RELIEF FROM REMOVAL

Table of Contents

ASYLUM, WITHHOLDING OF REMOVAL and the CONVENTION AGAINST TORTURE. 1

I.......... THE CONTEXT. 1

II........ ASYLUM... 3

A.         Burden of Proof 3

B.         Defining Persecution. 5

1.          Cumulative Effect of Harms. 6

2.          No Subjective Intent to Harm Required. 7

3.          Forms of Persecution. 7

a.           Physical Violence. 7

(i)         Physical Violence Sufficient to Constitute Persecution. 9

(ii)        Physical Violence Insufficient to Constitute Persecution. 11

b.          Torture. 11

c.           Threats. 12

(i)         Cases Holding Threats Establish Persecution. 12

(ii)        Cases Holding Threats Not Persecution. 14

d.          Detention. 14

e.           Mental, Emotional, and Psychological Harm.. 15

f.           Substantial Economic Deprivation. 16

g.          Discrimination and Harassment 17

4.          Age of the Victim.. 19

C.         Source or Agent of Persecution. 19

1.          Harm Inflicted by Relatives. 21

2.          Reporting of Persecution Not Always Required. 21

3.          Cases Discussing Source or Agent of Persecution. 23

D.         Past Persecution. 24

1.          Presumption of a Well-Founded Fear 26

2.          Rebutting the Presumption of a Well-Founded Fear 27

a.           Fundamental Change in Circumstances. 27

b.          Government’s Burden. 28

(i)         State Department Report 29

(ii)        Administrative Notice of Changed Country Conditions. 30

c.           Cases where Changed Circumstances or Conditions Insufficient to Rebut Presumption of Well-Founded Fear 31

