RELIEF FROM REMOVAL

Table of Contents

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

I.            THE CONTEXT. B-1

II.          ASYLUM.. B-2

A.          Burden of Proof B-2

B.          Defining Persecution. B-3

1.           Cumulative Effect of Harms. B-4

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

3.           Forms of Persecution. B-5

a.           Physical Violence. B-5

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

(ii)         Physical Violence Insufficient to Constitute Persecution  B-8

b.           Torture. B-8

c.            Threats. B-8

(i)          Cases Holding Threats Establish Persecution. B-9

(ii)         Cases Holding Threats Not Persecution. B-10

d.           Detention. B-10

e.            Mental, Emotional, and Psychological Harm.. B-11

f.            Substantial Economic Deprivation. B-12

g.           Discrimination and Harassment B-13

4.           Age of the Victim.. B-14

C.          Source or Agent of Persecution. B-15

1.           Harm Inflicted by Relatives. B-16

2.           Reporting of Persecution Not Always Required. B-16

3.           Cases Discussing Source or Agent of Persecution. B-17

D.          Past Persecution. B-18

1.           Presumption of a Well-Founded Fear B-20

2.           Rebutting the Presumption of a Well-Founded Fear B-20

a.           Fundamental Change in Circumstances. B-20

b.           Government’s Burden. B-21

(i)          State Department Report B-22

(ii)         Administrative Notice of Changed Country Conditions  B-23

c.            Cases where Changed Circumstances or Conditions Insufficient to Rebut Presumption of Well-Founded Fear B-24

d.           Internal Relocation. B-25

3.           Humanitarian Asylum.. B-26

a.           Severe Past Persecution. B-26

(i)          Compelling Cases of Past Persecution for Humanitarian Asylum.. B-27

(ii)         Insufficiently Severe Past Persecution for Humanitarian Asylum.. B-28

