Enamorado-Rodriguez v. Barr

United States Court of Appeals
For the First Circuit

No. 19-1084

DARLIN ELEAZAR ENAMORADO-RODRIGUEZ,

Petitioner,

v.

WILLIAM P. BARR,*
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

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

Before
Lynch, Lipez, and Thompson,
Circuit Judges.

Joshua D. Asher, with whom Megan McEntee, David C. Soutter,
and Ropes & Gray LLP were on brief for petitioner.
Jennifer A. Singer, Trial Attorney, U.S. Department of
Justice, Civil Division, Office of Immigration Litigation, with
whom Kristen A. Giuffreda, Trial Attorney, Joseph H. Hunt,
Assistant Attorney General, and Shelley R. Goad, Assistant
Director, were on brief for respondent.

October 30, 2019

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General William
P. Barr is substituted for former Acting Attorney General Matthew
G. Whitaker as respondent.
 LYNCH, Circuit Judge. Darlin Eleazar Enamorado-

Rodriguez ("Enamorado"), a Honduran national, came to the United

States at age fifteen and sought asylum, withholding of removal,

and protection under the Convention Against Torture ("CAT"). He

asserted he had experienced past persecution on account of a

protected ground, his membership in his mother's nuclear family,

and would face future persecution.

Although the Immigration Judge ("IJ") found that

Enamorado's testimony was credible, and that the abuse Enamorado

suffered had indeed amounted to persecution, the IJ denied asylum

relief. He held that Enamorado had not met his burden to show the

required nexus. The BIA affirmed, saying in part that Enamorado

had failed to submit corroborative evidence.

We vacate the BIA's decision denying asylum and

withholding of removal as to Enamorado's family membership

persecution claim for relief, deny the relief Enamorado sought on

alternate particular social group ("PSG") theories and for CAT

relief, and remand the matter for proceedings on Enamorado's family

membership persecution claim, consistent with this opinion.

I.

We describe first those facts relevant to our conclusion

there was legal error. Facts pertinent to our rejection of

Enamorado's challenges to other claims are recited with the

analyses of those claims.

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 Enamorado was born on January 22, 2000, in El Capuline,

a small, isolated, mountainous village in the municipality of Santa

Barbara, Honduras. According to the uncontradicted declaration

of Enamorado's mother, Ruth Azucena Rodriguez Acosta, his father,

Eleazar Enamorado Alberto, was addicted to drugs and physically

abused her, including while she was pregnant with Enamorado. Days

after Enamorado's birth, his father slapped his mother in front of

his father's sister, who told Eleazar that he had to leave the

family home. Eleazar did. Enamorado's mother then did not hear

from his father for seven months. His mother then moved to San

Pedro Sula with Enamorado so that she could live with her own

mother.

Enamorado's father eventually came to San Pedro Sula,

and when, after six months, his mother "decided to get back

together with him," they rented a room together. Within a month,

Enamorado's father resumed physically abusing his mother. His

mother "was never able to tell anyone how" his father abused her

and did not believe the police would take action if she reported

his abuse. She eventually began to work in a clothes factory, and

Enamorado's paternal grandmother, who then lived in San Pedro Sula,

watched Enamorado while his mother worked. When Enamorado's

grandmother decided to move back to El Capuline, she took Enamorado

with her, and Enamorado's mother thereafter visited him and her

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other child, Enamorado's sister, in El Capuline on weekends.

Enamorado's father accompanied her only occasionally.

When Enamorado was four, he and his sister moved again

to live with their parents in San Pedro Sula so that his sister

could start school. His father continued to use drugs and

physically abuse Enamorado's mother and both children. Eleazar

then took Enamorado back to his father's parents in El Capuline

and did not allow Enamorado's mother to visit or retrieve him.

When Enamorado was about six, his father tried to choke

his mother in their home while their daughter watched. His mother

told his father "to get out of the house," and the father then

left Honduras for Mexico. His father told his own parents not to

return Enamorado to his mother. Eleazar continued to threaten and

harass Enamorado's mother by telephone, including threats to kill

her. In fear, Enamorado's mother immediately fled Honduras for

the United States without her children. She left her daughter

with her cousin in San Pedro Sula. Her son, petitioner, remained

with his grandparents in El Capuline.

From about age six to age ten, Enamorado remained with

his father's parents in El Capuline in a house made of dirt and

stone, with no telephone or electricity. Both of his grandparents

"talked very bad" about his mother. They told Enamorado that his

mother had left Honduras because she did not love him and that

Enamorado's maternal grandmother had caused his parents'

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separation. Enamorado's grandfather told him that his mother did

not really love him because she had not come to say goodbye to him

before leaving Honduras.

