RELIEF FROM REMOVAL

Table of Contents

ASYLUM, WITHHOLDING and the CONVENTION AGAINST TORTURE. B-1

I.            THE CONTEXT. B-1

II.          ASYLUM.. B-2

A.          Burden of Proof B-2

B.          Defining Persecution. B-3

1.           Cumulative Effect of Harms. B-4

2.           No Subjective Intent to Harm Required. B-5

3.           Forms of Persecution. B-5

a.            Physical Violence. B-5

(i)          Physical Violence Sufficient to Constitute Persecution  B-6

(ii)         Physical Violence Insufficient to Constitute Persecution  B-7

b.           Torture. B-7

c.           Threats. B-7

(i)           Cases Holding Threats Establish Persecution. B-8

(ii)         Cases Holding Threats Not Persecution. B-9

d.           Detention. B-9

e.            Mental, Emotional, and Psychological Harm.. B-10

f.            Substantial Economic Deprivation. B-11

g.           Discrimination and Harassment B-12

4.           Age of the Victim.. B-13

C.          Source or Agent of Persecution. B-14

1.           Harm Inflicted by Relatives. B-15

2.           Reporting of Persecution Not Always Required. B-15

3.           Cases Discussing Source or Agent of Persecution. B-16

D.          Past Persecution. B-17

1.           Presumption of a Well-Founded Fear B-18

2.           Rebutting the Presumption of a Well-Founded Fear B-19

a.            Fundamental Change in Circumstances. B-19

b.           Government’s Burden. B-19

(i)           State Department Report B-20

(ii)         Administrative Notice of Changed Country Conditions  B-21

c.           Cases where Changed Circumstances or Conditions Insufficient to Rebut Presumption of Well-Founded Fear B-22

d.           Internal Relocation. B-23

3.           Humanitarian Asylum.. B-24

a.            Severe Past Persecution. B-25

(i)           Compelling Cases of Past Persecution for Humanitarian Asylum   B-25

(ii)         Insufficiently Severe Past Persecution for Humanitarian Asylum   B-27

b.           Fear of Other Serious Harm.. B-27

E.           Well-Founded Fear of Persecution. B-28

1.           Past Persecution Not Required. B-28

2.           Subjective Prong. B-29

3.           Objective Prong. B-29

4.           Demonstrating a Well-Founded Fear B-31

a.            Targeted for Persecution. B-31

b.           Family Ties. B-31

c.           Pattern and Practice of Persecution. B-32

d.           Membership in Disfavored Group. B-33

5.           Countrywide Persecution. B-34

6.           Continued Presence of Applicant B-36

7.           Continued Presence of Family. B-36

8.           Possession of Passport or Travel Documents. B-37

9.           Safe Return to Country of Persecution. B-38

10.        Cases Finding No Well-Founded Fear B-38

F.           Nexus to the Five Statutorily Protected Grounds. B-39

1.           Proving a Nexus. B-40

a.            Direct Evidence. B-40

b.           Circumstantial Evidence. B-41

2.           Mixed-Motive Cases. B-42

3.           Shared Identity Between Victim and Persecutor B-44

4.           Civil Unrest and Motive. B-44

5.           Resistance to Discriminatory Government Action. B-45

6.           The Protected Grounds. B-45

a.            Race. B-45

(i)           Cases Finding Racial or Ethnic Persecution. B-46

(ii)         Cases Finding No Racial or Ethnic Persecution   B-46

b.           Religion. B-47

(i)           Cases Finding Religious Persecution. B-47

(ii)         Cases Finding No Religious Persecution. B-48

c.           Nationality. B-49

d.           Membership in a Particular Social Group. B-49

(i)           Types of Social Groups. B-51

(A)        Family and Clan. B-51

(B)        Gender-Related Claims. B-51

(1)         Gender Defined Social Group. B-51

(2)         Gender-Specific Harm.. B-52

(C)        Sexual Orientation. B-53

(D)        Former Status or Occupation. B-54

(ii)         Cases Denying Social Group Claims. B-54

e.            Political Opinion. B-55

(i)           Organizational Membership. B-56

(ii)         Refusal to Support Organization. B-56

(iii)        Labor Union Membership and Activities. B-57

(iv)        Opposition to Government Corruption. B-57

(v)         Neutrality. B-58

(vi)        Other Expressions of Political Opinion. B-59

(vii)      Imputed Political Opinion. B-59

(A)        Family Association. B-60

(B)        No Evidence of Legitimate Prosecutorial Purpose  B-60

(C)        Government Employees. B-62

(D)        Other Cases Discussing Imputed Political Opinion  B-62

(viii)     Opposition to Coercive Population Control Policies. B-63

(A)        Forced Abortion. B-64

(B)        Forced Sterilization. B-65

(C)        Other Resistance to a Coercive Population Control Policy  B-66

(D)        Family Members. B-67

f.            Prosecution. B-68

(i)           Pretextual Prosecution. B-68

(ii)         Illegal Departure Laws. B-69

g.           Military and Conscription Issues. B-70

(i)           Conscription Generally Not Persecution. B-70

(ii)         Exceptions. B-70

(A)        Disproportionately Severe Punishment B-71

(B)        Inhuman Conduct B-71

(C)        Moral or Religious Grounds. B-71

(iii)        Participation in Coup. B-72

(iv)        Military Informers. B-72

(v)         Military or Law Enforcement Membership. B-72

(A)        Current Status. B-72

(B)        Former Status. B-72

(vi)        Non-Governmental Conscription. B-73

h.           Cases Concluding No Nexus to a Protected Ground. B-73

G.          Exercise of Discretion. B-75

H.          Remanding Under INS v. Ventura. B-76

I.            Derivative Asylees. B-79

J.            Bars to Asylum.. B-79

1.           One-Year Bar B-79

a.            Exceptions to the Deadline. B-81

2.           Previous Denial Bar B-83

3.           Safe Third Country Bar B-83

4.           Firm Resettlement Bar B-84

5.           Persecution of Others Bar B-86

6.           Particularly Serious Crime Bar B-87

7.           Serious Non-Political Crime Bar B-89

8.           Security Bar B-89

9.           Terrorist Bar B-89

III.        WITHHOLDING OF REMOVAL OR DEPORTATION.. B-91

A.          Eligibility for Withholding. B-91

1.           Higher Burden of Proof B-91

2.           Mandatory Relief B-92

3.           Nature of Relief B-92

4.           Past Persecution. B-92

5.           Future Persecution. B-93

6.           No Time Limit B-93

7.           Firm Resettlement Not a Bar B-93

8.           Entitled to Withholding. B-94

9.           Not Entitled to Withholding. B-95

10.        No Derivative Withholding of Removal B-96

B.          Bars to Withholding. B-97

1.           Nazis. B-97

2.           Persecution-of-Others Bar B-97

3.           Particularly Serious Crime Bar B-97

4.           Serious Non-Political Crime Bar B-99

5.           Security and Terrorist Bar B-99

IV.        CONVENTION AGAINST TORTURE (“CAT”) B-100

A.          Standard of Review.. B-101

B.          Definition of Torture. B-102

C.          Burden of Proof B-103

D.          Country Conditions Evidence. B-105

E.           Past Torture. B-106

F.           Internal Relocation. B-106

G.          Differences Between CAT Protection and Asylum and Withholding B-107

H.          Agent or Source of Torture. B-108

I.            Mandatory Relief B-109

J.            Nature of Relief B-109

K.          Derivative Torture Claims. B-110

L.           Exhaustion. B-110

M.         Habeas Jurisdiction. B-110

N.          Cases Granting CAT Protection. B-110

O.          Cases Finding No Eligibility for CAT Protection. B-111

V.          CREDIBILITY DETERMINATIONS. B-113

A.          Standard of Review.. B-113

B.          Opportunity to Explain. B-115

C.          Credibility Factors. B-116

1.           Demeanor B-116

2.           Responsiveness. B-117

3.           Specificity and Detail B-117

4.           Inconsistencies. B-118

a.            Minor Inconsistencies. B-118

b.           Substantial Inconsistencies. B-119

c.           Mistranslation/Miscommunication. B-121

5.           Omissions. B-121

6.           Incomplete Asylum Application. B-122

7.           Sexual Abuse or Assault B-123

8.           Airport Interviews. B-123

9.           Asylum Interview/Assessment to Refer B-124

10.        Bond Hearing. B-124

11.        State Department and other Government Reports. B-125

12.        Speculation and Conjecture. B-126

13.        Implausible Testimony. B-128

14.        Counterfeit and Unauthenticated Documents. B-128

15.        Misrepresentations. B-129

16.        Classified Information. B-130

17.        Failure to Seek Asylum Elsewhere. B-130

18.        Cumulative Effect of Adverse Credibility Grounds. B-131

19.        Voluntary Return to Country. B-131

D.          Presumption of Credibility. B-131

E.           Implied Credibility Findings. B-132

1.           Immigration Judges. B-132

2.           Board of Immigration Appeals. B-133

F.           Sua Sponte Credibility Determinations and Notice. B-133

G.          Discretionary Decisions. B-134

H.          Remedy. B-134

I.            Applicability of Asylum Credibility Finding to the Denial of other Forms of Relief B-135

J.            Cases Reversing Negative Credibility Findings. B-135

K.          Cases Upholding Negative Credibility Findings. B-138

L.           The REAL ID Act Codification of Credibility Standards. B-140

M.         Frivolous Applications. B-141

VI.        CORROBORATIVE EVIDENCE. B-142

A.          Pre-REAL ID Act Standards. B-142

1.           Credible Testimony. B-142

2.           Credibility Assumed. B-143

3.           No Explicit Adverse Credibility Finding. B-144

4.           Negative Credibility Finding. B-144

a.            Non-Duplicative Corroborative Evidence. B-145

b.           Availability of Corroborative Evidence. B-146

c.           Opportunity to Explain. B-146

B.          Post-REAL ID Act Standards. B-147

C.          Judicially Noticeable Facts. B-148

D.          Forms of Evidence. B-148

E.           Hearsay Evidence. B-149

F.           Country Conditions Evidence. B-150

G.          Certification of Records. B-150

 

CANCELLATION OF REMOVAL, SUSPENSION OF DEPORTATION, FORMER SECTION 212(c) RELIEF. B-150

I.            OVERVIEW... B-150

A.          Continued Eligibility for Pre-IIRIRA Relief Under the Transitional Rules. B-151

II.          JUDICIAL REVIEW... B-152

A.          Limitations on Judicial Review of Discretionary Decisions. B-152

B.          Limitations on Judicial Review Based on Criminal Offenses. B-152

III.        CANCELLATION OF REMOVAL, 8 U.S.C. § 1229b. B-154

A.          Cancellation for Lawful Permanent Residents, 8 U.S.C. § 1229b(a) (INA § 240A(a)) B-154

1.           Eligibility Requirements. B-154

2.           Termination of Continuous Residence. B-155

a.            Termination Based on Service of NTA.. B-155

b.           Termination Based on Commission of Specified Offense. B-156

c.           Military Service. B-157

3.           Aggravated Felons. B-157

4.           Exercise of Discretion. B-158

B.          Cancellation for Non-Permanent Residents, 8 U.S.C. § 1229b(b) (INA § 240A(b)(1)) B-158

1.           Eligibility Requirements. B-158

2.           Ten Years of Continuous Physical Presence. B-159

a.            Standard of Review.. B-159

b.           Start Date for Calculating Physical Presence. B-159

c.           Termination of Continuous Physical Presence. B-159

(i)           Termination Based on Service of NTA.. B-160

(ii)         Termination Based on Commission of Specified Offense  B-160

d.           Departure from the United States. B-161

e.            Proof B-162

f.            Military Service. B-163

3.           Good Moral Character B-163

a.            Jurisdiction. B-163

b.           Standard of Review.. B-164

c.           Time Period Required. B-164

d.           Per Se Exclusion Categories. B-164

(i)           Habitual Drunkards. B-164

(ii)         Certain Aliens Described in 8 U.S.C. § 1182(a) (Inadmissible Aliens) B-165

(A)        Prostitution and Commercialized Vice.......... .......... B-165

(B)        Alien Smugglers. B-165

(C)        Certain Aliens Previously Removed. B-166

(D)        Crimes Involving Moral Turpitude. B-167

(E)        Controlled Substance Violations. B-167

(F)        Multiple Criminal Offenses. B-167

(G)       Controlled Substance Traffickers. B-168

(iii)        Gamblers. B-168

(iv)        False Testimony. B-168

(v)         Confinement B-169

(vi)        Aggravated Felonies. B-169

(vii)      Nazi Persecutors, Torturers, Violators of Religious Freedom   B-170

(viii)     False Claim of Citizenship and Voting. B-170

(ix)        Adulterers. B-170

4.           Criminal Bars. B-170

5.           Exceptional and Extremely Unusual Hardship. B-171

a.            Jurisdiction. B-172

b.           Qualifying Relative. B-173

6.           Exercise of Discretion. B-173

7.           Dependents. B-174

C.          Ineligibility for Cancellation. B-174

1.           Certain Crewmen and Exchange Visitors. B-174

2.           Security Grounds. B-175

3.           Persecutors. B-175

4.           Previous Grants of Relief B-175

D.          Constitutional and Legal Challenges to the Availability of Cancellation of Removal or Suspension of Deportation. B-175

E.           Ten-Year Bars to Cancellation. B-176

1.           Failure to Appear B-176

2.           Failure to Depart B-177

F.          Numerical Cap on Grants of Cancellation and Adjustment of Status.... .... B-178

G.          NACARA Special Rule Cancellation. B-178

1.           NACARA Does Not Violate Equal Protection. B-180

2.           NACARA Deadlines. B-180

3.           Judicial Review.. B-181

H.          Abused Spouse or Child Provision. B-181

IV.        SUSPENSION OF DEPORTATION, 8 U.S.C. § 1254 (repealed) (INA § 244) B-182

A.          Eligibility Requirements. B-182

1.           Continuous Physical Presence. B-182

a.            Jurisdiction. B-183

b.          Standard of Review.. B-183

c.           Proof B-183

d.          Departures:  90/180 Day Rule. B-183

e.            Brief, Casual, and Innocent Departures. B-183

f.            Deportation. B-184

g.           IIRIRA Stop-Time Rule. B-184

h.           Pre-IIRIRA Rule on Physical Presence. B-185

i.             NACARA Exception to the Stop-Time Rule. B-185

j.             Barahona-Gomez v. Ashcroft Exception to the Stop-Time Rule  B-185

k.           Repapering. B-187

2.           Good Moral Character B-187

a.            Jurisdiction. B-187

b.           Time Period Required. B-188

c.           Per Se Exclusion Categories. B-188

3.           Extreme Hardship Requirement B-189

a.            Jurisdiction. B-189

b.           Qualifying Individual B-189

c.           Extreme Hardship Factors. B-189

d.           Current Evidence of Hardship. B-191

4.           Ultimate Discretionary Determination. B-191

B.          Abused Spouses and Children Provision. B-192

C.          Ineligibility for Suspension. B-192

1.           Certain Crewmen and Exchange Visitors. B-192

2.           Participants in Nazi Persecutions or Genocide. B-193

3.           Aliens in Exclusion Proceedings. B-193

D.          Five-Year Bars to Suspension. B-193

1.           Failure to Appear B-193

2.           Failure to Depart B-193

E.           Retroactive Elimination of Suspension of Deportation. B-194

V.          SECTION 212(c) RELIEF, 8 U.S.C. § 1182(c) (repealed), Waiver of Excludability or Deportability. B-195

A.          Overview.. B-195

B.          Eligibility Requirements. B-196

1.           Seven Years. B-196

2.           Balance of Equities. B-196

C.          Deportation: Comparable Ground of Exclusion. B-197

D.          Removal: Comparable Ground of Inadmissibility. B-197

E.           Ineligibility for Relief B-198

F.           Statutory Changes to Former Section 212(c) Relief B-198

1.           IMMACT 90. B-198

a.            Continued Eligibility for Relief B-198

2.           AEDPA.. B-199

a.            Continued Eligibility for Relief B-199

3.           IIRIRA.. B-200

a.            Retroactive Elimination of § 212(c) Relief B-200

b.           Continued Eligibility for Relief B-201

(i)           Plea Agreements Prior to AEDPA and IIRIRA.. .. B-201

(ii)         Reasonable Reliance on Pre-IIRIRA Application for Relief B-202

(iii)        Similarly Situated Aliens Treated Differently........... ........... B-202

c.           Ineligibility for Relief B-203

(i)           Plea Agreements after IIRIRA.. B-203

(ii)         Plea Agreements after AEDPA.. B-203

(iii)        Convictions After Trial B-203

(iv)        Pre-IIRIRA Criminal Conduct B-204

(v)         Terrorist Activity. B-204

G.          Expanded Definition of Aggravated Felony. B-204

H.          Burden of Proof B-205

VI.        SECTION 212(H) RELIEF, 8 U.S.C. § 1182(H), WAIVER OF INADMISSIBILITY   B-205

VII.      INNOCENT, CASUAL, AND BRIEF DEPARTURES UNDER FLEUTI DOCTRINE  B-207

 

ADJUSTMENT OF STATUS. B-207

I.            OVERVIEW... B-207

A.         Eligibility for Permanent Residence. B-208

1.           Visa Petition. B-208

2.           Priority Date. B-210

3.           Admissibility. B-211

B.          ELIGIBILITY FOR ADJUSTMENT OF STATUS PROCESS. B-212

1.           Exceptions to Lawful Entry and Lawful Status Requirements. . B-213

a.            Exception for Immediate Relatives. B-213

b.           Aliens Eligible For 8 U.S.C. § 1255(i) (“245(i)”) B-213

c.           Unlawful Employment Exception. B-214

2.           Discretion. B-214

C.          Adjustment of Status Application Pending. B-214

D.          Adjustment of Status Application Approved. B-215


RELIEF FROM REMOVAL

ASYLUM, WITHHOLDING and the CONVENTION AGAINST TORTURE

I.       THE CONTEXT

          The heart of United States asylum law is the protection of refugees fleeing persecution.  This court has recognized that independent judicial review is critical in this “area where administrative decisions can mean the difference between freedom and oppression and, quite possibly, life and death.”  Rodriguez-Roman v. INS, 98 F.3d 416, 432 (9th Cir. 1996) (Kozinski, J. concurring). 