d.          Internal Relocation. 32

3.          Humanitarian Asylum.. 34

a.           Severe Past Persecution. 35

(i)         Compelling Cases of Past Persecution for Humanitarian Asylum.. 35

(ii)        Insufficiently Severe Past Persecution for Humanitarian Asylum.. 36

b.          Fear of Other Serious Harm.. 37

E.          Well-Founded Fear of Persecution. 38

1.          Past Persecution Not Required. 39

2.          Subjective Prong. 39

3.          Objective Prong. 40

4.          Demonstrating a Well-Founded Fear 42

a.           Targeted for Persecution. 42

b.          Family Ties. 42

c.           Pattern and Practice of Persecution. 43

d.          Membership in Disfavored Group. 44

5.          Countrywide Persecution. 45

6.          Continued Presence of Applicant 47

7.          Continued Presence of Family. 48

8.          Possession of Passport or Travel Documents. 49

9.          Safe Return to Country of Persecution. 50

10.       Cases Finding No Well-Founded Fear 50

F.          Nexus to the Five Statutorily Protected Grounds. 51

1.          Proving a Nexus. 52

a.           Direct Evidence. 53

b.          Circumstantial Evidence. 53

2.          Mixed-Motive Cases. 55

3.          Shared Identity Between Victim and Persecutor 58

4.          Civil Unrest and Motive. 58

5.          Resistance to Discriminatory Government Action. 59

6.          The Protected Grounds. 59

a.           Race. 59

(i)         Cases Finding Racial or Ethnic Persecution. 60

(ii)        Cases Finding No Racial or Ethnic Persecution. 60

b.          Religion. 61

(i)         Cases Finding Religious Persecution. 62

(ii)        Cases Finding No Religious Persecution. 63

c.           Nationality. 63

d.          Membership in a Particular Social Group. 64

(i)         Types of Social Groups. 68

(A)       Family and Clan. 68

(B)       Gender-Related Claims. 68

(C)       Sexual Orientation. 70

(D)       Former Status or Occupation. 71

(ii)        Cases Denying Social Group Claims. 72

e.           Political Opinion. 73

(i)         Organizational Membership. 74

(ii)        Refusal to Support Organization. 75

(iii)      Labor Union Membership and Activities. 75

(iv)      Opposition to Government Corruption. 76

(v)        Neutrality. 79

(vi)      Other Expressions of Political Opinion. 79

(vii)     Imputed Political Opinion. 80

(A)       Family Association. 80

(B)       No Evidence of Legitimate Prosecutorial Purpose. 81

(C)       Government Employees. 82

(D)       Other Cases Discussing Imputed Political Opinion. 82

(viii)   Opposition to Coercive Population Control Policies. 84

(A)       Forced Abortion. 85

(B)       Forced Sterilization. 86

(C)       Other Resistance to a Coercive Population Control Policy. 87

(D)       Family Members. 88

f.           Prosecution. 89

(i)         Pretextual Prosecution. 90

(ii)        Illegal Departure Laws. 90

g.          Military and Conscription Issues. 91

(i)         Conscription Generally Not Persecution. 91

(ii)        Exceptions. 92

(A)       Disproportionately Severe Punishment 92

(B)       Inhuman Conduct 92

(C)       Moral or Religious Grounds. 93

(iii)      Participation in Coup. 93

(iv)      Military Informers. 93

(v)        Military or Law Enforcement Membership. 93

(A)       Current Status. 93

(B)       Former Status. 94

(vi)      Non-Governmental Conscription. 94

h.          Cases Concluding No Nexus to a Protected Ground. 95

G.         Exercise of Discretion. 96

H.         Remanding Under INS v. Ventura. 98

I.           Derivative Asylees. 101

J.           Bars to Asylum.. 102

1.          One-Year Bar 102

a.           Exceptions to the Deadline. 104

2.          Previous Denial Bar 106

3.          Safe Third Country Bar 106

4.          Firm Resettlement Bar 107

5.          Persecution of Others Bar 110

6.          Particularly Serious Crime Bar 112

7.          Serious Non-Political Crime Bar 114

8.          Security Bar 115

9.          Terrorist Bar 115

III....... WITHHOLDING OF REMOVAL OR DEPORTATION.. 117

A.         Eligibility for Withholding. 118

1.          Burden of Proof 118

2.          Mandatory Relief 120

3.          Nature of Relief 120

4.          Past Persecution. 121

5.          Future Persecution. 121

6.          No Time Limit 122

7.          Firm Resettlement Not a Bar 122

8.          Entitled to Withholding. 122

9.          Not Entitled to Withholding of Removal 124

10.       No Derivative Withholding of Removal 126

B.         Bars to Withholding. 126

1.          Nazis. 126

2.          Persecution-of-Others Bar 126

3.          Particularly Serious Crime Bar 127

4.          Serious Non-Political Crime Bar 130

5.          Security and Terrorist Bar 131

IV...... CONVENTION AGAINST TORTURE (“CAT”) 133

A.         Standard of Review.. 134

B.         Definition of Torture. 135

C.         Burden of Proof 138

D.         Country Conditions Evidence. 142

E.          Past Torture. 143

F.          Internal Relocation. 144

G.         Differences Between CAT Protection and Asylum and Withholding. 145

H.         Agent or Source of Torture. 146

I.           Mandatory Relief 148

J.           Nature of Relief 149

K.         Derivative Torture Claims. 149

L.          Exhaustion. 149

M.        Habeas Jurisdiction. 149

N.         Cases Granting CAT Protection. 150

O.         Cases Finding No Eligibility for CAT Protection. 151

V........ CREDIBILITY DETERMINATIONS. 154

A.         Standard of Review.. 155

B.         Opportunity to Explain. 158

C.         Credibility Factors. 159

1.          Demeanor 160

2.          Responsiveness. 161

3.          Specificity and Detail 162

4.          Inconsistencies. 163

a.           Minor Inconsistencies. 163

b.          Substantial Inconsistencies. 164

c.           Mistranslation/Miscommunication. 166

5.          Omissions. 167

6.          Incomplete Asylum Application. 169

7.          Sexual Abuse or Assault 170

8.          Airport Interviews. 170

9.          Asylum Interview/Assessment to Refer 171

10.       Bond Hearing. 172

11.       State Department and other Government Reports. 172

12.       Speculation and Conjecture. 174

13.       Implausible Testimony. 175

14.       Counterfeit and Unauthenticated Documents. 176

15.       Misrepresentations. 177

16.       Classified Information. 178

17.       Failure to Seek Asylum Elsewhere. 178

18.       Cumulative Effect of Adverse Credibility Grounds. 179

19.       Voluntary Return to Country. 179

D.         Presumption of Credibility. 180

E.          Implied Credibility Findings. 181

1.          Immigration Judges. 181

2.          Board of Immigration Appeals. 182

F.          Sua Sponte Credibility Determinations and Notice. 182

G.         Discretionary Decisions. 183

H.         Remedy. 183

I.           Applicability of Asylum Credibility Finding to the Denial of other Forms of Relief 184

J.           Cases Reversing Negative Credibility Findings. 185

K.         Cases Upholding Negative Credibility Findings. 189

L.          The REAL ID Act Codification of Credibility Standards. 192

M.        Frivolous Applications. 194

VI...... CORROBORATIVE EVIDENCE. 196

A.         Pre-REAL ID Act Standards. 196

1.          Credible Testimony. 196

2.          Credibility Assumed. 197

3.          No Explicit Adverse Credibility Finding. 198

4.          Negative Credibility Finding. 199

a.           Non-Duplicative Corroborative Evidence. 199

b.          Availability of Corroborative Evidence. 200

c.           Opportunity to Explain. 201

B.         Post-REAL ID Act Standards. 201

C.         Judicially Noticeable Facts. 205

D.         Forms of Evidence. 205

E.          Hearsay Evidence. 206

F.          Country Conditions Evidence. 206

G.         Certification of Records. 207

CANCELLATION OF REMOVAL, SUSPENSION OF DEPORTATION, FORMER SECTION 212(c) RELIEF. 208

I.......... JUDICIAL REVIEW... 208

A.         Continued Eligibility for Pre-IIRIRA Relief Under the Transitional Rules. 209

II........ JUDICIAL REVIEW... 209

A.         Limitations on Judicial Review of Discretionary Decisions. 209

B.         Limitations on Judicial Review Based on Criminal Offenses. 210

III....... CANCELLATION OF REMOVAL, 8 U.S.C. § 1229b. 212

A.         Cancellation for Lawful Permanent Residents, 8 U.S.C. § 1229b(a) (INA § 240A(a)) 212

1.          Eligibility Requirements. 212

2.          Termination of Continuous Residence. 215

a.           Termination Based on Service of NTA.. 215

b.          Termination Based on Commission of Specified Offense. 216

c.           Military Service. 217

3.          Aggravated Felons. 218

4.          Exercise of Discretion. 219

B.         Cancellation for Non-Permanent Residents, 8 U.S.C. § 1229b(b) (INA § 240A(b)(1)) 219

1.          Eligibility Requirements. 219

2.          Ten Years of Continuous Physical Presence. 220

a.           Standard of Review.. 220

b.          Start Date for Calculating Physical Presence. 221

c.           Termination of Continuous Physical Presence. 221

(i)         Termination Based on Service of NTA.. 221

(ii)        Termination Based on Commission of Specified Offense. 223

d.          Departure from the United States. 224

e.           Proof 225

f.           Military Service. 226

3.          Good Moral Character 226

a.           Jurisdiction. 226

b.          Standard of Review.. 227

c.           Time Period Required. 227

d.          Per Se Exclusion Categories. 228

(i)         Habitual Drunkards. 228

(ii)        8 U.S.C. § 1182(a) (“Inadmissible Aliens”) 229

(A)       Prostitution and Commercialized Vice. 230

(B)       Alien Smugglers. 230

(C)       “Certain Aliens Previously Removed”. 231

(D)       Crimes Involving Moral Turpitude. 231

(E)       Controlled Substance Violations. 232

(F)        Multiple Criminal Offenses. 232

(G)       Controlled Substance Traffickers. 233

(iii)      Gamblers. 233

(iv)      False Testimony. 233

(v)        Confinement 234

(vi)      Aggravated Felonies. 235

(vii)     Nazi Persecutors, Torturers, Violators of Religious Freedom.. 236

(viii)   False Claim of Citizenship and Voting. 236

(ix)      Adulterers. 236

4.          Criminal Bars. 236

5.          Exceptional and Extremely Unusual Hardship. 238

a.           Jurisdiction. 238

b.          Qualifying Relative. 239

c.           Alternative Means to Immigrate. 240

6.          Exercise of Discretion. 240

7.          Dependents. 240

C.         Ineligibility for Cancellation. 241

1.          Certain Crewmen and Exchange Visitors. 241

2.          Security Grounds. 241

3.          Persecutors. 241

4.          Previous Grants of Relief 242

D.         Constitutional and Legal Challenges to the Availability of Cancellation of Removal or Suspension of Deportation. 242

