injury to the level of persecution. The BIA construed
Petitioner’s testimony as characterizing the threat as a joke.
The record suggests that Petitioner took the threat seriously
enough to flee his home and country. Regardless of whether
the threat was intended as a joke, the threat was not of the
severity that we have previously found amounts to
persecution. Death threats constitute past persecution only
when “the threats are so menacing as to cause significant
actual suffering or harm.” Lim v. I.N.S., 224 F.3d 929, 936
(9th Cir. 2000) (internal quotation omitted).
The Court in Aden found significant that the death threats
made against Aden eliminated all choices other than to
forsake his political and religious beliefs or flee. Aden, 989
F.3d at 1084. The record here does not suggest that the
Cameroonian soldiers attempted to coerce Petitioner to
abandon his lawful political or religious beliefs. In fact,
Petitioner conceded during his removal proceeding that he
does not consider himself to be an Anglophone
Cameroonian.1 The threats related to Petitioner providing
medical aid to separatist fighters. In his declaration
supporting his asylum application, Petitioner claimed that he
was trained and sworn to offer healthcare services
1
Petitioner’s concession during the removal proceeding is
inconsistent with his brief, in which he identifies himself as an
Anglophone.
36 FON V. GARLAND
indiscriminately and that healthcare providers who did not
provide treatment to suspected separatists risked
intimidation and harassment from members of the
community. In this case, the single threat made to Petitioner
conditioned on whether he continued to treat separatist
fighters was not based on his lawfully held beliefs and was
not so extreme as to raise the harm to the level of past
persecution. See Duran-Rodriguez v. Barr, 918 F.3d 1025,
1028–29 (9th Cir. 2019) (holding that two death threats did
not compel a determination that petitioner had suffered past
persecution); cf. Smolniakova v. Gonzales, 422 F.3d 1037,
1048–49 (9th Cir. 2005) (holding that repeated death threats
following the murder of family friends, during an assault,
and at the petitioner’s home amounted to past persecution).
It is undisputed that Cameroon is in a condition of
political and societal turmoil. Even considering the events
alleged by Petitioner in this light, a reasonable factfinder is
not compelled to find that the circumstances collectively
amount to past persecution.
In the absence of past persecution, Petitioner must
establish a well-founded fear of future persecution to
succeed in an asylum claim. Sharma, 9 F.4th at 1065. “A
well-founded fear of future persecution must be both
subjectively genuine and objectively reasonable.” Rusak v.
Holder, 734 F.3d 894, 896 (9th Cir. 2013) (internal quotation
omitted). The risk of persecution must be more than a
random or generalized possibility and Petitioner must make
a particularized showing that the risk to him is greater than
the risk to other citizens. Singh v. I.N.S., 134 F.3d 962, 967
(9th Cir. 1998).
In determining that Petitioner did not have an objective
fear of future persecution if returned to Cameroon, the BIA
offered no independent analysis but cited to the decision of
FON V. GARLAND 37
the immigration judge (“IJ”). Because the BIA did not
provide a new analysis and relied upon the determination of
the IJ, we consider the IJ’s reasoning to have informed the
conclusion of the BIA. See Avetova-Elisseva v. I.N.S., 213
F.3d 1192, 1197 (9th Cir. 2000). The IJ concluded that while
Petitioner had a subjective fear of persecution, he did not
establish an objective fear of persecution. The IJ noted
further that Petitioner testified that he was not a member of
any organization in Cameroon and that his fears were based
on a belief that he might be perceived as working with an
opposition group.
Petitioner has not demonstrated that he continues to be
of interest to the Cameroonian military or government and
there is no indication in the record that officials have
searched for Petitioner after the one visit to his home.
Petitioner testified that he had no significant dealings with
the military or government after December 2018. Although
Petitioner fears that he might be targeted as an Anglophone,
he conceded that he does not consider himself to be one.
Considering these facts, a reasonable factfinder would not be
compelled to conclude that Petitioner has a well-founded
fear that he would be persecuted if returned to Cameroon.
Because Petitioner has not demonstrated that he suffered
past persecution or has a well-founded fear of future
persecution, he is not eligible for asylum.
If Petitioner had suffered persecution, success on his
asylum claim would also require a nexus between a
statutorily protected ground and the alleged persecution.
Garcia, 988 F.3d at 1143. The Petitioner’s race, religion,
nationality, membership in a social group, or political
opinion must be a central reason for the suffered or feared
harm. Id. The BIA concluded that Petitioner did not
establish the requisite nexus. As with its determination on
38 FON V. GARLAND
Petitioner’s well-founded fear of future persecution, the BIA
relied on the determination of the IJ.
Petitioner argues that because he is an Anglophone
(though admitting during his removal proceeding that he
does not consider himself to be an Anglophone) and was
observed giving aid to an Anglophone separatist fighter, that
a political opinion of supporting the opposition group could
be imputed to him. An asylum applicant can establish
persecution based on an imputed political belief, even if the
applicant does not personally hold the belief. Garcia-Milan
v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). Because this
shifts the inquiry from the views of the applicant to those of
the persecutor, the applicant must provide evidence of the
persecutor’s views. Id.The IJ found that Petitioner had not established a nexus
because he failed to offer declarations from coworkers and
family members describing the events that occurred in
Cameroon and did not testify as to what happened to the
other hospital employees who assisted in treating the
separatist fighter. The majority concludes that remand is
required because Petitioner was not given a meaningful
opportunity to provide necessary evidence and the IJ was
ambiguous as to why evidence regarding Petitioner’s
coworkers was relevant to its determination. See Bhattarai,
835 F.3d at 1042–43; Delgado v. Holder, 648 F.3d 1095,
1107–08 (9th Cir. 2011) (en banc). Because Petitioner’s
failure to establish past persecution or a well-founded fear of
future persecution would be dispositive for his asylum claim,
remand to the BIA on the question of nexus is unnecessary.
Because Petitioner does not meet the less-stringent standard
for asylum, he also fails to meet the higher standard for
withholding of removal. Sharma, 9 F.4th at 1066.
FON V. GARLAND 39
I agree with the majority’s conclusion that substantial
evidence supports the BIA’s determination that Petitioner
failed to qualify for protection under the CAT. Because I
believe that substantial evidence also supports the BIA’s
determination that Petitioner did not suffer past persecution
and does not have a well-founded fear of future persecution,
I would deny the petition in its entirety and respectfully
dissent.