          Under 8 U.S.C. § 1158(b)(1), the Attorney General may grant asylum to any applicant who qualifies as a “refugee.”  The Immigration and Nationality Act (“INA”) defines a “refugee” as     

any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

INS v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987) (quoting 8 U.S.C. § 1101(a)(42)(A)); see also 8 C.F.R. § 1208.13; Mendoza-Pablo v. Holder, 667 F.3d 1308, 1312-13 (9th Cir. 2012); Zetino v. Holder, 622 F.3d 1007, 1015 (9th Cir. 2010) (post-REAL ID Act); Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) (quoting 8 U.S.C. § 1101(a)(42)(A)).  An applicant may apply for asylum if she is “physically present in the United States” or at the border.  8 U.S.C. § 1158(a)(1).  Individuals seeking protection from outside the United States may apply for refugee status under 8 U.S.C. § 1157. 

          “The applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution.”  8 C.F.R. § 1208.13(b).  More specifically,

                                                         

the applicant can show past persecution on account of a protected ground.  Once past persecution is demonstrated, then fear of future persecution is presumed, and the burden shifts to the government to show, by a preponderance of the evidence, that there has been a fundamental change in circumstances such that the applicant no longer has a well founded fear of persecution, or [t]he applicant could avoid future persecution by relocating to another part of the applicant’s country.  An applicant may also qualify for asylum by actually showing a well founded fear of future persecution, again on account of a protected ground.

Deloso v. Ashcroft, 393 F.3d 858, 863-64 (9th Cir. 2005) (internal citations and quotation marks omitted); see also Mendoza-Pablo, 667 F.3d at 1313; Hanna v. Keisler, 506 F.3d 933, 937 (9th Cir. 2007).

          In enacting the Refugee Act of 1980, “one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees.”  Cardoza-Fonseca, 480 U.S. at 436-37.  When interpreting the definition of “refugee,” the courts are guided by the analysis set forth in the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, U.N. Doc. HCR/IP/4/Eng./REV.2 (ed. 1992) (1979) (“UNHCR Handbook”).  Id. at 438-39; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999) (recognizing the UNHCR Handbook as “a useful interpretative aid” that is “not binding on the Attorney General, the BIA, or United States courts”); Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007) (“We view the UNHCR Handbook as persuasive authority in interpreting the scope of refugee status under domestic asylum law.” (internal quotation marks and citation omitted)).

II.      ASYLUM

A.      Burden of Proof

          An applicant bears the burden of establishing that he or she is eligible for asylum.  8 C.F.R. § 208.13(a); see also Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir. 2011) (petitioner bears the burden of establishing his eligibility for asylum); Halim v. Holder, 590 F.3d 971, 975 (9th Cir. 2009); Zhu v. Mukasey, 537 F.3d 1034, 1038 (9th Cir. 2008) (alien bears burden of establishing eligibility for asylum); Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008) (“As an applicant for … asylum, [petitioner] bears the burden of proving that he is eligible for the discretionary relief he is seeking.”). Section 101(a)(3) of the REAL ID Act, Pub. L. 109-13, 119 Stat. 231, codified this standard.  See 8 U.S.C. § 1158(b)(1)(B)(i) (as amended and applicable to all applications filed on or after May 11, 2005).

 An applicant alleging past persecution has the burden of establishing that (1) his treatment rises to the level of persecution; (2) the persecution was on account of one or more protected grounds; and (3) the persecution was committed by the government, or by forces that the government was unable or unwilling to control.”  Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010); see also Afriyie v. Holder, 613 F.3d 924, 934 (9th Cir. 2010) (concluding record compelled conclusion that Ghanaian police were unable or unwilling to protect petitioner).

Although proof of the applicant’s identity is an element of an asylum claim, see Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (citing identity as a “key” element of asylum application), the applicant is not required to “to provide information so that the Attorney General and Secretary of State [can] carry out their statutory responsibilities” under 8 U.S.C. § 1158(d)(5)(A), see Kalouma v. Gonzales, 512 F.3d 1073, 1078-79 (9th Cir. 2008) (holding that § 1158(d)(5)(A), which mandates that the applicant’s identity be checked against “all appropriate records or databases maintained by the Attorney General and by the Secretary of State” before asylum can be granted, “imposes duties on the Attorney General and the Secretary of State[] [but] [n]o new burden for the asylum seeker”).  See also Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1015 n.5 (9th Cir. 2008) (noting that in removal proceedings it is the burden of the government to show identity and alienage).

B.      Defining Persecution

          The term “persecution” is not defined by the Immigration and Nationality Act.  “Our caselaw characterizes persecution as an extreme concept, marked by the infliction of suffering or harm … in a way regarded as offensive.”  Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc) (internal quotation marks omitted); see also Mendoza-Pablo v. Holder, 667 F.3d 1308, 1313 (9th Cir. 2012); Li v. Holder, 559 F.3d 1096, 1107 (9th Cir. 2009).  Persecution covers a range of acts and harms, and “[t]he determination that actions rise to the level of persecution is very fact-dependent.”  Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000).  Minor disadvantages or trivial inconveniences do not rise to the level of persecution.  Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969). 

          Cross-reference: Forms of Persecution.

1.       Cumulative Effect of Harms

          The cumulative effect of harms and abuses that might not individually rise to the level of persecution may support an asylum claim.  See Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998) (finding persecution where Ukranian Jew witnessed violent attacks, and suffered extortion, harassment, and threats by anti-Semitic ultra-nationalists).  The court “look[s] at the totality of the circumstances in deciding whether a finding of persecution is compelled.”  Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004) (finding persecution where Chinese Christian was arrested, detained twice, physically abused, and forced to renounce religion).

          See also Ahmed v. Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007) (“Where an asylum applicant suffers [physical harm] on more than one occasion, and … victimized at different times over a period of years, the cumulative effect of the harms is severe enough that no reasonable fact-finder could conclude that it did not rise to the level of persecution.”); Krotova v. Gonzales, 416 F.3d 1080, 1087 (9th Cir. 2005) (“The combination of sustained economic pressure, physical violence and threats against Petitioner and her close associates, and the restrictions on Petitioner’s ability to practice her religion cumulatively amount to persecution.”); Tchoukhrova v. Gonzales, 404 F.3d 1181, 1192-95 (9th Cir. 2005) (disposal of disabled newborn child in waste pile of human remains, confinement in a filthy state-run institution with little human contact, violence, and discrimination, including the denial of medical care and public education amounted cumulatively to persecution), rev’d on other grounds, 549 U.S. 57 (2006) (mem.); Mashiri v. Ashcroft, 383 F.3d 1112, 1120-21 (9th Cir. 2004) (death threats, violence against family, vandalism of residence, threat of mob violence, economic harm and emotional trauma suffered by ethnic-Afghan family in Germany); Narayan v. Ashcroft, 384 F.3d 1065, 1066-67 (9th Cir. 2004) (Indo-Fijian attacked and stabbed, denied medical treatment and police assistance, and home burglarized); Faruk v. Ashcroft, 378 F.3d 940, 942 (9th Cir. 2004) (mixed-race, mixed-religion Fijian couple beaten, attacked, verbally assaulted, assailed with rocks, repeatedly threatened, and denied marriage certificate); Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir. 2004) (severe harassment, threats, economic hardship, violence and discrimination against Israeli Arab and his family); Gui v. INS, 280 F.3d 1217, 1229 (9th Cir. 2002) (harassment, wiretapping, staged car crashes, detention, and interrogation of anti-communist Romanian constituted persecution); Popova v. INS, 273 F.3d 1251, 1258-58 (9th Cir. 2001) (anti-communist Bulgarian was harassed, fired, interrogated, threatened, assaulted and arrested); Surita v. INS, 95 F.3d 814, 819-21 (9th Cir. 1996) (Indo-Fijian robbed multiple times, compelled to quit job, and family home looted); Singh v. INS, 94 F.3d 1353, 1360 (9th Cir. 1996) (Indo-Fijian family harassed, assaulted and threatened). 

2.       No Subjective Intent to Harm Required

          A subjective intent to harm or punish an applicant is not required for a finding of persecution.  See Pitcherskaia v. INS, 118 F.3d 641, 646-48 (9th Cir. 1997) (Russian government’s attempt to “cure” lesbian applicant established persecution); see also Mohammed v. Gonzales, 400 F.3d 785, 796 n.15 (9th Cir. 2005).  Moreover, harm can constitute persecution even if the persecutor had an “entirely rational and strategic purpose behind it.”  Montecino v. INS, 915 F.2d 518, 520 (9th Cir. 1990). 

3.       Forms of Persecution

a.       Physical Violence 

          Various forms of physical violence, including rape, torture, assault, and beatings, amount to persecution.  See Chand v. INS, 222 F.3d 1066, 1073-74 (9th Cir. 2000) (“Physical harm has consistently been treated as persecution.”); see also Li v. Holder, 559 F.3d 1096, 1107 (9th Cir. 2009) (same); Ahmed v. Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007) (same).  The cultural practice of female genital mutilation also constitutes persecution.  See Abebe v. Gonzales, 432 F.3d 1037, 1042 (9th Cir. 2005) (en banc); Benyamin v. Holder, 579 F.3d 970, 976 (9th Cir. 2009) (“It is well-settled in this circuit that female genital mutilation constitutes persecution sufficient to warrant asylum relief.”).  

          An applicant’s failure to “seek medical treatment for the [injury] suffered is hardly the touchstone of whether [the harm] amounted to persecution.”  Lopez v. Ashcroft, 366 F.3d 799, 803 (9th Cir. 2004) (applicant tied up by guerillas and left to die in burning building, coupled with subsequent death threats, amounted to past persecution despite failure to seek medical treatment).  Moreover, the absence of serious bodily injury is not necessarily dispositive.  See, e.g., Quan v. Gonzales, 428 F.3d 883, 888-89 (9th Cir. 2005) (“Using an electrically-charged baton on a prisoner … may constitute persecution, even when there are no long-term effects and the prisoner does not seek medical attention.”); Mihalev v. Ashcroft, 388 F.3d 722, 730 (9th Cir. 2004) (10-day detention, accompanied by daily beatings and hard labor constituted persecution).                                     

(i)      Physical Violence Sufficient to Constitute Persecution

          See Benyamin v. Holder, 579 F.3d 970, 977 (9th Cir. 2009) (the female genital mutilation that petitioner’s daughter suffered undoubtedly constituted past persecution); Li v. Holder, 559 F.3d 1096, 1107-08 (9th Cir. 2009) (petitioner was  repeatedly hit by police officers in the face, kicked in the head and stomach, left bloodied and handcuffed exposed to freezing temperatures, and endured police-sanctioned beatings during fifteen days of confinement); Ahmed v. Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007) (native of Bangladesh suffered beatings by police or army on three occasions, combined with detentions and threats); Fedunyak v. Gonzales, 477 F.3d 1126, 1129 (9th Cir. 2007) (Ukrainian national experienced beatings and death threats rising to the level of persecution); Guo v. Ashcroft, 361 F.3d 1194, 1197, 1203 (9th Cir. 2004) (two arrests and repeated beatings constituted persecution); Mamouzian v. Ashcroft, 390 F.3d 1129, 1134 (9th Cir. 2004) (repeated physical abuse combined with detentions and threats); Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1072 (9th Cir. 2004) (gang raped by Guatemalan soldiers); Hoque v. Ashcroft, 367 F.3d 1190, 1197-98 (9th Cir. 2004) (Bangladeshi kidnaped, beaten and stabbed); Kebede v. Ashcroft, 366 F.3d 808, 812 (9th Cir. 2004) (Ethiopian raped by soldiers); Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc) (Chinese applicant subjected to physically invasive and emotionally traumatic forced pregnancy examination); Rios v. Ashcroft, 287 F.3d 895, 900 (9th Cir. 2002) (Guatemalan kidnaped and wounded by guerillas and husband and brother killed); Agbuya v. INS, 241 F.3d 1224, 1227-28 (9th Cir. 2001) (Filipino kidnaped by New People’s Army, falsely imprisoned, hit, threatened with a gun); Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir. 2000) (Indian Sikh arrested and tortured, including electric shocks), superseded by statute on other grounds as stated by Aden v. Holder, 589 F.3d 1040, 1044 (9th Cir. 2009); Gafoor v. INS, 231 F.3d 645, 650 (9th Cir. 2000) (Indo-Fijian assaulted in front of family, held captive for a week and beaten unconscious), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009); Salaam v. INS, 229 F.3d 1234, 1240 (9th Cir. 2000) (per curiam) (politically active Nigerian arrested, tortured and scarred); Shoafera v. INS, 228 F.3d 1070, 1074 (9th Cir. 2000) (ethnic Amhara Ethiopian beaten and raped at gunpoint); Bandari v. INS, 227 F.3d 1160, 1168 (9th Cir. 2000) (Iranian beaten repeatedly and falsely accused of rape); Chand v. INS, 222 F.3d 1066, 1073-74 (9th Cir. 2000) (Indo-Fijian attacked repeatedly, robbed, and forced to leave home); Maini v. INS, 212 F.3d 1167, 1174 (9th Cir. 2000) (inter-faith Indian family subjected to physical attacks, death threats, and harassment at home, school and work); Duarte de Guinac v. INS, 179 F.3d 1156, 1161-62 (9th Cir. 1999) (repeated beatings and severe verbal harassment in the Guatemalan military); Prasad v. INS, 101 F.3d 614, 617 (9th Cir. 1996) (Indo-Fijian jailed, beaten, and subjected to sadistic and degrading treatment); Lopez-Galarza v. INS, 99 F.3d 954, 960 (9th Cir. 1996) (Nicaraguan raped by Sandinista soldiers, abused, deprived of food and subjected to forced labor).

(ii)     Physical Violence Insufficient to Constitute Persecution

          See Gu v. Gonzales, 454 F.3d 1014, 1019-21 (9th Cir. 2006) (brief detention, beating and interrogation did not compel a finding of past persecution by Chinese police on account of unsanctioned religious practice); Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (harassment, threats, and one beating unconnected with any particular threat did not compel finding that ethnic Albanian suffered past persecution in Kosovo); Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir. 1995) (minor abuse of Indo-Fijian during 4-6 hour detention did not compel finding of past persecution).

b.       Torture     

          “Torture is per se disproportionately harsh; it is inherently and impermissibly severe; and it is a fortiori conduct that reaches the level of persecution.”  Nuru v. Gonzales, 404 F.3d 1207, 1225 (9th Cir. 2005); see also Salaam v. INS, 229 F.3d 1234, 1240 (9th Cir. 2000) (torture sufficient to establish past persecution); Ratnam v. INS, 154 F.3d 990, 996 (9th Cir. 1998) (extra-prosecutorial torture, even if conducted for a legitimate purpose, constitutes persecution); Singh v. Ilchert, 69 F.3d 375, 379 (9th Cir. 1995).

 

c.       Threats

          Threats of serious harm, particularly when combined with confrontation or other mistreatment, may constitute persecution.  See, e.g., Mashiri v. Ashcroft, 383 F.3d 1112, 1120-21 (9th Cir. 2004) (death threats, violence against family, vandalism of residence, threat of mob violence, economic harm and emotional trauma suffered by ethnic Afghan family in Germany).  “Threats on one’s life, within a context of political and social turmoil or violence, have long been held sufficient to satisfy a petitioner’s burden of showing an objective basis for fear of persecution.”  Kaiser v. Ashcroft, 390 F.3d 653, 658 (9th Cir. 2004).  “What matters is whether the group making the threat has the will or the ability to carry it out.”  Id.  The fact that threats are unfulfilled is not necessarily dispositive.  See id. at 658-59.  See also Mendoza-Pablo v. Holder, 667 F.3d 1308, 1314 (9th Cir. 2012) (recognizing that being forced to flee home in face of immediate threat of violence or death may constitute persecution, as long as persecutor’s actions are motivated by a protected ground).  But see Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (unfulfilled threats received by ethnic Albanian “constitute harassment rather than persecution”).

(i)      Cases Holding Threats Establish Persecution

          Ahmed v. Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007) (native of Bangladesh suffered beatings by police or army on three occasions, combined with detentions and threats); Fedunyak v. Gonzales, 477 F.3d 1126, 1129 (9th Cir. 2007) (Ukrainian national experienced beatings and death threats rising to the level of persecution); Canales-Vargas v. Gonzales, 441 F.3d 739, 745 (9th Cir. 2006) (Peruvian national who received anonymous death threats fifteen years ago demonstrated an at least one-in-ten chance of future persecution sufficient to establish a well-founded fear); Ndom v. Ashcroft, 384 F.3d 743, 751-52 (9th Cir. 2004) (Senegalese native subjected to severe death threats coupled with two lengthy detentions without formal charges), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009); Deloso v. Ashcroft, 393 F.3d 858, 860-61 (9th Cir. 2005) (Filipino applicant attacked, threatened with death, followed, and store ransacked); Khup v. Ashcroft, 376 F.3d 898, 904 (9th Cir. 2004) (threats, combined with anguish suffered as a result of torture and killing of fellow Burmese Christian preacher); Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir. 2004) (severe harassment, threats, violence and discrimination against Israeli Arab and family amounted to persecution); Ruano v. Ashcroft, 301 F.3d 1155, 1160-61 (9th Cir. 2002) (Guatemalan who faced multiple death threats at home and business, “closely confronted” and actively chased); Salazar-Paucar v. INS, 281 F.3d 1069, 1074-75, as amended by 290 F.3d 964 (9th Cir. 2002) (multiple death threats, harm to family, and murders of counterparts by Shining Path guerillas); Chouchkov v. INS, 220 F.3d 1077, 1083-84 (9th Cir. 2000) (Russian who suffered harassment, including threats, attacks on family, intimidation, and thefts); Shah v. INS, 220 F.3d 1062, 1072 (9th Cir. 2000) (Indian applicant’s politically active husband killed, and she and family threatened repeatedly); Navas v. INS, 217 F.3d 646, 658 (9th Cir. 2000) (“we have consistently held that death threats alone can constitute persecution;” Salvadoran threatened, shot at, family members killed, mother beaten); Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000) (“[T]he determination that actions rise to the level of persecution is very fact-dependent, … though threats of violence and death are enough.”); Reyes-Guerrero v. INS, 192 F.3d 1241, 1246 (9th Cir. 1999) (multiple death threats faced by Colombian prosecutor); Del Carmen Molina v. INS, 170 F.3d 1247, 1249 (9th Cir. 1999) (two death threats from Salvadoran guerillas, and cousins and their families killed); Garrovillas v. INS, 156 F.3d 1010, 1016-17 (9th Cir. 1998) (if credible, three death threat letters received by former Filipino military agent would appear to constitute past persecution); Gonzales-Neyra v. INS, 122 F.3d 1293, 1295-96 (9th Cir. 1997) (suggesting that threats to life and business based on opposition to Shining Path constituted past persecution), as amended by 133 F.3d 726 (9th Cir. 1998) (order); Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997) (Indian Sikh threatened, home burglarized, and father beaten); Gonzalez v. INS, 82 F.3d 903, 910 (9th Cir. 1996) (Nicaraguan threatened with death by Sandinistas, house marked, ration card appropriated, and family harassed); see also Mendoza-Pablo v. Holder, 667 F.3d 1308, 1314-15 (9th Cir. 2012) (holding that infant was victim of persecution, as a result of the persecution of petitioner’s mother who was forced to flee home in face of immediate threat of violence or death).

