Rosales Justo v. Sessions

United States Court of Appeals
For the First Circuit

No. 17-1457

JAVIER ROSALES JUSTO,

Petitioner,

v.

JEFFERSON B. SESSIONS III,

Attorney General of the United States,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before

Torruella, Lipez, and Kayatta,
Circuit Judges.

Talia Barrales, with whom Law Offices of Talia Barrales was
on brief, for petitioner.
Rebekah Nahas, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with whom
Chad A. Readler, Acting Assistant Attorney General, Civil
Division, and Briena L. Strippoli, Senior Litigation Counsel,
Office of Immigration Litigation, were on brief, for respondent.

July 16, 2018
 LIPEZ, Circuit Judge. Petitioner Javier Rosales Justo

("Rosales"), a citizen of Mexico, claims that the Board of

Immigration Appeals ("BIA") erred when it reversed an immigration

judge's order granting him asylum. The immigration judge ("IJ")

concluded that Rosales met his burden of proving he was entitled

to asylum based, inter alia, on a finding that the police in Mexico

would be unable to protect him from members of organized crime who

had murdered his son and continued to target him and the rest of

his nuclear family. The BIA rejected that finding, concluding

that it was clearly erroneous.

We agree with Rosales that the BIA's conclusion that the

IJ's finding was clearly erroneous is unfounded because the BIA

committed several errors in its review of the IJ's decision. Most

importantly, the BIA failed to examine separately the evidence of

the government's willingness to protect Rosales from persecution

and the evidence of its ability to do so. Instead, the Board cited

evidence only of the willingness of local authorities to promptly

investigate the murder of Rosales's son as support for its

conclusion that the IJ's finding of inability was clearly

erroneous. Because of the BIA's flawed analysis of the IJ's

decision, we grant Rosales's petition and remand the case to the

BIA for reconsideration of Rosales's eligibility for asylum.

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 I.

A. Factual Background

Rosales applied for admission to the United States

immediately upon arriving with his wife and children at the border

crossing in San Ysidro, California on May 9, 2016. He was

detained, transferred to a correctional facility in Plymouth,

Massachusetts, and subsequently served with a notice to appear

charging him with removability because he lacked a valid entry

document. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Rosales conceded

removability, but requested asylum pursuant to section 208 of the

Immigration and Nationality Act (INA), 8 U.S.C. § 1158, and

cancellation of removal pursuant to 8 U.S.C. § 1231(b)(3). A

hearing before an IJ was held on October 21, 2016. Rosales and

his wife both testified at the hearing, and Rosales also submitted

extensive documentary evidence, including declarations from

himself and his family members, reports from the U.S. Department

of State and international non-governmental organizations

regarding country conditions in Mexico, and documents and reports

from the police investigation into his son's murder. In reaching

his decision, the IJ considered "[a]ll admitted evidence . . . in

its entirety, regardless of whether [it was] specifically

mentioned" in the decision.

Finding the testimony of Rosales and his wife credible,

the IJ found the following facts. Rosales is a 39-year-old police

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officer from Acapulco, a city in the state of Guerrero. The tragic

events that precipitated his move to the United States began on

January 24, 2016. That afternoon, his wife, Vincenta, and son,

Tomas, were working at the store that the family ran to supplement

Rosales's income as a police officer. Two strangers walked into

the store and demanded that the family pay "rent" to them. When

Vincenta asked, "what rent?," they told her that the family must

pay 2,000 pesos every two weeks. Vincenta responded that her

family could not afford to pay that amount because the store was

too small to generate enough money. One of the men became upset

with her and stated that if she did not pay, her family would face

the consequences.

Following this threatening encounter, Rosales and his

wife decided to close the store. Although they did not know the

identity of the men who had come to the store, they believed they

were members of organized crime. However, Vincenta testified that

she did not report the threat to police because she thought it

would "blow over."1 After a week, Vincenta decided to reopen the

store because the family needed the income.

On the evening of February 4, Vincenta heard gunshots

while she was working at the store. Earlier, her daughter had

1 Although the IJ mentioned only Vincenta's testimony on this
point, Rosales testified that Vincenta did not report the extortion
attempt because "she was scared."

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told her that Tomas had stopped at home after school to change

clothes and then left to go help a friend paint nearby. After

hearing the gunshots, Vincenta went to look for Tomas and could

not find him.2 She called Rosales at work to tell him that Tomas

was missing, and they went to the police station and the ministry

of police to see if Tomas had been detained by the police in either

place. Not finding him and fearing the worst, Rosales also checked

the morgue to no avail.

