RELIEF FROM REMOVAL

Table of Contents

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

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

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

A.          Burden of Proof 3

B.          Defining Persecution. 5

1.           Cumulative Effect of Harms. 6

2.           No Subjective Intent to Harm Required. 7

3.           Forms of Persecution. 7

a.           Physical Violence. 7

(i)          Physical Violence Sufficient to Constitute Persecution  9

(ii)         Physical Violence Insufficient to Constitute Persecution  11

b.           Torture. 11

c.            Threats 12

(i)          Cases Holding Threats Establish Persecution. 12

(ii)         Cases Holding Threats Not Persecution. 14

d.           Detention. 14

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

f.            Substantial Economic Deprivation. 16

g.           Discrimination and Harassment 17

4.           Age of the Victim.. 19

C.          Source or Agent of Persecution. 19

1.           Harm Inflicted by Relatives. 21

2.           Reporting of Persecution Not Always Required. 21

3.           Cases Discussing Source or Agent of Persecution. 23

D.          Past Persecution. 24

1.           Presumption of a Well-Founded Fear 26

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

a.           Fundamental Change in Circumstances. 27

b.           Government’s Burden. 28

(i)          State Department Report 29

(ii)         Administrative Notice of Changed Country Conditions 30

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

d.           Internal Relocation. 32

3.           Humanitarian Asylum.. 34

a.           Severe Past Persecution. 35

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

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

b.           Fear of Other Serious Harm.. 37

E.          Well-Founded Fear of Persecution. 38

1.           Past Persecution Not Required. 39

2.           Subjective Prong. 39

3.           Objective Prong. 40

4.           Demonstrating a Well-Founded Fear 42

a.           Targeted for Persecution. 42

b.           Family Ties. 42

c.            Pattern and Practice of Persecution. 43

d.           Membership in Disfavored Group. 44

5.           Countrywide Persecution. 45

6.           Continued Presence of Applicant 47

7.           Continued Presence of Family. 48

8.           Possession of Passport or Travel Documents 49

9.           Safe Return to Country of Persecution. 50

10.        Cases Finding No Well-Founded Fear 50

F.           Nexus to the Five Statutorily Protected Grounds 51

1.           Proving a Nexus. 52

a.           Direct Evidence. 53

b.           Circumstantial Evidence. 53

2.           Mixed-Motive Cases 55

3.           Shared Identity Between Victim and Persecutor 58

4.           Civil Unrest and Motive. 58

5.           Resistance to Discriminatory Government Action. 59

6.           The Protected Grounds 59

a.           Race. 59

(i)          Cases Finding Racial or Ethnic Persecution. 60

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

b.           Religion. 61

(i)          Cases Finding Religious Persecution. 62

(ii)         Cases Finding No Religious Persecution. 63

c.            Nationality. 63

d.           Membership in a Particular Social Group. 64

(i)          Types of Social Groups. 68

(A)       Family and Clan. 68

(B)        Gender-Related Claims. 68

(C)        Sexual Orientation. 70

(D)       Former Status or Occupation. 71

(ii)         Cases Denying Social Group Claims. 72

e.            Political Opinion. 73

(i)          Organizational Membership. 74

(ii)         Refusal to Support Organization. 75

(iii)       Labor Union Membership and Activities. 75

(iv)       Opposition to Government Corruption. 76

(v)         Neutrality. 79

(vi)       Other Expressions of Political Opinion. 79

(vii)     Imputed Political Opinion. 80

(A)       Family Association. 80

(B)        No Evidence of Legitimate Prosecutorial Purpose  81

(C)        Government Employees. 82

(D)       Other Cases Discussing Imputed Political Opinion  82

(viii)    Opposition to Coercive Population Control Policies. 84

(A)       Forced Abortion. 85

(B)        Forced Sterilization. 86

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

(D)       Family Members. 88

f.            Prosecution. 89

(i)          Pretextual Prosecution. 90

(ii)         Illegal Departure Laws. 90

g.           Military and Conscription Issues 91

(i)          Conscription Generally Not Persecution. 91

(ii)         Exceptions 92

(A)       Disproportionately Severe Punishment 92

(B)        Inhuman Conduct 92

(C)        Moral or Religious Grounds 93

(iii)       Participation in Coup. 93

(iv)       Military Informers 93

(v)         Military or Law Enforcement Membership. 93

(A)       Current Status 93

(B)        Former Status 94

(vi)       Non-Governmental Conscription. 94

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

G.          Exercise of Discretion. 96

H.          Remanding Under INS v. Ventura. 98

I.            Derivative Asylees. 101

J.            Bars to Asylum.. 102

1.           One-Year Bar 102

a.           Exceptions to the Deadline. 104

2.           Previous Denial Bar 106

3.           Safe Third Country Bar 106

4.           Firm Resettlement Bar 107

5.           Persecution of Others Bar 110

6.           Particularly Serious Crime Bar 112

7.           Serious Non-Political Crime Bar 114

8.           Security Bar 115

9.           Terrorist Bar 115

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

A.          Eligibility for Withholding. 118

1.           Burden of Proof 118

2.           Mandatory Relief 120

3.           Nature of Relief 120

4.           Past Persecution. 121

5.           Future Persecution. 121

6.           No Time Limit 122

7.           Firm Resettlement Not a Bar 122

8.           Entitled to Withholding. 122

9.           Not Entitled to Withholding of Removal 124

10.        No Derivative Withholding of Removal 126

B.          Bars to Withholding. 126

1.           Nazis. 126

2.           Persecution-of-Others Bar 126

3.           Particularly Serious Crime Bar 127

4.           Serious Non-Political Crime Bar 130

5.           Security and Terrorist Bar 131

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

A.          Standard of Review.. 134

B.          Definition of Torture. 135

C.          Burden of Proof 138

D.          Country Conditions Evidence. 142

E.          Past Torture. 143

F.           Internal Relocation. 144

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

H.          Agent or Source of Torture. 146

I.            Mandatory Relief 148

J.            Nature of Relief 149

K.          Derivative Torture Claims. 149

L.           Exhaustion. 149

M.         Habeas Jurisdiction. 149

N.          Cases Granting CAT Protection. 150

O.          Cases Finding No Eligibility for CAT Protection. 151

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