E.          Ten-Year Bars to Cancellation. 243

1.          Failure to Appear 243

2.          Failure to Depart 243

F.          Numerical Cap on Grants of Cancellation and Adjustment of Status. 245

G.         NACARA Special Rule Cancellation. 245

1.          NACARA Does Not Violate Equal Protection. 248

2.          NACARA Deadlines. 248

3.          Judicial Review.. 249

H.         Abused Spouse or Child Provision. 249

IV...... SUSPENSION OF DEPORTATION, 8 U.S.C. § 1254 (repealed) (INA § 244) 251

A.         Eligibility Requirements. 251

1.          Continuous Physical Presence. 252

a.           Jurisdiction. 252

b.          Standard of Review.. 252

c.           Proof 252

d.          Departures: 90/180 Day Rule. 253

e.           Brief, Casual, and Innocent Departures. 253

f.           Deportation. 253

g.          IIRIRA Stop-Time Rule. 253

h.          Pre-IIRIRA Rule on Physical Presence. 254

i.           NACARA Exception to the Stop-Time Rule. 255

j.           Barahona-Gomez v. Ashcroft Exception to the Stop-Time Rule. 255

k.          Repapering. 257

2.          Good Moral Character 257

a.           Jurisdiction. 257

b.          Time Period Required. 258

c.           Per Se Exclusion Categories. 258

3.          Extreme Hardship Requirement 258

a.           Jurisdiction. 258

b.          Qualifying Individual 259

c.           Extreme Hardship Factors. 259

d.          Current Evidence of Hardship. 261

4.          Ultimate Discretionary Determination. 261

B.         Abused Spouses and Children Provision. 262

C.         Ineligibility for Suspension. 262

1.          Certain Crewmen and Exchange Visitors. 262

2.          Participants in Nazi Persecutions or Genocide. 263

3.          Noncitizens in Exclusion Proceedings. 263

D.         Five-Year Bars to Suspension. 263

1.          Failure to Appear 263

2.          Failure to Depart 263

E.          Retroactive Elimination of Suspension of Deportation. 264

V........ SECTION 212(c) RELIEF, 8 U.S.C. § 1182(c) (repealed), Waiver of Excludability or Deportability. 265

A.         Overview.. 265

B.         Eligibility Requirements. 266

1.          Seven Years. 266

2.          Balance of Equities. 267

C.         Deportation: Comparable Ground of Exclusion. 268

D.         Removal: Comparable Ground of Inadmissibility. 268

E.          Ineligibility for Relief 268

F.          Statutory Changes to Former Section 212(c) Relief 269

1.          IMMACT 90. 269

a.           Continued Eligibility for Relief 269

2.          AEDPA.. 270

a.           Continued Eligibility for Relief 270

3.          IIRIRA.. 271

a.           Retroactive Elimination of § 212(c) Relief 271

b.          Continued Eligibility for Relief 272

(i)         Plea Agreements Prior to AEDPA and IIRIRA.. 272

(ii)        No Longer Necessary to show Reasonable Reliance on Pre-IIRIRA Application for Relief 273

(iii)      Similarly Situated Noncitizens Treated Differently. 274

c.           Ineligibility for Relief 274

(i)         Plea Agreements after IIRIRA.. 274

(ii)        Plea Agreements after AEDPA.. 274

(iii)      Convictions After Trial 275

(iv)      Pre-IIRIRA Criminal Conduct 275

(v)        Terrorist Activity. 276

G.         Expanded Definition of Aggravated Felony. 276

VI...... SECTION 212(h) RELIEF, 8 U.S.C. § 1182(h), WAIVER OF INADMISSIBILITY.. 277

VII..... INNOCENT, CASUAL, AND BRIEF DEPARTURES UNDER FLEUTI DOCTRINE. 279

ADJUSTMENT OF STATUS. 281

I.......... OVERVIEW... 281

A.         Eligibility for Permanent Residence. 283

1.          Visa Petition. 283

2.          Priority Date. 285

3.          Admissibility. 286

B.         ELIGIBILITY FOR ADJUSTMENT OF STATUS PROCESS. 287

1.          Exceptions to Lawful Entry and Lawful Status Requirements. 289

a.           Exception for Immediate Relatives. 289

b.          Noncitizens Eligible For 8 U.S.C. § 1255(i) (“245(i)”) 289

c.           Unlawful Employment Exception. 290

2.          Discretion. 291

C.         Adjustment of Status Application Pending. 292

D.         Adjustment of Status Application Approved. 292

 