Enamorado's grandparents went well beyond his father's

instruction not to return Enamorado to his mother or allow her to

visit, refusing to allow him to see or speak to anyone in his

mother's family. Enamorado's sister was then living with

Eleazar's sister in another nearby town. When Enamorado asked his

sister about their father, she started crying and said that their

father had abused her.

During this period, Enamorado's grandparents physically

and verbally abused him. On many occasions, his grandmother used

a stick and rope to hit him, including on his back and his legs.

His grandmother did not treat anyone else this way. His

grandfather beat Enamorado with ropes used to tie horses, a water-

soaked belt, or the straps of a horse saddle, and once threatened

to hit Enamorado with the flat of a machete. His grandfather also

verbally insulted Enamorado, calling him "stupid" and specifically

referring to Enamorado's mother by calling Enamorado "son of a

whore." Because of the distance between homes in El Capuline,

neighbors were unaware of the abuse. The nearest police station

was too far for Enamorado to travel to, and he believed the police

would do nothing. Enamorado reported the abuse to his teachers

but they did nothing.

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 When asked at the hearing why his life with his

grandparents was "very bad," Enamorado testified that both his

grandparents "mistreated [him] a lot because they hated [his]

mother very much." His grandmother hit him because "she hated

[his] mother very much." He added that his grandfather mistreated

him because "he was going to raise [Enamorado] up whichever way he

wanted, the same way he was raised, and he would tell [Enamorado]

that [he had] to become a man." The government did not cross-

examine Enamorado about his grandparents' motivations in abusing

him.

Enamorado's grandfather eventually left El Capuline and

did not return, leaving Enamorado alone with his grandmother.

When Enamorado was nine or ten, his grandmother also eventually

left, leaving Enamorado alone in El Capuline. His sister was

living with their paternal aunt, about ninety minutes away on foot,

and Enamorado could only visit infrequently. When he did, his

aunt did not offer to take care of him. Enamorado did not try to

leave El Capuline because his grandparents had told him to watch

the house and because he lacked means to travel. He went hungry,

had few clothes, and became very sick, including with dengue fever.

He could not travel to the health clinic. When he was twelve or

thirteen, Enamorado attempted suicide because of his sadness and

loneliness, but his sister came to El Capuline and found him in

time to prevent his death.

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 Enamorado's grandmother eventually returned to El

Capuline. The house had been robbed during her absence, for which

she blamed Enamorado and beat him. Enamorado began working,

helping cousins in the fields.

The abuse was also committed by other members of

Enamorado's father's family. Enamorado worked with a paternal

cousin who often insulted him and his mother, calling him a "son

of a whore." His cousin once threw a machete at Enamorado's hand,

causing a deep cut.

His grandmother eventually left El Capuline again. When

he was fifteen, Enamorado moved to San Pedro Sula to live with his

sister and her partner. Men on the street threated Enamorado with

a weapon, asked him for money, and told him they could make him

disappear. Enamorado also learned that the MS-13 gang had killed

his paternal cousin, heightening his fear that he was in danger.

Enamorado decided to go to the United States.

He entered the United States on July 13, 2015, near

Hidalgo, Texas, was detained by immigration officials, and was

released to live in East Boston with his mother, step-siblings,

and half-siblings.

On February 28, 2018, Department of Homeland Security

Investigations ("HSI") Gang Strike Force agents took Enamorado

into custody because of his alleged association with MS-13 street

gang members. In Immigration Court in Boston, Enamorado conceded

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through counsel that he was removable and sought asylum,

withholding of removal, and protection under the CAT.

II.

A. Denial of Asylum Based on Family Relationship

Although the IJ had "some concerns regarding

[Enamorado's] denials that he may be a gang member," he "ultimately

. . . found [Enamorado] credible with respect to his claims of

past harm in Honduras and the claim of future harm." The IJ also

found that "the frequency of the beatings by [Enamorado's] paternal

grandparents, . . . the deprivation of food and medical help for

[Enamorado] as a young child, [and] the abandonment of [Enamorado]

by both his paternal grandparents" established that Enamorado had

suffered harm sufficient to constitute persecution.

The IJ then found that Enamorado had not "provided

sufficient evidence to establish that one central reason for the

harm he suffered was on account of his family, including that of

his nuclear family." Reasoning that Enamorado "only offered his

own speculation to support his position that he was persecuted on

account of his family," the IJ found "insufficient evidence to

establish a nexus to a protected ground or that one central reason

[Enamorado] was targeted was on account of his family, as opposed

to his grandparents' conceptions of masculinity or his

grandparents' adherence to the manner of they were raised [sic]."