(ii)     Cases Holding Threats Not Persecution

          Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1171-72 (9th Cir. 2006) (vague and conclusory allegations regarding threats insufficient to establish a well-founded fear of persecution); Ramadan v. Gonzales, 479 F.3d 646, 658 (9th Cir. 2007) (per curiam) (threats of harm too speculative to meet much higher threshold for withholding of removal); Nahrvani v. Gonzales, 399 F.3d 1148, 1153-54 (9th Cir. 2005) (two “serious” but anonymous threats coupled with harassment and de minimis property damage); Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 870 n.6 (9th Cir. 2003) (“unspecified threats” received by Mexican national not “sufficiently menacing to constitute past persecution”); Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (unfulfilled threats received by ethnic Albanian “constitute harassment rather than persecution”); Lim v. INS, 224 F.3d 929, 936-37 (9th Cir. 2000) (mail and telephone threats received by former Filipino intelligence officer); Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir. 1986) (anonymous threat received by Salvadoran military musician).

d.       Detention

          Detention and confinement may constitute persecution.  See Ahmed v. Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007) (native of Bangladesh suffered “detentions, beatings, and threats” that were disproportionate to his political activities, and rose to the level of persecution); Ndom v. Ashcroft, 384 F.3d 743, 752 (9th Cir. 2004) (Senegalese applicant threatened and detained twice under harsh conditions for a total of 25 days established persecution), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009); Kalubi v. Ashcroft, 364 F.3d 1134, 1136 (9th Cir. 2004) (imprisonment in over-crowded Congolese jail cell with harsh, unsanitary and life-threatening conditions established past persecution); see also Pitcherskaia v. INS, 118 F.3d 641, 646 (9th Cir. 1997) (suggesting that forced institutionalization of Russian lesbian could amount to persecution). 

          Cf. Khup v. Ashcroft, 376 F.3d 898, 903-04 (9th Cir. 2004) (evidence did not compel finding that one day of forced porterage suffered by Burmese Christian preacher amounted to persecution); Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001) (Iraqi’s five to six day detention not persecution), amended by 355 F.3d 1140 (9th Cir. 2004) (order); Khourassany v. INS, 208 F.3d 1096, 1100-01 (9th Cir. 2000) (Palestinian Israeli’s short detentions not persecution); Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (Iranian’s brief detention not persecution); Mendez-Efrain v. INS, 813 F.2d 279, 283 (9th Cir. 1987) (Salvadoran’s four-day detention not persecution); see also Arteaga v. Mukasey, 511 F.3d 940, 945 (9th Cir. 2007) (suggesting that potential detention for 72 hours upon removal to El Salvador under that country’s “Mano Duro” laws on account of suspected gang affiliation would not amount to persecution); Hanna v. Keisler, 506 F.3d 933, 939 (9th Cir. 2007) (severity of past persecution in Iraq, where petitioner stated that he was detained for over one month and tortured, was not sufficient to qualify for humanitarian asylum based on past persecution).

e.       Mental, Emotional, and Psychological Harm

          Physical harm is not required for a finding of persecution.  See Kovac v. INS, 407 F.2d 102, 105-07 (9th Cir. 1969).  “Persecution may be emotional or psychological, as well as physical.”  Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004) (discussing emotional trauma suffered by ethnic Afghan family based on anti-foreigner violence in Germany); see also Khup v. Ashcroft, 376 F.3d 898, 904 (9th Cir. 2004) (threats, combined with anguish suffered as a result of torture and killing of fellow Burmese preacher).

          Cf. Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir. 1995) (harassment and ostracism of Lithuanian was not sufficiently atrocious to support a humanitarian grant of asylum).

f.       Substantial Economic Deprivation

          Substantial economic deprivation that constitutes a threat to life or freedom may constitute persecution.  See Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir. 2004) (severe harassment, threats, violence and discrimination made it virtually impossible for Israeli Arab to earn a living).  The absolute inability to support one’s family is not required.  Id. 

          See also Tawadrus v. Ashcroft, 364 F.3d 1099, 1106 (9th Cir. 2004) (Egyptian Coptic Christian had a “potentially viable” asylum claim based on government-imposed economic sanctions); El Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir. 2004) (as amended) (granting withholding of removal to stateless Palestinians born in Kuwait based on likelihood of extreme state-sponsored economic discrimination); Surita v. INS, 95 F.3d 814, 819-21 (1996) (Indo-Fijian robbed, threatened, compelled to quit job, and house looted by soldiers); Gonzalez v. INS, 82 F.3d 903, 910 (9th Cir. 1996) (threats by Sandinistas, violence against family, and seizure of family land, ration card, and ability to buy business inventory); Desir v. Ilchert, 840 F.2d 723, 727-29 (9th Cir. 1988) (considering impact of extortion by government security forces on Haitian fisherman’s ability to earn livelihood); Samimi v. INS, 714 F.2d 992, 995 (9th Cir. 1983) (seizure of land and livelihood could contribute to a finding of persecution); Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969) (persecution may encompass “a deliberate imposition of substantial economic disadvantage”).

          However, “mere economic disadvantage alone does not rise to the level of persecution.”  Gormley v. Ashcroft, 364 F.3d 1172, 1178 (9th Cir. 2004) (loss of employment pursuant to South Africa’s affirmative action plan did not amount to persecution); see also Castro-Martinez v. Holder, 674 F.3d 1073, 1082 (9th Cir. 2011) (“Generalized economic disadvantage” does not rise to the level of persecution.” (internal quotation marks and citation omitted)); Zehatye v. Gonzales, 453 F.3d 1182, 1186 (9th Cir. 2006) (Eritrean government’s seizure of father’s business, along with some degree of social ostracism, did not rise to the level of persecution); Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (employment discrimination faced by Ukrainian Christian did not rise to level of persecution); Khourassany v. INS, 208 F.3d 1096, 1101 (9th Cir. 2000) (forced closing of Palestinian Israeli’s restaurant, when he continued to operate other businesses, did not constitute persecution); Ubau-Marenco v. INS, 67 F.3d 750, 755 (9th Cir. 1995) (confiscation of Nicaraguan family business by Sandinistas may not be enough to support finding of economic persecution), overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc); Saballo-Cortez v. INS, 761 F.2d 1259, 1264 (9th Cir. 1985) (denial of food discounts and special work permit by Sandinistas did not amount to persecution); Raass v. INS, 692 F.2d 596 (9th Cir. 1982) (asylum claim filed by Tonga Islanders required more than “generalized economic disadvantage”).

g.       Discrimination and Harassment

          Persecution generally “does not include mere discrimination, as offensive as it may be.”  Fisher v. INS, 79 F.3d 955, 962 (9th Cir. 1996) (en banc) (brief detention and searches of Iranian women accused of violating dress and conduct rules did not constitute persecution); see also Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010) (per curiam) (although IJ stated that petitioners suffered harassment rising to the level required for persecution, substantial evidence supported agency’s determination that petitioners failed to show harassment suffered as Vietnamese citizens in Italy was at the hands of the government or another group that the government was unable to control); Halim v. Holder, 590 F.3d 971, 976 (9th Cir. 2009) (reported incidents of harassment did not constitute persecution, and were further undermined where record supported IJ’s determination that petitioner exaggerated their impact); Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir. 2009) (reviewing withholding of removal claim and concluding that petitioner’s experiences where he was beaten by Indonesian youth, robbed of his sandals and pocket money, and accosted by a threatening mob were instances of discriminatory mistreatment); Gomes v. Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005) (harassment on the way to weekly Catholic services in Bangladesh did not rise to the level of persecution); Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004) (discrimination against Coptic Christians in Egypt did not constitute persecution); Padash v. INS, 358 F.3d 1161, 1166 (9th Cir. 2004) (discrimination by isolated individuals against Indian Muslims did not amount to past persecution); Halaim v. INS, 358 F.3d 1128, 1132 (9th Cir. 2004) (discrimination against Ukranian sisters on account of Pentecostal Christian religion did not compel a finding that they suffered past persecution); Nagoulko v. INS, 333 F.3d 1012, 1016-17 (9th Cir. 2003) (record did not compel finding that Ukrainian Pentecostal Christian who was “teased, bothered, discriminated against and harassed” suffered from past persecution); Avetova-Elisseva v. INS, 213 F.3d 1192, 1201-02 (9th Cir. 2000) (harassment of ethnic Armenian in Russia, inability to get a job, and violence against friend did not rise to level of past persecution, but did support her well-founded fear); Singh v. INS, 134 F.3d 962, 969 (9th Cir. 1998) (repeated vandalism of Indo-Fijian’s property, with no physical injury or threat of injury, not persecution).

          However, discrimination, in combination with other harms, may be sufficient to establish persecution.  See Kotasz v. INS, 31 F.3d 847, 853 (9th Cir. 1994) (“Proof that the government or other persecutor has discriminated against a group to which the petitioner belongs is, accordingly, always relevant to an asylum claim.”); see also Krotova v. Gonzales, 416 F.3d 1080, 1087 (9th Cir. 2004) (anti-Semitic harassment, sustained economic and social discrimination, and violence against Russian Jew and her family compelled a finding of past persecution); Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998) (discrimination, harassment and violence against Ukrainian Jew can constitute persecution); Vallecillo-Castillo v. INS, 121 F.3d 1237, 1239 (9th Cir. 1996) (finding persecution where Nicaraguan school teacher was branded as a traitor, harassed, threatened, home vandalized and relative imprisoned for refusing to teach Sandinista doctrine); Singh v. INS, 94 F.3d 1353, 1360 (9th Cir. 1996) (discrimination, harassment and violence against Indo-Fijian family can constitute persecution).

          Moreover, severe and pervasive discriminatory measures can amount to persecution.  See Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995) (noting that the BIA has held that severe and pervasive discrimination can constitute persecution in “extraordinary cases”); see also El Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir. 2004) (as amended) (granting withholding of removal based on the extreme state-sponsored economic discrimination that stateless Palestinians born in Kuwait would face); Duarte de Guinac v. INS, 179 F.3d 1156, 1161-62 (9th Cir. 1999) (rejecting BIA’s determination that Guatemalan soldier suffered discrimination, rather than persecution, where he was subjected to repeated beatings, severe verbal harassment, and race-based insults).

4.       Age of the Victim                                                

          “Age can be a critical factor in the adjudication of asylum claims and may bear heavily on the question of whether an applicant was persecuted or whether she holds a well-founded fear of future persecution.”  Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007) (internal quotation marks and citation omitted).  “[A] child’s reaction to injuries to his family is different from an adult’s.  The child is part of the family, the wound to the family is personal, the trauma apt to be lasting.”  Id.  (joining the Second, Sixth, and Seventh Circuits in affirming legal rule that injuries to a family must be considered in an asylum case where events that form the basis of the past persecution claim were perceived when petitioner was a child).  See also Mendoza-Pablo v. Holder, 667 F.3d 1308, 1312-15 (9th Cir. 2012) (recognizing that even an infant can be the victim of persecution even if he has no present recollection of the events).

C.      Source or Agent of Persecution

          In order to qualify for asylum, the source of the persecution must be the government, a quasi-official group, or persons or groups that the government is unwilling or unable to control.  See Avetovo-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000).  The fact that financial considerations may account for the state’s inability to stop the persecution is not relevant.  Id. at 1198.  However, an unsuccessful government investigation does not necessarily demonstrate that the government was unwilling or unable to control the source or agent of persecution.  See, e.g., Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005) (German police took reports and investigated incidents, but were unable to solve the crimes). 

          Affirmative state action is not necessary to establish a well-founded fear of persecution if the government is unable or unwilling to control the agents of persecution.  Siong v. INS, 376 F.3d 1030, 1039 (9th Cir. 2004).  In cases of non-governmental persecution, “we consider whether an applicant reported the incidents to police, because in such cases a report of this nature may show governmental inability to control the actors.”  Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004); see also Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010) (per curiam) (substantial evidence supported agency’s determination that petitioners failed to show harassment suffered as Vietnamese citizens in Italy was at the hands of the government or another group that the government was unable to control); Afriyie v. Holder, 613 F.3d 924, 934 (9th Cir. 2010) (9th Cir. 2010) (concluding that record compelled conclusion that Ghanaian police were unable or unwilling to protect petitioner); Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (failure to report non-governmental persecution due to belief that police would do nothing did not establish that government was unwilling or unable to control agent of persecution).  Note that “reporting persecution to government authorities is not essential to demonstrating that the government is unable or unwilling to protect [the alien] from private actors.” Afriyie, 613 F.3d at 931; see also Castro-Martinez v. Holder, 674 F.3d 1073, 1080-81 (9th Cir. 2011)  (explaining that reporting private persecution is not essential, but determining petitioner failed to adequately explain why reporting sexual abuse to authorities would have been futile).

          A government’s inability or unwillingness to control violence by private parties can be established in other ways – for example, by demonstrating that a country’s laws or customs effectively deprive the petitioner of any meaningful recourse to governmental protection.”  Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010).        

1.       Harm Inflicted by Relatives

          “There is no exception to the asylum statute for violence from family members; if the government is unable or unwilling to control persecution, it matters not who inflicts it.”  Faruk v. Ashcroft, 378 F.3d 940, 943 (9th Cir. 2004) (mixed-race, mixed-religion couple in Fiji suffered persecution at the hand of family members and others); see also Mohammed v. Gonzales, 400 F.3d 785, 796 n.15 (9th Cir. 2005).

2.       Reporting of Persecution Not Always Required

          When the government is responsible for the persecution, there is no need to inquire whether applicant sought help from the police.  See Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004) (Israeli Arab persecuted by Israeli Marines); Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir. 2005) (Mexican homosexual man persecuted by police).  Moreover, “an applicant who seeks to establish eligibility for [withholding] of removal under § 1231(b)(3) on the basis of past persecution at the hands of private parties the government is unwilling or unable to control need not have reported that persecution to the authorities if he can convincingly establish that doing so would have been futile or have subjected him to further abuse.”  Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006) (government officials and employees tacitly accepted abuse applicant suffered); see also Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010) (explaining that where persecutor is not a state actor, the court will consider whether the incidents were reported to police, but also recognizing that the reporting of private persecution is not an essential element to establish that government is unwilling or unable to control attackers); cf. Castro-Martinez v. Holder, 674 F.3d 1073, 1080-81 (9th Cir. 2011) (explaining reporting private persecution is not essential, but determining petitioner failed to adequately explain why reporting sexual abuse to authorities would have been futile); Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (applicant failed to provide evidence sufficient to justify the failure to report alleged abuse).

3.       Cases Discussing Source or Agent of Persecution

          Rahimzadeh v. Holder, 613 F.3d 916, 923 (9th Cir. 2010) (substantial evidence supported determination that Dutch authorities were willing and able to control extremists that attacked the alien); Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1056-58 (9th Cir. 2006) (applicant arrested by Mexican police, raped by family members and family friends, and abused by co-workers on account of his female sexual identity); Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (applicant raped by boyfriend in Honduras failed to show that the Honduran government was unwilling or unable to control rape); Mashiri v. Ashcroft, 383 F.3d 1112, 1120-21 (9th Cir. 2004) (ethnic Afghan family in Germany attacked by anti-foreigner mobs); Deloso v. Ashcroft, 393 F.3d 858, 861 (9th Cir. 2005) (attacks by a Filipino Communist party henchman); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004) (“Random, isolated criminal acts perpetrated by anonymous thieves do not establish persecution.”); Jahed v. INS, 356 F.3d 991, 998-99 (9th Cir. 2004) (extortion by member of the Iranian Revolutionary Guard); Rodas-Mendoza v. INS, 246 F.3d 1237, 1239-40 (9th Cir. 2001) (fear of violence from cousin in El Salvador not sufficient); Shoafera v. INS, 228 F.3d 1070, 1074 (9th Cir. 2000) (rape by Ethiopian government official where government never prosecuted the perpetrator); Mgoian v. INS, 184 F.3d 1029, 1036-37 (9th Cir. 1999) (state action not required to establish persecution of Kurdish-Moslem family in Armenia); Andriasian v. INS, 180 F.3d 1033, 1042-43 (9th Cir. 1999) (Azerbaijani government did not protect ethnic Armenian); Borja v. INS, 175 F.3d 732, 736 n.1 (9th Cir. 1999) (en banc) (non-state actors in the Philippines), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009); Korablina v. INS, 158 F.3d 1038, 1045 (9th Cir. 1998) (ultra-nationalist anti-Semitic Ukranian group); Singh v. INS, 94 F.3d 1353, 1360 (9th Cir. 1996) (Fijian government encouraged discrimination, harassment and violence against Indo-Fijians); Montoya-Ulloa v. INS, 79 F.3d 930, 931 (9th Cir. 1996) (persecution of Nicaraguan by a government-sponsored group); Gomez-Saballos v. INS, 79 F.3d 912, 916-17 (9th Cir. 1996) (fear of former Nicaraguan National Guard members); Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995) (denying petition because Egyptian Coptic Christian feared harms not “condoned by the state nor the prevailing social norm”); Desir v. Ilchert, 840 F.2d 723, 727–28 (9th Cir. 1988) (persecution by quasi-official Haitian security force); Lazo-Majano v. INS, 813 F.2d 1432, 1434-35 (9th Cir. 1987) (persecution by Salvadoran army sergeant), overruled in part on judicial notice grounds by Fisher v. INS, 79 F.3d 955, 962 (9th Cir. 1996) (en banc).

D.      Past Persecution

          An applicant may qualify as a refugee in two ways: 

First, the applicant can show past persecution on account of a protected ground.  Once past persecution is demonstrated, then fear of future persecution is presumed, and the burden shifts to the government to show, by a preponderance of the evidence, that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution, or the applicant could avoid future persecution by relocating to another part of the applicant’s country.  An applicant may also qualify for asylum by actually showing a well-founded fear of future persecution, again on account of a protected ground.