RELIEF FROM REMOVAL

ASYLUM, WITHHOLDING OF REMOVAL 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; Parada v. Sessions, 902 F.3d 901, 909 (9th Cir. 2018) (“To be eligible for asylum, Quiroz Parada must establish that he is a refugee—namely, that he is unable or unwilling to return to El Salvador 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.” (internal quotation marks and citation omitted); Guo v. Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018) (to qualify for asylum, a petitioner must show he is a refugee); Ming Dai v. Sessions, 884 F.3d 858, 866 (9th Cir. 2018) (“Asylum is available to refugees—that is, anyone who is unable or unwilling to avail himself or herself of the protection of [his or her native] 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.” (internal quotation marks and citation omitted)); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc) (“An applicant qualifies as a refugee if he is unable or unwilling to return to his home country because of a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” (internal quotation marks and citation omitted)); Rusak v. Holder, 734 F.3d 894, 896 (9th Cir. 2013); 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 Bringas-Rodriguez, 850 F.3d at 1062; 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 Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020) (“An applicant for asylum and withholding of removal bears the burden of establishing eligibility.”); Aguilar Fermin v. Barr, 958 F.3d 887, 892 (9th Cir. 2020) (“Aguilar bears the burden to establish eligibility for relief.” (citing 8 C.F.R. § 208.13(a)), cert. denied sub nom. Fermin v. Barr, 141 S. Ct. 664 (2020); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (the applicant “bears the burden of proving eligibility for asylum and must demonstrate that he has suffered past persecution or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”); 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) (same); 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 Guo v. Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018); Ming Dai v. Sessions, 884 F.3d 858, 867 (9th Cir. 2018); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc); Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir. 2016) (“An asylum or withholding applicant’s burden includes (1) ‘demonstrating the existence of a cognizable particular social group,’ (2) ‘his membership in that particular social group,’ and (3) ‘a risk of persecution on account of his membership in the specified particular social group.’  The third element is often referred to as the “nexus” requirement.”); Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir. 2013); Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir. 2013).

“If a noncitizen establishes past persecution, ‘a rebuttable presumption of a well-founded fear arises, 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.’”  Ming Dai, 884 F.3d at 867 (quoting Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004)); see also Davila, 968 F.3d at 1141; Guo, 897 F.3d at 1213.

Under the standards established by [the REAL ID] Act, an applicant’s testimony alone is sufficient to establish eligibility for asylum if it satisfies three requirements: the ‘testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.’”  Ming Dai, 884 F.3d at 867 (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)).  “If, however, the applicant’s credible testimony alone is not sufficiently persuasive, ‘the IJ must give the applicant notice of the corroboration that is required and an opportunity either to produce the requisite corroborative evidence or to explain why that evidence is not reasonably available.’”  Ming Dai, 884 F.3d at 867 (quoting Ren v. Holder, 648 F.3d 1079, 1093 (9th Cir. 2011) (applying REAL ID Act)).

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).

In proceedings to terminate a grant of asylum, [the Department of Homeland Security (“DHS”)] must establish the grounds for termination by a preponderance of the evidence.”  Urooj v. Holder, 734 F.3d 1075, 1078 (9th Cir. 2013) (citing 8 C.F.R. § 1208.24(f)); see also Grigoryan v. Barr, 959 F.3d 1233, 1242 (9th Cir. 2020) (“DHS bears the initial burden of proving, by a preponderance of the evidence, ‘fraud in [Petitioner]’s application such that he ... was not eligible for asylum at the time it was granted.’” (citation omitted)).  “In other words, DHS must not only show that certain documents submitted with Petitioner’s original application for asylum were fraudulent.  The government’s burden here is much higher: It must show that Petitioner would not have been granted asylum … but for the fraudulent documents.”  Grigoryan, 959 F.3d at 1242.  If the government meets this heavy burden, the burden will then shift to the petitioner to prove they are entitled to relief from deportation.  Id.

In Urooj, the court held that DHS failed to meet its burden of establishing grounds for terminating asylum by a preponderance of the evidence where the decision was based solely on an adverse inference drawn from the sole witness’s refusal to answer questions.  734 F.3d at 1079.

In Grigoryan, the court granted the petition for review and remanded the case to the BIA to conduct further proceedings, in which the government was required to prove asylum termination was warranted by a preponderance of the evidence.  959 F.3d at 1242–43.

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 Kaur v. Wilkinson, 986 F.3d 1216 (9th Cir. 2021) (“Persecution is an extreme concept and has been defined as the infliction of suffering or harm ... in a way regarded as offensive.” (internal quotation marks and citation omitted)); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (“Persecution is an extreme concept that does not include every sort of treatment our society regards as offensive.” (internal quotation marks and citation omitted)); Guo v. Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018) (“Persecution is an extreme concept and has been defined as the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.” (quotation marks and citation omitted)); He v. Holder, 749 F.3d 792, 796 (9th Cir. 2014) (“Persecution is an ‘extreme concept.’”); 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 Guo v. Sessions, 897 F.3d 1208, 1212–17 (9th Cir. 2018) (where the record was considered as a whole, it compelled the conclusion that petitioner suffered past religious persecution).

See also Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir. 2021) (holding petitioner did not demonstrate past persecution, even when his claims of generalized physical attacks, contradictory testimony of death threats, unspecified economic harm, and unsubstantiated psychological harm were considered cumulatively); Vitug v. Holder, 723 F.3d 1056, 1065–66 (9th Cir. 2013) (“[N]o reasonable factfinder could conclude that the harm Vitug suffered did not rise to the level of persecution in light of the cumulative effect of multiple instances of physical harm and victimization.  Thus, we presume that Vitug is eligible for withholding of removal relief.”); 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. 801 (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

“The hallmarks of persecutory conduct include, but are not limited to, the violation of bodily integrity and bodily autonomy.”  Kaur v. Wilkinson, 986 F.3d 1216 (9th Cir. 2021).  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 Ming Dai v. Sessions, 884 F.3d 858, 870 (9th Cir. 2018) (“It is well established that physical violence is persecution.”); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc) (“no dispute that the brutal beatings and rapes that Bringas suffered as a child rise to the level of persecution”); Song v. Sessions, 882 F.3d 837, 841 (9th Cir. 2017) (as amended) (no dispute that Song experienced past persecution at the hands of the local government, where he was tortured and beaten by police, and by his cell mates at the encouragement of the police, forced to stay in a squatting position all night, and, when he refused to cooperate with interrogators, he was beaten until he could not walk); Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1079 (9th Cir. 2015) (stating that the IJ and BIA did not appear to question that the past assaults and rape of Avendano-Hernandez rose to the level of torture, where Avendano-Hernandez was raped, forced to perform oral sex, beaten severely, and threatened); Li v. Holder, 559 F.3d 1096, 1107 (9th Cir. 2009) (well established that physical violence constitutes persecution); Ahmed v. Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007) (same).