The IJ did not reach the question of future persecution if

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Enamorado returned to Honduras and did not consider whether the

rebuttable presumption would apply. See 8 C.F.R. § 208.13(b)(1).

The IJ acknowledged that Enamorado's mother provided a

lengthy sworn declaration about the circumstances surrounding

Enamorado's father's parents' mistreatment of him. The IJ

"place[d] minimal weight" on her declaration, "especially where

she was available as a witness" but did not testify. Apparently

not considering the declaration to be corroborative evidence, the

IJ concluded that Enamorado had failed to meet his burden through

his testimony alone and was required to support his testimony with

corroborative evidence. The IJ also rejected the alternate

claimed grounds for relief.

Enamorado appealed the IJ's decision to the BIA, arguing

that the IJ's conclusion about Enamorado's grandparents'

motivation in abusing him was clearly erroneous and based on an

error of law.1

The BIA dismissed Enamorado's appeal and engaged in its

own analysis. It observed that Enamorado "testified that his

grandmother beat him viciously because she hated his mother, but

that his grandfather beat him because he wanted to raise

[Enamorado] whatever way he wanted and desired to make him a man."

1
Enamorado also argued that the IJ lacked jurisdiction
because the Notice to Appear in Enamorado's case was defective
under Pereira v. Sessions, 138 S. Ct. 2105 (2018), but he does not
press this argument on appeal to this court.

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In fact, this was a mischaracterization; Enamorado's testimony was

that both his grandmother and his grandfather beat him because

they hated his mother. The BIA concluded that, although Enamorado

had "posit[ed] a plausible alternative motive to the one found by

the [IJ]," such a showing was "insufficient to demonstrate clear

error." The BIA also found that Enamorado had "not met his burden

to corroborate his claim that he was harmed on account of his

family membership," noting that he "had reasonably available

witnesses but did not make them available for cross-examination."

As a result, "[w]ithout additional corroboration, [Enamorado's]

testimony, while credible, was not sufficient in this case."

When "the BIA conducts a de novo review of the record,

independently validates the sufficiency of the evidence, and

adopts the IJ's findings and conclusions, the IJ's findings become

the BIA's." Laurent v. Ashcroft, 359 F.3d 59, 64 n.3 (1st Cir.

2004). We must uphold the BIA's decision if it is "supported by

reasonable, substantial, and probative evidence on the record

considered as a whole." INS v. Elias–Zacarias, 502 U.S. 478, 481

(1992) (quoting 8 U.S.C. § 1105a(a)(4)) (internal quotation marks

omitted).

To qualify for asylum, a person must establish that he

or she is "someone who is unable or unwilling to return to his

home country due to persecution or a well-founded fear of future

persecution 'on account of race, religion, nationality, membership

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in a particular social group, or political opinion.'" Silva v.

Gonzales, 463 F.3d 68, 71 (1st Cir. 2006) (quoting 8 U.S.C.

§ 1101(a)(42)(A)). The person must show that one of the statutory

protected grounds "was or will be at least one central reason

for" his or her persecution. 8 U.S.C. § 1158(b)(1)(B)(i). Family

membership is "a sufficiently permanent and distinct

characteristic" to support an asylum claim. Ruiz v. Mukasey, 526

F.3d 31, 38 (1st Cir. 2008). If past persecution based on a

protected ground is found, a presumption of future persecution

arises and the burden shifts to the government to rebut that

presumption. Orelien v. Gonzales, 467 F.3d 67, 71 (1st Cir. 2006).

Enamorado argues that the BIA committed legal error by

failing to consider whether Enamorado's persecution had mixed

motivations, that is, whether, despite the possible presence of

another motivation, Enamorado's membership in his mother's family

was at least one central reason for his persecution. He also

argues that the BIA committed further error by requiring Enamorado

to provide further evidence than he did to corroborate his

testimony that he was persecuted based on his family.

The asylum statute provides that "the applicant must

establish that race, religion, nationality, membership in a

particular social group, or political opinion was or will be at

least one central reason for persecuting the applicant." 8 U.S.C.

§ 1158(b)(1)(B)(i) (emphasis added). Accordingly, "[w]e do not

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require an asylum applicant to demonstrate that he was singled out

only due to his protected trait," Ordonez-Quino v. Holder, 760

F.3d 80, 90 (1st Cir. 2014), and "the presence of a non-protected

motivation does not render an applicant ineligible for refugee

status," Aldana-Ramos v. Holder, 757 F.3d 9, 19 (1st Cir. 2014).

"Rarely will an applicant know the 'exact motivation' of his

persecutors--especially when he was victimized as a young

child--and, 'of course, persecutors may often have more than one

motivation.'" Ordonez-Quino, 760 F.3d at 90 (quoting Ivanov v.