A.          Standard of Review.. 155

B.          Opportunity to Explain. 158

C.          Credibility Factors. 159

1.           Demeanor 160

2.           Responsiveness 161

3.           Specificity and Detail 162

4.           Inconsistencies. 163

a.           Minor Inconsistencies. 163

b.           Substantial Inconsistencies. 164

c.            Mistranslation/Miscommunication. 166

5.           Omissions 167

6.           Incomplete Asylum Application. 169

7.           Sexual Abuse or Assault 170

8.           Airport Interviews 170

9.           Asylum Interview/Assessment to Refer 171

10.        Bond Hearing. 172

11.        State Department and other Government Reports 172

12.        Speculation and Conjecture. 174

13.        Implausible Testimony. 175

14.        Counterfeit and Unauthenticated Documents 176

15.        Misrepresentations 177

16.        Classified Information. 178

17.        Failure to Seek Asylum Elsewhere. 178

18.        Cumulative Effect of Adverse Credibility Grounds 179

19.        Voluntary Return to Country. 179

D.          Presumption of Credibility. 180

E.          Implied Credibility Findings. 181

1.           Immigration Judges. 181

2.           Board of Immigration Appeals. 182

F.           Sua Sponte Credibility Determinations and Notice. 182

G.          Discretionary Decisions 183

H.          Remedy. 183

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

J.            Cases Reversing Negative Credibility Findings. 185

K.          Cases Upholding Negative Credibility Findings. 189

L.           The REAL ID Act Codification of Credibility Standards 192

M.         Frivolous Applications. 194

VI...... CORROBORATIVE EVIDENCE. 196

A.          Pre-REAL ID Act Standards 196

1.           Credible Testimony. 196

2.           Credibility Assumed. 197

3.           No Explicit Adverse Credibility Finding. 198

4.           Negative Credibility Finding. 199

a.           Non-Duplicative Corroborative Evidence. 199

b.           Availability of Corroborative Evidence. 200

c.            Opportunity to Explain. 201

B.          Post-REAL ID Act Standards 201

C.          Judicially Noticeable Facts 205

D.          Forms of Evidence. 205

E.          Hearsay Evidence. 206

F.           Country Conditions Evidence. 206

G.          Certification of Records. 207

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

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

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

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

A.          Limitations on Judicial Review of Discretionary Decisions. 209

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

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

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

1.           Eligibility Requirements 212

2.           Termination of Continuous Residence. 215

a.           Termination Based on Service of NTA.. 215

b.           Termination Based on Commission of Specified Offense. 216

c.            Military Service. 217

3.           Aggravated Felons 218

4.           Exercise of Discretion. 219

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

1.           Eligibility Requirements 219

2.           Ten Years of Continuous Physical Presence. 220

a.           Standard of Review.. 220

b.           Start Date for Calculating Physical Presence. 221

c.            Termination of Continuous Physical Presence. 221

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

(ii)         Termination Based on Commission of Specified Offense  223

d.           Departure from the United States. 224

e.            Proof 225

f.            Military Service. 226

3.           Good Moral Character 226

a.           Jurisdiction. 226

b.           Standard of Review.. 227

c.            Time Period Required. 227

d.           Per Se Exclusion Categories. 228

(i)          Habitual Drunkards. 228

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

(A)       Prostitution and Commercialized Vice. 230

(B)        Alien Smugglers. 230

(C)        “Certain Aliens Previously Removed”. 231

(D)       Crimes Involving Moral Turpitude. 231

(E)        Controlled Substance Violations. 232

(F)        Multiple Criminal Offenses. 232

(G)       Controlled Substance Traffickers. 233

(iii)       Gamblers. 233

(iv)       False Testimony. 233

(v)         Confinement 234

(vi)       Aggravated Felonies. 235

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

(viii)    False Claim of Citizenship and Voting. 236

(ix)       Adulterers. 236

4.           Criminal Bars 236

5.           Exceptional and Extremely Unusual Hardship. 238

a.           Jurisdiction. 238

b.           Qualifying Relative. 239

c.            Alternative Means to Immigrate. 240

6.           Exercise of Discretion. 240

7.           Dependents 240

C.          Ineligibility for Cancellation. 241

1.           Certain Crewmen and Exchange Visitors. 241

2.           Security Grounds 241

3.           Persecutors 241

4.           Previous Grants of Relief 242

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

E.          Ten-Year Bars to Cancellation. 243

1.           Failure to Appear 243

2.           Failure to Depart 243

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

G.          NACARA Special Rule Cancellation. 245

1.           NACARA Does Not Violate Equal Protection. 248

2.           NACARA Deadlines 248

3.           Judicial Review.. 249

H.          Abused Spouse or Child Provision. 249

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

A.          Eligibility Requirements 251

1.           Continuous Physical Presence. 252

a.           Jurisdiction. 252

b.           Standard of Review.. 252

c.            Proof 252

d.           Departures: 90/180 Day Rule. 253

e.            Brief, Casual, and Innocent Departures 253

f.            Deportation. 253

g.           IIRIRA Stop-Time Rule. 253

h.           Pre-IIRIRA Rule on Physical Presence. 254

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

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

k.           Repapering. 257

2.           Good Moral Character 257

a.           Jurisdiction. 257

b.           Time Period Required. 258

c.            Per Se Exclusion Categories. 258

3.           Extreme Hardship Requirement 258

a.           Jurisdiction. 258

b.           Qualifying Individual 259

c.            Extreme Hardship Factors 259

d.           Current Evidence of Hardship. 261

4.           Ultimate Discretionary Determination. 261

B.          Abused Spouses and Children Provision. 262

C.          Ineligibility for Suspension. 262

1.           Certain Crewmen and Exchange Visitors. 262

2.           Participants in Nazi Persecutions or Genocide. 263

3.           Noncitizens in Exclusion Proceedings. 263

D.          Five-Year Bars to Suspension. 263

1.           Failure to Appear 263

2.           Failure to Depart 263

E.          Retroactive Elimination of Suspension of Deportation. 264