The cultural practice of female genital mutilation 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); see also Guo v. Sessions, 897 F.3d 1208, 1215 (9th Cir. 2018) (“[A] beating may constitute persecution, even when there are no long-term effects and the [petitioner] does not seek medical attention.” (internal quotation marks and citation omitted)); Ming Dai, 884 F.3d at 870 (“An applicant may establish persecution through physical abuse even if he does not seek medical treatment[.]”).  Moreover, the absence of serious bodily injury is not necessarily dispositive.  See Guo, 897 F.3d at 1215 (explaining beating may amount to persecution even if there are no long-term effects, and finding past persecution even though petitioner suffered no permanent injuries, in part because police beat him with a baton, leaving him unable to stand on his own, such that he felt it was necessary to be examined at a hospital after his release from police custody two days after the beating).  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).

Harm to a child can amount to past persecution of the parent when that harm is, at least in part, directed against the parent ‘on account of’ or ‘because of’ the parent’s race, religion, nationality, membership in a particular social group, or political opinion.”  Sumolang v. Holder, 723 F.3d 1080, 1083–84 (9th Cir. 2013) (delay in treating petitioner’s daughter was relevant to whether petitioner suffered past persecution).

“[S]ome forms of physical violence are so extreme that even attempts to commit them constitute persecution.  Indeed, [the court has] held that attempted murder constitutes persecution.”  Kaur, 986 F.3d 1216.  “Similarly, because kidnapping involves the extreme loss of bodily autonomy, attempted kidnapping can constitute persecution.”  Id.  Additionally, “attempted rape almost always constitutes persecution.”  Id.

(i)       Physical Violence Sufficient to Constitute Persecution

Parada v. Sessions, 902 F.3d 901, 909–10 (9th Cir. 2018) (holding that harm petitioner suffered, such as “his brother’s assassination, the murder of his neighbor as a result of his own family being targeted, his experience being captured and beaten to the point of unconsciousness, repeated forced home invasions, and specific death threats toward his family” amounted to persecution); Guo v. Sessions, 897 F.3d 1208, 1215 (9th Cir. 2018) (finding past persecution based on totality of circumstances where petitioner suffered physical harm, in addition to being forced to abandon his religious worship; as to the physical harm, petitioner testified that while in police custody, he suffered repeated baton blows that left him unable to stand on his own, such that police had to help him back to his cell, and he felt it was necessary to be examined at a hospital after his release two days after the beating); Ming Dai v. Sessions, 884 F.3d 858, 870 (9th Cir. 2018) (holding the harm Dai suffered well surpassed the established level of persecution where he was forcibly pushed to the ground twice, repeatedly punched in the stomach while handcuffed, jailed for ten days, fed very little food and water, deprived of sleep through interrogation, and suffered an injured shoulder and broken ribs); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc) (“no dispute that the brutal beatings and rapes that Bringas suffered as a child rise to the level of persecution”); Song v. Sessions, 882 F.3d 837, 841 (9th Cir. 2017) (as amended) (no dispute that Song experienced past persecution at the hands of the local government, where he was tortured and beaten by police, and by his cell mates at the encouragement of the police, forced to stay in a squatting position all night, and, when he refused to cooperate with interrogators, he was beaten until he could not walk); Bondarenko v. Holder, 733 F.3d 899, 908–09 (9th Cir. 2013) (detained three times, severely beaten, hit in the head with such force that he was hospitalized for three days); Vitug v. Holder, 723 F.3d 1056, 1065–66 (9th Cir. 2013) (beaten multiple times over a period of years, and personally experienced being threatened and harassed by police in the Philippines); 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

The court will “generally look at all of the surrounding circumstances to determine whether … threats are actually credible and rise to the level of persecution.”  Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019).  Threats of serious harm, particularly when combined with confrontation or other mistreatment, may constitute persecution.  See, e.g., id. (stating the court has “been most likely to find persecution where threats are repeated, specific and combined with confrontation or other mistreatment.”); 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).  “Death threats alone can constitute persecution[.]”  Kaur v. Wilkinson, 986 F.3d 1216 (9th Cir. 2021).  “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.

“Unfulfilled threats are very rarely sufficient to rise to the level of persecution … .”  Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir. 2021).  However, 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

See Kaur v. Wilkinson, 986 F.3d 1216 (9th Cir. 2021) (attempted rape of petitioner, in addition to death threats and violence against parents, demonstrated past persecution); Parada v. Sessions, 902 F.3d 901, 909–10 (9th Cir. 2018) (holding that harm petitioner suffered, such as “his brother’s assassination, the murder of his neighbor as a result of his own family being targeted, his experience being captured and beaten to the point of unconsciousness, repeated forced home invasions, and specific death threats toward his family” amounted to persecution); Vitug v. Holder, 723 F.3d 1056, 1065–66 (9th Cir. 2013) (beaten multiple times over a period of years, and personally experienced being threatened and harassed by police in the Philippines); 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

See Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir. 2021) (“While [petitioner’s] father was once threatened by a group of Sunni Muslims (not the Taliban), no harm ever came to his father, mother, or siblings” and petitioner’s testimony and documentation did not support assertion on appeal that he received death threats); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (evidence of a threat over the phone, and another in person, over the course of two days, by men believed to be hitmen, did not compel the conclusion that petitioner suffered past 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 Bondarenko v. Holder, 733 F.3d 899, 908–09 (9th Cir. 2013) (detained three times, severely beaten, hit in the head with such force that he was hospitalized for three days); 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 Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir. 2021) (holding that although petitioner undoubtedly experienced hardship when his shop burned, and he lost jewelry stock during a convoy attack, substantial evidence supported BIA’s determination that petitioner did not suffer persecution based on economic harm); 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 Ming Dai v. Sessions, 884 F.3d 858, 870 (9th Cir. 2018) (“In addition to the physical harm he suffered, Dai lost his job as a result of this occurrence.  Such economic harm can contribute to a finding of persecution.”); He v. Holder, 749 F.3d 792, 796 (9th Cir. 2014) (defining economic persecution as “substantial economic deprivation that interferes with the applicant’s livelihood” and concluding that petitioner failed to establish economic persecution).