The next day, having still not found Tomas, Rosales was

informed by friends that a body had been found on the side of a

nearby highway, and Rosales and Vincenta went there. After

speaking with the federal police who were at the scene and being

shown a photo of the body, they identified the victim as Tomas.

He had been shot five times, and there was evidence that he was

tortured before his death. A forensic team was called to examine

the body, and the police took statements from Rosales and his wife

and opened a criminal investigation. Rosales also hired a lawyer

to conduct a separate investigation into the murder.

Fearing for his family's safety following Tomas's death,

Rosales moved with Vincenta and their two daughters to Pueblo

2 Although not specifically mentioned by the IJ, Vincenta
testified that the shooting occurred in the area where Tomas was
painting. When she went to that area after the shooting stopped,
someone told her that a person who looked like Tomas had been taken
away by unknown people in a truck.

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Viejo, a town several hours from Acapulco where Rosales has

extended family. Approximately eleven days after the murder, their

neighbors from Acapulco reported to Rosales that they had seen

suspicious cars near Rosales's old house and several unknown men

with guns "from organized crime" had asked a neighbor whether

Rosales and his family still lived there. Two months later, in

April, several unknown men came to their neighborhood in Pueblo

Viejo and asked for the location of the Rosales family. Rosales

did not report these incidents to the police because he was afraid

members of organized crime would find him and kill him. Fearing

that he and his family were at risk of being murdered if they

stayed in Mexico, Rosales decided to move with Vincenta and his

daughters to the United States in May 2016.

Because he had been detained until the day of the

hearing, Rosales had not recently spoken to the police in Acapulco

about the status of the investigation into his son's murder. He

was therefore unable to say for certain at the hearing that no one

had been arrested for the murder. Similarly, although Rosales

believed that his extended family in Pueblo Viejo had not been

contacted or harmed by organized crime in the time that he was

living in the United States, "he was not sure" due to the limited

contact he had with his extended family during his detention.

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B. The IJ's Decision

Based on the above factual findings, the IJ concluded

that Rosales had a well-founded fear of future persecution because

of his membership in his nuclear family.3 In particular, the IJ

found that the credible testimony of Rosales and his wife

established that individuals "presumably associated with organized

crime[] wanted to extort money from [Rosales]" and that "the minute

[Rosales]'s wife refused, or did not pay the demand," they targeted

his family for "a retaliatory hit, not just because the money was

not paid, but because at this juncture, the unknown assailants

wanted to inflict the consequences that they promised." Thus, the

IJ found that Tomas's murder was "directed at [Rosales]'s nuclear

family because of the failure to pay the rent."

Further, the IJ noted that "armed men" who "were not

members of the Mexican police" were "patrolling [Rosales]'s home

in Acapulco, and specifically asked about [Rosales]'s and his

family's whereabouts," and that "other unknown individuals were

looking for [Rosales] and his family in Pueblo Viejo." The IJ

3
Family membership "can be a sufficiently permanent and
distinct characteristic to serve as the linchpin for a protected
social group within the purview of asylum laws," so long as the
applicant's "family membership itself brings about" the feared
persecution. Ruiz v. Mukasey, 526 F.3d 31, 38 (1st Cir. 2008).
The finding by the IJ that there was a sufficient nexus between
the persecution suffered by Rosales and his membership in his
nuclear family was not challenged by the government on appeal to
the BIA.

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concluded that "[t]his tracking and directing and looking for

[Rosales]'s family, combined with the initial threats," provided

an objective basis for Rosales's fear that he would be targeted by

organized crime if he returned to Mexico.

In addition to the testimony of Rosales and his wife,

the IJ relied on the Department of State report on country

conditions in Mexico to support the conclusion that someone in

Rosales's "particularized situation would fear harm in Mexico."

The IJ noted both the report's general statements that "[o]rganized

criminal groups killed, kidnapped, and intimidated citizens,

migrants, journalists, and human rights defenders" throughout

Mexico, and its specific descriptions of crime in Rosales's home

state of Guerrero, including the kidnapping of a journalist and

the disappearances and murders of students, and the general

"impunity of organized crime and drug traffickers in Guerrero."4

After finding that Rosales reasonably feared persecution

if he returned to Mexico, the IJ concluded that Rosales had met

4The IJ also found that Rosales had proved by a preponderance
of the evidence that he would be unable to avoid persecution by
relocating within Mexico. See 8 C.F.R. § 1208.13(b)(1)(i)(B)
(permitting the IJ to deny an asylum application where "[t]he
applicant could avoid future persecution by relocating to another
part of the applicant's country of nationality"). The IJ relied
on the evidence that members of organized crime looked for Rosales
in Pueblo Viejo, as well as country reports stating that organized
crime is a problem throughout Mexico and that Mexico has "a
significant problem with internally displaced persons" due to
organized crime-related violence. The conclusion that Rosales
could not relocate within Mexico is not at issue in this appeal.