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

A.          Overview.. 265

B.          Eligibility Requirements 266

1.           Seven Years. 266

2.           Balance of Equities. 267

C.          Deportation: Comparable Ground of Exclusion. 268

D.          Removal: Comparable Ground of Inadmissibility. 268

E.          Ineligibility for Relief 268

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

1.           IMMACT 90. 269

a.           Continued Eligibility for Relief 269

2.           AEDPA.. 270

a.           Continued Eligibility for Relief 270

3.           IIRIRA.. 271

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

b.           Continued Eligibility for Relief 272

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

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

(iii)       Similarly Situated Noncitizens Treated Differently. 274

c.            Ineligibility for Relief 274

(i)          Plea Agreements after IIRIRA.. 274

(ii)         Plea Agreements after AEDPA.. 274

(iii)       Convictions After Trial 275

(iv)       Pre-IIRIRA Criminal Conduct 275

(v)         Terrorist Activity. 276

G.          Expanded Definition of Aggravated Felony. 276

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

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

ADJUSTMENT OF STATUS. 281

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

A.          Eligibility for Permanent Residence. 283

1.           Visa Petition. 283

2.           Priority Date. 285

3.           Admissibility. 286

B.          ELIGIBILITY FOR ADJUSTMENT OF STATUS PROCESS. 287

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

a.           Exception for Immediate Relatives. 289

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

c.            Unlawful Employment Exception. 290

2.           Discretion. 291

C.          Adjustment of Status Application Pending. 292

D.          Adjustment of Status Application Approved. 292

 

 


RELIEF FROM REMOVAL

ASYLUM, WITHHOLDING OF REMOVAL and the CONVENTION AGAINST TORTURE

I.       THE CONTEXT

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

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

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

INS v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987) (quoting 8 U.S.C. § 1101(a)(42)(A)); see also 8 C.F.R. § 1208.13; Parada v. Sessions, 902 F.3d 901, 909 (9th Cir. 2018) (“To be eligible for asylum, Quiroz Parada must establish that he is a refugee—namely, that he is unable or unwilling to return to El Salvador because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” (internal quotation marks and citation omitted); Guo v. Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018) (to qualify for asylum, a petitioner must show he is a refugee); Ming Dai v. Sessions, 884 F.3d 858, 866 (9th Cir. 2018) (“Asylum is available to refugees—that is, anyone who is unable or unwilling to avail himself or herself of the protection of [his or her native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” (internal quotation marks and citation omitted)); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc) (“An applicant qualifies as a refugee if he is unable or unwilling to return to his home country because of a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” (internal quotation marks and citation omitted)); Rusak v. Holder, 734 F.3d 894, 896 (9th Cir. 2013); Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) (quoting 8 U.S.C. § 1101(a)(42)(A)).  An applicant may apply for asylum if she is “physically present in the United States” or at the border.  8 U.S.C. § 1158(a)(1).  Individuals seeking protection from outside the United States may apply for refugee status under 8 U.S.C. § 1157.

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

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

Deloso v. Ashcroft, 393 F.3d 858, 863–64 (9th Cir. 2005) (internal citations and quotation marks omitted); see also Bringas-Rodriguez, 850 F.3d at 1062; Hanna v. Keisler, 506 F.3d 933, 937 (9th Cir. 2007).

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

II.      ASYLUM

A.      Burden of Proof

An applicant bears the burden of establishing that he or she is eligible for asylum.  8 C.F.R. § 208.13(a); see also Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020) (“An applicant for asylum and withholding of removal bears the burden of establishing eligibility.”); Aguilar Fermin v. Barr, 958 F.3d 887, 892 (9th Cir. 2020) (“Aguilar bears the burden to establish eligibility for relief.” (citing 8 C.F.R. § 208.13(a)), cert. denied sub nom. Fermin v. Barr, 141 S. Ct. 664 (2020); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (the applicant “bears the burden of proving eligibility for asylum and must demonstrate that he has suffered past persecution or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”); Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir. 2011) (petitioner bears the burden of establishing his eligibility for asylum); Halim v. Holder, 590 F.3d 971, 975 (9th Cir. 2009); Zhu v. Mukasey, 537 F.3d 1034, 1038 (9th Cir. 2008) (same); Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008) (“As an applicant for … asylum, [petitioner] bears the burden of proving that he is eligible for the discretionary relief he is seeking.”).  Section 101(a)(3) of the REAL ID Act, Pub. L. 109-13, 119 Stat. 231, codified this standard.  See 8 U.S.C. § 1158(b)(1)(B)(i) (as amended and applicable to all applications filed on or after May 11, 2005).

“An applicant alleging past persecution has the burden of establishing that (1) his treatment rises to the level of persecution; (2) the persecution was on account of one or more protected grounds; and (3) the persecution was committed by the government, or by forces that the government was unable or unwilling to control.”  Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010); see also Guo v. Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018); Ming Dai v. Sessions, 884 F.3d 858, 867 (9th Cir. 2018); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc); Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir. 2016) (“An asylum or withholding applicant’s burden includes (1) ‘demonstrating the existence of a cognizable particular social group,’ (2) ‘his membership in that particular social group,’ and (3) ‘a risk of persecution on account of his membership in the specified particular social group.’  The third element is often referred to as the “nexus” requirement.”); Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir. 2013); Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir. 2013).

“If a noncitizen establishes past persecution, ‘a rebuttable presumption of a well-founded fear arises, and the burden shifts to the government to demonstrate that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear.’”  Ming Dai, 884 F.3d at 867 (quoting Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004)); see also Davila, 968 F.3d at 1141; Guo, 897 F.3d at 1213.