See also Vitug v. Holder, 723 F.3d 1056, 1065 (9th Cir. 2013) (“Vitug also faced the “deprivation of ... employment,” which the IJ noted the BIA has found to be another form of persecution.”); 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 Hussain, 985 F.3d at 647 (holding that although petitioner undoubtedly experienced hardship when his shop burned, and he lost jewelry stock during a convoy attack, substantial evidence supported BIA’s determination that petitioner did not suffer persecution based on economic harm); 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)), overruled on other grounds by Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc); 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 Rusak v. Holder, 734 F.3d 894, 897 (9th Cir. 2013) (“The abuses endured by Ms. Rusak’s parents constituted persecution of them, and Ms. Rusak was entitled to rely on these events to establish her own claim of past persecution because she was a child at the time.”); 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).  The court in Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1071 (9th Cir. 2017) (en banc), recognized “that children who suffer sexual abuse are generally unlikely to report that abuse to authorities.  Because they are unlikely to report, it is similarly unlikely that country reports or other evidence will be able to document the police response, or lack thereof, to the sexual abuse of children.”  Id.

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).  “[P]olice officers are the prototypical state actor for asylum purposes.”  Ming Dai v. Sessions, 884 F.3d 858, 870 (9th Cir. 2018) (internal quotation marks and citation omitted).

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); 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).

“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).

“Some official responsiveness to complaints of violence, although relevant, does not automatically equate to governmental ability and willingness.”  J.R. v. Barr, 975 F.3d 778, 782 (9th Cir. 2020).

Willingness to control persecutors notwithstanding, authorities may nevertheless be “powerless to stop” them because of a “lack of ... resources or because of the character or pervasiveness of the persecution.”    Conversely, authorities may simply be unwilling to control persecutors, where, for instance, they themselves harbor animus towards a protected group. … In other words, the question on this step is whether the government both “could and would provide protection.”

J.R., 975 F.3d at 782 (citations omitted) (holding that substantial evidence did not support the BIA’s conclusion that the El Salvadoran government was both able and willing to control the Mara-18 gang whose members attacked J.R. and killed his son).

The court has held that the BIA erred when it focused only on the government’s willingness to control the persecutors, not its ability to do so.  Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (holding the BIA erred by “focus[ing] only on the Mexican government’s willingness to control Los Zetas, not its ability to do so.”); see also J.R., 975 F.3d at 782.

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 Vitug v. Holder, 723 F.3d 1056, 1063–64 (9th Cir. 2013) (“While Vitug did not report these attacks, he credibly testified that it is well known in the Philippines that police harass gay men and turn a blind eye to hate crimes committed against gay men.”); 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-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).

In Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1069–70 (9th Cir. 2017) (en banc), the court clarified that in cases where there is a failure to report, there is no heightened proof requirement.  The court explained:

Rahimzadeh and Afriyie [v. Holder, 613 F.3d 924 (9th Cir. 2010)] unnecessarily introduced the construct that the failure to report creates a “gap” in the evidence, because our law is clear that the agency, and we, upon review, must examine all the evidence in the record that bears on the question of whether the government is unable or unwilling to control a private persecutor.  Framing the question of nonreporting as a “failure” that creates an evidentiary “gap” had the inadvertent effect of heightening the evidentiary standard beyond the traditional types of proof, accepted in every prior precedent, that we have deemed sufficient to demonstrate governmental inability or unwillingness to protect victims of persecution.  To the extent that our cases’ discussion of gap filling suggested that the burden of proof on governmental inability or unwillingness to protect was something beyond the standard we use for other elements—proof by a preponderance of the evidence, considering all the evidence in the record—we supersede those cases by clarifying that there is no heightened proof requirement.

Bringas-Rodriguez, 850 F.3d at 1069–70; see also Davila v. Barr, 968 F.3d 1136, 1143 (9th Cir. 2020) (although whether a victim has reported or attempted to report violence or abuse to authorities is a factor that may be considered, the BIA erred by requiring petitioner to make an additional report of subsequent abuse).

The court in Bringas-Rodriguez, recognized “that children who suffer sexual abuse are generally unlikely to report that abuse to authorities.  Because they are unlikely to report, it is similarly unlikely that country reports or other evidence will be able to document the police response, or lack thereof, to the sexual abuse of children.”  Therefore, a reporting requirement may not be imposed on them. Id., overruling Castro-Martinez v. Holder, 674 F.3d 1073, 1073 (9th Cir. 2011).

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 Rahimzadeh); 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) (per curiam) (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).

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).  See also Kaur v. Wilkinson, 986 F.3d 1216 (9th Cir. 2021); Guo v. Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018); Ming Dai v. Sessions, 884 F.3d 858, 867 (9th Cir. 2018); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc); Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir. 2016) (“An asylum or withholding applicant’s burden includes (1) ‘demonstrating the existence of a cognizable particular social group,’ (2) ‘his membership in that particular social group,’ and (3) ‘a risk of persecution on account of his membership in the specified particular social group.’ The third element is often referred to as the “nexus” requirement.”); Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010).  “[A]n applicant must show he was individually targeted on account of a protected ground rather than simply the victim of generalized violence.”  Hussain v. Rosen, 985 F.3d 634, 646 (9th Cir. 2021).

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).

“[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”).

Harm to a child can amount to past persecution of the parent when that harm is, at least in part, directed against the parent ‘on account of’ or ‘because of’ the parent’s race, religion, nationality, membership in a particular social group, or political opinion.”  Sumolang v. Holder, 723 F.3d 1080, 1083–84 (9th Cir. 2013) (delay in treating petitioner’s daughter was relevant to whether petitioner suffered past persecution).