Holder, 736 F.3d 5, 15 (1st Cir. 2013)).

As the Ninth Circuit has said, and we agree,

an applicant need not prove that a protected
ground was the most important reason why the
persecution occurred. The Act states that a
protected ground must constitute 'at least
one' of the central reasons for persecutory
conduct; it does not require that such reason
account for 51% of the persecutors'
motivation.

Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009).

Nothing in the IJ's ruling reads that the IJ utilized a

mixed-motive or "at least one central reason" analysis, as the

statute requires. Enamorado's briefing to the IJ and the BIA did

not waive this issue. Nor did the IJ's ruling explain how

Enamorado's family membership was not "at least one central reason"

for his persecution given Enamorado's uncontested testimony,

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deemed credible by the IJ, that his grandmother and grandfather

each beat him because each hated his mother.

The BIA did not recognize this error. Further, it

focused on the grandfather's motivation, ignoring the

grandmother's, and even then mischaracterized the testimony. We

note that Enamorado's abuse continued during the period when he

lived only with his grandmother because his grandfather had left

El Capuline. The grandmother's persecution based on hatred of the

mother may have been sufficient standing alone, but neither the IJ

nor the BIA addressed this point.

Nothing in the record or the IJ's decision supports the

conclusion that Enamorado's description of his grandfather's

motivation, if different, also applied to his grandmother's

motivation. The IJ's conclusion that Enamorado's abuse was

motivated only by "his grandparents' conception of masculinity or

his grandparents' adherence to the manner of they were raised

[sic]" does not follow the required analysis.

Even on its own terms, the IJ's conclusion--that

Enamorado's grandfather was motivated by his conception of

masculinity or how he was raised--does not itself exclude that

Enamorado's relationship to his mother motivated his grandfather's

abuse.

Enamorado's grandfather may have been raised to believe

that the "sins" of the mother (in not remaining with Enamorado's

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father despite the beatings she suffered) should be visited on her

son. Indeed, his grandparents did not say his mother left Honduras

in light of the death threats received from the father. Rather,

they told him his mother did not love him. And that belief is

consistent with the grandfather's anger with the grandson for his

status as his mother's child, calling Enamorado "son of a whore."

Nor is Enamorado's grandfather's stated desire to ensure that

Enamorado would "become a man" inconsistent with a motive based on

Enamorado's being his mother's son. That is particularly so in

light of the record evidence that family "violence against women

is considered natural" in Honduras. Nothing in the IJ's decision

addressed this.

The government responds that the IJ permissibly

concluded that Enamorado did not meet his burden to show that his

family membership was a cause of his persecution. The government

stated at oral argument that Enamorado's testimony about his

grandparents' motivation was speculation because he did not

provide quoted specific statements that his grandparents made that

demonstrated their hatred of his mother. The government offered

no authority that an asylum applicant is required to establish the

motivation for the persecution using direct quotes from the

applicant's persecutor, and we are aware of none. It also argues

that Enamorado's testimony was no more than his speculation about

the reasons for his grandparents' abuse and therefore insufficient

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on its own to demonstrate his entitlement to asylum.2 The BIA,

however, did not call this evidence "speculation," and we reject

that argument by the government as not an accurate summation of

the record.

In the ordinary course, "[a]n alien may satisfy his

burden of proving entitlement to asylum 'by [his] own testimony if

that testimony is specific and credible.'" Rivera-Coca v. Lynch,

844 F.3d 374, 379 (1st Cir. 2016) (quoting Chhay v. Mukasey, 540

F.3d 1, 6 (1st Cir. 2008)). It is true that corroborative evidence

may be required even if the applicant is credible. 8 U.S.C.

§ 1158(b)(1)(B)(ii). Further, "[a] failure either to provide

readily available corroborating evidence or to offer a compelling

explanation for such a failure can be fatal to an asylum claim."

Rivera-Coca, 844 F.3d at 379. This is not a case where the

applicant's testimony was weak, causing a greater need for

corroborative evidence. Mukamusoni v. Ashcroft, 390 F.3d 110, 122

(1st Cir. 2004).

But an asylum seeker need not provide such corroboration

where "the applicant does not have the evidence and cannot

2 The government also filed a Rule 28(j) letter about the
Attorney General's decision in Matter of L-E-A-, 27 I. & N. Dec.
581 (A.G. 2019). The issues it addresses are not before the court.
The BIA decided this case under prior law, and the government's
brief does not present the argument that Enamorado's maternal
family was not a cognizable PSG. Further, unlike in Matter of L-
E-A-, the government in this case left it to Enamorado to establish
the validity of his PSG, which he did.

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reasonably obtain [it]." 8 U.S.C. § 1158(b)(1)(B)(ii).