Deloso v. Ashcroft, 393 F.3d 858, 863-64 (9th Cir. 2005) (internal citations and quotation marks omitted); see also Ratnam v. INS, 154 F.3d 990, 994 (9th Cir. 1998) (“Either past persecution or a well-founded fear of future persecution provides eligibility for a discretionary grant of asylum.”); 8 C.F.R. § 1208.13(b).  The regulations implementing the INA provide that past persecution must have occurred ‘in the proposed country of removal.’”  Gonzalez-Medina v. Holder, 641 F.3d 333, 337 (9th Cir. 2011) (quoting 8 C.F.R. § 1208.16(b)(1)(i)) (holding that BIA’s construction of regulation mandating that past persecution occur in proposed country of removal was permissible and thus, that abuse petitioner suffered in the United States did not establish past persecution).

          Once an applicant establishes past persecution, he is a refugee eligible for a grant of asylum, and the likelihood of future persecution is a relevant factor to consider in the exercise of discretion.  See Rodriguez-Matamoros v. INS, 86 F.3d 158, 161 (9th Cir. 1996); Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir. 1995); see also 8 C.F.R. § 1208.13(b)(1)(i)(A).  In assessing the likelihood of future persecution, the IJ shall consider whether the applicant could avoid persecution by relocating to another part of his or her country.  8 C.F.R. § 1208.13(b)(1)(i)(B); see also Afriyie v. Holder, 613 F.3d 924, 934 (9th Cir. 2010) (concluding that record compelled conclusion that Ghanaian police were unable or unwilling to protect petitioner and remanding for the BIA to consider whether petitioner could reasonably relocate).

          In order to establish “past persecution, an applicant must show:  (1) an incident, or incidents, that rise to the level of persecution; (2) that is ‘on account of’ one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either ‘unable or unwilling’ to control.”  Navas v. INS, 217 F.3d 646, 655-56 (9th Cir. 2000).

          “[P]roof of particularized persecution is not required to establish past persecution.”  Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir. 2004) (Serb petitioners suffered past persecution because their town was specifically targeted for bombing, invasion, occupation and ethnic cleansing by Croat military).  In other words, “even in situations of widespread civil strife, it is irrelevant whether one person, twenty persons, or a thousand persons were targeted or placed at risk so long as there is a nexus to a protected ground.”  Ndom v. Ashcroft, 384 F.3d 743, 754 (9th Cir. 2004) (internal quotation marks and citation omitted), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009); see also Ahmed v. Keisler, 504 F.3d 1183, 1194-95 n.19 (9th Cir. 2007) (noting that even where there is generalized violence as a result of civil strife the relevant analysis is still whether the “persecutor was motivated by one of five statutory grounds”).

1.       Presumption of a Well-Founded Fear

          “If past persecution is established, a rebuttable presumption of a well-founded fear arises, 8 C.F.R. § 208.13(b)(1), and the burden shifts to the government to demonstrate that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear.”  Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (internal quotation marks omitted); see also Mendoza-Pablo v. Holder, 667 F.3d 1308, 1312-13 (9th Cir. 2012); Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir. 2011) (government failed to rebut presumption of well-founded fear of future persecution); Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010); Ahmed v. Keisler, 504 F.3d 1183, 1197 (9th Cir. 2007) (“[P]roof of past persecution gives rise to a presumption of a well-founded fear of future persecution and shifts the evidentiary burden to the government to rebut that presumption.”); Canales-Vargas v. Gonzales, 441 F.3d 739, 743 (9th Cir. 2006) (same); Singh v. Ilchert, 63 F.3d 1501, 1510 (9th Cir. 1995) (“[O]nce an applicant has demonstrated that he suffered past persecution, there is a presumption that he faces a similar threat on return.”), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009).  The presumption “only applies to fear based on the original claim and not to fear of persecution from a new source.”  Ali, 637 F.3d at 1029-30.

          Past persecution need not be atrocious to give rise to the presumption of future persecution.  See Gonzalez v. INS, 82 F.3d 903, 910 (9th Cir. 1996) (past persecution by Sandinistas).  The presumption raised by a finding of past persecution applies only to a future fear based on the original claim, and not to a fear of persecution from a new source.  See 8 C.F.R. § 1208.13(b)(1) (“If the applicant’s fear of future persecution is unrelated to the past persecution, the applicant bears the burden of establishing that the fear is well-founded.”).

2.       Rebutting the Presumption of a Well-Founded Fear

a.       Fundamental Change in Circumstances

          Pursuant to 8 C.F.R. § 1208.13(b)(1)(i) & (ii), the government may rebut the presumption of a well-founded fear by showing “by a preponderance of the evidence” that there has been a “fundamental change in circumstances such that the applicant no longer has a well-founded fear.”  See also Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010) (to rebut presumption of a well-founded fear, government must show by a preponderance of the evidence that a fundamental change in country conditions has dispelled any well-founded fear); Hanna v. Keisler, 506 F.3d 933, 938 (9th Cir. 2007); Mohammed v. Gonzales, 400 F.3d 785, 800 (9th Cir. 2005) (“[O]ur precedent compels the conclusion that genital mutilation, like forced sterilization, is a ‘permanent and continuing’ act of persecution, which cannot constitute a change in circumstances sufficient to rebut the presumption of a well-founded fear.”); Khup v. Ashcroft, 376 F.3d 898, 904 (9th Cir. 2004); Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004) (government failed to meet burden); Ruano v. Ashcroft, 301 F.3d 1155, 1161 (9th Cir. 2002) (1996 State Department report insufficient to established changed country conditions in Guatemala); Gui v. INS, 280 F.3d 1217, 1228 (9th Cir. 2002) (State Department report insufficient to establish changed country conditions in Romania).  If the government does not rebut the presumption, the applicant is statutorily eligible for asylum.  Kebede v. Ashcroft, 366 F.3d 808, 812 (9th Cir. 2004).

b.       Government’s Burden

          “When the petitioner establishes past persecution, the government bears the burden of establishing that changed country conditions have removed the petitioner’s presumptive well-founded fear of future persecution.”  Mousa v. Mukasey, 530 F.3d 1025, 1029 (9th Cir. 2008) (concluding government failed to meet burden where it submitted a single newspaper article that in no way suggested Chaldean Christians would be safe in Iraq); see also Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir. 2011).  In order to meet its burden under 8 C.F.R. § 208.13(b)(1), the government is “obligated to introduce evidence that, on an individualized basis, rebuts a particular applicant’s specific grounds for his well-founded fear of future persecution.”  Popova v. INS, 273 F.3d 1251, 1259 (9th Cir. 2001) (internal quotation marks omitted) (Bulgaria).  “If past persecution is shown, the BIA cannot discount it merely on a say-so.  Rather, our precedent establishes that in such a case the BIA must provide an individualized analysis of how changed conditions will affect the specific petitioner’s situation.”  Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir. 2004) (citation and internal quotation marks omitted) (Guatemala); see also Kamalyan v. Holder, 620 F.3d 1054, 1057-58 (9th Cir. 2010) (government failed to establish a fundamental change in country conditions by a preponderance of the evidence); Mutuku v. Holder, 600 F.3d 1210, 1213-14 (9th Cir. 2010) (reviewing denial of withholding of removal and concluding that factual findings regarding changed county conditions in Kenya were not supported by substantial evidence).  “Information about general changes in the country is not sufficient.”  Garrovillas v. INS, 156 F.3d 1010, 1017 (9th Cir. 1998) (Philippines); see also Smolniakova v. Gonzales, 422 F.3d 1037, 1052 (9th Cir. 2005) (Russia).

          If an applicant is entitled to a presumption of a well-founded fear of future persecution and the government made no arguments concerning changed country conditions before the IJ or BIA, the court will not remand to provide the government another opportunity to do so.  Ndom v. Ashcroft, 384 F.3d 743, 756 (9th Cir. 2004), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009); see also Quan v. Gonzales, 428 F.3d 883, 889 (9th Cir. 2005).

(i)      State Department Report

          Where past persecution has been established, generalized information from a State Department report on country conditions is not sufficient to rebut the presumption of future persecution.  See Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002) (Guatemala).  State department reports are generally “not amenable to an individualized analysis tailored to an asylum applicant’s particular situation.”  Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010) (internal quotation marks omitted) (reiterating that a “State Department report on country conditions, standing alone, is not sufficient to rebut the presumption of future persecution”; and remanding where country reports were expressly inconclusive regarding the significance or permanence of the improvements identified).  “Instead, we have required an individualized analysis of how changed conditions will affect the specific petitioner’s situation.”  Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1074 (9th Cir. 2004) (internal quotation marks omitted); see also Ali v. Holder, 637 F.3d 1025, 1030 (9th Cir. 2011); Lopez v. Ashcroft, 366 F.3d 799, 805-06 (9th Cir. 2004) (remanding for individualized analysis of changed country conditions); Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 998-1000 (9th Cir. 2003) (individualized analysis of changed conditions in Guatemala rebutted presumption of well-founded fear based on political opinion); Marcu v. INS, 147 F.3d 1078, 1081-82 (9th Cir. 1998) (presumption of well-founded fear rebutted by individualized analysis of State Department letter and report regarding sweeping changes in Romania); cf. Sowe v. Mukasey, 538 F.3d 1281, 1285 (9th Cir. 2008) (rejecting petitioner’s contention that “generalized materials” found in State Department country report did not support conclusion that fear of persecution in Sierra Leone had been rebutted, and explaining that State country reports are appropriate and “perhaps the best resource on political situations”).

(ii)     Administrative Notice of Changed Country Conditions

          The BIA may not take administrative notice of changed conditions in the country of feared persecution without giving the applicant notice of its intent to do so, and an opportunity to show cause why such notice should not be taken, or to present additional evidence.  See Circu v. Gonzales, 450 F.3d 990, 993-95 (9th Cir. 2006) (en banc); Getachew v. INS, 25 F.3d 841, 846-47 (9th Cir. 1994) (request in INS brief to take administrative notice of changes in Ethiopia did not provide adequate notice to petitioner); Kahssai v. INS, 16 F.3d 323, 324-25 (9th Cir. 1994) (per curiam) (Ethiopia); Gomez-Vigil v. INS, 990 F.2d 1111, 1114 (9th Cir. 1993) (per curiam) (Nicaragua); Castillo-Villagra v. INS, 972 F.2d 1017, 1026-31 (9th Cir. 1992) (denial of pre-decisional notice violated due process and demonstrated failure to make individualized assessment of Nicaraguan’s claims).

          If an IJ takes administrative notice of changed country conditions during the hearing, there is no violation of due process because the applicant has an opportunity to respond with rebuttal evidence.  See Kazlauskas v. INS, 46 F.3d 902, 906 n.4 (9th Cir. 1995) (Lithuania); Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir. 1993) (Polish Solidarity supporters “had ample opportunity to argue before the immigration judges and before the [BIA] that their fear of persecution remained well-founded”); Kotasz v. INS, 31 F.3d 847, 855 n.13 (9th Cir. 1994) (applicants given ample opportunity to discuss changes in Hungary).

          This court has taken judicial notice of recent events occurring after the BIA’s decision.  See Gafoor v. INS, 231 F.3d 645, 655-56 (9th Cir. 2000) (taking judicial notice of recent events in Fiji and noting that the government would have an opportunity to challenge the significance of the evidence on remand), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009).  However, this court may not determine the issue of changed country conditions in the first instance.  See INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam); Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 999-1000 (9th Cir. 2003) (Guatemala). 

c.       Cases where Changed Circumstances or Conditions Insufficient to Rebut Presumption of Well-Founded Fear

          Note that in some pre-Ventura cases, this court decided the issue of changed country conditions in the first instance.  Post-Ventura, this court would remand such cases to the agency for consideration of changed country conditions in the first instance.

          See Kamalyan v. Holder, 620 F.3d 1054, 1057-58 (9th Cir. 2010) (court determined that government failed to establish a fundamental change in country conditions in Armenia by a preponderance of the evidence, and remanded for further proceedings); Mousa v. Mukasey, 530 F.3d 1025, 1029-30 (9th Cir. 2008) (Iraq); Hanna v. Keisler, 506 F.3d 933, 938 (9th Cir. 2007) (Iraq);  Ahmed v. Keisler, 504 F.3d 1183, 1197-98 (9th Cir. 2007) (Bangladesh); Baballah v. Ashcroft, 367 F.3d 1067, 1078-79 (9th Cir. 2004) (Israel); Ruano v. Ashcroft, 301 F.3d 1155, 1161-62 (9th Cir. 2002) (Guatemala); Rios v. Ashcroft, 287 F.3d 895, 901-02 (9th Cir. 2002) (Guatemala); Salazar-Paucar v. INS, 281 F.3d 1069, 1076-77, as amended by 290 F.3d 964 (9th Cir. 2002) (Peru); Gui v. INS, 280 F.3d 1217, 1229 (9th Cir. 2002) (Romania); Popova v. INS, 273 F.3d 1251, 1259-60 (9th Cir. 2001) (Bulgaria); Lal v. INS, 255 F.3d 998, 1010-11 (9th Cir. 2001) (Fiji), as amended by 268 F.3d 1148 (9th Cir. 2001); Agbuya v. INS, 241 F.3d 1224, 1230-31 (9th Cir. 2001) (past persecution by New People’s Army in the Philippines); Kataria v. INS, 232 F.3d 1107, 1115-16 (9th Cir. 2000) (State Department report stating that arrests and killings had declined significantly in India not sufficient), superseded by statute on other grounds as stated by Aden v. Holder, 589 F.3d 1040, 1044 (9th Cir. 2009); Bandari v. INS, 227 F.3d 1160, 1169 (9th Cir. 2000) (past persecution of religious minority in Iran); Chand v. INS, 222 F.3d 1066, 1078-79 (9th Cir. 2000) (past persecution of ethnic Indian in Fiji); Reyes-Guerrero v. INS, 192 F.3d 1241, 1246 (9th Cir. 1999) (Colombia); Tarubac v. INS, 182 F.3d 1114, 1119-20 (9th Cir. 1999) (State Department’s mixed assessment of human rights conditions in the Philippines insufficient; Leiva-Montalvo v. INS, 173 F.3d 749, 752 (9th Cir. 1999) (El Salvador); Meza-Manay v. INS, 139 F.3d 759, 765-66 (9th Cir. 1998) (Peru); Vallecillo-Castillo v. INS, 121 F.3d 1237, 1239-40 (9th Cir. 1996) (Nicaragua); Prasad v. INS, 101 F.3d 614, 617 (9th Cir. 1996) (Fiji).

d.       Internal Relocation

          “[B]ecause a presumption of well-founded fear arises upon a showing of past persecution, the burden is on the INS to demonstrate by a preponderance of the evidence, once such a showing is made, that the applicant can reasonably relocate internally to an area of safety.”  Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir. 2003); see also Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008); Mashiri v. Ashcroft, 383 F.3d 1112, 1122-23 (9th Cir. 2004) (IJ erred by placing the burden of proof on ethnic Afghan to show “that the German government was unable or unwilling to control anti-foreigner violence ‘on a countrywide basis’”); 8 C.F.R. § 1208.13(b)(1)(i)(B), (b)(1)(ii).

          “The reasonableness of internal relocation is determined by considering whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and family ties.”  Knezevic v. Ashcroft, 367 F.3d 1206, 1214-15 (9th Cir. 2004) (citing 8 C.F.R. § 1208.13(b)(3); remanding for determination of whether internal relocation would be reasonable for elderly Serbian couple from Bosnia); see also Afriyie v. Holder, 613 F.3d 924, 935-36 (9th Cir. 2010) (remanding to the BIA to ensure that the proper burden of proof was applied and requisite regulatory factors considered in evaluating the relocation issue).  This non-exhaustive list of factors “may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.”  8 C.F.R. § 1208.13(b)(3).  See also Gonzalez-Medina v. Holder, 641 F.3d 333, 338 (9th Cir. 2011) (statements that petitioner would never be able to escape husband in Mexico and that he would force her to be with him again were insufficient on their own to meet her burden of proof); Ahmed v. Keisler, 504 F.3d 1183, 1197 (9th Cir. 2007) (concluding that government failed to meet burden where alien could not reasonably relocate to another part of Bangladesh, particularly because he was not required to suppress his political interests and activities); Mashiri, 383 F.3d at 1123 (relocation was not reasonable given evidence of anti-foreigner violence throughout Germany, financial and logistical barriers, and family ties in the U.S.); Cardenas v. INS, 294 F.3d 1062, 1066 (9th Cir. 2002) (discussing reasonableness in light of threats in Peru); Hasan v. Ashcroft, 380 F.3d 1114, 1121-22 (9th Cir. 2004) (noting the different legal standards for evaluation of internal relocation in the context of asylum and Convention Against Torture relief). 

          Where the persecutor is the government, “[i]t has never been thought that there are safe places within a nation” for the applicant to return.  Singh v. Moschorak, 53 F.3d 1031, 1034 (9th Cir. 1995).  “In cases in which the persecutor is a government or is government-sponsored, or the applicant has established persecution in the past, it shall be presumed that internal relocation would not be reasonable, unless the Service establishes by a preponderance of the evidence that, under all the circumstances, it would be reasonable for the applicant to relocate.”  8 C.F.R. § 1208.13(b)(3)(ii).

          Whether internal relocation is a factual or legal issue is unclear.  Brezilien v. Holder, 569 F.3d 403, 414 (9th Cir. 2009) (remanding to the BIA for clarification as to whether internal relocation is a factual question subject to clear error review or a legal question subject to de novo review).