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

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

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

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

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

B.      Defining Persecution

The term “persecution” is not defined by the Immigration and Nationality Act.  “Our caselaw characterizes persecution as an extreme concept, marked by the infliction of suffering or harm … in a way regarded as offensive.”  Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc) (internal quotation marks omitted); see also Kaur v. Wilkinson, 986 F.3d 1216 (9th Cir. 2021) (“Persecution is an extreme concept and has been defined as the infliction of suffering or harm ... in a way regarded as offensive.” (internal quotation marks and citation omitted)); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (“Persecution is an extreme concept that does not include every sort of treatment our society regards as offensive.” (internal quotation marks and citation omitted)); Guo v. Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018) (“Persecution is an extreme concept and has been defined as the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.” (quotation marks and citation omitted)); He v. Holder, 749 F.3d 792, 796 (9th Cir. 2014) (“Persecution is an ‘extreme concept.’”); Mendoza-Pablo v. Holder, 667 F.3d 1308, 1313 (9th Cir. 2012); Li v. Holder, 559 F.3d 1096, 1107 (9th Cir. 2009).  Persecution covers a range of acts and harms, and “[t]he determination that actions rise to the level of persecution is very fact-dependent.”  Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000).  Minor disadvantages or trivial inconveniences do not rise to the level of persecution.  Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969).

Cross-reference: Forms of Persecution.

1.       Cumulative Effect of Harms

The cumulative effect of harms and abuses that might not individually rise to the level of persecution may support an asylum claim.  See Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998) (finding persecution where Ukranian Jew witnessed violent attacks, and suffered extortion, harassment, and threats by anti-Semitic ultra-nationalists).  The court “look[s] at the totality of the circumstances in deciding whether a finding of persecution is compelled.”  Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004) (finding persecution where Chinese Christian was arrested, detained twice, physically abused, and forced to renounce religion).  See also Guo v. Sessions, 897 F.3d 1208, 1212–17 (9th Cir. 2018) (where the record was considered as a whole, it compelled the conclusion that petitioner suffered past religious persecution).

See also Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir. 2021) (holding petitioner did not demonstrate past persecution, even when his claims of generalized physical attacks, contradictory testimony of death threats, unspecified economic harm, and unsubstantiated psychological harm were considered cumulatively); Vitug v. Holder, 723 F.3d 1056, 1065–66 (9th Cir. 2013) (“[N]o reasonable factfinder could conclude that the harm Vitug suffered did not rise to the level of persecution in light of the cumulative effect of multiple instances of physical harm and victimization.  Thus, we presume that Vitug is eligible for withholding of removal relief.”); Ahmed v. Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007) (“Where an asylum applicant suffers [physical harm] on more than one occasion, and … victimized at different times over a period of years, the cumulative effect of the harms is severe enough that no reasonable fact-finder could conclude that it did not rise to the level of persecution.”); Krotova v. Gonzales, 416 F.3d 1080, 1087 (9th Cir. 2005) (“The combination of sustained economic pressure, physical violence and threats against Petitioner and her close associates, and the restrictions on Petitioner’s ability to practice her religion cumulatively amount to persecution.”); Tchoukhrova v. Gonzales, 404 F.3d 1181, 1192–95 (9th Cir. 2005) (disposal of disabled newborn child in waste pile of human remains, confinement in a filthy state-run institution with little human contact, violence, and discrimination, including the denial of medical care and public education amounted cumulatively to persecution), rev’d on other grounds, 549 U.S. 801 (2006) (mem.); Mashiri v. Ashcroft, 383 F.3d 1112, 1120–21 (9th Cir. 2004) (death threats, violence against family, vandalism of residence, threat of mob violence, economic harm and emotional trauma suffered by ethnic-Afghan family in Germany); Narayan v. Ashcroft, 384 F.3d 1065, 1066–67 (9th Cir. 2004) (Indo-Fijian attacked and stabbed, denied medical treatment and police assistance, and home burglarized); Faruk v. Ashcroft, 378 F.3d 940, 942 (9th Cir. 2004) (mixed-race, mixed-religion Fijian couple beaten, attacked, verbally assaulted, assailed with rocks, repeatedly threatened, and denied marriage certificate); Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir. 2004) (severe harassment, threats, economic hardship, violence and discrimination against Israeli Arab and his family); Gui v. INS, 280 F.3d 1217, 1229 (9th Cir. 2002) (harassment, wiretapping, staged car crashes, detention, and interrogation of anti-communist Romanian constituted persecution); Popova v. INS, 273 F.3d 1251, 1258–58 (9th Cir. 2001) (anti-communist Bulgarian was harassed, fired, interrogated, threatened, assaulted and arrested); Surita v. INS, 95 F.3d 814, 819–21 (9th Cir. 1996) (Indo-Fijian robbed multiple times, compelled to quit job, and family home looted); Singh v. INS, 94 F.3d 1353, 1360 (9th Cir. 1996) (Indo-Fijian family harassed, assaulted and threatened).

2.       No Subjective Intent to Harm Required

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

3.       Forms of Persecution

a.       Physical Violence

“The hallmarks of persecutory conduct include, but are not limited to, the violation of bodily integrity and bodily autonomy.”  Kaur v. Wilkinson, 986 F.3d 1216 (9th Cir. 2021).  Various forms of physical violence, including rape, torture, assault, and beatings, amount to persecution.  See Chand v. INS, 222 F.3d 1066, 1073–74 (9th Cir. 2000) (“Physical harm has consistently been treated as persecution.”); see also Ming Dai v. Sessions, 884 F.3d 858, 870 (9th Cir. 2018) (“It is well established that physical violence is persecution.”); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc) (“no dispute that the brutal beatings and rapes that Bringas suffered as a child rise to the level of persecution”); Song v. Sessions, 882 F.3d 837, 841 (9th Cir. 2017) (as amended) (no dispute that Song experienced past persecution at the hands of the local government, where he was tortured and beaten by police, and by his cell mates at the encouragement of the police, forced to stay in a squatting position all night, and, when he refused to cooperate with interrogators, he was beaten until he could not walk); Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1079 (9th Cir. 2015) (stating that the IJ and BIA did not appear to question that the past assaults and rape of Avendano-Hernandez rose to the level of torture, where Avendano-Hernandez was raped, forced to perform oral sex, beaten severely, and threatened); Li v. Holder, 559 F.3d 1096, 1107 (9th Cir. 2009) (well established that physical violence constitutes persecution); Ahmed v. Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007) (same).