"[B]efore the failure to produce corroborating evidence can be

held against an applicant, there must be explicit findings that

(1) it was reasonable to expect the applicant to produce

corroboration and (2) the applicant's failure to do so was not

adequately explained." Soeung v. Holder, 677 F.3d 484, 488 (1st

Cir. 2012).

The government's legal position as to corroboration

fails. The IJ never informed Enamorado that he was required to

provide further evidence by putting his mother on the stand despite

her sworn declaration. There was no objection to consideration of

her declaration and no request for cross-examination by the

government. The stated reason for not considering her declaration

does not strike us as sound, as we discuss below. The government

does not argue that the declaration was not part of Enamorado's

asylum application. See 8 C.F.R. § 1208.3(c)(1) ("[I]nformation

provided in the [asylum] application may be used . . . to satisfy

any burden of proof in . . . removal proceedings."); Mukamusoni,

390 F.3d at 121 (discounting improperly applicant's affidavit is

"an error of law").

The IJ's decision notes that Enamorado's mother "was not

offered for cross-examination notwithstanding her presence in the

court," but it does not contain a finding that Enamorado's mother,

who apparently refused to testify, was reasonably available to

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take the stand. There is no explanation in the record for this

refusal and no explanation of whether the mother thought she would

jeopardize her own asylum application by testifying. Her mere

presence in the courtroom does not itself establish that she was

reasonably available to testify. As the government conceded at

oral argument, the IJ made no "explicit finding[] that . . . it

was reasonable to expect [Enamorado] to produce corroboration" of

his grandparents' motives or that his failure to offer

corroborative testimony was inadequately explained. See Soeung,

677 F.3d at 488.

The BIA independently referred to the need for

corroborative evidence from other witnesses. But Enamorado

testified that there were no other witnesses to his abuse because

of the distance between homes in El Capuline, and the IJ did not

explain on this record what further evidence was reasonably

available despite Enamorado's youth and isolation at the time of

the abuse. See Ordonez-Quino, 760 F.3d at 90 (acknowledging that

a young victim of persecution will often have little evidence of

persecutors' motivation). Despite our deference to findings made,

"[w]e cannot read these findings into the record; they [must be]

made explicitly in the first instance by the IJ and the BIA."

Soeung, 677 F.3d at 489.

Here, the IJ found Enamorado credible with respect to

his persecution and did not explain why, despite Enamorado's

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credible, unrebutted testimony, his mother's sworn affidavit was

not considered, or why it was reasonable to require further

evidence to buttress Enamorado's proffered explanation of his

grandparents' motives. Without such findings, "any holding that

an otherwise credible claim is doomed because the petitioner failed

to provide corroborating evidence directly conflicts with the

applicable regulations." Mboowa v. Lynch, 795 F.3d 222, 226 n.3

(1st Cir. 2015) (citing 8 C.F.R. § 208.13(a)). This is the second

error of law which requires us to remand for a proper analysis.

B. Denial of Asylum Based on Enamorado's Other Proposed PSGs

Enamorado also claimed eligibility for asylum based on

his membership in what he argued are three other PSGs: (1) Honduran

children viewed as property by immediate family and unable to

leave; (2) Honduran children lacking parental protection; and

(3) young Honduran male deportees labeled as gang members by U.S.

law enforcement. The IJ concluded that these proposed PSGs lacked

the requisite particularity. The BIA affirmed. We deny the

petition as to its attacks on the BIA's determinations that

Enamorado's other proposed PSGs are not cognizable under the asylum

statute.

"[A]n applicant seeking asylum or withholding of removal

'based on "membership in a particular social group" must establish

that the group is: (1) composed of members who share a common

immutable characteristic, (2) defined with particularity, and (3)

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socially distinct within the society in question.'" Paiz-Morales

v. Lynch, 795 F.3d 238, 244 (1st Cir. 2015) (quoting Matter of M–

E–V–G–, 26 I. & N. Dec. 227, 237 (BIA 2014)).

First, the IJ reasonably concluded that Enamorado did

not show that his proposed PSGs of "Honduran children viewed as

property by immediate family and unable to leave" and "Honduran

children lacking parental protection" have the required

particularity, finding that their ambiguous terms gave them no

"definable boundaries." These descriptions are "ambiguous group

characteristics, largely subjective." Mendez-Barrera v. Holder,

602 F.3d 21, 27 (1st Cir. 2010). Further, were Enamorado to return

to Honduras, he would not be a child. See Miranda-Bojorquez v.

Barr, 937 F.3d 1, 6 (1st Cir. 2019) (petitioner did not establish

membership in a PSG of minor children because he was "no longer a

minor").