3.       Humanitarian Asylum

          The IJ or BIA may grant asylum to a victim of past persecution, even where the government has rebutted the applicant’s fear of future persecution, “if the asylum seeker establishes (1) ‘compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution,’ 8 C.F.R. § 1208.13(b)(1)(iii)(A), or (2) ‘a reasonable possibility that he or she may suffer other serious harm upon removal to that country,’ 8 C.F.R. § 1208.13(b)(1)(iii)(B).”  Belishta v. Ashcroft, 378 F.3d 1078, 1081 (9th Cir. 2004) (order); see also Benyamin v. Holder, 579 F.3d 970, 977 (9th Cir. 2009) (remanding to the BIA to consider in first instance whether humanitarian asylum should be granted where alien suffered female genital mutilation, which the court has recognized as a “particularly severe form of past persecution”); Sowe v. Mukasey, 538 F.3d 1281, 1287 (9th Cir. 2008) (remanding for BIA to consider whether alien was eligible for asylum pursuant to 8 C.F.R. § 1208.13(b)(1)(iii)(A)); Silaya v. Mukasey, 524 F.3d 1066, 1072 (9th Cir. 2008) (remanding for BIA to consider whether to grant humanitarian asylum); Hanna v. Keisler, 506 F.3d 933, 939 (9th Cir. 2007) (remanding for BIA to consider whether there existed a reasonable possibility that the petitioner may suffer other serious harm upon removal to Iraq, and thus could be eligible for humanitarian asylum).

a.       Severe Past Persecution

          In cases of severe past persecution, an applicant may obtain asylum even if he has no well-founded fear in the future, provided that he has “compelling reasons” for being unwilling to return.  See 8 C.F.R. § 1208.13(b)(1)(iii)(A).  The United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979), para. 136, states that “[i]t is frequently recognized that a person who–or whose family–has suffered under atrocious forms of persecution should not be expected to repatriate.  Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee.”  This court has not decided whether an applicant could be eligible for relief based on the severity of the past persecution of his family, where the applicant himself did not suffer severe past persecution. 

          “This avenue for asylum has been reserved for rare situations of ‘atrocious’ persecution, where the alien establishes that, regardless of any threat of future persecution, the circumstances surrounding the past persecution were so unusual and severe that he is unable to return to his home country.”  Vongsakdy v. INS, 171 F.3d 1203, 1205 (9th Cir. 1999) (Laos).  Ongoing disability as a result of the persecution is not required.  Lal v. INS, 255 F.3d 998, 1004 (9th Cir. 2001) (Indo-Fijian), as amended by 268 F.3d 1148 (9th Cir. 2001) (order).

(i)      Compelling Cases of Past Persecution for Humanitarian Asylum                                   

          Lal v. INS, 255 F.3d 998, 1009-10 (9th Cir. 2001) (Indo-Fijian arrested, detained three times, beaten, tortured, urine forced into mouth, cut with knives, burned with cigarettes, forced to watch sexual assault of wife, forced to eat meat, house set ablaze twice, temple ransacked, and holy text burned), amended by 268 F.3d 1148 (9th Cir. 2001) (order); Vongsakdy v. INS, 171 F.3d 1203, 1206-07 (9th Cir. 1999) (Laotian applicant threatened, beaten and attacked, forced to perform hard manual labor and to attend “reeducation,” fed once a day, denied adequate water and medical care, and forced to watch the guards kill one of his friends); Lopez-Galarza v. INS, 99 F.3d 954, 960-63 (9th Cir. 1996) (Nicaraguan applicant imprisoned for 15 days, raped and physically abused repeatedly, confined in a jail cell for long periods without food, forced to clean bathrooms and floors of men’s jail cells, mobs stoned and vandalized family home, and the authorities took away food ration card); Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir. 1988) (Haitian applicant arrested, assaulted, beaten some fifty times with wooden stick, and threatened with death by the Macoutes on several occasions); see also Matter of Chen, 20 I. & N. Dec. 16, 20-21 (BIA 1989) (Red Guards ransacked and destroyed applicant’s home, imprisoned and dragged father through streets, and badly burned him in a bonfire of Bibles; as a child placed under house arrest, kept from school, interrogated, beaten, deprived of food, seriously injured by rocks, and exiled to the countryside for “re-education,” abused, forced to criticize father, and denied medical care).

          The court has remanded for consideration of humanitarian relief in: Benyamin v. Holder, 579 F.3d 970, 977 (9th Cir. 2009) (remanding to the BIA to consider in first instance whether humanitarian asylum should be granted where alien suffered female genital mutilation, which the court has recognized as a “particularly severe form of past persecution”); Sowe v. Mukasey, 538 F.3d 1281, 1287 (9th Cir. 2008) (remanding for consideration of humanitarian relief where “BIA erred in failing to determine whether, assuming the truth of Sowe’s testimony that he witnessed his parents’ murder, the severing of his brother’s hand, and his sister’s kidnaping, he provided compelling reasons for his being unwilling or unable to return to Sierra Leone.”); Silaya v. Mukasey, 524 F.3d 1066, 1072 (9th Cir. 2008) (native and citizen of the Philippines kidnaped, raped, and physically abused by members of the NPA); Kebede v. Ashcroft, 366 F.3d 808, 812 (9th Cir. 2004) (Ethiopian raped by two soldiers during one house search and family harassed and harmed repeatedly); Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1078 (9th Cir. 2004) (Guatemalan gang raped by soldiers as part of an “orchestrated campaign” to punish entire village);  Rodriguez-Matamoros v. INS, 86 F.3d 158, 160-61 (9th Cir. 1996) (Nicaraguan severely beaten, threatened with death, imprisoned for working without a permit, witnessed sister being tortured and killed, and family denied food rations and work permit).

(ii)     Insufficiently Severe Past Persecution for Humanitarian Asylum

          Hanna v. Keisler, 506 F.3d 933, 939 (9th Cir. 2007) (Iraqi applicant detained for over one month and tortured; although past persecution not sufficient to qualify for humanitarian asylum, the court remanded for BIA to consider whether there existed a reasonable possibility that petitioner may suffer other serious harm upon removal); Belishta v. Ashcroft, 378 F.3d 1078, 1081, n.2 (9th Cir. 2004) (order) (economic and emotional persecution based on father’s 10-year imprisonment in Albania); Rodas-Mendoza v. INS, 246 F.3d 1237, 1240 (9th Cir. 2001) (per curiam) (Salvadoran applicant targeted by government sporadically between 1978 and 1980, and then not again until 1991, when forces searched home looking for FMLN sympathizers); Belayneh v. INS, 213 F.3d 488, 491 (9th Cir. 2000) (ethnic Amhara Ethiopian detained for a month, interrogated, beaten for 45 minutes, and almost raped by guards, children detained temporarily and beaten, family harassed); Kumar v. INS, 204 F.3d 931, 934-35 (9th Cir. 2000) (Indo-Fijian applicant stripped and fondled in front of parents, punched and kicked, forced to renounce religion, and beaten unconscious; soldiers tied up and beat parents, detained father, and knocked mother unconscious; temple ransacked); Marcu v. INS, 147 F.3d 1078, 1082-83 (9th Cir. 1998) (Romanian taunted as a child, denounced as an “enemy of the people,” detained, interrogated and beaten by police on multiple occasions, family’s possessions confiscated, and mother imprisoned for refusing to renounce U.S. citizenship); Gonzalez v. INS, 82 F.3d 903, 910 (9th Cir. 1996) (Sandinista authorities made multiple death threats, marked applicant’s house, took away ration card and means to buy inventory, and harassed and confiscated family property); Kazlauskas v. INS, 46 F.3d 902, 906-907 (9th Cir. 1995) (Lithuanian applicant ostracized, harassed by teachers and peers, and prevented from advancing to university; father imprisoned in Soviet labor camps); Acewicz v. INS, 984 F.2d 1056, 1062 (9th Cir. 1993) (Polish citizens suffered insufficiently severe past persecution).

b.       Fear of Other Serious Harm

          Victims of past persecution who no longer reasonably fear future persecution on account of a protected ground may be granted asylum if they can establish a reasonable possibility that they may suffer other serious harm upon removal to that country.  See Belishta v. Ashcroft, 378 F.3d 1078, 1081 (9th Cir. 2004) (order) (remanding for consideration of humanitarian grant where former government agents terrorized Albanian family in an effort to take over their residence); 8 C.F.R. § 1208.13(b)(1)(iii)(B); see also Hanna v. Keisler, 506 F.3d 933, 939 (9th Cir. 2007) (Iraqi applicant detained for over one month and tortured; although past persecution not sufficient to qualify for humanitarian asylum, the court remanded for BIA to consider whether there existed a reasonable possibility that petitioner may suffer other serious harm upon removal); cf. Sowe v. Mukasey, 538 F.3d 1281, 1287 (9th Cir. 2008) (petitioner failed to show “other serious harm” aside from claimed fear of persecution, which had been rebutted; but remanding for BIA to consider whether alien was eligible for asylum pursuant to 8 C.F.R. § 1208.13(b)(1)(iii)(A)).     

E.      Well-Founded Fear of Persecution

          Even in the absence of past persecution, an applicant may be eligible for asylum based on a well-founded fear of future persecution.  See 8 C.F.R. § 1208.13(b).  A well-founded fear must be subjectively genuine and objectively reasonable.  See Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007); Montecino v. INS, 915 F.2d 518, 520-21 (9th Cir. 1990) (noting the importance of the applicant’s subjective state of mind).  An applicant can demonstrate a well-founded fear of persecution if:  (A) she has a fear of persecution in her country; (B) there is a reasonable possibility of suffering such persecution; and (C) she is unable or unwilling to return to that country because of such fear.  See 8 C.F.R. § 1208.13(b)(2)(i).  A “‘well-founded fear’ … can only be given concrete meaning through a process of case-by-case adjudication.”  INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987).                                                 

1.       Past Persecution Not Required

          A showing of past persecution is not required to qualify for asylum.  See Halim v. Holder, 590 F.3d 971, 976 (9th Cir. 2009) (“In the absence of past persecution, an applicant may still be eligible for asylum based on a well-founded fear of future persecution.”); Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 870 (9th Cir. 2003); Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir. 1998) (“Either past persecution or a well-founded fear of future persecution provides eligibility for a discretionary grant of asylum.”), superseded by statute on other grounds as stated in Falcon Carriche v. Ashcroft, 350 F.3d 845, 854 n.9 (9th Cir. 2003).  However, the past persecution of an applicant creates a rebuttable presumption that he will be persecuted in the future.  See Past Persecution, above.  Moreover, past harm not amounting to persecution is relevant to the reasonableness of an applicant’s fear of future persecution.  See Avetova-Elisseva v. INS, 213 F.3d 1192, 1198 (9th Cir. 2000) (harassment of ethnic Armenian in Russia, inability to get a job, and violence against friend did not rise to level of past persecution, but did support her well-founded fear); see also Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2000) (explaining that past threats, although insufficient under the circumstances to establish past persecution, are relevant to a well-founded fear of future persecution).

2.       Subjective Prong

          The subjective prong of the well-founded fear test is satisfied by an applicant’s credible testimony that he or she genuinely fears harm.  See Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007) (native of Bangladesh and a Bihari); Sael v. Ashcroft, 386 F.3d 922, 924 (9th Cir. 2004) (Indonesian of Chinese descent); Singh v. Moschorak, 53 F.3d 1031, 1034 (9th Cir. 1995) (Indian Sikh).  “[F]ortitude in face of danger” does not denote an “absence of fear.”  Singh v. Moschorak, 53 F.3d at 1034; see also Lolong v. Gonzales, 484 F.3d 1173, 1178-79 (9th Cir. 2007) (en banc) (finding subjective fear where petitioner described fears and gave specific examples of violent incidents involving friends and family); cf. Mejia-Paiz v. INS, 111 F.3d 720, 723-24 (9th Cir. 1996) (finding no subjective fear where testimony of Nicaraguan who claimed to be a Jehovah’s Witness was not credible); Berroteran-Melendez v. INS, 955 F.2d 1251, 1257-58 (9th Cir. 1992) (Nicaraguan who “failed to present ‘candid, credible and sincere testimony’ demonstrating a genuine fear of persecution, … failed to satisfy the subjective component of the well-founded fear standard”). 

          A fear of persecution need not be the applicant’s only reason for leaving his country of origin.  See Melkonian v. Ashcroft, 320 F.3d 1061, 1068 (9th Cir. 2003); Garcia-Ramos v. INS, 775 F.2d 1370, 1374-75 (9th Cir. 1985) (holding that Salvadoran’s mixed motives for departure, including economic motives, did not bar asylum claim). 

3.       Objective Prong

          The objective prong of the well-founded fear analysis can be satisfied in two different ways:  “One way to satisfy the objective component is to prove persecution in the past, giving rise to a rebuttable presumption that a well-founded fear of future persecution exists.  The second way is to show a good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution.  The objective requirement can be met by either through the production of specific documentary evidence or by credible and persuasive testimony.”  Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000) (internal citations and quotation marks omitted), overruled on other grounds by Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam); see also Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007). 

          “A well-founded fear does not require certainty of persecution or even a probability of persecution.”  Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th Cir. 2003).  “[E]ven a ten percent chance of persecution may establish a well-founded fear.”  Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001); see also Halim v. Holder, 590 F.3d 971, 977 (9th Cir. 2009) (concluding that record did not compel a finding of even a ten percent chance of persecution); Ahmed, 504 F.3d at 1191.  This court has stated that objective circumstances “must be determined in the political, social and cultural milieu of the place where the petitioner lived.”  Montecino v. INS, 915 F.2d 518, 520 (9th Cir. 1990).

          A claim based solely on general civil strife or widespread random violence is not sufficient.  See, e.g., Lolong v. Gonzales, 484 F.3d 1173, 1179 (9th Cir. 2007) (en banc) (“a general, undifferentiated claim of [violence on Chinese or on Christians in Indonesia] does not render an alien eligible for asylum”); Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir. 2000) (Christian Armenians fearful of Azeris); Limsico v. INS, 951 F.2d 210, 212 (9th Cir. 1991) (Chinese-Filipino); Vides-Vides v. INS, 783 F.2d 1463, 1469 (9th Cir. 1986) (El Salvador).  However, the existence of general civil unrest does not preclude asylum eligibility.  See Sinha v. Holder, 564 F.3d 1015, 1022 (9th Cir. 2009) (explaining “the existence of civil unrest does not undercut an individual’s claim of persecution based on incidents specific to him”); Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir. 2004) (“[T]he fact that the individual resides in a country where the lives and freedom of a large number of persons has been threatened may make the threat more serious or credible.” (internal quotation marks and alterations omitted)); Ndom v. Ashcroft, 384 F.3d 743, 752 (9th Cir. 2004) (“[T]he existence of civil strife does not … make a particular asylum claim less compelling.”), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009).

          Even when an applicant has not established past persecution, and the rebuttable presumption of future persecution does not arise, current country conditions may be relevant to whether the applicant has demonstrated an objectively reasonable fear of future persecution.  See Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002) (“When, as here, a petitioner has not established past persecution, there is no presumption to overcome … [and] the IJ and the BIA are entitled to rely on all relevant evidence in the record, including a State Department report”).  In determining whether an applicant’s fear of future persecution is objectively reasonable in light of current country conditions, the agency must conduct an individualized analysis of how such conditions will affect the applicant’s specific situation.  Marcos v. Gonzales, 410 F.3d 1112, 1120-21 (9th Cir. 2005) (concluding applicant had a well-founded fear of future persecution).

4.       Demonstrating a Well-Founded Fear

a.       Targeted for Persecution

          An applicant may demonstrate a well-founded fear by showing that he has been targeted for persecution.  See, e.g., Marcos v. Gonzales, 410 F.3d 1112, 1119 (9th Cir. 2005) (Philippine applicant demonstrated well-founded fear based on credible death threats by members of the New People’s Army); Zhang v. Ashcroft, 388 F.3d 713, 718 (9th Cir. 2004) (per curiam) (applicant qualified for withholding of removal in part because Chinese authorities identified him as an anti-government Falun Gong practitioner and demonstrated their continuing interest in him); Melkonian v. Ashcroft, 320 F.3d 1061, 1068 (9th Cir. 2003) (Abkhazian applicant was eligible for asylum because the Separatists specifically targeted him for conscription); Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2000) (Filipino applicant was threatened, followed, appeared on a death list, and several colleagues were killed); Mendoza Perez v. INS, 902 F.2d 760, 762 (9th Cir. 1990) (Salvadoran applicant received a direct, specific and individual threat from death squad).  

b.       Family Ties

          Acts of violence against an applicant’s family members and friends may establish a well-founded fear of persecution.  See Korablina v. INS, 158 F.3d 1038, 1044-45 (9th Cir. 1998) (Jewish citizen of the Ukraine).  The violence must “create a pattern of persecution closely tied to the petitioner.”  Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991) (Guatemala).  “[T]he death of one family member does not automatically trigger a sweeping entitlement to asylum eligibility for all members of her extended family.  Rather, when evidence regarding a family history of persecution is considered, the relationship that exists between the persecution of family members and the circumstances of the applicant must be examined.”  Navas v. INS, 217 F.3d 646, 659 n.18 (9th Cir. 2000) (internal quotation marks, alteration, and citations omitted).  However, injuries to a family must be considered in an asylum case where the events that form the basis of the persecution claim were perceived when the petitioner was a child.  Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045-46 (9th Cir. 2007).

          See also Zhang v. Ashcroft, 388 F.3d 713, 718 (9th Cir. 2004) (per curiam) (arrest and detention of family members who also practice Falun Gong among other factors compelled a finding that applicant is entitled to withholding of removal); Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir. 2004) (persecution of family in Kenya); Mgoian v. INS, 184 F.3d 1029, 1035 n.4 (9th Cir. 1999) (violence and harassment against entire Kurdish Muslim family in Armenia); Gonzalez v. INS, 82 F.3d 903, 909-10 (9th Cir. 1996) (Nicaraguan family suffered violence for supporting Somoza); Hernandez-Ortiz v. INS, 777 F.2d 509, 515 (9th Cir. 1985) (Salvadoran applicant presented prima facie eligibility for asylum based on the persecution of her family), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009).

c.       Pattern and Practice of Persecution

          An applicant need not show that she will be singled out individually for persecution if:

(A) The applicant establishes that there is a pattern or practice in his or her country … of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and
(B) The applicant establishes his or her own inclusion in, and identification with, such group of persons such that his or her fear of persecution upon return is reasonable.