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his burden of proving a government nexus for that persecution by

showing that the government was unable or unwilling to control the

members of organized crime who had threatened to harm him and his

family. The IJ recognized that "police took an immediate and

active interest in the respondent's son's murder," noting that

Rosales observed seven officers and a forensic team at the scene

where Tomas's body was recovered, the police took statements from

Rosales and his wife, and an autopsy was performed. However, the

IJ ultimately concluded that these investigative steps showed only

that the police were "willing to take on organized crime," not

that "the government is able to protect its citizens from organized

crime."

To determine whether the government was able to protect

Rosales from organized crime, the IJ, "[l]ooking at the specific

facts of this record," found that the country condition reports

submitted by Rosales demonstrated that there was corruption among

police in Guerrero, and that they were unable to control organized

crime. In particular, the IJ referred to a report written by the

International Crisis Group (ICG), stating that "violence remains

an intense problem in states such as Guerrero, which, in 2014, had

the highest homicide rate, where bloodshed is rising." Moreover,

the report stated that, "[d]espite deployment of more federal

police," the homicide rate in Guerrero had risen by more than 20

percent in the first half of 2015. Indeed, it noted that "some 94

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percent of all crimes go unreported" in Guerrero, implying both

that the real homicide numbers may be higher and that citizens of

Guerrero lack faith in the ability of police to bring criminals to

justice. Quoting the article, the IJ emphasized that "[i]mpunity,

even for homicide, is the norm."

Additionally, the IJ pointed to the Department of State

country condition report, which described "numerous reports of

government corruption throughout [2015]." Specifically, "there

were reports that police, particularly at the state and local

level, were involved in kidnapping, extortion, and providing

protection for or directly acting on behalf of organized crime and

drug traffickers." The IJ concluded that, "[u]nder these country

conditions, as articulated in this specific case, I do find that

while the Mexican government made some efforts to investigate the

crime, such action does not show that the government is going to

be able to protect the respondent." The IJ therefore granted

Rosales's application for asylum.

C. The BIA's Decision

The government appealed, and the BIA reversed. The Board

deemed clearly erroneous the IJ's finding that the government of

Mexico was "unable or unwilling" to protect Rosales. Unlike the

IJ, however, the BIA did not separately assess the Mexican

government's ability to protect Rosales after it discussed the

evidence of the government's willingness to investigate his son's

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murder. Listing the steps the police had taken to investigate the

murder, the BIA observed that Rosales had not reported to the

police the extortion attempts before the murder or efforts by

organized crime to find his family after the murder. The BIA

faulted the IJ for giving weight to the country condition reports

and articles about crime in Guerrero instead of the individualized

evidence regarding the police response to Tomas's murder, stating

that "[t]he immigration judge appears to have deferred to the

background evidence, and essentially discounted the actual,

individualized evidence of record in this case showing that the

police in Mexico initiated an investigation of the respondent's

son's murder."

The BIA concluded that "the Immigration Judge's finding

that the police would be unable or unwilling to control the persons

the respondent fears (assuming they are not already imprisoned) is

impermissibly speculative, and is clearly erroneous." To bolster

this conclusion, the BIA added that "the First Circuit . . . has

held that where a government is 'making every effort to combat'

violence by private actors, and 'its inability to stop the problem'

is not distinguishable 'from any other government struggles,' the

private violence has no government nexus and does not constitute

persecution."

One Board member dissented from the decision, stating

her view as follows:

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 Although the majority correctly concludes that
some evidence in the record does not support
the Immigration Judge's determination that the
respondent demonstrated that the Mexican
government would be unable or unwilling to
control the persecutors whom he fears, other
evidence does support that determination. See
Exh. 4 at 65, 109.5 Consequently, the
Immigration Judge cannot be said to have
clearly erred in that regard.

Rosales timely filed this petition for review challenging the BIA's

reversal of the IJ's inability finding, primarily arguing that the

BIA committed a legal error by failing to differentiate between

the Mexican government's willingness and ability to protect him.