Enamorado's third proposed PSG arises out of events

after his arrival in Boston. On January 22, 2018, HSI labeled

Enamorado "a VERIFIED and ACTIVE member of the MS-13 gang in the

Boston metro area." HSI's conclusion was based on field reports

gathered by the Boston Police Department, the Boston Regional

Intelligence Center, the Boston School Police Department, and the

Massachusetts State Police that Enamorado was seen interacting

with certain other individuals, was seen in certain areas of East

Boston, and was seen wearing apparel bearing gang symbols such as

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the Chicago Bulls logo. Enamorado denies that he is or has been

in the MS-13 gang. Because some of his paternal cousins are in

the 18th Street Gang, he believes that reports that he is in the

MS-13 gang may be fatal if he returns to Honduras. His third

proposed PSG of young Honduran male deportees labeled as gang

members by U.S. law enforcement is based on this fear.

The IJ reasonably concluded that Enamorado did not show

that this proposed PSG has the required particularity, finding

that the group is not viewed as socially distinct in Honduras.

The record does not compel a conclusion that persons incorrectly

perceived by U.S. law enforcement as gang members are themselves

a distinct social group in Honduras. See Cantarero v. Holder, 734

F.3d 82, 86 (1st Cir. 2013).

C. Denial of Relief Under CAT

The IJ's denial, and the BIA's affirmance, as to

Enamorado's application for CAT protection is supported by

substantial evidence. "A petitioner seeking CAT protection must

show 'it is more likely than not' that he would be subject to

torture 'by or with the acquiescence of a government official.'"

Aldana-Ramos, 757 F.3d at 19 (quoting Nako v. Holder, 611 F.3d 45,

50 (1st Cir. 2010)). The IJ concluded that Enamorado had offered

insufficient evidence of the needed government indifference,

noting that Enamorado had never contacted the police in the past

about his abuse and was never mistreated by a government official.

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 III.

The BIA's decision as to Enamorado's asylum and

withholding of removal claims based on his persecution as a member

of his mother's family was based on legal errors as described.

The BIA's decision as to Enamorado's other proposed PSGs and his

CAT claim, on the other hand, contained no legal errors and was

supported by substantial evidence.

Enamorado asks us to find that the record compels a

finding of his eligibility for asylum and to declare that he has

established past persecution. But where the agency's decision was

based on errors of law, we are required to remand to allow the

agency to make its own finding using the correct legal standard.

We may not make the finding ourselves in the first instance. See

INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (per curiam);

Castaneda-Castillo v. Gonzales, 488 F.3d 17, 22 (1st Cir. 2007)

(en banc); Vumi v. Gonzales, 502 F.3d 150, 159 (2d Cir. 2007)

(remanding to agency when agency did not use mixed-motive

analysis).

We grant the petition in part and deny it in part, vacate

the BIA's decision as to Enamorado's asylum and withholding of

removal claims based on the PSG of family relationship, and remand

for further proceedings on that claim consistent with this opinion.

-Concurring Opinion Follows-

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 LIPEZ, Circuit Judge, concurring in part and concurring

in the judgment. Although there is much to admire in the majority

opinion, I disagree that the agency decisionmakers committed legal

error by failing to apply the mixed-motive standard. The IJ's and

BIA's analyses show that they used the correct standard. The

error lies elsewhere -- reaching a conclusion on the nexus element

that is not supported by the evidence.3 This record compels a

finding that at least one central reason for Enamorado's

persecution was membership in his mother's family. Hence, I would

hold that Enamorado has established that he was persecuted on the

basis of a protected ground. In my view, the proceedings on remand

should first focus on whether the government is unwilling or unable

to protect Enamorado from such persecution. See Rosales Justo v.

Sessions, 895 F.3d 154, 162 (1st Cir. 2018). If so, he will then

have the benefit of a rebuttable presumption of future persecution,

which the remand proceedings would then address. See Rivera-Coca

v. Lynch, 844 F.3d 374, 378-79 (1st Cir. 2016).

3 As the majority notes, when, as in this case, "the BIA
conducts a de novo review of the record, independently validates
the sufficiency of the evidence, and adopts the IJ's findings and
conclusions, the IJ's findings become the BIA's." Laurent v.
Ashcroft, 359 F.3d 59, 64 n.3 (1st Cir. 2004). However, for
clarity, I will refer to both the IJ's and BIA's decisions as
appropriate to my analysis.