The cultural practice of female genital mutilation constitutes persecution.  See Abebe v. Gonzales, 432 F.3d 1037, 1042 (9th Cir. 2005) (en banc); Benyamin v. Holder, 579 F.3d 970, 976 (9th Cir. 2009) (“It is well-settled in this circuit that female genital mutilation constitutes persecution sufficient to warrant asylum relief.”).

An applicant’s failure to “seek medical treatment for the [injury] suffered is hardly the touchstone of whether [the harm] amounted to persecution.”  Lopez v. Ashcroft, 366 F.3d 799, 803 (9th Cir. 2004) (applicant tied up by guerillas and left to die in burning building, coupled with subsequent death threats, amounted to past persecution despite failure to seek medical treatment); see also Guo v. Sessions, 897 F.3d 1208, 1215 (9th Cir. 2018) (“[A] beating may constitute persecution, even when there are no long-term effects and the [petitioner] does not seek medical attention.” (internal quotation marks and citation omitted)); Ming Dai, 884 F.3d at 870 (“An applicant may establish persecution through physical abuse even if he does not seek medical treatment[.]”).  Moreover, the absence of serious bodily injury is not necessarily dispositive.  See Guo, 897 F.3d at 1215 (explaining beating may amount to persecution even if there are no long-term effects, and finding past persecution even though petitioner suffered no permanent injuries, in part because police beat him with a baton, leaving him unable to stand on his own, such that he felt it was necessary to be examined at a hospital after his release from police custody two days after the beating).  See, e.g., Quan v. Gonzales, 428 F.3d 883, 888–89 (9th Cir. 2005) (“Using an electrically-charged baton on a prisoner … may constitute persecution, even when there are no long-term effects and the prisoner does not seek medical attention.”); Mihalev v. Ashcroft, 388 F.3d 722, 730 (9th Cir. 2004) (10-day detention, accompanied by daily beatings and hard labor constituted persecution).

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

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

(i)      Physical Violence Sufficient to Constitute Persecution

Parada v. Sessions, 902 F.3d 901, 909–10 (9th Cir. 2018) (holding that harm petitioner suffered, such as “his brother’s assassination, the murder of his neighbor as a result of his own family being targeted, his experience being captured and beaten to the point of unconsciousness, repeated forced home invasions, and specific death threats toward his family” amounted to persecution); Guo v. Sessions, 897 F.3d 1208, 1215 (9th Cir. 2018) (finding past persecution based on totality of circumstances where petitioner suffered physical harm, in addition to being forced to abandon his religious worship; as to the physical harm, petitioner testified that while in police custody, he suffered repeated baton blows that left him unable to stand on his own, such that police had to help him back to his cell, and he felt it was necessary to be examined at a hospital after his release two days after the beating); Ming Dai v. Sessions, 884 F.3d 858, 870 (9th Cir. 2018) (holding the harm Dai suffered well surpassed the established level of persecution where he was forcibly pushed to the ground twice, repeatedly punched in the stomach while handcuffed, jailed for ten days, fed very little food and water, deprived of sleep through interrogation, and suffered an injured shoulder and broken ribs); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc) (“no dispute that the brutal beatings and rapes that Bringas suffered as a child rise to the level of persecution”); Song v. Sessions, 882 F.3d 837, 841 (9th Cir. 2017) (as amended) (no dispute that Song experienced past persecution at the hands of the local government, where he was tortured and beaten by police, and by his cell mates at the encouragement of the police, forced to stay in a squatting position all night, and, when he refused to cooperate with interrogators, he was beaten until he could not walk); Bondarenko v. Holder, 733 F.3d 899, 908–09 (9th Cir. 2013) (detained three times, severely beaten, hit in the head with such force that he was hospitalized for three days); Vitug v. Holder, 723 F.3d 1056, 1065–66 (9th Cir. 2013) (beaten multiple times over a period of years, and personally experienced being threatened and harassed by police in the Philippines); Benyamin v. Holder, 579 F.3d 970, 977 (9th Cir. 2009) (the female genital mutilation that petitioner’s daughter suffered undoubtedly constituted past persecution); Li v. Holder, 559 F.3d 1096, 1107–08 (9th Cir. 2009) (petitioner was  repeatedly hit by police officers in the face, kicked in the head and stomach, left bloodied and handcuffed exposed to freezing temperatures, and endured police-sanctioned beatings during fifteen days of confinement); Ahmed v. Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007) (native of Bangladesh suffered beatings by police or army on three occasions, combined with detentions and threats); Fedunyak v. Gonzales, 477 F.3d 1126, 1129 (9th Cir. 2007) (Ukrainian national experienced beatings and death threats rising to the level of persecution); Guo v. Ashcroft, 361 F.3d 1194, 1197, 1203 (9th Cir. 2004) (two arrests and repeated beatings constituted persecution); Mamouzian v. Ashcroft, 390 F.3d 1129, 1134 (9th Cir. 2004) (repeated physical abuse combined with detentions and threats); Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1072 (9th Cir. 2004) (gang raped by Guatemalan soldiers); Hoque v. Ashcroft, 367 F.3d 1190, 1197–98 (9th Cir. 2004) (Bangladeshi kidnaped, beaten and stabbed); Kebede v. Ashcroft, 366 F.3d 808, 812 (9th Cir. 2004) (Ethiopian raped by soldiers); Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc) (Chinese applicant subjected to physically invasive and emotionally traumatic forced pregnancy examination); Rios v. Ashcroft, 287 F.3d 895, 900 (9th Cir. 2002) (Guatemalan kidnaped and wounded by guerillas and husband and brother killed); Agbuya v. INS, 241 F.3d 1224, 1227–28 (9th Cir. 2001) (Filipino kidnaped by New People’s Army, falsely imprisoned, hit, threatened with a gun); Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir. 2000) (Indian Sikh arrested and tortured, including electric shocks), superseded by statute on other grounds as stated by Aden v. Holder, 589 F.3d 1040, 1044 (9th Cir. 2009); Gafoor v. INS, 231 F.3d 645, 650 (9th Cir. 2000) (Indo-Fijian assaulted in front of family, held captive for a week and beaten unconscious), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739–40 (9th Cir. 2009); Salaam v. INS, 229 F.3d 1234, 1240 (9th Cir. 2000) (per curiam) (politically active Nigerian arrested, tortured and scarred); Shoafera v. INS, 228 F.3d 1070, 1074 (9th Cir. 2000) (ethnic Amhara Ethiopian beaten and raped at gunpoint); Bandari v. INS, 227 F.3d 1160, 1168 (9th Cir. 2000) (Iranian beaten repeatedly and falsely accused of rape); Chand v. INS, 222 F.3d 1066, 1073–74 (9th Cir. 2000) (Indo-Fijian attacked repeatedly, robbed, and forced to leave home); Maini v. INS, 212 F.3d 1167, 1174 (9th Cir. 2000) (inter-faith Indian family subjected to physical attacks, death threats, and harassment at home, school and work); Duarte de Guinac v. INS, 179 F.3d 1156, 1161–62 (9th Cir. 1999) (repeated beatings and severe verbal harassment in the Guatemalan military); Prasad v. INS, 101 F.3d 614, 617 (9th Cir. 1996) (Indo-Fijian jailed, beaten, and subjected to sadistic and degrading treatment); Lopez-Galarza v. INS, 99 F.3d 954, 960 (9th Cir. 1996) (Nicaraguan raped by Sandinista soldiers, abused, deprived of food and subjected to forced labor).