II.

A. Standard of Review

"Where, as here, 'the BIA has conducted an independent

evaluation of the record and rested its decision on a self-

generated rationale,' we focus our review on the decision of the

BIA, rather than the decision of the IJ." Gonzalez v. Holder, 673

F.3d 35, 38 (1st Cir. 2012) (quoting Zhou Zheng v. Holder, 570

F.3d 438, 440 (1st Cir. 2009)). Specifically, we review de novo

the determination by the BIA that the immigration judge's finding

that the police would be unable or unwilling to protect Rosales

was clearly erroneous. See Alimbaev v. Att'y General, 872 F.3d

5 This citation is a reference to the country condition
reports submitted by Rosales.

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188, 194 (3d Cir. 2017); Wu Lin v. Lynch, 813 F.3d 122, 129 (2d

Cir. 2016).

In an effort to avoid de novo review of the decision of

the BIA, the government tries to transform the BIA's decision into

something it is not -- a factual finding by the BIA that Rosales

failed to show that the Mexican government was either unwilling or

unable to protect him, and therefore a finding that we must review

under the deferential substantial evidence standard. See Ortiz-

Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007). Pursuant to

that standard, "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); Limani v. Mukasey,

538 F.3d 25, 30 (1st Cir. 2008). Without acknowledging Rosales's

argument that the BIA committed a legal error, the government

contends that we must therefore affirm the BIA's decision unless

the evidence in the record compels a contrary conclusion.

That approach reflects a profound misunderstanding of

the law. Most fundamentally, the BIA's regulations prohibit it

from engaging in fact-finding. See 8 C.F.R. § 1003.1(d)(3)(iv)

(stating that "the Board will not engage in factfinding in the

course of deciding appeals"). Instead, it is limited to making

legal conclusions and evaluating the IJ's findings of fact for

clear error. See id. §1003.1(d)(3)(i)-(ii); see also Rotinsulu v.

Mukasey, 515 F.3d 68, 72 (1st Cir. 2008). The BIA observed that

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limitation here, concluding that the central factual finding by

the IJ -- that the Mexican government was unable to protect Rosales

-- was clearly erroneous.6 That determination is not, as the

government contends, an "administrative finding of fact" subject

to the substantial evidence standard, 8 U.S.C. § 1252(b)(4)(B),

but a legal determination that the evidence in the record was

insufficient as a matter of law to support the IJ's factual

finding. See Wu Lin, 813 F.3d at 129 ("The BIA's application of

'clear error' review is the application of a legal standard to

findings of fact and as such is a ruling of law.").

To be sure, in the usual case where the BIA has adopted

or affirmed the IJ's findings, the factual findings at issue before

us on appeal from the BIA's decision remain the factual findings

of the IJ. Thus, we do not draw a distinction between the two for

the purposes of the standard of review, and we review the factual

findings -- which were originally made by the IJ but affirmed by

the BIA -- under the substantial evidence standard, rejecting them

only if the evidence in the record compels a contrary result. See

8 U.S.C. § 1252(b)(4)(B). At times while conducting such a review,

we have referred to the findings we are reviewing as the "BIA's

factual findings," when it would be more precise to describe them

6 Whether a government is unwilling or unable to protect an
asylum applicant from persecution "is a question of fact." Ortiz-
Araniba, 505 F.3d at 42.

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as the findings of the IJ that have been adopted or affirmed by

the BIA. See, e.g., Ortiz-Araniba, 505 F.3d at 42 (reviewing under

the substantial evidence standard the BIA's determination that the

asylum applicant had not proved that the government was unwilling

or unable to protect her where the BIA had affirmed an IJ's finding

on that point). Cf. Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir.

2007) (applying a deferential standard only to the "IJ's findings

of fact").

This appeal is not the usual case because the BIA

rejected the crucial factual finding of the IJ. Indeed, we have

never had occasion to squarely address the standard of review when

the BIA concludes that a factual finding of the IJ is clearly

erroneous. However, we have applied de novo review to the similar

inquiry of whether the BIA appropriately applied the clear error

standard or instead engaged in improper fact-finding, see Liu Jin

Lin v. Holder, 723 F.3d 300, 305 (1st Cir. 2013), and our sister

circuits have held that de novo review is the appropriate standard

when the BIA rejects a factual finding of the IJ as clearly

erroneous, see, e.g., Wu Lin, 813 F.3d at 129; Alimbaev, 872 F.3d

at 194, 197. We agree that, because the BIA's holding that the IJ

committed clear error is legal in nature, our review of that

conclusion is de novo.