8 C.F.R. § 1208.13(b)(2)(iii); see also Knezevic v. Ashcroft, 367 F.3d 1206, 1213 (9th Cir. 2004) (evidence of a Croat pattern and practice of ethnically cleansing Bosnian Serbs); Mgoian v. INS, 184 F.3d 1029, 1036 (9th Cir. 1999) (pattern and practice of persecution of Kurdish Moslem intelligentsia in Armenia); cf. Wakkary v. Holder, 558 F.3d 1049, 1060-62 (9th Cir. 2009) (concluding record did not compel conclusion that there exists a pattern and practice of persecution against Chinese and Christians in Indonesia); Lolong v. Gonzales, 484 F.3d 1173, 1180-81 (9th Cir. 2007) (en banc) (no pattern or practice of persecution against ethnic Chinese Christian women in light of current conditions and where petitioner has not demonstrated that Indonesian government is unable or unwilling to control perpetrators).  “[T]his ‘group’ of similarly situated persons is not necessarily the same as the more limited ‘social group’ category mentioned in the asylum statute.”  Mgoian, 184 F.3d at 1036.                

d.       Membership in Disfavored Group 

          In the Ninth Circuit, a member of a “disfavored group” that is not subject to a pattern or practice of persecution may also demonstrate a well-founded fear.  See Kotasz v. INS, 31 F.3d 847, 853-54 (9th Cir. 1994) (opponents of the Hungarian Communist Regime).  See also Tampubolon v. Holder, 610 F.3d 1056, 1060 (9th Cir. 2010) (Christian Indonesians); Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007) (Bihari in Bangladesh); Sael v. Ashcroft, 386 F.3d 922, 927 (9th Cir. 2004) (Indonesia’s ethnic Chinese minority); El Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir. 2004) (as amended) (stateless Palestinians born in Kuwait are members of a persecuted minority); Hoxha v. Ashcroft, 319 F.3d 1179, 1182-83 (9th Cir. 2003) (ethnic Albanians in Kosovo); Singh v. INS, 94 F.3d 1353, 1359 (9th Cir. 1996) (Indo-Fijians).                

          In determining whether an applicant had established a well-founded fear of persecution based on membership in a disfavored group, “this court will look to (1) the risk level of membership in the group (i.e., the extent and the severity of persecution suffered by the group) and (2) the alien’s individual risk level (i.e., whether the alien has a special role in the group or is more likely to come to the attention of the persecutors making him a more likely target for persecution).”  Mgoian v. INS, 184 F.3d 1029, 1035 n.4 (9th Cir. 1999).  “The relationship between these two factors is correlational; that is to say, the more serious and widespread the threat of persecution to the group, the less individualized the threat of persecution needs to be.” Id.; see also Sael, 386 F.3d at 927 (stating that members of the significantly disfavored group comprising ethnic Chinese Indonesians need demonstrate a “comparatively low” level of particularized risk).  Note that the “disfavored group analysis does not alter the quantitative standard of proof.  Rather, it determines what sorts of evidence can be used to meet that standard, and quite generally, in what proportions.”  Wakkary v. Holder, 558 F.3d 1049, 1065 (9th Cir. 2009).  See also Halim v. Holder, 590 F.3d 971, 979 (9th Cir. 2009) (concluding “that [alien] failed to make the minimal showing necessary to require that the agency reconsider its denial of relief … based on (1) the relative weakness of the claim of disfavored status, (2) the lack of evidence of government approval of the alleged discrimination, and (3) Halim’s minimal showing of individual risk.”).

          Past experiences, including threats and violence, even if not sufficient to compel a finding of past persecution, are indicative of individualized risk of future harm.  See Sael, 386 F.3d at 928-29; Hoxha, 319 F.3d at 1184.         

          Evidence of changed circumstances that may be sufficient to undermine an applicant’s claim that there is a “pattern or practice” of persecution may not diminish a claim based on disfavored status.  See Sael, 386 F.3d at 929 (“When a minority group’s ‘disfavored’ status is rooted in centuries of persecution, year-to-year fluctuations cannot reasonably be viewed as disposing of an applicant’s claim.”).

          The disfavored group analysis used in asylum claims is also applicable in the context of withholding of removal.  See Wakkary, 558 F.3d at 1065; see also Tampubolon, 610 F.3d at 1060 (determining that Christian Indonesians were a disfavored group based on the record and remanding for BIA to analyze petitioners’ withholding claim according to disfavored group analysis).

5.       Countrywide Persecution

          “An applicant is ineligible for asylum if the evidence establishes that ‘the applicant could avoid persecution by relocating to another part of the applicant’s country of nationality … if under all the circumstances it would be reasonable to expect the applicant to do so.’”  Kaiser v. Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004) (quoting 8 C.F.R. § 1208.13(b)(2)(ii)); see also Melkonian v. Ashcroft, 320 F.3d 1061, 1069 (9th Cir. 2003).  “Specifically, the IJ may deny eligibility for asylum to an applicant who has otherwise demonstrated a well-founded fear of persecution where the evidence establishes that internal relocation is a reasonable option under all of the circumstances.”  Melkonian, 320 F.3d at 1069 (remanding for a determination of the reasonableness of internal relocation in Georgia); see also Knezevic v. Ashcroft, 367 F.3d 1206, 1213 (9th Cir. 2004) (“The Immigration and Nationality Act … defines a ‘refugee’ in terms of a person who cannot return to a ‘country,’ not a particular village, city, or area within a country.”).

          The inquiry into internal relocation or countrywide persecution is two-fold.  “[W]e must first ask whether an applicant could relocate safely to another part of the applicant’s country of origin.”  Kaiser, 390 F.3d at 660 (holding that Pakistani couple could not safely relocate where threats occurred even after petitioners moved to the opposite side of the country).  “If the evidence indicates that the applicant could relocate safely, we next ask whether it would be reasonable to require the applicant to do so.”  Id. at 659.  A previous successful internal relocation may undermine the well-founded fear of future persecution.  See Gomes v. Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005).

          In cases where the applicant has not established past persecution, the applicant bears the burden of establishing that it would be either unsafe or unreasonable for him to relocate, unless the persecution is by a government or is government sponsored.  Kaiser, 390 F.3d at 659; 8 C.F.R. § 1208.13(b)(3)(i).

          “In cases in which the persecutor is a government or is government-sponsored, … it shall be presumed that internal relocation would not be reasonable, unless the Service establishes by a preponderance of the evidence that, under all the circumstances, it would be reasonable for the applicant to relocate.”  8 C.F.R. § 1208.13(b)(3)(ii); see also Fakhry v. Mukasey, 524 F.3d 1057, 1065 (9th Cir. 2008) (petitioner gained benefit of presumption that threat of persecution existed nationwide and that relocation was unreasonable where petitioner testified that he feared persecution at the hands of the Senegalese government); Ahmed v. Keisler, 504 F.3d 1183, 1200 (9th Cir. 2007) (where it was more likely than not that petitioner would be persecuted by the police or the government upon return to Bangladesh, it was unreasonable to expect that petitioner could relocate within the country); Melkonian, 320 F.3d at 1069 (where the source of persecution is the government, a rebuttable presumption arises that the threat exists nationwide, and that internal relocation would be unreasonable); Damaize-Job v. INS, 787 F.2d 1332, 1336-37 (9th Cir. 1986) (no need for Miskito Indian from Nicaragua to demonstrate countrywide persecution if persecutor shows no intent to limit his persecution to one area, and applicant can be readily identified); cf. Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir. 1986) (no country-wide danger based on anonymous threat in hometown in El Salvador).  

          The regulations state that the reasonableness of internal relocation may be based on “whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties.”  8 C.F.R. § 1208.13(b)(3) (stating that this non-exhaustive list may, or may not, be relevant, depending on the case); see also Boer-Sedano v. Gonzales, 418 F.3d 1082, 1090 (9th Cir. 2005) (explaining that the regulation precludes relocation when a petitioner’s age, limited job prospects, and lack of family or cultural connections to the proposed place of relocation militate against a finding that relocation would be reasonable); Knezevic, 367 F.3d 1215 (holding that Bosnian Serb couple could safely relocate to Serb-held areas of Bosnia, and remanding for determination whether such relocation would be reasonable). 

6.       Continued Presence of Applicant

          An applicant’s continued presence in her country of persecution before flight, while relevant, does not necessarily undermine a well-founded fear.  See, e.g., Canales-Vargas v. Gonzales, 441 F.3d 739, 746 (9th Cir. 2006) (“We do not fault Canales-Vargas for remaining in Peru until the quantity and severity of the threats she received eclipsed her breaking point.”); Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2000) (post-threat harmless period did not undermine well-founded fear of former Filipino police officer).  There is no “rule that if the departure was a considerable time after the first threat, then the fear was not genuine or well founded.”  Gonzalez v. INS, 82 F.3d 903, 909 (9th Cir. 1996); see also Lopez-Galarza v. INS, 99 F.3d 954, 962 (9th Cir. 1996) (8-year stay in Nicaragua after release from prison did not negate claim based on severe past persecution); Turcios v. INS, 821 F.2d 1396, 1401-02 (9th Cir. 1987) (remaining in El Salvador for several months after release from prison did not negate fear); Damaize-Job v. INS, 787 F.2d 1332, 1336 (9th Cir. 1986) (two-year stay in Nicaragua after release not determinative).

          Cf. Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000) (Indo-Fijian’s fear undermined by two-year stay in Fiji after incidents of harm); Castillo v. INS, 951 F.2d 1117, 1122 (9th Cir. 1991) (asylum denied where applicant remained over five years in Nicaragua after interrogation without further harm or contacts from authorities).

          7.       Continued Presence of Family

          The continued presence of family members in the country of origin does not necessarily rebut an applicant’s well-founded fear, unless there is evidence that the family was similarly situated or subject to similar risk.  See Zhao v. Mukasey, 540 F.3d 1027, 1031 (9th Cir. 2008) (explaining that the well-being of others who have stayed behind in a country is only relevant when those others are similarly situated to the petitioners); Kumar v. Gonzales, 444 F.3d 1043, 1055 (9th Cir. 2006) (irrelevant that petitioner’s parents were not harmed after petitioner left India, where they were not “similarly situated”); Khup v. Ashcroft, 376 F.3d 898, 905 (9th Cir. 2004) (family in Burma not similarly situated because they “didn’t do anything against the government”); Jahed v. INS, 356 F.3d 991, 1001 (9th Cir. 2004) (where petitioner was singled out for persecution, the situation of remaining relatives in Iran is “manifestly irrelevant”); Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th Cir. 2003) (evidence of the condition of the applicant’s family is relevant only when the family is similarly situated to the applicant); Rios v. Ashcroft, 287 F.3d 895, 902 (9th Cir. 2002) (Guatemala); Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2000) (Philippines).  See also Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010) (analyzing withholding of removal claim and concluding that petitioner’s fear of future persecution, which was based on threats received by his family, was not objectively reasonable where his family voluntarily returned to Nepal and continues to live there unharmed).

          Cf. Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004) (claim that applicant’s family was so afraid of being arrested that it was forced to go deep into hiding was inconsistent with wife’s travel to hometown without trouble); Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (“An applicant’s claim of persecution upon return is weakened, even undercut, when similarly-situated family members continue to live in the country without incident, … or when the applicant has returned to the country without incident.” (internal quotation marks and citation omitted)), superseded by statute on other grounds as stated in Ramadan v. Gonzalez, 479 F.3d 646, 650 (9th Cir. 2007); Khourassany v. INS, 208 F.3d 1096, 1101 (9th Cir. 2000) (Israel); Aruta v. INS, 80 F.3d 1389, 1395 (9th Cir. 1996) (sister remained in the Philippines without incident); Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir.1988) (per curiam) (as amended) (family unmolested in El Salvador); Mendez-Efrain v. INS, 813 F.2d 279, 282 (9th Cir. 1987) (continued and unmolested presence of family in El Salvador undermined well-founded fear).

8.       Possession of Passport or Travel Documents

          Possession of a valid passport does not necessarily undermine the subjective or objective basis for an applicant’s fear.  See Zhao v. Mukasey, 540 F.3d 1027, 1031 (9th Cir. 2008) (petitioners’ ability to acquire a passport and travel to Beijing for a visa interview despite travel restriction did not undermine claim of a well-founded fear of persecution); Mamouzian v. Ashcroft, 390 F.3d 1129, 1137 (9th Cir. 2004) (“A petitioner’s ability to escape her persecutors does not undermine her claim of a well-founded fear of future persecution, even when she succeeds in obtaining government documents that permit her to depart.”); Khup v. Ashcroft, 376 F.3d 898, 905 (9th Cir. 2004) (possession and renewal of Burmese passport did not undermine petitioner’s subjective fear of persecution); Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th Cir. 2003) (holding that ethnic Albanian from Kosovo who obtained passport had well-founded fear because “Serbian authorities actively supported an Albanian exodus instead of opposing it”); Avetova-Elisseva v. INS, 213 F.3d 1192, 1200 (9th Cir. 2000) (minimizing significance of Russian passport issuance); Turcios v. INS, 821 F.2d 1396, 1402 (9th Cir. 1987) (rejecting IJ’s presumption that Salvadoran government would not persecute an individual that was allowed to leave the country); Damaize-Job v. INS, 787 F.2d 1332, 1336 (9th Cir. 1986) (obtaining passport through a friend did not undermine fear); Garcia-Ramos v. INS, 775 F.2d 1370, 1374 (9th Cir. 1985).

          Cf. Khourassany v. INS, 208 F.3d 1096, 1101 (9th Cir. 2000) (denying, in part, because Palestinian retained Israeli passport and was able to travel freely); Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir. 1988) (per curiam) (as amended) (observing that ability to obtain passport is a relevant factor); Espinoza-Martinez v. INS, 754 F.2d 1536, 1540 (9th Cir. 1985) (holding that acquisition of Nicaraguan passport without difficulty cut against applicant’s asylum claim). 

9.       Safe Return to Country of Persecution

          Return trips can be considered as one factor, among others, that rebut the presumption of a nationwide threat of persecution.  See Belayneh v. INS, 213 F.3d 488, 491 (9th Cir. 2000) (presumption of nationwide threat of persecution was rebutted when petitioner made three return trips, there had been two favorable changes in government, and fifteen years had passed between the past persecution and the asylum request); see also Loho v. Mukasey, 531 F.3d 1016, 1017-18 (9th Cir. 2008) (noting that “an alien’s history of willingly returning to his or her home country militates against a finding of past persecution or a well-founded fear of future persecution”); cf. Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091 (9th Cir. 2005) (holding that petitioner’s repeated return trips to Mexico to gather enough income to flee permanently did not rebut the presumption of a well-founded fear of persecution).

10.     Cases Finding No Well-Founded Fear

          Halim v. Holder, 590 F.3d 971, 977 (9th Cir. 2009) (concluding that record did not compel a finding of even a ten percent chance of persecution); Lolong v. Gonzales, 484 F.3d 1173, 1179-1181 (9th Cir. 2007) (en banc) (ethnic Chinese Christian petitioner did not establish an individualized risk or a pattern or practice of persecution in Indonesia); Gomes v. Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005) (fear of persecution in Bangladesh undermined by prior successful internal relocation and current country conditions); Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of future persecution in Ukraine too speculative); Belayneh v. INS, 213 F.3d 488, 491 (9th Cir. 2000) (no well-founded fear of persecution in Ethiopia on account of imputed political opinion); Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir. 2000) (Armenians from Nagorno-Karabakh region did not establish past persecution or a well-founded fear of future persecution by Azeris); Acewicz v. INS, 984 F.2d 1056, 1059-61 (9th Cir. 1993) (BIA properly took administrative notice of changed political conditions in Poland); Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir. 1988) (per curiam) (as amended) (no well-founded fear of Salvadoran guerillas where, inter alia, potential persecutor was dead).                        

F.      Nexus to the Five Statutorily Protected Grounds       

          For applications filed before May 11, 2005, the past or anticipated persecution must be “on account of” one or more of the five grounds enumerated in 8 U.S.C. § 1101(a)(42)(A): race, religion, nationality, membership in a particular social group, or political opinion.  See INS v. Elias-Zacarias, 502 U.S. 478, 481-82 (1992); Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) (explaining a nexus is established when past persecution is on account of one or more of the protected grounds); Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008); Sangha v. INS, 103 F.3d 1482, 1486 (9th Cir. 1997).  The applicant must provide some evidence, direct or circumstantial, that the persecutor was or would be motivated to persecute him because of his actual or imputed status or belief.  See Sangha, 103 F.3d at 1486-87.

          For applications filed on or after May 11, 2005, the REAL ID Act of 2005, Pub. L. No. 109-113, 119 Stat. 231, created a new nexus standard, requiring that an applicant 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).

 [A] motive is a “central reason” if the persecutor would not have harmed the applicant if such motive did not exist. Likewise, a motive is a “central reason” if that motive, standing alone, would have led the persecutor to harm the applicant. … [P]ersecution may be caused by more than one central reason, and an asylum applicant need not prove which reason was dominant.  Nevertheless, to demonstrate that a protected ground was “at least one central reason” for persecution, an applicant must prove that such ground was a cause of the persecutors’ acts.

Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009); see also Zetino v. Holder, 622 F.3d 1007, 1015 (9th Cir. 2010) (“The REAL ID Act of 2005 places an additional burden on Zetino to demonstrate that one of the five protected grounds will be at least one central reason for his persecution.”); Sinha v. Holder, 564 F.3d 1015, 1021 n.3 (9th Cir. 2009) (applying pre-REAL ID Act standard). 

1.       Proving a Nexus

          The persecutor’s motivation may be established by direct or circumstantial evidence.  See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). 

          An applicant’s uncontroverted credible testimony as to the persecutor’s motivations may be sufficient to establish nexus.  See, e.g., Antonyan v. Holder, 642 F.3d 1250, 1254 (9th Cir. 2011) (accepting Antonyan’s factual testimony as undisputed and concluding BIA erred in finding no nexus); Baghdasaryan v. Holder, 592 F.3d 1018, 1026 (9th Cir. 2010) (“Baghdasaryan’s testimony that he was harassed, threatened, arrested, and beaten by the government compels the conclusion that he was harmed, at least in part, due to his political opinion expressed through his opposition to government corruption.”); Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1076-77 (9th Cir. 2004) (accepting applicant’s testimony that the Guatemalan government persecuted entire village based on imputed political opinion); Shoafera v. INS, 228 F.3d 1070, 1074-75 (9th Cir. 2000) (Ethiopian applicant established through her credible testimony and witness testimony that the perpetrator was motivated to rape her based, in part, on her Amhara ethnicity); Maini v. INS, 212 F.3d 1167, 1175-76 (9th Cir. 2000) (evidence compelled a finding that Indian family was persecuted on account of inter-faith marriage based on credible witness testimony and statements by attackers). 

a.       Direct Evidence

          Direct proof of motivation may consist of evidence concerning statements made by the persecutor to the victim, or by victim to persecutor.  See, e.g., Kebede v. Ashcroft, 366 F.3d 808, 812 (9th Cir. 2004) (soldiers stated that rape was because of Kebede’s family’s position in prior Ethiopian regime); Lopez v. Ashcroft, 366 F.3d 799, 804 (9th Cir. 2004) (Guatemalan guerillas told applicant that he should not work for the wealthy); Borja v. INS, 175 F.3d 732, 736 (9th Cir. 2000) (en banc) (applicant articulated her political opposition to the NPA), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009); Gonzalez-Neyra v. INS, 122 F.3d 1293, 1295 (9th Cir. 1997) (applicant told Shining Path that he would not submit to extortion because of opposition), amended by 133 F.3d 726 (9th Cir. 1998) (order).

b.       Circumstantial Evidence

          Circumstantial proof of motivation may consist of severe or disproportionate punishment for violations of laws, or other evidence that the persecutor generally regards those who resist as political enemies.  See, e.g., Rodriguez-Roman v. INS, 98 F.3d 416 (9th Cir. 1996) (severe punishment for illegal departure).  Circumstantial evidence of motive may also include, inter alia, the timing of the persecution and signs or emblems left at the site of persecution.  See Deloso v. Ashcroft, 393 F.3d 858, 865-66 (9th Cir. 2005).  Statements made by the persecutor may constitute circumstantial evidence of motive.  See Gafoor v. INS, 231 F.3d 645, 651-52 (9th Cir. 2000) (holding that Fijian “soldiers’ statements to Gafoor [to ‘go back to India’ were] unmistakable circumstantial evidence that they were motivated by his race and imputed political opinion”), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009). 