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 Kaur v. Wilkinson, 986 F.3d 1216 (9th Cir. 2021) (“If a petitioner demonstrates that she has suffered past persecution, then fear of future persecution is presumed.” (internal quotation marks and citation omitted)); Singh v. Whitaker, 914 F.3d 654, 659 (9th Cir. 2019) (“Past persecution triggers a rebuttable presumption of a well-founded fear of future persecution.” (citation omitted)); Guo v. Sessions, 897 F.3d 1208, 1217 (9th Cir. 2018) (remanding for BIA to apply presumption of a well-founded fear of future persecution); Ming Dai v. Sessions, 884 F.3d 858, 867 (9th Cir. 2018); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062, 1075–76 (9th Cir. 2017) (en banc) (“Examining all the evidence in the record, and applying long-standing precedent, substantial evidence compels the conclusion that Bringas has proven past persecution due to his identification as a gay individual, and he need not additionally provide evidence specific to him as a gay child.  He is therefore entitled to the presumption of a well-founded fear of future persecution.”); 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).

“The presumption only applies to fear of persecution ‘on the basis of the original claim,’ such that if the fear of future persecution is ‘unrelated to the past persecution,’ the petitioner bears the burden of establishing he has a well-founded fear.”  Parada v. Sessions, 902 F.3d 901, 911–12 (9th Cir. 2018); see also Ali, 637 F.3d at 1029–30 (The presumption “only applies to fear based on the original claim and not to fear of persecution from a new source.”); 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.”).

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).

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 Singh v. Whitaker, 914 F.3d 654, 659 (9th Cir. 2019) (“When an asylum applicant has established that he suffered past persecution, the burden is on the government to show by a preponderance of the evidence that the applicant either no longer has a well-founded fear of persecution in the country of his nationality, or that he can reasonably relocate internally to an area of safety.”); Parada v. Sessions, 902 F.3d 901, 911–14 (9th Cir. 2018) (holding that presumption of future persecution was not rebutted, and remanding for the Attorney General to exercise his discretion as to whether to grant asylum); 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 Ming Dai v. Sessions, 884 F.3d 858, 867 (9th Cir. 2018) (“If a noncitizen establishes past persecution, a rebuttable presumption of a well-founded fear arises, 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.” (internal quotation marks and citation omitted)); 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 Parada v. Sessions, 902 F.3d 901, 912 (9th Cir. 2018) (“[T]he IJ must make an ‘individualized determination’ of how the changed circumstances affect the alien’s specific situation.”); 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 country 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 Ming Dai v. Sessions, 884 F.3d 858, 874 (9th Cir. 2018); 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 Parada v. Sessions, 902 F.3d 901, 912 (9th Cir. 2018) (El Salvador); 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. Singh v. Holder, 753 F.3d 826, 832–33 (9th Cir. 2014) (state department report was sufficiently individualized to address petitioner’s persecution claim; the court concluded that substantial evidence supported determination that there had been a fundamental change in circumstances in India to overcome presumption that life or freedom would be threatened if he was removed); 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”).

“[R]eliance on significantly or materially outdated country reports cannot suffice to rebut the presumption of future persecution.”  Parada, 902 F.3d at 912 (finding agency’s determination that government rebutted presumption of future persecution was not supported by substantial evidence where country reports at issue were already a half-decade out of date by the time of the IJ hearing, and reported conditions that were not current).

(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 Parada v. Sessions, 902 F.3d 901, 913 (9th Cir. 2018) (“Because the agency’s determination that the government successfully rebutted the presumption of future persecution is unsupported by substantial evidence, we hold that the presumption has not been rebutted and that Quiroz Parada is statutorily eligible for asylum and entitled to withholding of removal, and remand for the Attorney General to exercise his discretion under 8 U.S.C. § 1158(b) as to whether to grant asylum.”); 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

“The asylum regulation makes asylum unavailable if ‘[t]he applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality ... and under all the circumstances, it would be reasonable to expect the applicant to do so.’”  Akosung v. Barr, 970 F.3d 1095, 1101 (9th Cir. 2020) (quoting 8 C.F.R. § 1208.13(b)(1)(i)(B)).

“When an asylum applicant has established that he suffered past persecution, the burden is on the government to show by a preponderance of the evidence that the applicant either no longer has a well-founded fear of persecution in the country of his nationality, or that he can reasonably relocate internally to an area of safety.”  Singh v. Whitaker, 914 F.3d 654, 659 (9th Cir. 2019); see also Kaur v. Wilkinson, 986 F.3d 1216 (9th Cir. 2021) (“If, on remand, the BIA concludes that Kaur’s past persecution was at the hands of her government, she will be presumed to have a fear of future persecution. …  The BIA must then determine whether the government can rebut this presumption by showing either a fundamental change in circumstance or that Kaur ‘could avoid future persecution by relocating’ internally within India.” (internal quotation marks and citations omitted)); 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’”); Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir. 2003) (“[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.”); 8 C.F.R. § 1208.13(b)(1)(i)(B), (b)(1)(ii).

“Relocation is generally not unreasonable solely because the country at large is subject to generalized violence.”  Hussain v. Rosen, 985 F.3d 634, 648 (9th Cir. 2021).

Relocation analysis consists of two steps: (1) “whether an applicant could relocate safely,” and (2) “whether it would be reasonable to require the applicant to do so.” … For an applicant to be able to safely relocate internally, “there must be an area of the country where he or she has no well-founded fear of persecution.”

Singh, 914 F.3d at 659 (citations omitted) (remanding where BIA failed to conduct a sufficiently individualized analysis of Singh’s ability to relocate within India).  “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 Singh, 914 F.3d at 659; 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) overruled on other grounds by Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1070 (9th Cir. 2017) (en banc).  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 Singh, 914 F.3d at 659; 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 petitioner 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).

Relocating to another part of the country does not mean living in hiding.  See Akosung, 970 F.3d at 1102.