As in other cases where we review the BIA's conclusions

de novo, we are limited by the well-established principle that an

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appellate court "should judge the action of [the BIA] based only

on the reasoning provided by the agency, not based on grounds

constructed by the reviewing court." Mejia v. Holder, 756 F.3d

64, 69 (1st Cir. 2014) (quoting Mihaylov v. Ashcroft, 379 F.3d 15,

21 (1st Cir. 2004)) (alteration in original). As a result, we do

not look at the entire record and determine anew whether, in our

judgment, the IJ committed clear error in finding that the Mexican

government was unable to protect Rosales. Instead, we conduct de

novo review only of the justifications provided by the BIA for

concluding that the IJ's finding that the Mexican government was

unable to protect Rosales was clearly erroneous. See Wu Lin, 813

F.3d at 129.7

B. The BIA's Misapplication of the Unwilling or Unable Standard

To qualify for asylum, an applicant must "demonstrate

either past persecution or a well-founded fear of future

persecution on account of her race, religion, nationality,

political opinion, or membership in a particular social group."

Ortiz-Araniba, 505 F.3d at 41; see 8 U.S.C. § 1101(a)(42)(A); id.

§ 1158(b)(1)(B)(i). Where a private actor, rather than the

government itself, is alleged to be the persecutor, the applicant

must demonstrate "some connection" between the actions of the

7 In that particular sense, de novo review of BIA decisions
is different from de novo review of district court decisions, where
we can affirm for any reason supported by the record. See P.R.
Ports Auth. v. Umpierre-Solares, 456 F.3d 220, 224 (1st Cir. 2006).

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private actor and "governmental action or inaction." Ortiz-

Araniba, 505 F.3d at 41. To demonstrate such a link, Rosales had

the burden of proving that the government was either "unwilling or

unable" to protect him from persecution. Burbiene v. Holder, 568

F.3d 251, 255 (1st Cir. 2009). Rosales contends that the BIA, in

determining that the IJ's finding of inability to protect Rosales

was clearly erroneous, misapplied the unwilling or unable standard

by treating it as one element, rather than separately examining

the government's unwillingness and its inability. We agree.

The BIA's application of the "unwilling or unable"

standard is a legal question that we review de novo. See Madrigal

v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (holding that

misapplication of "unwilling or unable" standard was legal error).

We have consistently stated that an applicant must prove either

unwillingness or inability. See, e.g., Khan v. Holder, 727 F.3d

1, 7 (1st Cir. 2013) (stating that there must be proof that "the

government is unwilling or unable to address" private violence

(emphasis added) (quoting Butt v. Keisler, 506 F.3d 86, 92 (1st

Cir. 2007))); Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir. 2008)

(requiring a showing "that the persecution is due to the

government's unwillingness or inability" to control the conduct of

private actors (emphasis added)); Ortiz-Araniba, 505 F.3d at 41

(requiring a showing of the "government's unwillingness or

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inability to control private conduct" (emphasis added)(quoting

Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir. 2006))).

In Khattak v. Holder, 704 F.3d 197, 206 (1st Cir. 2013),

we demonstrated that unwillingness and inability are distinct

issues, and that an applicant may be able to prove inability

without proving unwillingness where the government's willing

efforts to protect its citizens fall short. There, we held that

the BIA erred when it concluded that the Pakistani military's

actions in fighting the Taliban showed both willingness and ability

to protect Khattak, an anti-Taliban politician. Id. We explained

that "although such military action indicates that the Pakistani

government is willing to take on the Taliban, such action does not

show that the Pakistani government is able to protect its citizens

from Taliban attacks." Id. Accordingly, we remanded the case to

the BIA for reconsideration of its conclusion that the government

was neither unwilling nor unable to protect Khattak.

The BIA here missed the distinction drawn by the IJ

between the Mexican government's willingness to investigate

Tomas's murder and its ability to protect Rosales in the future.

It therefore incorrectly described the IJ's decision as finding

"that the general background country evidence showed that the

police would be unable or unwilling to protect the respondent."

(Emphasis added.) Elaborating on that description, as noted

earlier, the BIA stated that "[t]he Immigration Judge appears to

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have deferred to the background evidence, and essentially

discounted the actual, individualized evidence of record in this

case showing that the police in Mexico initiated an investigation

of the respondent's son's murder."