          “In some cases, the factual circumstances alone may provide sufficient reason to conclude that acts of persecution were committed on account of political opinion, or one of the other protected grounds.  Indeed, this court has held persecution to be on account of political opinion where there appears to be no other logical reason for the persecution at issue.”  Navas v. INS, 217 F.3d 646, 657 (9th Cir. 2000) (internal citation omitted); see also Li v. Holder, 559 F.3d 1096, 1099 (9th Cir. 2009) (holding that “when a petitioner violates no Chinese law, but instead comes to the aid of refugees in defiance of China’s unofficial policy of discouraging such aid, a BIA finding that the petitioner is a mere criminal subject to legitimate prosecution is not supported by substantial evidence.”); Canales-Vargas v. Gonzales, 441 F.3d 739, 744-45 (9th Cir. 2006) (anonymous threats began several weeks after applicant spoke out against Shining Path guerillas at a political rally).  Moreover, “if there is no evidence of a legitimate prosecutorial purpose for a government’s harassment of a person … there arises a presumption that the motive for harassment is political.”  Ratnam v. INS, 154 F.3d 990, 995 (9th Cir. 1998) (internal quotation marks omitted); see also Imputed Political Opinion, below.

           The court has also considered the treatment of similarly-situated family members in determining whether the petitioner established the requisite nexus between the treatment suffered and a protected ground.  See Sinha v. Holder, 564 F.3d 1015, 1022 (9th Cir. 2009) (petitioner’s similarly-situated wife who was harassed on account of her race bolstered petitioner’s argument that the attacks directed at him during the same time period were similarly motivated by his race).

2.       Mixed-Motive Cases    

          A persecutor may have multiple motives for inflicting harm on an applicant.  With respect to applications filed before May 11, 2005, as long as the applicant produces evidence from which it is reasonable to believe that the persecutor’s action was motivated, at least in part, by a protected ground, the applicant is eligible for asylum.  See Borja v. INS, 175 F.3d 732, 736-37 (9th Cir. 1999) (en banc) (Filipino targeted for extortion plus political motives), superseded by statute as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009); Briones v. INS, 175 F.3d 727, 729 (9th Cir. 1999) (en banc), superseded by statute as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009).

          See e.g., Antonyan v. Holder, 642 F.3d 1250, 1256 (9th Cir. 2011) (mixed motives do not render the opposition any less political or the opponent any less deserving of asylum); Baghdasaryan v. Holder, 592 F.3d 1018, 1026 (9th Cir. 2010) (explaining that mixed motives do not negate a legitimate nexus to political opinion, and that while some of the harm the alien experienced may have been due to personal reasons, the testimony compelled the conclusion that that he was harmed at least in part due to his political opinion); Sinha v. Holder, 564 F.3d 1015, 1021 (9th Cir. 2009) (petitioner was targeted at least in part on account of his race); Zhu v. Mukasey, 537 F.3d 1034, 1044-45 (9th Cir. 2008) (applicant who was raped by her factory manager was repeatedly sought by police at least in part on account of political opinion imputed to her as the result of her whistle-blowing); Fedunyak v. Gonzales, 477 F.3d 1126, 1130 (9th Cir. 2007) (“While some of the persecution suffered by [petitioner] may have been motivated by the personal greed of local officials, [petitioner’s] testimony that he was harassed, threatened and assaulted for raising complaints about the extortion scheme adequately establishes that persecution was - at least in part - a response to his political opinion expressed through his whistleblowing.”); Nuru v. Gonzales, 404 F.3d 1207, 1227-28 (9th Cir. 2005) (Eritrean army deserter had well-founded fear of future persecution on account of political opinion and as punishment for desertion); Deloso v. Ashcroft, 393 F.3d 858, 864-66 (9th Cir. 2005) (Filipino anti-communist targeted on account of political opinion and revenge); Mihalev v. Ashcroft, 388 F.3d 722, 727-30 (9th Cir. 2004) (Bulgarian gypsy established that police persecuted her, in part, based on her Roma ethnicity); Mamouzian v. Ashcroft, 390 F.3d 1129, 1134 (9th Cir. 2004) (“That [petitioner’s] supervisor might also have been motivated by personal dislike … does not undermine [petitioner’s] claim of persecution.); Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1076 (9th Cir. 2004) (gang rape by Guatemalan soldiers motivated in part by imputed political opinion); Hoque v. Ashcroft, 367 F.3d 1190, 1198 (9th Cir. 2004) (Bangladeshi targeted based on “political jealousy” and political opinion); Jahed v. INS, 356 F.3d 991, 999 (9th Cir. 2004) (Iranian National Guard’s motive was “inextricably intertwined with petitioner’s past political affiliation” even though he was motivated in part by his desire for money); Gafoor v. INS, 231 F.3d 645, 652-54 (9th Cir. 2000) (Indo-Fijian targeted for race, political opinion, and personal vendetta), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009); Shoafera v. INS, 228 F.3d 1070, 1075-76 (9th Cir. 2000) (rape by Ethiopian government official motivated in part by ethnicity); Lim v. INS, 224 F.3d 929, 934 (9th Cir. 2000) (“revenge plus” motive of guerillas to harm former Filipino police officer who testified against the NPA); Navas v. INS, 217 F.3d 646, 661 (9th Cir. 2000) (at least one motive was the imputation of pro-guerilla political opinion to Salvadoran applicant); Maini v. INS, 212 F.3d 1167, 1176 n.1 (9th Cir. 2000) (persecution of Indian family motivated by religious and economic grounds); Tarubac v. INS, 182 F.3d 1114, 1118-19 (9th Cir. 1999) (NPA persecution based on political opinion and economic motives); Ratnam v. INS, 154 F.3d 990, 996 (9th Cir. 1998) (“Torture in the absence of any legitimate criminal prosecution, conducted at least in part on account of political opinion, provides a proper basis for asylum and withholding of deportation even if the torture served intelligence gathering purposes.”).

          For applications filed on or after May 11, 2005, § 101(a)(3) of the REAL ID Act provides that an 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); see also Sinha v. Holder, 564 F.3d 1015, 1021 n.3 (9th Cir. 2009) (applying pre-REAL ID Act standard); Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009)  (“[A] motive is a ‘central reason’ if the persecutor would not have harmed the applicant if such motive did not exist. Likewise, a motive is a ‘central reason’ if that motive, standing alone, would have led the persecutor to harm the applicant. … [P]ersecution may be caused by more than one central reason, and an asylum applicant need not prove which reason was dominant. Nevertheless, to demonstrate that a protected ground was ‘at least one central reason’ for persecution, an applicant must prove that such ground was a cause of the persecutors’ acts.”).  The legislative history of the REAL ID Act suggests that the addition of this “central reason” standard is motivated, at least in part, by this court’s mixed-motives caselaw.  See Conference Committee Statement, 151 Cong. Rec. H2869 (daily ed. May 3, 2005) (suggesting that this court’s decisions in Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995), Blanco-Lopez v. INS, 858 F.2d 531, 534 (9th Cir. 1988), and Hernandez-Ortiz v. INS, 777 F.2d 509, 516 (9th Cir. 1985) violate Supreme Court precedent requiring asylum applicants to provide evidence of motivation and improperly shift the burden to the government to prove legitimate purpose, adverse credibility, or some other statutory bar to relief), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009).

3.       Shared Identity Between Victim and Persecutor

          “That a person shares an identity with a persecutor does not  … foreclose a claim of persecution on account of a protected ground.  If an applicant can establish that others in his group persecuted him because they found him insufficiently loyal or authentic to the religious, political, national, racial, or ethnic ideal they espouse, he has shown persecution on account of a protected ground.”  Maini v. INS, 212 F.3d 1167, 1175 (9th Cir. 2000) (internal citation and parenthetical omitted) (persecution of interfaith Indian family).

4.       Civil Unrest and Motive

          Although widespread civil unrest does not, on its own, establish asylum eligibility, the existence of general civil strife does not preclude relief.  See Sinha v. Holder, 564 F.3d 1015, 1022-23 (9th Cir. 2009) (explaining that IJ’s suggestion “that the violence directed against one individual is somehow less ‘on account of’ his race because many other individuals of his ethnic group are also being targeted on account of their race” was illogical and had no support in case law); Ahmed v. Keisler, 504 F.3d 1183, 1194-95 n.9 (9th Cir. 2007) (“[E]ven though generalized violence as a result of civil strife does not necessarily qualify as persecution, neither does civil strife eliminate the possibility of persecution);  Ndom v. Ashcroft, 384 F.3d 743, 752 (9th Cir. 2004) (“[T]he existence of civil strife does not alter our normal approach to determining refugee status or make a particular asylum claim less compelling.”), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009).  “The difficulty of determining motive in situations of general civil unrest should not … diminish the protections of asylum for persons who have been punished because of their actual or imputed political views, as opposed to their criminal or violent conduct.”  Arulampalam v. Ashcroft, 353 F.3d 679, 685 n.4 (9th Cir. 2003) (internal quotation marks omitted).  “In certain contexts, … the existence of civil strife supports a finding that claimed persecution was on account of a protected ground.”  Ndom, 384 F.3d at 753 (armed conflict between Senegalese forces and secessionist rebels). 

          See also Mengstu v. Holder, 560 F.3d 1055, 1058-59 (9th Cir. 2009) (holding that IJ’s finding that no nexus to a protected ground existed was not supported by substantial evidence where Ethiopian government solely targeted Eritreans for deportation and denationalization); Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1073 (9th Cir. 2004) (Guatemalan civil war); Knezevic v. Ashcroft, 367 F.3d 1206, 1211-12 (9th Cir. 2004) (distinguishing between displaced persons fleeing the ravages of war and refugees fleeing ethnic cleansing); Hoque v. Ashcroft, 367 F.3d 1190, 1198 (9th Cir. 2004) (widespread political violence in Bangladesh “says very little about” whether applicant could demonstrate a persecutory motive).

5.       Resistance to Discriminatory Government Action

          Resistance to discriminatory government action that results in persecution is persecution on account of a protected ground.  See Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004) (Chinese Christian who was arrested and physically abused after he attempted to stop an officer from removing a cross from a tomb was persecuted on account of religion); Chand v. INS, 222 F.3d 1066, 1077 (9th Cir. 2000) (persecution of Indo-Fijian for resisting racial discrimination). 

6.       The Protected Grounds

a.       Race

          Claims of race and nationality persecution often overlap.  See Duarte de Guinac v. INS, 179 F.3d 1156, 1160 n.5 (9th Cir. 1999) (Quiche Indian from Guatemala).  Recent cases use the more precise term “ethnicity,” “which falls somewhere between and within the protected grounds of race and nationality.”  Shoafera v. INS, 228 F.3d 1070, 1074 n.2 (9th Cir. 2000) (internal quotation marks omitted) (ethnic Amhara in Ethiopia); see also Baballah v. Ashcroft, 367 F.3d 1067, 1077 n.10 (9th Cir. 2004) (Arab Israeli).  Individuals forced to flee ethnic cleansing by hostile military forces are refugees who fear persecution on account of ethnicity.  Knezevic v. Ashcroft, 367 F.3d 1206, 1211-12 (9th Cir. 2004) (distinguishing displaced persons).

(i)      Cases Finding Racial or Ethnic Persecution

          Mendoza-Pablo v. Holder, 667 F.3d 1308, 1312-15 (9th Cir. 2012) (concluding that petitioner established persecution where his mother when pregnant with him was persecuted on account of her ethnicity); Sinha v. Holder, 564 F.3d 1015, 1022-23 (9th Cir. 2009) (concluding that incidents petitioner described amounted to violence with a distinct racial slant, and were more than mere acts of random violence); Mashiri v. Ashcroft, 383 F.3d 1112, 1119-20 (9th Cir. 2004) (past persecution of ethnic Afghans in Germany); Faruk v. Ashcroft, 378 F.3d 940, 944 (9th Cir. 2004) (mixed-race, mixed-religion couple from Fiji suffered past persecution); Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004) (Serbian couple from Bosnia-Herzegovina established past persecution and a well-founded fear of future persecution on account of ethnicity because their town was targeted for bombing, invasion, occupation, and a “systematic campaign of ethnic cleansing by the Croats”); Melkonian v. Ashcroft, 320 F.3d 1061, 1068 (9th Cir. 2003) (Armenian applicant was eligible for asylum because Abkhazian separatists specifically targeted him for conscription based on his ethnicity and religion); Gafoor v. INS, 231 F.3d 645, 651-52 (9th Cir. 2000) (Indo-Fijian persecuted on account of race and imputed political opinion), superseded in part by statute as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009); Shoafera v. INS, 228 F.3d 1070, 1075-76 (9th Cir. 2000) (rape motivated in part by Amhara ethnicity); Chand v. INS, 222 F.3d 1066, 1076 (9th Cir. 2000) (past persecution of ethnic Indian in Fiji); Avetova-Elisseva v. INS, 213 F.3d 1192, 1197-98 (9th Cir. 2000) (well-founded fear of persecution on the basis of Armenian ethnicity); Mgoian v. INS, 184 F.3d 1029, 1036 (9th Cir. 1999) (pattern and practice of persecution of Kurdish Moslem in Armenia); Duarte de Guinac v. INS, 179 F.3d 1156 (9th Cir. 1999) (past persecution of Quiche Indian from Guatemala); Surita v. INS, 95 F.3d 814, 819 (9th Cir. 1996) (past persecution of Indo-Fijian).

(ii)     Cases Finding No Racial or Ethnic Persecution

          Parussimova v. Mukasey, 555 F.3d 734, 742 (9th Cir. 2009) (post-REAL ID Act case concluding that “utterance of an ethnic slur” during attack, standing alone, did not compel conclusion that ethnicity was a central motivating reason for attack); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004) (holding that random criminal acts in South Africa bore no nexus to race); Pedro-Mateo v. INS, 224 F.3d 1147, 1151 (9th Cir. 2000) (Kanjobal Indian from Guatemala failed to establish asylum eligibility on basis of race); Limsico v. INS, 951 F.2d 210, 212 (9th Cir. 1991) (Chinese Filipino failed to establish a well-founded fear on account of race or ethnicity).

b.       Religion

          Persecution on the basis of religion may assume various forms, including:

prohibition of membership of a religious community, or worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

Handbook on Procedures and Criteria for Determining Refugee Status, U.N. Doc. HCR/IP/4/Eng./REV.2 (ed. 1992) (“UNHCR Handbook”), para. 72.

          “The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience, and religion, which right includes the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.”  UNHCR Handbook, para. 72.

          Moreover, “[a]n individual (or group) may be persecuted on the basis of religion, even if the individual or other members of the group adamantly deny that their belief, identity and/or way of life constitute a ‘religion.’”  Zhang v. Ashcroft, 388 F.3d 713, 720 (9th Cir. 2004) (per curiam) (practitioner of Falun Gong) (quoting UNHCR Guidelines on International Protection: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees (HCR/GIP/04/06, 28 April 2004)).

          An applicant cannot be required to practice his religious beliefs in private in order to escape persecution.  See Zhang, 388 F.3d at 719 (9th Cir. 2004) (“[T]o require [petitioner] to practice his beliefs in secret is contrary to our basic principles of religious freedom and the protection of religious refugees.”). 

(i)      Cases Finding Religious Persecution

          Kamalyan v. Holder, 620 F.3d 1054, 1057-58 (9th Cir. 2010) (petitioner, a Jehovah’s Witness, and native of the U.S.S.R. and citizen of Armenia, demonstrated past persecution on account of religion); Zhao v. Mukasey, 540 F.3d 1027, 1029-31 (9th Cir. 2008) (petitioners demonstrated a well-founded fear of future persecution on account of their Falun Gong practice); Hanna v. Keisler, 506 F.3d 933 (9th Cir. 2007) (Chaldean Catholic, and native and citizen of Iraq, persecuted on account of religion); Zhang v. Ashcroft, 388 F.3d 713, 720 (9th Cir. 2004) (per curiam) (holding that petitioner established clear probability of persecution in China on account of his practice of Falun Gong); Malty v. Ashcroft, 381 F.3d 942, 948 (9th Cir. 2004) (BIA erred in denying motion to reopen because Egyptian Coptic Christian demonstrated prima facie eligibility for asylum); Faruk v. Ashcroft, 378 F.3d 940, 944 (9th Cir. 2004) (mixed-race, mixed-religion couple from Fiji suffered past persecution); Khup v. Ashcroft, 376 F.3d 898 (9th Cir. 2004) (Burmese Seventh Day Adventist minister); Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004) (Chinese Christian was persecuted on account of his religion when he was arrested, detained, physically abused, and forced to sign an affidavit renouncing his religion, after he participated in illegal religious activities and attempted to stop an officer from removing a cross from a tomb); Baballah v. Ashcroft, 367 F.3d 1067, 1077 n.9 (9th Cir. 2004) (noting strong correlation between ethnicity and religion in the Middle East); Melkonian v. Ashcroft, 320 F.3d 1061, 1068 (9th Cir. 2003) (Armenian applicant was eligible for asylum because Abkhazian separatists specifically targeted him for conscription based on his ethnicity and religion); Popova v. INS, 273 F.3d 1251, 1257-58 (9th Cir. 2001) (harassment and threats in Bulgaria based on applicant’s religious surname and political opinion); Lal v. INS, 255 F.3d 998 (9th Cir. 2001) (Indo-Fijian faced religious and political persecution), as amended by 268 F.3d 1148 (9th Cir. 2001) (order); Bandari v. INS, 227 F.3d 1160 (9th Cir. 2000) (past persecution of Christian who attempted interfaith dating in Iran); Ladha v. INS, 215 F.3d 889 (9th Cir. 2000) (if credible, past persecution of Shia Muslims by Sunni Muslims in Pakistan), overruled on other grounds by Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam); Maini v. INS, 212 F.3d 1167, 1175 (9th Cir. 2000) (“persecution aimed at stamping out an interfaith marriage is without question persecution on account of religion”); Korablina v. INS, 158 F.3d 1038 (9th Cir. 1998) (past persecution of Jewish citizen of the Ukraine); Li v. INS, 92 F.3d 985, 987 (9th Cir. 1996) (arrest of family member at church may provide basis for eligibility); Hartooni v. INS, 21 F.3d 336, 341-42 (9th Cir. 1994) (if credible, Christian Armenian in Iran eligible for asylum).       

