United States Court of Appeals
For the First Circuit
No. 18-1590
IRMA AGUILAR-ESCOTO,
Petitioner,
v.
MERRICK B. GARLAND,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge,
Howard and Kayatta, Circuit Judges.
Kenyon C. Hall, with whom Jack W. Pirozzolo, Sidley Austin,
LLP, Charles G. Roth, National Immigrant Justice Center, and Carlos
E. Estrada were on brief, for petitioner.
Yanal H. Yousef, Trial Attorney, Office of Immigration
Litigation, with whom Joseph H. Hunt, Assistant Attorney General,
Civil Division, and Anthony P. Nicastro, Assistant Director,
Office of Immigration Litigation, were on brief, for respondent.
February 7, 2023
HOWARD, Circuit Judge. For the second time, petitioner
Irma Aguilar-Escoto, a native and citizen of Honduras, asks us to
vacate the Board of Immigration Appeals' ("BIA" or the "Board")
rejection of her claim for withholding of removal. When this case
was last before us, we vacated the BIA's prior order and instructed
the Board to consider the potentially significant documentary
evidence submitted in support of Aguilar's claim. See Aguilar-
Escoto v. Sessions, 874 F.3d 334, 335 (1st Cir. 2017). Today, we
conclude that the BIA again failed to properly consider significant
documentary evidence. Consequently, we vacate the Board's removal
order and remand for further proceedings.
I.
Aguilar first entered the United States in 2005. She
was apprehended and removed soon thereafter, but she reentered the
United States in 2009. When Aguilar was again apprehended, the
Department of Homeland Security ("DHS") filed a notice of intent
to reinstate her prior removal order. She applied for withholding
of removal. At her merits hearing before an Immigration Judge
("IJ") in 2013, Aguilar described pervasive abuse that she endured
at the hands of her ex-husband, Victor Gonzales. Aguilar alleged
that this abuse occurred both during and after their marriage of
several years. She testified that she fled Honduras to escape the
abuse. Aguilar also submitted documentary evidence related to the
abuse, including:
- 2 -
• A 2013 psychological evaluation report by Dr. Sarah LeVine,
a United States-based clinician, that diagnosed Aguilar with
Major Depressive Disorder in partial remission and Post-
Traumatic Stress Disorder in remission.
• A record from the Medical Association of Honduras regarding
treatment that Aguilar received from a psychiatrist in
Honduras for emotional symptoms stemming from domestic
violence.
• A family court order from Honduras that detailed some of the
mistreatment, ordered Gonzales to stay away from Aguilar,
and gave Aguilar custody of their daughters.
• Copies of three formal complaints filed with the police:
One from July 13, 2004, detailing threats and harassment by
Gonzales against Aguilar after the two had separated; one
describing a June 14, 2008, incident in which Gonzales struck
Aguilar while she was pregnant; and another from August 8,
2008, accusing Gonzales of striking Aguilar and threatening
to kill her.
• A personal declaration in which Aguilar attested to long-
term physical and verbal abuse.
• Two affidavits, one from Aguilar's brother and another from
the brother of her then-current partner, attesting to the
abuse she endured from Gonzales.
- 3 -
In a written decision in 2014, the IJ denied Aguilar's
application for withholding of removal. The IJ found Aguilar to
be not credible, citing inconsistencies between her testimony,
prior interviews with immigration officials, and documentary
evidence. The IJ also found that Aguilar could not overcome her
lack of credibility with enough objective evidence to establish
past persecution.
Aguilar appealed the IJ's decision. In January 2016,
the BIA dismissed the appeal. In doing so, however, the BIA solely
considered the IJ's adverse credibility ruling and failed to
mention the documentary evidence related to Aguilar's abuse.
Ruling that the IJ did not clearly err in its adverse credibility
determination, the BIA concluded that Aguilar had failed to meet
the requirements for asylum (though she was not applying for
asylum). The BIA then concluded that she had similarly failed to
establish eligibility for withholding of removal, because
withholding of removal "has a higher burden of proof" than asylum.1
On appeal, this Court vacated the BIA's 2016 decision
because the Board had failed to consider the documentary evidence
and whether that evidence, standing on its own, was sufficient to
1Aguilar had also applied for protection under the Convention
Against Torture, which was similarly denied by the IJ and BIA.