(ii)     Physical Violence Insufficient to Constitute Persecution

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

b.      Torture

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

c.       Threats

The court will “generally look at all of the surrounding circumstances to determine whether … threats are actually credible and rise to the level of persecution.”  Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019).  Threats of serious harm, particularly when combined with confrontation or other mistreatment, may constitute persecution.  See, e.g., id. (stating the court has “been most likely to find persecution where threats are repeated, specific and combined with confrontation or other mistreatment.”); Mashiri v. Ashcroft, 383 F.3d 1112, 1120–21 (9th Cir. 2004) (death threats, violence against family, vandalism of residence, threat of mob violence, economic harm and emotional trauma suffered by ethnic Afghan family in Germany).  “Death threats alone can constitute persecution[.]”  Kaur v. Wilkinson, 986 F.3d 1216 (9th Cir. 2021).  “Threats on one’s life, within a context of political and social turmoil or violence, have long been held sufficient to satisfy a petitioner’s burden of showing an objective basis for fear of persecution.”  Kaiser v. Ashcroft, 390 F.3d 653, 658 (9th Cir. 2004).  “What matters is whether the group making the threat has the will or the ability to carry it out.”  Id.

“Unfulfilled threats are very rarely sufficient to rise to the level of persecution … .”  Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir. 2021).  However, the fact that threats are unfulfilled is not necessarily dispositive.  See id. at 658–59.  See also Mendoza-Pablo v. Holder, 667 F.3d 1308, 1314 (9th Cir. 2012) (recognizing that being forced to flee home in face of immediate threat of violence or death may constitute persecution, as long as persecutor’s actions are motivated by a protected ground).  But see Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (unfulfilled threats received by ethnic Albanian “constitute harassment rather than persecution”).

(i)      Cases Holding Threats Establish Persecution

See Kaur v. Wilkinson, 986 F.3d 1216 (9th Cir. 2021) (attempted rape of petitioner, in addition to death threats and violence against parents, demonstrated past persecution); Parada v. Sessions, 902 F.3d 901, 909–10 (9th Cir. 2018) (holding that harm petitioner suffered, such as “his brother’s assassination, the murder of his neighbor as a result of his own family being targeted, his experience being captured and beaten to the point of unconsciousness, repeated forced home invasions, and specific death threats toward his family” amounted to persecution); Vitug v. Holder, 723 F.3d 1056, 1065–66 (9th Cir. 2013) (beaten multiple times over a period of years, and personally experienced being threatened and harassed by police in the Philippines); Ahmed v. Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007) (native of Bangladesh suffered beatings by police or army on three occasions, combined with detentions and threats); Fedunyak v. Gonzales, 477 F.3d 1126, 1129 (9th Cir. 2007) (Ukrainian national experienced beatings and death threats rising to the level of persecution); Canales-Vargas v. Gonzales, 441 F.3d 739, 745 (9th Cir. 2006) (Peruvian national who received anonymous death threats fifteen years ago demonstrated an at least one-in-ten chance of future persecution sufficient to establish a well-founded fear); Ndom v. Ashcroft, 384 F.3d 743, 751–52 (9th Cir. 2004) (Senegalese native subjected to severe death threats coupled with two lengthy detentions without formal charges), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739–40 (9th Cir. 2009); Deloso v. Ashcroft, 393 F.3d 858, 860–61 (9th Cir. 2005) (Filipino applicant attacked, threatened with death, followed, and store ransacked); Khup v. Ashcroft, 376 F.3d 898, 904 (9th Cir. 2004) (threats, combined with anguish suffered as a result of torture and killing of fellow Burmese Christian preacher); Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir. 2004) (severe harassment, threats, violence and discrimination against Israeli Arab and family amounted to persecution); Ruano v. Ashcroft, 301 F.3d 1155, 1160–61 (9th Cir. 2002) (Guatemalan who faced multiple death threats at home and business, “closely confronted” and actively chased); Salazar-Paucar v. INS, 281 F.3d 1069, 1074–75, as amended by 290 F.3d 964 (9th Cir. 2002) (multiple death threats, harm to family, and murders of counterparts by Shining Path guerillas); Chouchkov v. INS, 220 F.3d 1077, 1083–84 (9th Cir. 2000) (Russian who suffered harassment, including threats, attacks on family, intimidation, and thefts); Shah v. INS, 220 F.3d 1062, 1072 (9th Cir. 2000) (Indian applicant’s politically active husband killed, and she and family threatened repeatedly); Navas v. INS, 217 F.3d 646, 658 (9th Cir. 2000) (“we have consistently held that death threats alone can constitute persecution;” Salvadoran threatened, shot at, family members killed, mother beaten); Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000) (“[T]he determination that actions rise to the level of persecution is very fact-dependent, … though threats of violence and death are enough.”); Reyes-Guerrero v. INS, 192 F.3d 1241, 1246 (9th Cir. 1999) (multiple death threats faced by Colombian prosecutor); Del Carmen Molina v. INS, 170 F.3d 1247, 1249 (9th Cir. 1999) (two death threats from Salvadoran guerillas, and cousins and their families killed); Garrovillas v. INS, 156 F.3d 1010, 1016–17 (9th Cir. 1998) (if credible, three death threat letters received by former Filipino military agent would appear to constitute past persecution); Gonzales-Neyra v. INS, 122 F.3d 1293, 1295–96 (9th Cir. 1997) (suggesting that threats to life and business based on opposition to Shining Path constituted past persecution), as amended by 133 F.3d 726 (9th Cir. 1998) (order); Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997) (Indian Sikh threatened, home burglarized, and father beaten); Gonzalez v. INS, 82 F.3d 903, 910 (9th Cir. 1996) (Nicaraguan threatened with death by Sandinistas, house marked, ration card appropriated, and family harassed); see also Mendoza-Pablo v. Holder, 667 F.3d 1308, 1314–15 (9th Cir. 2012) (holding that infant was victim of persecution, as a result of the persecution of petitioner’s mother who was forced to flee home in face of immediate threat of violence or death).