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 I. The Agency's Decision on Mixed Motive

The IJ concluded, and the BIA affirmed, that Enamorado

failed to provide "sufficient evidence to establish that one

central reason for the harm he suffered was on account of his

family, including that of his nuclear family." In reaching that

conclusion, the IJ noted that the statute governing asylum requires

that membership in a particular social group be "at least one

central reason" for an asylum applicant's persecution. The IJ

further stated that "[t]he key question is whether the evidence

indicated that the persecutors 'had any animus against the family

or the respondent based on their biological ties, historical

status, or other features relating to the family's unit.'" IJ Op.

at 15 (quoting Matter of L-E-A-, 27 I. & N. Dec. 40, 47 (B.I.A.

2017)). After articulating this correct legal standard, the IJ

acknowledged the petitioner's testimony that he had been

persecuted on account of his membership in his family but rejected

it as insufficient to establish the required nexus. The IJ

concluded that the record supported only one conclusion: that

Enamorado's grandparents abused him because of their "conception

of masculinity" or a commitment to raise Enamorado in the way that

they were raised.

The BIA affirmed the IJ's conclusion, finding no clear

error in the IJ's factual determination that Enamorado had failed

to establish the required family-motivated nexus. Like the IJ,

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the BIA acknowledged the petitioner's evidence that he was

persecuted by his grandparents because of his family membership

-- his paternal grandparents hated his mother -- but concluded

that, although this alternative motive for the abuse was plausible,

the IJ's rejection of it did not amount to clear error.

To be sure, neither the IJ nor the BIA explicitly invoked

the mixed-motive analysis. But the legal framework articulated

by each of them makes clear that the IJ applied that standard and

that the BIA reviewed its application. The IJ acknowledged the

evidence supporting an additional motive, but he concluded that

the evidence was insufficient. The BIA affirmed this analysis.

Thus, in my view, the BIA did not commit legal error by failing to

engage in a mixed-motive analysis. Rather, as detailed below, the

agency erred in reaching a conclusion regarding the nexus element

that disregarded the compelling evidence of family-based

motivation.

II. The Evidence of Mixed Motive

We review the IJ's findings of fact, adopted by the BIA,

under the substantial evidence standard, which requires that we

respect findings "supported by reasonable, substantial, and

probative evidence on the record considered as a whole." Ordonez-

Quino v. Holder, 760 F.3d 80, 87 (1st Cir. 2014) (quoting Larios

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v. Holder, 608 F.3d 105, 107 (1st Cir. 2010)). 4 There is

substantial evidence to support the agency's findings if the record

does not compel a contrary factual finding but simply "supports a

conclusion contrary to that reached by the BIA." See Hincapie v.

Gonzales, 494 F.3d 213, 218 (1st Cir. 2007) (citing I.N.S. v.

Elias-Zacaris, 502 U.S. 478, 481 n.1 (1992)). If, however, the

record viewed in its entirety would compel a reasonable fact-

finder to reach a contrary conclusion, "'our deference is not

unlimited,' and we must reject . . . the IJ's findings." Ordonez-

Quino, 760 F.3d at 87 (quoting Ivanov v. Holder, 736 F.3d 5, 11

(1st Cir. 2013)).

As the majority's thorough recitation of the evidence

reveals, multiple factors compel a finding regarding nexus

contrary to that reached by the IJ and affirmed by the BIA. First,

Enamorado provided specific testimony not only about his

grandparents' abusive treatment, but also about specific

statements and actions that led him to believe that they persecuted

him because they hated his mother. He testified that his

grandparents prohibited him from seeing or speaking with anyone in

his mother's family, talked "very bad" about his mother, told him

that his mother did not love him, and called him a "son of a whore"

repeatedly. He also testified that both of his grandparents

4
Whether persecution occurred "on account of a protected
ground" is a finding of fact. Ordonez-Quino, 760 F.3d at 87.

- 25 -
abused him "because they hated [his] mother very much" and that

his grandmother hit him because "she hated [his] mother very much."

The government did not attempt to discredit Enamorado's testimony

concerning the family-based reason for his treatment; it did not

cross-examine him on any of his statements regarding his

grandparents' abuse or their motivations.

Second, and perhaps most significantly, the IJ found

this testimony credible, but selectively -- and arbitrarily --

relied on it in reaching his nexus finding about the motivation of

the grandparents. Despite Enamorado's lengthy testimony

describing his grandparents' hatred of his mother, the IJ

cherrypicked a single statement from Enamorado's unrebutted,

credible testimony to conclude that his grandparents' motivation

for abusing him was their conception of masculinity or an adherence

to raising him as they were raised. In other words, in making his

nexus finding, the IJ relied exclusively on one piece of

Enamorado's testimony -- notably, the sole part of his testimony

that supported a motivation other than one protected by asylum law

-- but then disregarded the rest of that testimony, despite all of

it coming from the same source deemed credible by the IJ. This

inconsistent treatment of Enamorado's uncontested, credible

testimony cannot be upheld. When the petitioner's testimony is

properly viewed in its entirety, along with the rest of the record

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evidence, we must conclude that Enamorado has established that his

persecution was on account of his family membership.