b.           Fear of Other Serious Harm.. B-29

E.          Well-Founded Fear of Persecution. B-29

1.           Past Persecution Not Required. B-30

2.           Subjective Prong. B-30

3.           Objective Prong. B-31

4.           Demonstrating a Well-Founded Fear B-33

a.           Targeted for Persecution. B-33

b.           Family Ties. B-33

c.            Pattern and Practice of Persecution. B-34

d.           Membership in Disfavored Group. B-35

5.           Countrywide Persecution. B-36

6.           Continued Presence of Applicant B-38

7.           Continued Presence of Family. B-39

8.           Possession of Passport or Travel Documents. B-40

9.           Safe Return to Country of Persecution. B-40

10.        Cases Finding No Well-Founded Fear B-41

F.           Nexus to the Five Statutorily Protected Grounds. B-41

1.           Proving a Nexus. B-42

a.           Direct Evidence. B-43

b.           Circumstantial Evidence. B-43

2.           Mixed-Motive Cases. B-44

3.           Shared Identity Between Victim and Persecutor B-47

4.           Civil Unrest and Motive. B-47

5.           Resistance to Discriminatory Government Action. B-48

6.           The Protected Grounds. B-48

a.           Race. B-48

(i)          Cases Finding Racial or Ethnic Persecution. B-48

(ii)         Cases Finding No Racial or Ethnic Persecution.. .. B-49

b.           Religion. B-49

(i)          Cases Finding Religious Persecution. B-50

(ii)         Cases Finding No Religious Persecution. B-51

c.            Nationality. B-52

d.           Membership in a Particular Social Group. B-52

(i)          Types of Social Groups. B-54

(A)       Family and Clan. B-54

(B)        Gender-Related Claims. B-55

(1)         Gender Defined Social Group. B-55

(2)         Gender-Specific Harm.. B-56

(C)        Sexual Orientation. B-57

(D)       Former Status or Occupation. B-58

(ii)         Cases Denying Social Group Claims. B-58

e.            Political Opinion. B-60

(i)          Organizational Membership. B-60

(ii)         Refusal to Support Organization. B-61

(iii)       Labor Union Membership and Activities. B-61

(iv)       Opposition to Government Corruption. B-62

(v)         Neutrality. B-63

(vi)       Other Expressions of Political Opinion. B-64

(vii)     Imputed Political Opinion. B-64

(A)       Family Association. B-65

(B)        No Evidence of Legitimate Prosecutorial Purpose  B-65

(C)        Government Employees. B-66

(D)       Other Cases Discussing Imputed Political Opinion  B-67

(viii)    Opposition to Coercive Population Control Policies  B-68

(A)       Forced Abortion. B-69

(B)        Forced Sterilization. B-70

(C)        Other Resistance to a Coercive Population Control Policy. B-71

(D)       Family Members. B-72

f.            Prosecution. B-73

(i)          Pretextual Prosecution. B-73

(ii)         Illegal Departure Laws. B-74

g.           Military and Conscription Issues. B-75

(i)          Conscription Generally Not Persecution. B-75

(ii)         Exceptions. B-76

(A)       Disproportionately Severe Punishment B-76

(B)        Inhuman Conduct B-76

(C)        Moral or Religious Grounds. B-76

(iii)       Participation in Coup. B-77

(iv)       Military Informers. B-77

(v)         Military or Law Enforcement Membership. B-77

(A)       Current Status. B-77

(B)        Former Status. B-78

(vi)       Non-Governmental Conscription. B-78

h.           Cases Concluding No Nexus to a Protected Ground. . B-79

G.          Exercise of Discretion. B-80

H.          Remanding Under INS v. Ventura. B-82

I.            Derivative Asylees. B-84

J.            Bars to Asylum.. B-85

1.           One-Year Bar B-85

a.           Exceptions to the Deadline. B-87

2.           Previous Denial Bar B-89

3.           Safe Third Country Bar B-89

4.           Firm Resettlement Bar B-90

5.           Persecution of Others Bar B-92

6.           Particularly Serious Crime Bar B-94

7.           Serious Non-Political Crime Bar B-96

8.           Security Bar B-96

9.           Terrorist Bar B-96

III.        WITHHOLDING OF REMOVAL OR DEPORTATION.. B-97

A.          Eligibility for Withholding. B-98

1.           Higher Burden of Proof B-98

2.           Mandatory Relief B-99

3.           Nature of Relief B-99

4.           Past Persecution. B-99

5.           Future Persecution. B-100

6.           No Time Limit B-100

7.           Firm Resettlement Not a Bar B-100

8.           Entitled to Withholding. B-100

9.           Not Entitled to Withholding. B-102

10.        No Derivative Withholding of Removal B-104

B.          Bars to Withholding. B-104

1.           Nazis. B-104

2.           Persecution-of-Others Bar B-104

3.           Particularly Serious Crime Bar B-104

4.           Serious Non-Political Crime Bar B-106

5.           Security and Terrorist Bar B-106

IV.        CONVENTION AGAINST TORTURE (“CAT”) B-108

A.          Standard of Review.. B-109

B.          Definition of Torture. B-109

C.          Burden of Proof B-111