She did not challenge the denial of her CAT claim in her previous
appeal or this one, and we deemed it waived. Aguilar-Escoto, 874
F.3d at 336 n.1.
- 4 -
support Aguilar's claim of past persecution. See Aguilar-Escoto,
874 F.3d at 337-38. We reasoned that, because withholding of
removal requires only an objective showing rather than a subjective
one, a lack of credibility is not fatal to the claim. Id. We
therefore remanded to the BIA to consider whether the objective
evidence -- absent Aguilar's discredited testimony -- was
sufficient to support Aguilar's withholding petition. Id.
In May 2018, the BIA issued a new decision in which it
once again affirmed the ruling of the IJ. This time, the BIA
mentioned some of the objective evidence in its analysis, including
the July 2004 and June 2008 police reports, the July 2004 family
court order, the affidavits of Aguilar's brother and her partner's
brother, and the letter from the Medical Association of Honduras.
The BIA did not mention the August 2008 complaint, instead stating
that Aguilar "provided only two complaints." The BIA also did not
mention Dr. LeVine's report and diagnosis or Aguilar's personal
declaration. After comparing the objective evidence with
Aguilar's testimony, the BIA concluded that "[o]n this record"
there was no "clear error in the Immigration Judge's determination
that the applicant did not establish harm sufficiently severe to
amount to past persecution." The BIA also held that the IJ did
not clearly err in determining that Aguilar did not show a
likelihood of future persecution, including finding that she had
not shown that the Honduran government is unwilling or unable to
- 5 -
protect her or that she would not be able to avoid harm by
relocating within Honduras. Lastly, the BIA again upheld the IJ's
adverse credibility determination, finding the IJ did not clearly
err in that determination. This appeal followed.
II.
"Where the BIA does not adopt the IJ's findings, we
review the BIA's decision rather than the IJ's." Lin v. Mukasey,
521 F.3d 22, 26 (1st Cir. 2008) (citing Georcely v. Ashcroft, 375
F.3d 45, 49 (1st Cir. 2004)). Here, the BIA did not say that it
was adopting the IJ's decision, only that the IJ's findings were
not clearly erroneous. Therefore, we focus our review on the BIA's
decision. See Lin, 521 F.3d at 26 (reviewing only BIA decision
when BIA did not expressly adopt IJ's decision and merely said
that IJ's findings were not clearly erroneous).
We review the BIA's legal conclusions de novo, "but with
some deference to the agency's reasonable interpretation of
statutes and regulations that fall within its sphere of authority."
Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012). We review
findings of fact under the "substantial evidence" standard,
meaning that we will not disturb such findings if they are
"supported by reasonable, substantial, and probative evidence on
the record considered as a whole." Xin Qiang Liu v. Lynch, 802
F.3d 69, 74 (1st Cir. 2015) (quoting Hasan v. Holder, 673 F.3d 26,
33 (1st Cir. 2012)).
- 6 -
Aguilar argues that the BIA erred by failing to follow
this Court's instruction to independently consider on remand the
documentary evidence and to determine whether that evidence
sufficed to establish past persecution. We review de novo whether
the BIA's decision comports with this Court's remand order.
Sullivan v. Hudson, 490 U.S. 877, 886 (1989) ("Deviation from the
court's remand order in the subsequent administrative proceedings
is itself legal error . . . ."). Under this standard, we agree
with Aguilar that the BIA failed to comply with our order to
"address whether, setting Aguilar's testimony to one side, the
documentary evidence entitled her to relief." Aguilar-Escoto, 874
F.3d at 337.
As we noted in our prior decision in this case, "while
the BIA need not 'discuss every piece of evidence offered,' it is
'required to consider all relevant evidence in the record.'"
Aguilar-Escoto, 874 F.3d at 337 (emphasis in original) (quoting
Lin, 521 F.3d at 28). "When the BIA's decision is neither
inconsistent with [the evidence at issue] nor gives reason to
believe the BIA was unaware of it, we have no reason to doubt that
the agency considered the evidence." Domingo-Mendez v. Garland,
47 F.4th 51, 58 (1st Cir. 2022) (alteration in original) (quoting
Lin, 521 F.3d at 28). However, "it cannot turn a blind eye to
salient facts" and "must fairly appraise the record." Sihotang v.