To the contrary, as described above, the IJ thoroughly

discussed the police investigation in assessing the government's

willingness to protect Rosales, but concluded, based on the country

condition reports and other evidence in the record, that the

government would nonetheless be unable to protect him. Therefore,

as a result of conflating unwillingness and inability, the BIA

erroneously concluded that the IJ should have found that evidence

of willingness (the police investigation) contradicted evidence of

inability (Rosales's testimony and the country condition reports

regarding impunity for organized crime and police corruption),

when in fact the IJ appropriately discussed evidence of

unwillingness and evidence of inability separately.

In support of the BIA's decision, the government cites

two of our cases that it says stand for the proposition that a

police response to persecution, such as the investigation here of

Tomas's murder, is sufficient to demonstrate that the government

is both willing and able to protect an asylum applicant, and that

therefore the BIA did not need to consider more than the police

investigation to conclude that the IJ's inability finding was

clearly erroneous. See Khan, 727 F.3d at 7-8; Ortiz-Araniba, 505

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F.3d at 42. The government misreads our precedent.8 In Khan, we

not only noted that the Pakistani government had investigated

Khan's reports of persecution by the Taliban and had "actively

sought to protect [him]," 727 F.3d at 8, but we also described his

testimony that the government had "arrest[ed] Taliban members and

call[ed] on the Pakistani army to secure the area" where he lived,

which Khan acknowledged had "improve[d] the situation," id. at 7

(alteration in original). There, unlike the circumstances here,

the investigative efforts by the government had proved fruitful,

demonstrating the ability of the police to protect Khan from

persecution.

Likewise, in Ortiz-Araniba, there was evidence that the

police not only responded to the applicant's complaint about

persecution, but also arrested the perpetrator, who was convicted

of the crime and served four years in prison. 505 F.3d at 42.

Given that scenario, we concluded that the successful prosecution

was evidence of both willingness and ability to protect the asylum

applicant, and that such evidence could serve to rebut the country

condition evidence relied on by the applicant to show inability.

Id. at 42-43; see also Harutyunyan v. Gonzales, 421 F.3d 64, 68

8 To the extent that our combined discussion of "unwillingness
or inability" in some cases has obscured the distinction between
the two -- despite our consistent use of the disjunctive "or" --
we clarify now that the inquiry into whether there is a government
nexus must include separate consideration of the evidence of
unwillingness and the evidence of inability.

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(1st Cir. 2005) (finding no inability where "the local authorities

responded immediately to each incident," and "the police succeeded

in tracking down the malefactors and initiated criminal

proceedings against them"); Matter of A-B-, 27 I. & N. Dec. 316,

343 (Att'y Gen. 2018) (finding that the BIA erred in overturning

the IJ's finding that the police were able to protect the

petitioner where she "not only reached out to police, but received

various restraining orders and had [the persecutor] arrested on at

least one occasion"). Here, on the other hand, the evidence in

the record showed only that the police made efforts to investigate

Tomas's murder. The evidence showed nothing about the quality of

this investigation or its likelihood of catching the perpetrators.

Indeed, evidence about law enforcement in Guerrero generally

suggested that the investigation was unlikely to make Rosales's

family any safer. Therefore, unlike Khan and Ortiz-Araniba, the

evidence of the investigation here was insufficient to justify the

BIA's conclusion that the IJ clearly erred in finding that the

Mexican police were willing but unable to protect Rosales.

C. Country Condition Reports

As a result of treating unwillingness and inability as

one element, the BIA erroneously dismissed the country condition

reports that were the basis for the IJ's finding of inability as

mere "background evidence" that was too general to support a

finding of inability in light of the more specific -- and in its

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view, contradictory -- evidence of the police investigation. See

Amouri v. Holder, 572 F.3d 29, 35 (1st Cir. 2009) (stating that,

while "country conditions reports are deemed generally

authoritative in immigration proceedings, the contents of such

reports do not necessarily override petitioner-specific facts").

Focusing only on the willingness of the police to investigate

Tomas's murder, the BIA did not recognize the value of the country

condition reports as support for the IJ's finding that the Mexican

police were unable to protect Rosales under the specific facts of

his case.

Although in some cases country condition reports can be

too generalized to support a finding of inability, see, e.g.,

Mendez-Barrera v. Holder, 602 F.3d 21, 28 (1st Cir. 2010); Amouri,

572 F.3d at 35, the country condition reports cited by the IJ here

were particularly probative because they closely mirrored the

specific circumstances described by Rosales, and thus were

corroborative of his testimony. For example, the International

Crisis Group report described a skyrocketing homicide rate in

Guerrero "[d]espite deployment of more federal police," and stated

that, in Guerrero specifically, "impunity, even for homicide, is

the norm." Those statements are consistent with the testimony of

Rosales, a police officer himself, that organized crime kills

"three or four people a day" in Acapulco and that arrests are

rarely made for such crimes.