D.          Country Conditions Evidence. B-113

E.          Past Torture. B-114

F.           Internal Relocation. B-115

G.          Differences Between CAT Protection and Asylum and Withholding. . B-115

H.          Agent or Source of Torture. B-116

I.            Mandatory Relief B-117

J.            Nature of Relief B-118

K.          Derivative Torture Claims. B-118

L.           Exhaustion. B-118

M.         Habeas Jurisdiction. B-118

N.          Cases Granting CAT Protection. B-119

O.          Cases Finding No Eligibility for CAT Protection. B-119

V.          CREDIBILITY DETERMINATIONS. B-121

A.          Standard of Review.. B-121

B.          Opportunity to Explain. B-123

C.          Credibility Factors. B-125

1.           Demeanor B-125

2.           Responsiveness. B-126

3.           Specificity and Detail B-126

4.           Inconsistencies. B-127

a.           Minor Inconsistencies. B-127

b.           Substantial Inconsistencies. B-128

c.            Mistranslation/Miscommunication. B-130

5.           Omissions. B-131

6.           Incomplete Asylum Application. B-132

7.           Sexual Abuse or Assault B-132

8.           Airport Interviews. B-133

9.           Asylum Interview/Assessment to Refer B-133

10.       Bond Hearing. B-134

11.        State Department and other Government Reports. B-134

12.        Speculation and Conjecture. B-136

13.        Implausible Testimony. B-137

14.        Counterfeit and Unauthenticated Documents. B-138

15.        Misrepresentations. B-139

16.        Classified Information. B-140

17.        Failure to Seek Asylum Elsewhere. B-140

18.        Cumulative Effect of Adverse Credibility Grounds. B-140

19.        Voluntary Return to Country. B-141

D.          Presumption of Credibility. B-141

E.          Implied Credibility Findings. B-142

1.           Immigration Judges. B-142

2.           Board of Immigration Appeals. B-142

F.           Sua Sponte Credibility Determinations and Notice. B-143

G.          Discretionary Decisions. B-144

H.          Remedy. B-144

I.            Applicability of Asylum Credibility Finding to the Denial of other Forms of Relief B-145

J.            Cases Reversing Negative Credibility Findings. B-145

K.          Cases Upholding Negative Credibility Findings. B-148

L.           The REAL ID Act Codification of Credibility Standards. B-151

M.         Frivolous Applications. B-152

VI.        CORROBORATIVE EVIDENCE. B-154

A.          Pre-REAL ID Act Standards. B-154

1.           Credible Testimony. B-154

2.           Credibility Assumed. B-155

3.           No Explicit Adverse Credibility Finding. B-156

4.           Negative Credibility Finding. B-156

a.           Non-Duplicative Corroborative Evidence. B-157

b.           Availability of Corroborative Evidence. B-157

c.            Opportunity to Explain. B-158

B.          Post-REAL ID Act Standards. B-158

C.          Judicially Noticeable Facts. B-160

D.          Forms of Evidence. B-160

E.          Hearsay Evidence. B-161

F.           Country Conditions Evidence. B-161

G.          Certification of Records. B-162

CANCELLATION OF REMOVAL, SUSPENSION OF DEPORTATION, FORMER SECTION 212(c) RELIEF. B-163

I.            OVERVIEW... B-163

A.          Continued Eligibility for Pre-IIRIRA Relief Under the Transitional Rules  B-163

II.          JUDICIAL REVIEW... B-164

A.          Limitations on Judicial Review of Discretionary Decisions. B-164

B.          Limitations on Judicial Review Based on Criminal Offenses. B-165

III.        CANCELLATION OF REMOVAL, 8 U.S.C. § 1229b. B-166

A.          Cancellation for Lawful Permanent Residents, 8 U.S.C. § 1229b(a) (INA § 240A(a)) B-166

1.           Eligibility Requirements. B-166

2.           Termination of Continuous Residence. B-168

a.           Termination Based on Service of NTA.. B-168

b.           Termination Based on Commission of Specified Offense  B-169

c.            Military Service. B-170

3.           Aggravated Felons. B-170

4.           Exercise of Discretion. B-171

B.         Cancellation for Non-Permanent Residents, 8 U.S.C. § 1229b(b) (INA § 240A(b)(1)) B-171

1.           Eligibility Requirements. B-171

2.           Ten Years of Continuous Physical Presence. B-172

a.           Standard of Review.. B-172

b.           Start Date for Calculating Physical Presence. B-172

c.            Termination of Continuous Physical Presence. B-172

(i)          Termination Based on Service of NTA.. B-173

(ii)         Termination Based on Commission of Specified Offense  B-173

d.           Departure from the United States. B-174

e.            Proof B-175

f.            Military Service. B-176

3.           Good Moral Character B-176

a.           Jurisdiction. B-176

b.           Standard of Review.. B-177

c.            Time Period Required. B-177

d.           Per Se Exclusion Categories. B-178

(i)          Habitual Drunkards. B-178

(ii)         Certain Aliens Described in 8 U.S.C. § 1182(a) (Inadmissible Aliens) B-178