That the record compels this contrary conclusion is

perhaps most obvious when considering the grandmother's

motivations for abusing Enamorado. Although the petitioner stated

that his grandfather abused him because of his view of masculinity,

he never said the same of his grandmother. The IJ completely

disregarded this fact. Indeed, there is no evidence in the record

that supports the IJ's conclusion that Enamorado's grandmother was

motivated by her view of masculinity or a commitment to raise the

petitioner as she was raised. And, as the majority points out,

the petitioner was abused by his grandmother, even when his

grandfather was not living with them.

Third, as the majority correctly emphasizes, the IJ

improperly rejected as "speculation" Enamorado's testimony that

his grandparents' hatred of his mother was one cause for his abuse.

In support of this view, the IJ cited Villalta-Martinez v.

Sessions, 882 F.3d 20 (1st Cir. 2018), in which the court also

referred to an asylum applicant's testimony as speculation. See

id. at 25. However, that case and other asylum cases involving

"speculative" testimony are readily distinguishable from the

unique circumstances presented here.

In Villalta-Martinez, the petitioner asserted that gangs

extorted money from her while she was working at a store owned by

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her romantic partner because of her membership in his family. Id.

at 23-24. The IJ found, and the BIA affirmed, that Villalta-

Martinez had failed to present evidence demonstrating that the

gang members targeted her for any reason other than to extort money

from her. Id. at 24. In affirming that decision, our court noted

that the petitioner provided only her own speculation to support

her contention that one central reason for her persecution was her

relationship to her partner. Id. at 25. Indeed, the petitioner

had not provided evidence that these unidentified gang members

even knew of her relationship to him. Id. at 24. Moreover, her

testimony suggested that she was not singled out by the gang

members. All of the employees at the store were threatened by the

gang, undercutting her contention that it was her unique

relationship to her partner that motivated the gang's actions.

Id. at 23-24. We similarly have affirmed the BIA's denials of

asylum petitions where a petitioner's evidence of the nexus element

is limited to the petitioner's own theory about a stranger's

motivation for persecuting him or her. See, e.g., Giraldo-Pabon

v. Lynch, 840 F.3d 21, 25 (1st Cir. 2016) (affirming the BIA's

conclusion that the petitioner's "own belief that another cousin

was stabbed because of her family members' involvement in narco-

trafficking" did not establish the requisite nexus).

Enamorado's testimony regarding his grandparents'

actions and statements -- and his own inference about their

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motivations for abusing him -- is not "speculation" in the same

sense. Enamorado could not, of course, testify with certainty

about his grandparents' state of mind. But an inference anchored

in direct, intimate interactions with his abusive grandparents

with whom he lived is as well supported as can reasonably be

expected. And, relatedly, Enamorado is the best source, aside

from his abusers themselves, for insight into the reasons he was

persecuted, particularly given that he lived during his years of

abuse in a mountainous, remote village, far from police, medical

facilities, or even other family.

Accordingly, given the specific circumstances of

petitioner's abusive treatment, there is not substantial evidence

to support the IJ's conclusion on nexus, adopted by the BIA, when

the record is viewed as a whole. Rather, the record compels a

finding that at least one central reason for the grandparents'

abuse was Enamorado's membership in his mother's family. In my

view, that conclusion follows regardless of the error, which I

agree was made, as to corroborative evidence. Thus, I cannot join

the mixed-motive discussion in Section II.A of the majority's

decision.5

5 I do, however, agree with the majority's analysis of the
corroboration error in Section II.A, Enamorado's other proposed
PSGs, and relief under CAT.

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 III. Conclusion

There is only one conclusion to draw from this record

-- Enamorado has established that he was persecuted on the basis

of his family membership. In my view, the proceedings on remand

should first focus on the government's unwillingness or inability

to protect him from this persecution. 6 If that is the case,

Enamorado would then have the benefit of a rebuttable presumption

of future persecution, which would also be addressed in the remand

proceedings.

6 When an asylum applicant is persecuted by a private actor,
rather than the government itself, he or she has "the burden of
proving that the government was either 'unwilling or unable' to
protect him [or her] from persecution." Rosales Justo, 895 F.3d
at 162 (quoting Burbiene v. Holder, 568 F.3d 251, 255 (1st Cir.
2009)). The petitioner attempted to meet this burden in the
proceedings below. However, because the IJ found that Enamorado
had not established the nexus element, the IJ did not reach a
conclusion about the "unwilling or unable" element.

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