(ii)     Cases Holding Threats Not Persecution

See Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir. 2021) (“While [petitioner’s] father was once threatened by a group of Sunni Muslims (not the Taliban), no harm ever came to his father, mother, or siblings” and petitioner’s testimony and documentation did not support assertion on appeal that he received death threats); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (evidence of a threat over the phone, and another in person, over the course of two days, by men believed to be hitmen, did not compel the conclusion that petitioner suffered past persecution); Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1171–72 (9th Cir. 2006) (vague and conclusory allegations regarding threats insufficient to establish a well-founded fear of persecution); Ramadan v. Gonzales, 479 F.3d 646, 658 (9th Cir. 2007) (per curiam) (threats of harm too speculative to meet much higher threshold for withholding of removal); Nahrvani v. Gonzales, 399 F.3d 1148, 1153–54 (9th Cir. 2005) (two “serious” but anonymous threats coupled with harassment and de minimis property damage); Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 870 n.6 (9th Cir. 2003) (“unspecified threats” received by Mexican national not “sufficiently menacing to constitute past persecution”); Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (unfulfilled threats received by ethnic Albanian “constitute harassment rather than persecution”); Lim v. INS, 224 F.3d 929, 936–37 (9th Cir. 2000) (mail and telephone threats received by former Filipino intelligence officer); Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir. 1986) (anonymous threat received by Salvadoran military musician).

d.      Detention

Detention and confinement may constitute persecution.  See Bondarenko v. Holder, 733 F.3d 899, 908–09 (9th Cir. 2013) (detained three times, severely beaten, hit in the head with such force that he was hospitalized for three days); Ahmed v. Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007) (native of Bangladesh suffered “detentions, beatings, and threats” that were disproportionate to his political activities, and rose to the level of persecution); Ndom v. Ashcroft, 384 F.3d 743, 752 (9th Cir. 2004) (Senegalese applicant threatened and detained twice under harsh conditions for a total of 25 days established persecution), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739–40 (9th Cir. 2009); Kalubi v. Ashcroft, 364 F.3d 1134, 1136 (9th Cir. 2004) (imprisonment in over-crowded Congolese jail cell with harsh, unsanitary and life-threatening conditions established past persecution); see also Pitcherskaia v. INS, 118 F.3d 641, 646 (9th Cir. 1997) (suggesting that forced institutionalization of Russian lesbian could amount to persecution).

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

e.       Mental, Emotional, and Psychological Harm

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

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

f.       Substantial Economic Deprivation

Substantial economic deprivation that constitutes a threat to life or freedom may constitute persecution.  See Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir. 2021) (holding that although petitioner undoubtedly experienced hardship when his shop burned, and he lost jewelry stock during a convoy attack, substantial evidence supported BIA’s determination that petitioner did not suffer persecution based on economic harm); Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir. 2004) (severe harassment, threats, violence and discrimination made it virtually impossible for Israeli Arab to earn a living).  The absolute inability to support one’s family is not required.  Id.  See also Ming Dai v. Sessions, 884 F.3d 858, 870 (9th Cir. 2018) (“In addition to the physical harm he suffered, Dai lost his job as a result of this occurrence.  Such economic harm can contribute to a finding of persecution.”); He v. Holder, 749 F.3d 792, 796 (9th Cir. 2014) (defining economic persecution as “substantial economic deprivation that interferes with the applicant’s livelihood” and concluding that petitioner failed to establish economic persecution).

See also Vitug v. Holder, 723 F.3d 1056, 1065 (9th Cir. 2013) (“Vitug also faced the “deprivation of ... employment,” which the IJ noted the BIA has found to be another form of persecution.”); Tawadrus v. Ashcroft, 364 F.3d 1099, 1106 (9th Cir. 2004) (Egyptian Coptic Christian had a “potentially viable” asylum claim based on government-imposed economic sanctions); El Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir. 2004) (as amended) (granting withholding of removal to stateless Palestinians born in Kuwait based on likelihood of extreme state-sponsored economic discrimination); Surita v. INS, 95 F.3d 814, 819–21 (1996) (Indo-Fijian robbed, threatened, compelled to quit job, and house looted by soldiers); Gonzalez v. INS, 82 F.3d 903, 910 (9th Cir. 1996) (threats by Sandinistas, violence against family, and seizure of family land, ration card, and ability to buy business inventory); Desir v. Ilchert, 840 F.2d 723, 727–29 (9th Cir. 1988) (considering impact of extortion by government security forces on Haitian fisherman’s ability to earn livelihood); Samimi v. INS, 714 F.2d 992, 995 (9th Cir. 1983) (seizure of land and livelihood could contribute to a finding of persecution); Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969) (persecution may encompass “a deliberate imposition of substantial economic disadvantage”).