(ii)     Cases Finding No Religious Persecution

          Benyamin v. Holder, 579 F.3d 970 (9th Cir. 2009) (mixed-religion marriage); Padash v. INS, 358 F.3d 1161, 1166 (9th Cir. 2004) (Indian Muslim was not eligible for asylum based on two incidents of religious-inspired violence at his father’s restaurant); Halaim v. INS, 358 F.3d 1128, 1132 (9th Cir. 2004) (holding that discrimination against Ukranian sisters on account of Pentecostal Christian religion did not compel a finding that they suffered past persecution); Nagoulko v. INS, 333 F.3d 1012, 1016-17, 1018 (9th Cir. 2003) (past harassment of Christian in Ukraine not persecution; future fear too speculative); Hakeem v. INS, 273 F.3d 812, 817 (9th Cir. 2001) (Ahmadi in Pakistan not eligible for withholding), superseded by statute on other grounds as stated in Ramadan v. Gonzalez, 479 F.3d 646, 650 (9th Cir. 2007); Tecun-Florian v. INS, 207 F.3d 1107, 1110 (9th Cir. 2000) (past torture by Guatemalan guerillas had no nexus to applicant’s religious beliefs); Gonzalez v. INS, 82 F.3d 903, 909 (9th Cir. 1996) (conscription of Nicaraguan Jehovah’s Witness); Abedini v. INS, 971 F.2d 188, 191-92 (9th Cir. 1992) (prosecution of Iranian for distribution of Western videos); Fisher v. INS, 79 F.3d 955, 962 (9th Cir. 1996) (en banc) (applicant’s violation of restrictive dress and conduct rules did not establish persecution on account of religion or political opinion); Ghaly v. INS, 58 F.3d 1425 (9th Cir. 1995) (prejudice and discrimination against Egyptian Coptic Christian insufficient); Canas-Segovia v. INS, 970 F.2d 599, 601 (9th Cir. 1992) (religious objection to service in the Salvadoran military insufficient to establish a nexus); Elnager v. INS, 930 F.2d 784, 788 (9th Cir. 1991) (religious converts in Egypt).

c.       Nationality

          Claims of race and nationality persecution often overlap.  See cases cited under Race, above.  Some cases use the more precise term “ethnicity,” “which falls somewhere between and within the protected grounds of race and nationality.”  Shoafera v. INS, 228 F.3d 1070, 1074 n.2 (9th Cir. 2000) (internal quotation marks omitted) (ethnic Amhara in Ethiopia); see also Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir. 2000) (Armenians from Nagorno-Karabakh had no well-founded fear); Andriasian v. INS, 180 F.3d 1033, 1042 (9th Cir. 1999) (persecution of Armenian in Azerbaijan).

d.       Membership in a Particular Social Group                  

          A particular social group “implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest.”  Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576-77 (9th Cir. 1986) (stating that a family is a “prototypical example” of a social group, but young working class urban males of military age are not).   “[A] ‘particular social group’ is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it,” Hernandez-Montiel v. INS, 225 F.3d 1084, 1092-93 (9th Cir. 2000) (Mexican gay men with female sexual identities constitute a particular social group); see also Perdomo v. Holder, 611 F.3d 662, 669 (9th Cir. 2010) (BIA erred in rejecting “women in Guatemala” as a cognizable social group solely based on the broad nature of the group, without assessing ‘innate characteristic’ analysis); UNHCR’s Guidelines on International Protection: Membership of a particular social group within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/02, 7 May 2002).  Large, internally diverse, demographic groups rarely constitute distinct social groups.  See Sanchez-Trujillo, 801 F.2d at 1576-77 (“Major segments of the population of an embattled nation, even though undoubtedly at some risk from general political violence, will rarely, if ever, constitute a distinct ‘social group’ for the purposes of establishing refugee status.”). 

          To determine whether a social group exists, the court considers certain factors, including “whether a group’s shared characteristic gives members social visibility and whether the group can be defined with sufficient particularity to delimit its membership.”  Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007); see also Donchev v. Mukasey, 553 F.3d 1206, 1215-16 (9th Cir. 2009) (noticing that while the definition is instructive, it is not very helpful to deciding cases that concern something other than a tribe or clan); Santos-Lemus v. Mukasey, 542 F.3d 738, 744 (9th Cir. 2008).

          The BIA has rejected this court’s “voluntary associational relationship” test, explaining: “Under Acosta, we do not require a “voluntary associational relationship” among group members.  Nor do we require an element of “cohesiveness” or homogeneity among group members.”  Matter of C-A-, 23 I. & N. Dec. 951, 956-57 (BIA 2006).  The BIA focuses instead on the extent to which members of a society perceive those with the characteristics in question as members of a social group.”  Id. at 957.

          The BIA’s determination in a precedential decision that a group is or is not a “particular social group” is entitled to Chevron deference.  See Ramos-Lopez v. Holder, 563 F.3d 855, 858-59 (9th Cir. 2009).  However, note that Skidmore deference is owed where the BIA issues an unpublished decision by one member of the BIA.  See Soriano v. Holder, 569 F.3d 1162, 1164 n.1 (9th Cir. 2009) (affording Skidmore deference to BIA decision concluding that group comprised of government informants was not a valid social group for asylum purposes).

(i)      Types of Social Groups
(A)     Family and Clan

          “[I]n some circumstances, a family constitutes a social group for purposes of the asylum and withholding-of-removal statutes.”  Molina-Estrada v. INS, 293 F.3d 1089, 1095 (9th Cir. 2002); see also Lin v. Ashcroft, 377 F.3d 1014, 1028-29 (9th Cir. 2004) (family membership may be a plausible basis for protected social group refugee status in the context of families who have violated China’s coercive population control policy); Sanchez-Trujillo v. INS, 801 F.2d 1572, 1576-77 (9th Cir. 1986) (family is a “prototypical example” of a social group); but see Estrada-Posados v. INS, 924 F.2d 916, 191 (9th Cir. 1991) (“the concept of persecution of a social group [does not extend] to the persecution of a family”).  Note that “[w]here the claimed group membership is the family, a family member’s continuing safety [in the petitioner’s hometown] is a … persuasive factor in considering a petitioner’s well-founded fear.”  Santos-Lemus v. Mukasey, 542 F.3d 738, 743 (9th Cir. 2008).

           Clan membership may constitute membership in a particular social group.  Mohammed v. Gonzales, 400 F.3d 785, 796-98 (9th Cir. 2005) (membership in the Bendadiri clan in Somalia); see also Matter of H-, 21 I. & N. Dec. 337 (BIA 1996).         

(B)     Gender-Related Claims                  

          “Gender” is not listed as a protected ground in the refugee definition.  However, this court and others have begun to address the circumstances under which gender is relevant to a statutorily protected ground, including gender as a social group and gender-related harm.

(1)     Gender Defined Social Group

           Gender may constitute membership in a social group in the case of female genital mutilation.  See Mohammed v. Gonzales, 400 F.3d 785, 796-98 (9th Cir. 2005).  Similarly, the gender-defined group of Mexican gay men with female sexual identities constitutes a particular social group.  See Hernandez-Montiel v. INS, 225 F.3d 1084, 1094 (9th Cir. 2000); see also Perdomo v. Holder, 611 F.3d 662, 669 (9th Cir. 2010) (rejecting BIA’s analysis of its finding that “women in Guatemala” could not constitute a cognizable social group; remanding for the BIA to consider properly in the first instance); Fisher v. INS, 79 F.3d 955, 965-66 (9th Cir. 1996) (en banc) (Canby, J., concurring) (although petitioner did not establish persecution on account of religion or political opinion based on her violation of restrictive dress and conduct rules, eligibility on account of membership in a particular social group was not argued, and thus not foreclosed).  See also In re Kasinga, 21 I. & N. Dec. 357, 365 (BIA 1996) (en banc) (granting asylum based on a gender-defined social group of “young women of the Tchamba-Kunsuntu Tribe who have not had [female genital mutilation], as practiced by the tribe, and who oppose the practice”).

(2)     Gender-Specific Harm

          Gender-specific harm may take many forms, including sexual violence, domestic or family violence, female genital mutilation or cutting, persecution of gays and lesbians, coerced family planning, and repressive social norms.  See UNHCR’s Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/01, 7 May 2002) (discussing various forms of gender-related persecution); see also INS Office of International Affairs, Gender Guidelines, Considerations for Asylum Officers Adjudicating Asylum Claims From Women (May 26, 1995) (described in Fisher v. INS, 79 F.3d 955, 967 (9th Cir. 1996) (en banc) (Noonan, J., dissenting)); K. Musalo & S. Knight, “Asylum for Victims of Gender Violence: An Overview of the Law, and an Analysis of 45 Unpublished Decisions,” reprinted in:  03-12 Immigr. Briefings 1.

          Female genital mutilation (“FGM”) constitutes persecution on account of membership in a social group.  Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005) (social group comprised of young girls in the Benadiri clan or Somalian females).  Moreover, FGM is a “permanent and continuing” act of persecution that cannot be rebutted.  Id. at 801.  See also Edu v. Holder, 624 F.3d 1137, 1147 & n.25 (9th Cir. 2010) (remanding for BIA to consider FGM claim as a separate, additional basis for CAT relief); see also Abebe v. Gonzales, 432 F.3d 1037, 1041-43 (9th Cir. 2005) (en banc) (remanding for consideration of whether U.S. citizen daughter’s fear of FGM could be imputed to her parents); Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004) (remanding CAT claim based on petitioner’s past FGM in Nigeria, and fear that her daughter would suffer FGM if returned); but see In re A-K-, 24 I &N Dec. 275, 279 (BIA 2007) (“[T]here is no statutory basis for a grant of derivative asylum status to a parent based on the grant of asylum to his child.”) OR (concluding no eligibility for withholding of removal based on fear that U.S. citizen daughters               

          Rape and other forms of sexual or gender-based violence can constitute persecution on account of political opinion or other enumerated grounds.  See, e.g.,  Silaya v. Mukasey, 524 F.3d 1066, 1070-71 (9th Cir. 2008) (rape and physical abuse of petitioner by members of the New People’s Army in Philippines amounted to persecution and was on account of imputed political opinion); Garcia-Martinez v. Ashcroft, 371 F.3d 1066 (9th Cir. 2004) (Guatemalan woman gang raped by soldiers on account of a pro-guerilla political opinion imputed to her entire village); Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004) (en banc) (forced pregnancy examination constituted persecution on account of political opposition to China’s coercive family planning policy); Kebede v. Ashcroft, 366 F.3d 808 (9th Cir. 2004) (Ethiopian woman raped because of her family’s association with the previous government); Shoafera v. INS, 228 F.3d 1070, 1075-76 (9th Cir. 2000) (Ethiopian woman beaten and raped at gunpoint on account of Amhara ethnicity); Lopez-Galarza v. INS, 99 F.3d 954, 959-60 (9th Cir. 1996) (Nicaraguan woman raped, abused, deprived of food, and subjected to forced labor on account of political opinion); Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987) (Salvadoran woman’s prolonged sexual abuse by Salvadoran military sergeant was persecution on account of political opinion), overruled in part on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc).

(C)    Sexual Orientation

          Sexual orientation and sexual identity can be the basis for establishing a particular social group.  Karouni v. Gonzales, 399 F.3d 1163, 1172 (9th Cir. 2005) (holding that all alien homosexuals are members of a “particular social group.”).  See also Castro-Martinez v. Holder, 674 F.3d 1073, 1080 (9th Cir. 2011) (recognizing that “[h]omosexual men in Mexico can constitute a social group for the purpose of an asylum claim[,]” but concluding that petitioner failed to establish eligibility for asylum); Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088-89 (9th Cir. 2005) (Mexican homosexual man forced to perform nine sex acts on a police officer and threatened with death persecuted on account of sexual orientation); Hernandez-Montiel v. INS, 225 F.3d 1084, 1094-95 (9th Cir. 2000) (Mexican gay men with female sexual identities constitute a particular social group); Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 822-23 (BIA 1990) (Cuban homosexual man established membership in a particular social group).

(D)    Former Status or Occupation

          An applicant’s status based on her former occupations, associations, or shared experiences, may be the basis for social group claim.  See, e.g., Cruz-Navarro v. INS, 232 F.3d 1024, 1028-29 (9th Cir. 2000) (member of Peruvian National Police).  “Persons who are persecuted because of their status as a former police or military officer, for example, may constitute a cognizable social group under the INA.”  Id. at 1029 (holding that current police or military are not a social group).  See also Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (per curiam) (recognizing that a group of former officers may be a cognizable social group).                                                                

(ii)     Cases Denying Social Group Claims

          Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (concluding that returning Mexicans from the United States was too broad to qualify as a cognizable social group); Velasco-Cervantes v. Holder, 593 F.3d 975, 978 (9th Cir. 2010) (rejecting contention that former material witnesses for government constitute a particular social group); Barrios v. Holder, 581 F.3d 849, 854-55 (9th Cir. 2009) (rejecting petitioner’s claim that he was a member of a particular social group as a young man in Guatemala who was targeted for gang recruitment but refused to join); Soriano v. Holder, 569 F.3d 1162, 1166 (9th Cir. 2009) (concluding “that a ‘government informant’ is not a member of a particular social group for purposes of asylum”); Ramos-Lopez v. Holder, 563 F.3d 855, 858-62 (9th Cir. 2009) (rejecting petitioner’s claim that he was in a particular social group as a young Salvadoran man who was recruited by gangs and refused to join); Donchev v. Mukasey, 553 F.3d 1206, 1220 (9th Cir. 2009) (rejecting Bulgarian alien’s claim that he was in a “particular social group” as a friend of the Roma people); Santos-Lemus v. Mukasey, 542 F.3d 738, 744-46 (9th Cir. 2008) (alien’s proposed social group of young Salvadoran men who resist gang violence lacks both particularity and social visibility and thus is not a social group); Toufighi v. Mukasey, 538 F.3d 988, 997 (9th Cir. 2008) (explaining the court has never “recognized pro-Western as a social group protected against persecution”); Arteaga v. Mukasey, 511 F3d 940, 945-46 (9th Cir. 2007) (membership in violent criminal gang was not membership in a social group); Ochoa v. Gonzales, 406 F.3d 1166, 1171 (9th Cir. 2005) (business owners in Colombia who rejected demands by narco-traffickers to participate in illegal activity was too broad a category to qualify as a particular social group); Molina-Estrada v. INS, 293 F.3d 1089, 1095 (9th Cir. 2002) (evidence did not compel a finding that Guatemalan applicant was persecuted on account of family membership); Pedro-Mateo v. INS, 224 F.3d 1147, 1050-51 (9th Cir. 2000) (Kanjobal Indians comprising large percentage of population in a given area not a particular social group); Li v. INS, 92 F.3d 985, 987 (9th Cir. 1996) (persons of low economic status in China not a particular social group); Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991) (former servicemen in Guatemalan military not a particular social group); De Valle v. INS, 901 F.2d 787, 792-93 (9th Cir. 1990) (family members of Salvadoran military deserter not a particular social group).

          See also Ayala v. Holder, 640 F.3d 1095, 1098 (9th Cir. 2011) (per curiam) (even assuming proposed social group was cognizable, petitioner failed to show persecution was on account of membership in the group).

e.       Political Opinion

          “[A]n asylum applicant must satisfy two requirements in order to show that he was persecuted ‘on account of’ a political opinion.  First, the applicant must show that he held (or that his persecutors believed that he held) a political opinion.  Second, the applicant must show that his persecutors persecuted him (or that he faces the prospect of such persecution) because of his political opinion.”  Navas v. INS, 217 F.3d 646, 656 (9th Cir. 2000) (internal citation omitted); see also Soriano v. Holder, 569 F.3d 1162, 1165 (9th Cir. 2009) (concluding petitioner failed to establish persecution on account of political opinion where his “only act in opposition to organized crime was informing the police after his arrest about two individuals who had engaged in criminal activities”); Ahmed v. Keisler, 504 F.3d 1183, 1192 (9th Cir. 2007).  In other words, that an applicant holds a political opinion “is not, by itself, enough to establish that any future persecution would be ‘on account’ of this opinion.  He must establish that the political opinion would motivate his potential persecutors.”  Njuguna v. Ashcroft, 374 F.3d 765, 770 (9th Cir. 2004).

          “[P]olitical opinion encompasses more than electoral politics or formal political ideology or action.”  Ahmed, 504 F.3d at 1192; see, e.g., Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001) (recognizing that an applicant’s statements regarding the unfair distribution of food in Iraq resulted in the imputation of an anti-government political opinion), amended by 355 F.3d 1140 (9th Cir. 2004) (order); Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (en banc) (refusal to pay revolutionary tax to the NPA in the face of threats constitutes an expression of political belief), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009).  “A political opinion can be an actual opinion held by the applicant, or an opinion imputed to him or her by the persecutor.”  Ahmed, 504 F.3d at 1192; see also Sangha v. INS, 103 F.3d 1482, 1488-89 (9th Cir. 1997); see Imputed Political Opinion, below.

(i)      Organizational Membership

          An applicant may manifest his or her political opinion by membership or participation in an organization with political purposes or goals.  See, e.g.,  Montoya-Ulloa v. INS, 79 F.3d 930, 931 (9th Cir. 1996) (membership in political group opposing the Sandinistas); Mendoza Perez v. INS, 902 F.2d 760 (9th Cir. 1990) (involvement with Salvadoran land reform organization); Garcia-Ramos v. INS, 775 F.2d 1370, 1374 (9th Cir. 1985) (active member of anti-government political organization in El Salvador).               

(ii)     Refusal to Support Organization