Sessions, 900 F.3d 46, 51 (1st Cir. 2018).
- 7 -
Here, the BIA's decision gives strong reason to believe
the BIA turned a blind eye to key relevant evidence. In its
decision, the BIA wrote that "the applicant provided only two
complaints, one dated July 13, 2004, and the other, June 14, 2008"
(emphasis added). The record, however, contains a third complaint
from August 8, 2008, which details that Gonzales was being
investigated because there was evidence that he had struck Aguilar
and threatened to kill her. The BIA's reference to "only two
complaints" strongly suggests it overlooked this third complaint,
and the government itself concedes the BIA "erred" in its statement
that there were only two complaints and "failed to address" the
August 2008 complaint.
This third complaint -- containing evidence of death
threats and physical violence -- is highly relevant to the inquiry
of whether Aguilar experienced past persecution. We have long
held that "credible, specific threats can amount to persecution if
they are severe enough" -- particularly if they are death threats.
Javed v. Holder, 715 F.3d 391, 395-96 (1st Cir. 2013); see also
Amouri v. Holder, 572 F.3d 29, 33 (1st Cir. 2009) ("[T]hreats of
murder easily qualify as sufficiently severe harm."); Sok v.
Mukasey, 526 F.3d 48, 54 (1st Cir. 2008) ("[W]e have often
acknowledged that credible threats can, depending on the
circumstances, amount to persecution . . . ."); Un v. Gonzales,
415 F.3d 205, 210 (1st Cir. 2005) ("[C]redible verbal death threats
- 8 -
may fall within the meaning of 'persecution.'"); Aguilar-Solis v.
INS, 168 F.3d 565, 570 (1st Cir. 1999) ("[P]ersecution encompasses
more than threats to life or freedom, but less than mere harassment
or annoyance." (citations omitted)). Moreover, we have recognized
that "the addition of physical violence, although not required,
makes a threat more likely to constitute persecution." Javed, 715
F.3d at 396. The August 2008 complaint overlooked by the Board
contained additional evidence of Gonzales both physically harming
Aguilar and threatening to kill her. It was thus highly relevant
to the issue the BIA was confronting: whether Aguilar had suffered
past persecution.
The BIA's lack of meaningful analysis on this issue
provides further grounds for believing it did not consider the
August 2008 complaint. The BIA never mentioned that Gonzales had
threatened Aguilar with death, mentioning only that he had
"threatened the applicant and her family" without discussing the
content of those threats. Nor did it engage with our case law
regarding the ability of credible death threats to amount to past
persecution, other than by attempting to undermine Aguilar's
argument by citing to a case that actually supports it. The BIA
cited to Lopez de Hincapie v. Gonzales, 494 F.3d 213 (1st Cir.
2007), for the proposition that "one element in the decisional
calculus as to whether an asylum applicant has been persecuted
involves the degree of the harm inflicted or threatened. To rise
- 9 -
to the level of persecution, the sum of an asylum applicant's
experiences must add up to more than ordinary harassment,
mistreatment, or suffering." Yet the BIA overlooked the very next
sentence in Lopez de Hincapie, which continued: "Because threats
of murder would fit neatly under this carapace, we assume,
favorably to the petitioner, that she has met this prong of the
test for persecution." Lopez de Hincapie, 494 F.3d at 217
(emphasis added) (citations omitted). Notably, the other two
complaints the BIA did discuss do not explicitly include threats
of death toward Aguilar. The July 2004 complaint says he
"threatened" her and threatened to kill her current partner if she
didn't leave him, but it did not specify whether Gonzales
threatened Aguilar with death. The June 2008 complaint meanwhile
includes insults and physical violence but no mention of death
threats. Thus, the August 2008 complaint would have significant
bearing on whether the objective evidence in the record included
threats of death.2 The BIA's failure to mention it -- or to even
mention that Aguilar had been threatened with death -- strongly
The BIA similarly did not discuss Dr. LeVine's report, which
2
also included discussion of death threats. Given that the
narrative elements of this report were based primarily on Aguilar's
statements and the IJ found she was not credible, we defer to the
BIA to determine how much weight to give the events outlined in
this report. However, in addition to the narrative contents, the
evaluation is certainly probative for its determination that
Aguilar suffered from symptoms consistent with Major Depressive
Disorder and Post-Traumatic Stress Disorder in remission.