(A)       Prostitution and Commercialized Vice. . B-178

(B)        Alien Smugglers. B-179

(C)        Certain Aliens Previously Removed. B-180

(D)       Crimes Involving Moral Turpitude. B-180

(E)        Controlled Substance Violations. B-180

(F)        Multiple Criminal Offenses. B-181

(G)       Controlled Substance Traffickers. B-181

(iii)       Gamblers. B-181

(iv)       False Testimony. B-182

(v)         Confinement B-182

(vi)       Aggravated Felonies. B-183

(vii)     Nazi Persecutors, Torturers, Violators of Religious Freedom.. B-183

(viii)    False Claim of Citizenship and Voting. B-183

(ix)       Adulterers. B-184

4.           Criminal Bars. B-184

5.           Exceptional and Extremely Unusual Hardship. B-185

a.           Jurisdiction. B-185

b.           Qualifying Relative. B-186

c.           Alternative Means to Immigrate. B-187

6.           Exercise of Discretion. B-187

7.           Dependents. B-188

C.          Ineligibility for Cancellation. B-188

1.           Certain Crewmen and Exchange Visitors. B-188

2.          Security Grounds. B-188

3.           Persecutors. B-189

4.           Previous Grants of Relief B-189

D.          Constitutional and Legal Challenges to the Availability of Cancellation of Removal or Suspension of Deportation. B-189