However, “mere economic disadvantage alone does not rise to the level of persecution.”  Gormley v. Ashcroft, 364 F.3d 1172, 1178 (9th Cir. 2004) (loss of employment pursuant to South Africa’s affirmative action plan did not amount to persecution); see also Hussain, 985 F.3d at 647 (holding that although petitioner undoubtedly experienced hardship when his shop burned, and he lost jewelry stock during a convoy attack, substantial evidence supported BIA’s determination that petitioner did not suffer persecution based on economic harm); Castro-Martinez v. Holder, 674 F.3d 1073, 1082 (9th Cir. 2011) (“Generalized economic disadvantage” does not rise to the level of persecution.” (internal quotation marks and citation omitted)), overruled on other grounds by Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc); Zehatye v. Gonzales, 453 F.3d 1182, 1186 (9th Cir. 2006) (Eritrean government’s seizure of father’s business, along with some degree of social ostracism, did not rise to the level of persecution); Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (employment discrimination faced by Ukrainian Christian did not rise to level of persecution); Khourassany v. INS, 208 F.3d 1096, 1101 (9th Cir. 2000) (forced closing of Palestinian Israeli’s restaurant, when he continued to operate other businesses, did not constitute persecution); Ubau-Marenco v. INS, 67 F.3d 750, 755 (9th Cir. 1995) (confiscation of Nicaraguan family business by Sandinistas may not be enough to support finding of economic persecution), overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc); Saballo-Cortez v. INS, 761 F.2d 1259, 1264 (9th Cir. 1985) (denial of food discounts and special work permit by Sandinistas did not amount to persecution); Raass v. INS, 692 F.2d 596 (9th Cir. 1982) (asylum claim filed by Tonga Islanders required more than “generalized economic disadvantage”).

g.       Discrimination and Harassment

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

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

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

4.       Age of the Victim

“Age can be a critical factor in the adjudication of asylum claims and may bear heavily on the question of whether an applicant was persecuted or whether she holds a well-founded fear of future persecution.”  Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007) (internal quotation marks and citation omitted).  “[A] child’s reaction to injuries to his family is different from an adult’s.  The child is part of the family, the wound to the family is personal, the trauma apt to be lasting.”  Id.  (joining the Second, Sixth, and Seventh Circuits in affirming legal rule that injuries to a family must be considered in an asylum case where events that form the basis of the past persecution claim were perceived when petitioner was a child).  See also Rusak v. Holder, 734 F.3d 894, 897 (9th Cir. 2013) (“The abuses endured by Ms. Rusak’s parents constituted persecution of them, and Ms. Rusak was entitled to rely on these events to establish her own claim of past persecution because she was a child at the time.”); Mendoza-Pablo v. Holder, 667 F.3d 1308, 1312–15 (9th Cir. 2012) (recognizing that even an infant can be the victim of persecution even if he has no present recollection of the events).  The court in Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1071 (9th Cir. 2017) (en banc), recognized “that children who suffer sexual abuse are generally unlikely to report that abuse to authorities.  Because they are unlikely to report, it is similarly unlikely that country reports or other evidence will be able to document the police response, or lack thereof, to the sexual abuse of children.”  Id.

C.      Source or Agent of Persecution

In order to qualify for asylum, the source of the persecution must be the government, a quasi-official group, or persons or groups that the government is unwilling or unable to control.  See Avetovo-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000).  The fact that financial considerations may account for the state’s inability to stop the persecution is not relevant.  Id. at 1198.  However, an unsuccessful government investigation does not necessarily demonstrate that the government was unwilling or unable to control the source or agent of persecution.  See, e.g., Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005) (German police took reports and investigated incidents, but were unable to solve the crimes).  “[P]olice officers are the prototypical state actor for asylum purposes.”  Ming Dai v. Sessions, 884 F.3d 858, 870 (9th Cir. 2018) (internal quotation marks and citation omitted).

Affirmative state action is not necessary to establish a well-founded fear of persecution if the government is unable or unwilling to control the agents of persecution.  Siong v. INS, 376 F.3d 1030, 1039 (9th Cir. 2004).  In cases of non-governmental persecution, “we consider whether an applicant reported the incidents to police, because in such cases a report of this nature may show governmental inability to control the actors.”  Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004); see also Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010) (per curiam) (substantial evidence supported agency’s determination that petitioners failed to show harassment suffered as Vietnamese citizens in Italy was at the hands of the government or another group that the government was unable to control); Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (failure to report non-governmental persecution due to belief that police would do nothing did not establish that government was unwilling or unable to control agent of persecution).

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

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

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

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

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

1.       Harm Inflicted by Relatives

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

2.       Reporting of Persecution Not Always Required

When the government is responsible for the persecution, there is no need to inquire whether applicant sought help from the police.  See Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004) (Israeli Arab persecuted by Israeli Marines); Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir. 2005) (Mexican homosexual man persecuted by police).  Moreover, “an applicant who seeks to establish eligibility for [withholding] of removal under § 1231(b)(3) on the basis of past persecution at the hands of private parties the government is unwilling or unable to control need not have reported that persecution to the authorities if he can convincingly establish that doing so would have been futile or have subjected him to further abuse.”  Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006) (government officials and employees tacitly accepted abuse applicant suffered); see also Vitug v. Holder, 723 F.3d 1056, 1063–64 (9th Cir. 2013) (“While Vitug did not report these attacks, he credibly testified that it is well known in the Philippines that police harass gay men and turn a blind eye to hate crimes committed against gay men.”); Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010) (explaining that where persecutor is not a state actor, the court will consider whether the incidents were reported to police, but also recognizing that the reporting of private persecution is not an essential element to establish that government is unwilling or unable to control attackers); cf. Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (applicant failed to provide evidence sufficient to justify the failure to report alleged abuse).

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

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

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

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

3.       Cases Discussing Source or Agent of Persecution

Rahimzadeh v. Holder, 613 F.3d 916, 923 (9th Cir. 2010) (substantial evidence supported determination that Dutch authorities were willing and able to control extremists that attacked Rahimzadeh); Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1056–58 (9th Cir. 2006) (applicant arrested by Mexican police, raped by family members and family friends, and abused by co-workers on account of applicant’s 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);