- 10 -
suggests it "completely overlooked critical evidence." Sihotang,
900 F.3d at 51; cf. Domingo-Mendez, 47 F.4th at 58 (noting that,
despite the BIA's failure to mention specific facts, it did
acknowledge possible effects consistent with those facts); Lin,
521 F.3d at 28 (finding "no reason to surmise that the BIA
overlooked the background information in the record" where
"nothing in the BIA's decision . . . is inconsistent with" that
information).
Although the government concedes the BIA's mistake in
stating that there were only two complaints, it urges that this
"oversight . . . is mitigated by the fact that the immigration
judge did in fact reference the document . . . and considered it
in finding that [Aguilar] did not establish past persecution."
But the BIA cannot here rely on the IJ's decision to fill holes in
its own reasoning, for the following three reasons.
First, as discussed above, where the BIA does not adopt
the IJ's findings but only states that they were not clearly
erroneous, we review the BIA's decision alone rather than the IJ's
decision. Lin, 521 F.3d at 26 (citing Georcely, 375 F.3d at 49).
Second, in determining whether the IJ's finding of no
past persecution was clearly erroneous, the Board itself was
required to consider all evidence relevant to that analysis. This
it did not do. As the petitioner argues, the Board primarily
discussed the documentary evidence in comparison with Aguilar's
- 11 -
testimony and did not provide a thorough analysis of whether the
harm outlined in the documentary evidence compelled a finding that
it rose to the level of past persecution. Indeed, the BIA never
even mentioned that Gonzales had threatened Aguilar with death,
instead merely mentioning that he had "threatened the applicant
and her family." The contents of a threat have significant bearing
on whether it would rise to the level of persecution. See, e.g.,
Sok, 526 F.3d at 54 ("[W]e have often acknowledged that credible
threats can, depending on the circumstances, amount to
persecution, especially when the assailant threatens the
petitioner with death . . . ." (emphasis added)). "The agency
need not spell out every last detail of its reasoning where the
logical underpinnings are clear from the record." Enwonwu v.
Gonzales, 438 F.3d 22, 35 (1st Cir. 2006). "However, the agency
'is obligated to offer more explanation when the record suggests
strong arguments for the petitioner that the [agency] has not
considered.'" Id. (alteration in original) (quoting Sulaiman v.
Gonzales, 429 F.3d 347, 350 (1st Cir. 2005)). The BIA failed to
meet this standard given its total lack of analysis -- or, indeed,
mention -- of whether the death threats Aguilar experienced coupled
with physical violence rose to the level of persecution. Cf.
Sihotang, 900 F.3d at 51 (finding the BIA abused its discretion
where it "appear[ed] to have completely overlooked critical
evidence").
- 12 -
Lastly, although the issue is not raised by the parties,
the BIA should have applied de novo review rather than clear error
review in determining whether the past threats and harm Aguilar
experienced rose to the level of past persecution. See Matter of
Z-Z-O-, 26 I. & N. Dec. 586, 590-91 (B.I.A. 2015); Matter of A-S-
B-, 24 I. & N. Dec. 493, 496 (B.I.A. 2008), overruled in part on
other grounds by Matter of Z-Z-O-, 26 I. & N. Dec. at 589-91. The
Board reviews an IJ's findings of fact, including determinations
as to credibility and the likelihood of future events, under a
"clearly erroneous" standard. 8 C.F.R. § 1003.1(d)(3)(i); Matter
of Z-Z-O-, 26 I. & N. Dec. at 590. It reviews all other issues,
including issues of law, judgment, or discretion, under a de novo
standard. 8 C.F.R. § 1003.1(d)(3)(ii). The Board has held that
an IJ's findings regarding the facts underlying a hardship claim
are reviewed for clear error, while the determination of whether
those facts meet the legal definition of "past persecution" is
reviewed de novo. Matter of A-S-B-, 24 I. & N. Dec. at 496; see
also DeCarvalho v. Garland, 18 F.4th 66, 73 (1st Cir. 2021) (noting
the BIA reviews de novo an IJ's determinations of how the law
applies to facts, "e.g., whether [a particular] harm rises to the
level of torture"). In applying de novo review, the BIA should
have completed its own assessment of whether the documentary
evidence provided rose to the level of past persecution. It is
impossible to see how the BIA could adequately complete such an
- 13 -
analysis without mentioning the death threat and physical violence
outlined in the August 2008 complaint.