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 Singh v. Whitaker, 914 F.3d 654, 661 (9th Cir. 2019) (“Regardless of whether the government has rebutted the presumption of an asylum applicant’s well-founded fear of persecution, the BIA may still grant humanitarian asylum.”); 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 petitioner 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 petitioner 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).  The burden of proof is on the applicant to show that either form of humanitarian asylum is warranted.  Singh, 914 F.3d 661–62.  “Humanitarian asylum based on past persecution may be granted where the petitioner has suffered ‘atrocious forms of persecution.’”  Id. at 662.

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); see also Singh v. Whitaker, 914 F.3d 654, 662 (9th Cir. 2019) (explaining that case law demonstrates extremely severe persecution is required to warrant humanitarian relief).  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 petitioner 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

Singh v. Whitaker, 914 F.3d 654, 662 (9th Cir. 2019) (while troubling, the physical harm Singh suffered at the hands of the police and Congress Party members, which resulted in multiple hospitalizations, did not rise to necessary level of atrociousness to warrant 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, 906–07 (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 petitioner 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).  “Absent evidence of past persecution, [an applicant] must establish a well-founded fear of future persecution by showing both a subjective fear of future persecution, as well as an objectively ‘reasonable possibility’ of persecution upon return to the country in question.”  Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019).  A well-founded fear must be subjectively genuine and objectively reasonable.  See Parada v. Sessions, 902 F.3d 901, 909 (9th Cir. 2018); Rusak v. Holder, 734 F.3d 894, 896 (9th Cir. 2013); 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).

“[A]n applicant ‘does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country of nationality ... [and] under all the circumstances it would be reasonable to expect the applicant to do so.’ 8 C.F.R. § 1208.13 (b)(2)(ii).”  Duran-Rodriguez, 918 F.3d at 1029.  See also Hussain v. Rosen, 985 F.3d 634, 648 (9th Cir. 2021) (“But ‘[a]n applicant does not have a well-founded fear of [future] persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country,’ unless doing so would be unreasonable under the applicant’s circumstances.” (quoting 8 C.F.R. § 1208.13(b)(2)(ii))); Kaiser v. Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004).  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.  See Hussain, 985 F.3d at 649 (citing 8 C.F.R. § 1208.13(b)(3)(i)) (where petitioner never claimed to fear the government or a government-sponsored group, burden was on him to demonstrate why relocation was unreasonable); Duran-Rodriguez, 918 F.3d at 1029.

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 Parada v. Sessions, 902 F.3d 901, 909 (9th Cir. 2018) (El Salvador)  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.”  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. 1997) (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 Parada v. Sessions, 902 F.3d 901, 909 (9th Cir. 2018) (“The objective component can be established in two different ways, one of which is to prove past persecution.”); Rusak v. Holder, 734 F.3d 894, 896 (9th Cir. 2013) (“The objective element may be established either by the presentation of “credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution,” or through a showing by an asylum applicant that he or she has suffered persecution in the past.”); 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.  See 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).

Harm to a child can amount to past persecution of the parent when that harm is, at least in part, directed against the parent ‘on account of’ or ‘because of’ the parent’s race, religion, nationality, membership in a particular social group, or political opinion.”  Sumolang v. Holder, 723 F.3d 1080, 1083–84 (9th Cir. 2013) (delay in treating petitioner’s daughter was relevant to whether petitioner suffered past persecution).

See also Rusak v. Holder, 734 F.3d 894, 897 (9th Cir. 2013) (“The abuses endured by Ms. Rusak’s parents constituted persecution of them, and Ms. Rusak was entitled to rely on these events to establish her own claim of past persecution because she was a child at the time.”); 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 Rusak v. Holder, 734 F.3d 894, 896 (9th Cir. 2013) (“While Ms. Rusak’s own direct experiences in Belarus may not rise to the level of persecution on this ground as well, she is not required to demonstrate that she individually suffered persecution if she can establish a ‘pattern or practice ... of persecution of groups of persons similarly situated’ and that she is a member of the group ‘such that [her] fear of persecution upon return is reasonable.’” (citation omitted)); 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 has 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 [petitioner] 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 Hussain v. Rosen, 985 F.3d 634, 648 (9th Cir. 2021) (“But ‘[a]n applicant does not have a well-founded fear of [future] persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country,’ unless doing so would be unreasonable under the applicant’s circumstances.” (quoting 8 C.F.R. § 1208.13(b)(2)(ii))); Singh v. Whitaker, 914 F.3d 654, 661 (9th Cir. 2019) (granting petition for review in part because BIA failed to conduct a sufficiently individualized analysis of petitioner’s ability to relocate within India); 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.  See also Singh, 914 F.3d at 659 (setting forth two step relocation analysis).  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.  Hussain, 985 F.3d at 649 (where petitioner never claimed to fear the government or a government-sponsored group, burden was on him to demonstrate why relocation was unreasonable); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019); 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 at 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).  “The factors may not all be relevant in a specific case, and they are not necessarily determinative of whether it would be reasonable for the applicant to relocate.”  Singh, 914 F.3d at 659 (internal quotation marks and citation omitted).

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) (superseded by statute on other grounds) (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. U.S. Dep’t of Immigration & Naturalization, 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. U.S. Dep’t of Immigration & Naturalization, 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 Ming Dai v. Sessions, 884 F.3d 858, 871 (9th Cir. 2018) (noting that a noncitizen’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”); Loho v. Mukasey, 531 F.3d 1016, 1017–18 (9th Cir. 2008) (same); 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).  Additionally, “a family member’s voluntary return—or demonstrated ability to remain in the country without further injury—can be relevant in certain narrow circumstances: when the applicant’s fear of future persecution rests solely upon threats received by his family, … , or when the family member and the applicant are similarly situated.”  Ming Dai, 884 F.3d at 871 (concluding that petitioner’s wife’s voluntary return to China did not undermine his asylum claim, where their past experiences and fears about the future were not so similar).

10.     Cases Finding No Well-Founded Fear

Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019) (“Even assuming Duran-Ro