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 Also singling out Guerrero as a state where violence was

rampant, the State Department country condition report

specifically described one incident in which local police in

Guerrero arrested 43 students and then handed them over to drug

traffickers. Only the remains of two of the students have been

found. The ICG report described the same incident, as well as

another kidnapping of "more than a dozen people" that occurred in

Guerrero in May 2015, less than a year before Tomas's murder. The

report concluded that the second kidnapping "shows that months

after the students disappeared authorities remained unwilling or

unable to act decisively to prevent and resolve such crimes."

Similarly, Rosales characterized the police in Acapulco as being

overwhelmed by organized crime, and the testimony of Rosales and

his wife that they hired a private civil attorney to investigate

Tomas's murder suggests that they shared this view of the inability

of the police to bring criminals to justice.

Thus, while country condition reports generally have

"high probative value . . . regarding a foreign country's

conditions," Hang Chen v. Holder, 675 F.3d 100, 108 (1st Cir.

2012), and "may constitute 'substantial evidence' for the purposes

of reviewing immigration decisions," id. (quoting Ambartsoumian v.

Ashcroft, 388 F.3d 85, 89 (3d Cir. 2004)), the country condition

reports here were particularly probative because they specifically

addressed the failure of the police in Rosales's home state of

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Guerrero to protect citizens from targeted kidnappings and murders

committed by organized crime, and they corroborated Rosales's

testimony regarding his first-hand experience with organized crime

as a police officer. These reports supported the IJ's conclusion

that the police were unable to protect Rosales from persecution,

and the BIA erred by discounting them as too general.

D. Rosales's Failure to Report Threats to the Police

In addition to conflating unwillingness and inability,

the BIA made an additional error in its clearly erroneous analysis

when it relied on the IJ's finding that Rosales did not report to

the police the efforts of organized crime to find him in Acapulco

and Pueblo Viejo as another basis for rejecting the IJ's inability

finding. In so doing, the BIA ignored the proposition in our case

law that "the failure by a petitioner to make [a police] report is

not necessarily fatal to a petitioner's case [of persecution] if

the petitioner can demonstrate that reporting private abuse to

government authorities would have been futile." Morales-Morales

v. Sessions, 857 F.3d 130, 135 (1st Cir. 2017). The BIA then

compounded that error by failing to take into account the

significant documentary evidence cited by the IJ showing police

corruption and police complicity in organized crime in Guerrero.

Rosales corroborated that evidence with his testimony that, in his

experience as a police officer, the Acapulco police usually conduct

an initial investigation when there is a crime but, "after that,

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all that, it gets archived. They don't really follow up with the

cases." Rosales also testified that, although the police find ten

or eleven bodies every week in Acapulco, arrests are rarely made

in those cases because "the organized crime is overwhelmingly more

than the police." The IJ's finding that Rosales sought assistance

from an attorney outside the police department to investigate

Tomas's murder further corroborated this testimony and the country

condition reports.

Moreover, although he was a police officer, Rosales

testified that he was "afraid" to speak to the police about his

son's murder, and that he did not report the attempts to locate

him by organized crime because he was "afraid they were going to

kill us." He also stated that "that's why the lawyer helped us to

get all the paperwork . . . [for the asylum application], because

we were afraid" to speak to the police. Therefore, reviewing the

entire record before the IJ, we conclude that the BIA erred when

it decided that the IJ's inability finding was undermined by

Rosales's failure to report the attempts to find him to the police.

In citing that failure, the BIA did not address other evidence in

the record demonstrating that such a report would be futile or

even dangerous. Such a selective reading of the record by the BIA

is a misapplication of the clearly erroneous standard.

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E. Indistinguishable from Other Governments' Struggles

The BIA also supported its clear error determination by

concluding that any failure by the Mexican government to protect

Rosales from organized crime "is [in]distinguishable from any

other government's struggles to combat a criminal element,"

Burbiene, 568 F.3d at 255. Again, this selective reading of the

record by the BIA reflects a misapplication of the clearly

erroneous standard.