Based on the foregoing, we conclude that the BIA failed
to comply with this Court's remand order.3
III.
Having determined that the BIA failed to follow our
remand order, we now turn to the government's argument that we
should nevertheless affirm based on the IJ's and BIA's findings
that Aguilar failed to show that the Honduran government is not
"unwilling or unable" to protect her from harm. We find this
argument unavailing for the simple reason that neither the IJ nor
the BIA addressed this issue as it regarded past persecution and
therefore cannot be relied on here to invalidate Aguilar's claim
for relief.
In order to constitute "persecution" for purposes of
asylum and withholding of removal, harm must either be perpetrated
by the government itself or by a private actor that the government
is unwilling or unable to control. See Rosales Justo v. Sessions,
895 F.3d 154, 162 (1st Cir. 2018). If an individual establishes
that they were subject to past persecution -- including meeting
the requirement of government unwillingness or inability to
3We need not address Aguilar's other arguments for remand,
as we find the BIA's failure to comply with our prior remand order
sufficient to vacate the BIA's order and remand the case.
- 14 -
protect them -- they are entitled to a presumption that they will
face persecution in the future on the basis of the original claim.
See 8 C.F.R. § 208.16(b)(1)(i). The burden then shifts to the
government to rebut this presumption by showing either a
fundamental change in circumstances or the possibility of internal
relocation to avoid persecution if relocation would be reasonable
under all the circumstances. Id.
In Aguilar's case, the IJ never addressed whether she
had shown that the Honduran government was unwilling or unable to
protect her from the past harm perpetrated by Gonzales. The IJ
cut off the inquiry into past persecution upon determining that
the harm detailed in the documentary evidence Aguilar presented
was insufficient to rise to the level of persecution. Instead,
the IJ's sole discussion of government involvement took place under
the heading "Future Persecution." The Board then affirmed the
IJ's findings regarding future persecution, including that "the
applicant did not show that the government of Honduras is unable
or unwilling to protect her from Mr. Gonzales" (emphasis added).
The determination of future unwillingness or inability to act is
a different inquiry than that of past unwillingness or inability.
And, importantly, if Aguilar succeeds in establishing that she
experienced past persecution at the hands of a private actor that
the Honduran government was unwilling or unable to control, she is
entitled to a presumption of future persecution that DHS bears the
- 15 -
burden of rebutting.4 Therefore, the BIA's and IJ's findings on
this point cannot dispose of Aguilar's claims for relief.
IV.
Lastly, we contend with Aguilar's request for us to find
that substantial evidence compels a finding of past persecution.
In line with our earlier decision regarding this same case, "[w]e
take no position on the merits of the IJ's holding that the abuse
reflected in the documentary evidence was not sufficiently severe
to warrant relief. This issue is best left to be addressed by the
BIA in the first instance." Aguilar-Escoto, 874 F.3d at 337.
Despite our remand, the BIA has yet to properly address this issue.
We therefore defer to the Board to review this issue de novo on
remand. See Matter of Z-Z-O-, 26 I. & N. Dec. at 590-91; Matter
of A-S-B-, 24 I. & N. Dec. at 496.
We do, however, take this opportunity to acknowledge the
tension between the standards of review applied to past persecution
by the BIA and circuit courts. As the Tenth Circuit has written,
"there is serious reason to question whether this court should
4 Similarly, if Aguilar establishes past persecution, DHS
bears the burden of showing she "could avoid a future threat
to . . . her life or freedom by relocating to another part of the
proposed country of removal and, under all the circumstances, it
would be reasonable to expect [her] to do so." 8 C.F.R. §
208.16(b)(1)(i). The Board's finding that "the record does not
indicate that [Aguilar] would not be able to relocate in Honduras"
is therefore similarly of no value in resolving her claim here.