E.          Ten-Year Bars to Cancellation. B-190

1.           Failure to Appear B-190

2.           Failure to Depart B-190

F.          Numerical Cap on Grants of Cancellation and Adjustment of Status. . B-192

G.          NACARA Special Rule Cancellation. B-192

1.           NACARA Does Not Violate Equal Protection. B-194

2.           NACARA Deadlines. B-194

3.           Judicial Review.. B-194

H.          Abused Spouse or Child Provision. B-195

IV.        SUSPENSION OF DEPORTATION, 8 U.S.C. § 1254 (repealed) (INA § 244) B-196

A.          Eligibility Requirements. B-196

1.           Continuous Physical Presence. B-196

a.           Jurisdiction. B-197

b.          Standard of Review.. B-197

c.            Proof B-197

d.          Departures:  90/180 Day Rule. B-197

e.            Brief, Casual, and Innocent Departures. B-197

f.            Deportation. B-198

g.           IIRIRA Stop-Time Rule. B-198

h.           Pre-IIRIRA Rule on Physical Presence. B-199

i.             NACARA Exception to the Stop-Time Rule. B-199

j.             Barahona-Gomez v. Ashcroft Exception to the Stop-Time Rule  B-199

k.           Repapering. B-201

2.           Good Moral Character B-201

a.           Jurisdiction. B-201

b.           Time Period Required. B-202

c.            Per Se Exclusion Categories. B-202

3.           Extreme Hardship Requirement B-203

a.           Jurisdiction. B-203

b.           Qualifying Individual B-203

c.            Extreme Hardship Factors. B-203

d.           Current Evidence of Hardship. B-205

4.           Ultimate Discretionary Determination. B-205

B.          Abused Spouses and Children Provision. B-206

C.          Ineligibility for Suspension. B-206

1.           Certain Crewmen and Exchange Visitors. B-206

2.           Participants in Nazi Persecutions or Genocide. B-207

3.           Aliens in Exclusion Proceedings. B-207

D.          Five-Year Bars to Suspension. B-207

1.           Failure to Appear B-207

2.           Failure to Depart B-207

E.          Retroactive Elimination of Suspension of Deportation. B-208

V.          SECTION 212(c) RELIEF, 8 U.S.C. § 1182(c) (repealed), Waiver of Excludability or Deportability. B-209

A.          Overview.. B-209

B.          Eligibility Requirements. B-210

1.           Seven Years. B-210

2.           Balance of Equities. B-210

C.          Deportation: Comparable Ground of Exclusion. B-211

D.          Removal: Comparable Ground of Inadmissibility. B-211

E.          Ineligibility for Relief B-212

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

1.           IMMACT 90. B-212

a.           Continued Eligibility for Relief B-213

2.           AEDPA.. B-213

a.           Continued Eligibility for Relief B-214

3.           IIRIRA.. B-214

a.           Retroactive Elimination of § 212(c) Relief B-215

b.           Continued Eligibility for Relief B-215

(i)          Plea Agreements Prior to AEDPA and IIRIRA.. .. B-216

(ii)         No Longer Necessary to show Reasonable Reliance on Pre-IIRIRA Application for Relief B-216

 

(iii)       Similarly Situated Aliens Treated Differently. . B-217

c.            Ineligibility for Relief B-217

(i)          Plea Agreements after IIRIRA.. B-217

(ii)         Plea Agreements after AEDPA.. B-218

(iii)       Convictions After Trial B-218

(iv)       Pre-IIRIRA Criminal Conduct B-218

(v)         Terrorist Activity. B-219

G.          Expanded Definition of Aggravated Felony. B-219

H.          Burden of Proof B-220

VI.        SECTION 212(H) RELIEF, 8 U.S.C. § 1182(H), WAIVER OF INADMISSIBILITY   B-220

VII.      INNOCENT, CASUAL, AND BRIEF DEPARTURES UNDER FLEUTI DOCTRINE. B-222

ADJUSTMENT OF STATUS. B-223

I.            OVERVIEW... B-223

A.         Eligibility for Permanent Residence. B-224

1.           Visa Petition. B-224

2.           Priority Date. B-225

3.           Admissibility. B-226

B.          ELIGIBILITY FOR ADJUSTMENT OF STATUS PROCESS. B-228

1.           Exceptions to Lawful Entry and Lawful Status Requirements. . B-229

a.           Exception for Immediate Relatives. 229

b.           Aliens Eligible For 8 U.S.C. § 1255(i) (“245(i)”) B-229

c.            Unlawful Employment Exception. B-230

2.           Discretion. B-230

C.          Adjustment of Status Application Pending. B-230

D.          Adjustment of Status Application Approved. B-231


RELIEF FROM REMOVAL

ASYLUM, WITHHOLDING and the CONVENTION AGAINST TORTURE

I.       THE CONTEXT

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

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

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

INS v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987) (quoting 8 U.S.C. § 1101(a)(42)(A)); see also 8 C.F.R. § 1208.13; Rusak v. Holder, 734 F.3d 894, 896 (9th Cir. 2013); Mendoza-Pablo v. Holder, 667 F.3d 1308, 1312-13 (9th Cir. 2012); Zetino v. Holder, 622 F.3d 1007, 1015 (9th Cir. 2010) (post-REAL ID Act); Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) (quoting 8 U.S.C. § 1101(a)(42)(A)).  An applicant may apply for asylum if she is “physically present in the United States” or at the border.  8 U.S.C. § 1158(a)(1).  Individuals seeking protection from outside the United States may apply for refugee status under 8 U.S.C. § 1157. 

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

                                                         

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

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

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

II.      ASYLUM

A.      Burden of Proof

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

 An applicant alleging past persecution has the burden of establishing that (1) his treatment rises to the level of persecution; (2) the persecution was on account of one or more protected grounds; and (3) the persecution was committed by the government, or by forces that the government was unable or unwilling to control.”  Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010); see also Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir. 2013); Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir. 2013); Afriyie v. Holder, 613 F.3d 924, 934 (9th Cir. 2010) (concluding record compelled conclusion that Ghanaian police were unable or unwilling to protect petitioner).

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

In proceedings to terminate a grant of asylum, 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)).  In Urooj, the court held that the Department of Homeland Security failed to meets 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.

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 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 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 

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

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

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 alien’s daughter was relevant to whether alien suffered past persecution).         