Drawing on the testimony of Rosales and country

condition reports, the IJ found that most homicides and kidnappings

in Guerrero go unsolved by police, and that at least some police

officers in Guerrero are themselves involved with assisting

organized crime in carrying out extortion, homicides, and even

mass kidnappings. That evidence of police complicity in organized

crime in the particular place where Rosales lived contrasts sharply

with the evidence in Burbiene, where the country condition reports

showed that the country had been largely successful in combatting

human trafficking but had merely failed to eradicate the crime

completely.9 See id.

9
The government draws our attention to the Attorney General's
recent decision in Matter of A-B-, 27 I. & N. Dec. at 320, which
reiterated that "[t]he mere fact that a country may have problems
effectively policing certain crimes . . . cannot itself establish
an asylum claim." This description of the government nexus
requirement is consistent with our precedent, discussed above,
holding that a government's inability to protect a petitioner from

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 The government points out that there was some good news

in the country condition reports, including Mexico's enactment of

laws to facilitate the investigation of disappearances and

torture. However, in light of the BIA's dismissal of the country

condition reports altogether as too general, the government's

attempt to now use them as support for the BIA's decision is

unpersuasive. See Mejia, 756 F.3d at 69 (limiting appellate courts

to review of "the reasoning provided by the agency"). As much as

it might like to do so, the government cannot rewrite the BIA's

decision.

Moreover, the examples provided by the government of the

steps Mexico has taken to combat violence and police corruption

through legislation show only the willingness of the government to

enact laws, not the ability of the police to enforce the law.

Indeed, the government concedes that the results of these efforts

"have been 'limited.'" C.f. Burbiene, 568 F.3d at 255 (finding no

showing of inability where, in addition to legislative changes,

persecution must be "distinguishable from any other government's
struggles to combat a criminal element." Burbiene, 568 F.3d at
255; see also Ortiz-Araniba, 505 F.3d at 41 (stating that a
petitioner must show "more than 'difficulty . . . controlling
private behavior'" (quoting Menjivar v. Gonzales, 416 F.3d 918,
921 (8th Cir. 2005))). As we explain, Rosales has produced
competent and sufficient evidence that the failures by the police
in Guerrero went well beyond a government's failure to protect its
citizens from all crime.

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the government had "opened 24 criminal cases against alleged

traffickers").

Even if the reforms cited by the government could be

considered evidence of ability, we agree with the dissenting member

of the BIA panel that the existence of some evidence in the record

that could support a finding of ability does not render the IJ's

finding of inability clearly erroneous, especially given the

significant country condition evidence that supported the IJ's

decision. See Ridore v. Holder, 696 F.3d 907, 917 (9th Cir. 2012)

("The BIA cannot, under a clear error standard of review, override

or disregard evidence in the record and substitute its own version

of reality."); see also Anderson v. City of Bessemer City, N.C.,

470 U.S. 564, 573 (1985) (stating that the clear error "standard

plainly does not entitle a reviewing court to reverse the finding

of the trier of fact simply because it is convinced that it would

have decided the case differently").

III.

In sum, the BIA's justifications for its holding that it

was clearly erroneous for the IJ to find that the Mexican

government is unable to protect Rosales reflect multiple errors.

The BIA failed to consider evidence of the Mexican government's

inability to protect Rosales and his nuclear family, as distinct

from evidence of the willingness of the police to investigate the

murder of Rosales's son. That error in conflating unwillingness

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and inability was compounded when the BIA discounted country

condition reports which, when combined with Rosales's testimony

about the particular circumstances of his case, were sufficient to

support the IJ's finding that the police in Guerrero would be

unable to protect Rosales from persecution by organized crime.

The BIA committed further error by concluding that the

IJ's finding that Rosales did not report threats by organized crime

to the police refuted the IJ's ultimate finding of inability. The

BIA both ignored our precedent stating that a failure to report a

crime does not undermine an assertion of inability if a report

would have been futile, and failed to consider evidence in the

record that would support a finding of futility, thereby

misapplying the clear error standard. Moreover, in another

misapplication of the clear error standard, the BIA incorrectly

concluded that the IJ's inability finding was clearly erroneous

because the Mexican government's failure to protect Rosales was

indistinguishable from the struggles of any government to combat

crime, when the record before the IJ supported a finding that it

was distinguishable.

Because of these errors, we grant Rosales's petition and

remand to the BIA for further proceedings consistent with this

opinion. See I.N.S. v. Ventura, 537 U.S. 12, 16-17 (2002) (per

curiam) (holding that remand to the BIA is generally the

appropriate remedy when the BIA commits a legal error).

So ordered.

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