It also does not appear the IJ ever addressed this issue in the
first instance.
- 16 -
treat the BIA's ultimate determination as to the existence of
persecution (i.e., whether a given set of facts amounts to
persecution) as factual in nature." Xue v. Lynch, 846 F.3d 1099,
1104 (10th Cir. 2017). The BIA itself is prohibited from reviewing
an IJ's factual determinations de novo and has "specifically
determined that the ultimate resolution whether a given set of
facts amount to persecution is a question of law reviewed de novo."
Id. (citing Matter of A-S-B-, 24 I. & N. Dec. at 496-97). Yet we
and many of our sister circuits have largely applied the
"substantial evidence" standard reserved for factual findings to
the determination of whether a given set of facts meets the
standard of persecution. See, e.g., Yong Gao v. Barr, 950 F.3d
147, 152 (1st Cir. 2020) (applying the substantial evidence
standard); Martínez-Pérez v. Sessions, 897 F.3d 33, 40 (1st Cir.
2018) (same); Vicente–Elias v. Mukasey, 532 F.3d 1086, 1091 (10th
Cir. 2008) ("In this circuit, the ultimate determination whether
an alien has demonstrated persecution is a question of fact, even
if the underlying factual circumstances are not in dispute and the
only issue is whether those circumstances qualify as
persecution."); Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir.
2021) ("We also review for substantial evidence the BIA's
particular determination that a petitioner's past harm 'do[es] not
amount to past persecution.'" (alteration in original) (quoting
Villegas Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir. 2021)));
- 17 -
Thayalan v. Att'y Gen., 997 F.3d 132, 137 (3d Cir. 2021) ("Whether
an asylum applicant has demonstrated past persecution . . . is a
factual determination reviewed under the substantial evidence
standard." (quoting Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir.
2005))). But see Huo Qiang Chen v. Holder, 773 F.3d 396, 403 (2d
Cir. 2014) (“[W]hether certain events, if they occurred, would
constitute persecution as defined by the INA is a question of
law.”); Alavez–Hernandez v. Holder, 714 F.3d 1063, 1066 (8th Cir.
2013) (noting the question of whether conditions were "severe
enough to constitute past persecution . . . is a question of law
we review de novo"). As the Tenth Circuit observed, "[u]nless the
BIA's decision in In re A–S–B– is wrong, it appears entirely likely
this court should be treating BIA decisions on the ultimate
question of the existence of persecution as legal in nature." Xue,
846 F.3d at 1106; see also Liang v. Att'y Gen., 15 F.4th 623, 627
(3d Cir. 2021) (Jordan, J., concurring) ("The question of what
events occurred or may occur 'is factual in nature and is subject
to clearly erroneous review by the BIA' and substantial evidence
review by this Court; while the question of 'whether those events
meet the legal definition of persecution [ ] is reviewed de novo
because it is plainly an issue of law.'" (alteration in original)
(quoting Huang v. Att'y Gen., 620 F.3d 372, 379, 383 (3d Cir.
2010))). As in Xue, this issue was not raised by the parties here
on appeal, and our own precedent has made clear that we apply the
- 18 -
substantial evidence standard to such determinations (even though
we have never questioned the correctness of the review structure
outlined by Matter of A-S-B- and Matter of Z-Z-O-). See e.g.,
Yong Gao, 950 F.3d at 152; Martínez-Pérez, 897 F.3d at 40; Topalli
v. Gonzales, 417 F.3d 128, 131 (1st Cir. 2005) ("We review the
BIA's determination that Topalli failed to show past persecution
under the deferential substantial evidence standard."). But cf.
DeCarvalho, 18 F.4th at 73 (noting in the Convention Against
Torture context that "whether a person is likely to suffer a
particular harm" is a finding of fact the BIA reviews for clear
error whereas "whether such harm rises to the level of torture"
requires applying the law to those facts and is reviewed de novo
by the BIA). We therefore leave this issue to another day.
V.
Given the BIA's failure to properly consider the
documentary evidence in accordance with this Court's prior remand
order, we grant the petition for review, vacate the Board's
decision in its entirety, and remand for further proceedings
consistent with this opinion.
- 19 -