(i)                Physical Violence Sufficient to 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); 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

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

 (i)     Cases Holding Threats Establish Persecution

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

g.       Discrimination and Harassment

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

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

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

4.       Age of the Victim                            

          “Age can be a critical factor in the adjudication of asylum claims and may bear heavily on the question of whether an applicant was persecuted or whether she holds a well-founded fear of future persecution.”  Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007) (internal quotation marks and citation omitted).  “[A] child’s reaction to injuries to his family is different from an adult’s.  The child is part of the family, the wound to the family is personal, the trauma apt to be lasting.”  Id.  (joining the Second, Sixth, and Seventh Circuits in affirming legal rule that injuries to a family must be considered in an asylum case where events that form the basis of the past persecution claim were perceived when petitioner was a child).  See also 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).

C.      Source or Agent of Persecution

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

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

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

1.       Harm Inflicted by Relatives

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

2.       Reporting of Persecution Not Always Required

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

3.       Cases Discussing Source or Agent of Persecution

          Rahimzadeh v. Holder, 613 F.3d 916, 923 (9th Cir. 2010) (substantial evidence supported determination that Dutch authorities were willing and able to control extremists that attacked the alien); Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1056-58 (9th Cir. 2006) (applicant arrested by Mexican police, raped by family members and family friends, and abused by co-workers on account of his female sexual identity); Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (applicant raped by boyfriend in Honduras failed to show that the Honduran government was unwilling or unable to control rape); Mashiri v. Ashcroft, 383 F.3d 1112, 1120-21 (9th Cir. 2004) (ethnic Afghan family in Germany attacked by anti-foreigner mobs); Deloso v. Ashcroft, 393 F.3d 858, 861 (9th Cir. 2005) (attacks by a Filipino Communist party henchman); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004) (“Random, isolated criminal acts perpetrated by anonymous thieves do not establish persecution.”); Jahed v. INS, 356 F.3d 991, 998-99 (9th Cir. 2004) (extortion by member of the Iranian Revolutionary Guard); Rodas-Mendoza v. INS, 246 F.3d 1237, 1239-40 (9th Cir. 2001) (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).

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

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

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

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 alien’s daughter was relevant to whether alien 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 Mendoza-Pablo v. Holder, 667 F.3d 1308, 1312-13 (9th Cir. 2012); Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir. 2011) (government failed to rebut presumption of well-founded fear of future persecution); Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010); Ahmed v. Keisler, 504 F.3d 1183, 1197 (9th Cir. 2007) (“[P]roof of past persecution gives rise to a presumption of a well-founded fear of future persecution and shifts the evidentiary burden to the government to rebut that presumption.”); Canales-Vargas v. Gonzales, 441 F.3d 739, 743 (9th Cir. 2006) (same); Singh v. Ilchert, 63 F.3d 1501, 1510 (9th Cir. 1995) (“[O]nce an applicant has demonstrated that he suffered past persecution, there is a presumption that he faces a similar threat on return.”), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009).  The presumption “only applies to fear based on the original claim and not to fear of persecution from a new source.”  Ali, 637 F.3d at 1029-30.

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

2.       Rebutting the Presumption of a Well-Founded Fear

a.       Fundamental Change in Circumstances

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

b.       Government’s Burden

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

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

 (i)     State Department Report

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

 (ii)    Administrative Notice of Changed Country Conditions

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

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

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

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

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

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

d.       Internal Relocation

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

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

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

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

3.       Humanitarian Asylum

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

a.       Severe Past Persecution

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

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

 (i)     Compelling Cases of Past Persecution for Humanitarian Asylum                         

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

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

 (ii)    Insufficiently Severe Past Persecution for Humanitarian Asylum

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

b.       Fear of Other Serious Harm

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

E.      Well-Founded Fear of Persecution

          Even in the absence of past persecution, an applicant may be eligible for asylum based on a well-founded fear of future persecution.  See 8 C.F.R. § 1208.13(b).  A well-founded fear must be subjectively genuine and objectively reasonable.  See 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).                    

1.       Past Persecution Not Required

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

2.       Subjective Prong

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

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

3.       Objective Prong

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