Vitug v. Holder , 723 F.3d 1056 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS QUIAMBAO VITUG, No. 07-74754
Petitioner,
BIA No.
v. A095-728-132
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
DENNIS QUIAMBAO VITUG, No. 08-71038
Petitioner,
BIA No.
v. A095-728-132
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
DENNIS QUIAMBAO VITUG, No. 08-72088
Petitioner,
BIA No.
v. A095-728-132
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
2 VITUG V. HOLDER
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 7, 2013—Pasadena, California
Filed July 24, 2013
Before: Harry Pregerson, William A. Fletcher, and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Pregerson
SUMMARY*
Immigration
The panel granted in part a petition for review because the
Board of Immigration Appeals violated its factfinding
authority in reversing an immigration judge’s grant of
withholding of removal to a homosexual native and citizen of
the Philippines.
The panel held that the Board erred by engaging in its
own factfinding, rather than clear error review, in violation of
8 C.F.R. § 1003.1(d)(3)(i), when it determined that the harm
petitioner suffered did not rise to the level of past persecution,
and that the Philippine government was not unwilling or
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
VITUG V. HOLDER 3
unable to protect petitioner. The panel further held that the
Board abused its discretion by ignoring evidence.
The panel held that substantial evidence supported the
Board’s determination that petitioner failed to establish a
clear probability of torture, but it remanded for the Board to
grant withholding of removal because no reasonable
factfinder could conclude that the harm petitioner suffered
did not rise to the level of persecution, and the government
failed to meet its burden of proof to show changed country
conditions such that petitioner no longer faces a threat to his
life or freedom in the Philippines.
COUNSEL
Joanna S. McCallum, Manatt, Phelps, & Phillips, LLP, Los
Angeles, California, for Petitioner.
Carol Federighi, United States Department of Justice, Civil
Division, Office of Immigration Litigation, Washington,
D.C., for Respondent.
OPINION
PREGERSON, Circuit Judge:
Dennis Vitug, a native and citizen of the Philippines,
petitions for review of the Board of Immigration Appeals’
(“BIA”) order vacating an immigration judge’s (“IJ”) grant of
withholding of removal and protection under the Convention
Against Torture (“CAT”). We have jurisdiction under
4 VITUG V. HOLDER
8 U.S.C. § 1252. The evidence compels the conclusion that
Vitug will more likely than not be persecuted if he is removed
to the Philippines. We therefore grant the petition in part,
reversing the BIA’s denial of withholding of removal.
I. BACKGROUND
A. Factual Background
Dennis Vitug is a 37-year-old gay native and citizen of
the Philippines. From the age of three, Vitug knew he was
“different.” He was effeminate and played with Barbie dolls
and other toys meant for girls, which his family resented.
Throughout his childhood, Vitug was teased and bullied by
his classmates for “being a sissy.” When he was eight or nine
years old, Vitug was sexually abused by a man his
grandparents hired to do housework and take him to school.
This man sexually abused Vitug for two years and threatened
to kill him and his family if he ever told anyone.
In high school, Vitug continued to be teased and bullied
by his classmates because of his perceived effeminate
behavior and homosexuality. The principal called Vitug into
his office numerous times, threatening to expel him if he did
not change and “act accordingly.” School administrators also
asked Vitug’s parents to intervene or risk Vitug’s expulsion.
In 1991, after Vitug’s family lost their home in the
volcanic eruption of Mount Pinatubo, Vitug sought to live
with his extended family members, but was turned away
because of his sexual orientation. At the age of sixteen, Vitug
moved to Manila alone. He tried to find a job, but was
unsuccessful. At the age of seventeen, Vitug was drugged
and raped by a man he met at a gay bar.
VITUG V. HOLDER 5
In Manila, Vitug was harassed and threatened by police
officers while he was waiting for a public bus. The officers
targeted him because of his sexual orientation and threatened
to take him to jail for loitering if he did not give them money.
Vitug was also beaten and robbed five times on the street by
private citizens. The attackers called him derogatory names,
and two of the beatings were severe. Vitug never reported the
attacks to the police because—based on his personal
experiences with the police as well as reports of police abuse
of gay men—he feared the police would ridicule and further
victimize him.
Vitug first came to the United States in 1996 on a tourist
visa. Six months later, when his visa expired, he returned to
the Philippines. Vitug again tried to find a job in Manila but
was unsuccessful because of his sexual orientation. In 1999,
Vitug returned to the United States. This time he remained,
overstaying his tourist visa. Vitug worked as an assistant
designer and as an auditor for the Radisson Hotel in Sherman
Oaks, California.
Around 2001, Vitug became addicted to crystal
methamphetamine. Despite seeking drug counseling and
rehabilitation for his addiction, Vitug repeatedly relapsed and
was arrested several times for drug possession. Despite these
setbacks, Vitug worked as a shipping clerk and enrolled in
Los Angeles Trade Technical College, taking fashion design
courses.
In 2005, Vitug was diagnosed with HIV. This diagnosis
led to depression and another drug relapse. Vitug was
subsequently arrested again for possession of
methamphetamine, and sentenced to one year in state prison.
After serving eight months of his sentence, Vitug was served
6 VITUG V. HOLDER
with a Notice to Appear in immigration court. The
Department of Homeland Security (“DHS”) charged Vitug
with being removable on the grounds that he overstayed his
visa and was convicted of a controlled substance offense.
B. Procedural History
In April 2007, Vitug appeared pro se in immigration
court. Vitug admitted the charges against him and applied for
asylum, withholding of removal, and CAT relief based on his
sexual orientation and HIV-positive status.
At Vitug’s June 2007 merits hearing, the IJ found Vitug
to be credible. The IJ made factual findings based on Vitug’s
testimony and documentary evidence that Vitug had
provided. The documentary evidence included articles about
an organized raid by the Philippine National Police on a
theater frequented by gay men. During this raid, police beat
patrons, stole their money, and arrested them for “public
scandal” or immoral or indecent activity. The IJ’s findings
included:
(1) Vitug was beaten and robbed five times in
Manila after being targeted as a homosexual.
Two of these beatings were severe.
(2) While waiting for the bus in Manila,
Vitug was harassed by police officers on
account of his perceived sexual orientation.
The officers threatened to arrest him for
loitering if he did not give them money.
VITUG V. HOLDER 7
(3) Vitug was unable to find a job in the
Philippines on account of his sexual
orientation.
(4) The police will not do anything to help
gay men who report abuse but will rather
ridicule them and tell them they deserve it.
(5) The government has failed or refused to
protect gay men from persecution.
At the hearing, the government agreed that Vitug was
credible. The government did not present any evidence to
contradict Vitug’s testimony or documentary evidence.
However, it did note that Vitug’s documentary evidence
included accounts of gay and lesbian activism in the
Philippines and a recently passed Quezon city ordinance
prohibiting sexual orientation discrimination in the
workplace.
The IJ held that Vitug was persecuted on account of his
membership in the social group of homosexual Filipino men.1
The IJ noted that the government did not prove that country
conditions had improved or that Vitug could internally
relocate within the Philippines to avoid future persecution.
The IJ concluded that Vitug would more likely than not suffer
further persecution if he was removed to the Philippines, and
therefore granted Vitug withholding of removal. The IJ also
concluded that it was more likely than not that Vitug would
be tortured in the Philippines, and therefore granted CAT
1
The IJ found that Vitug did not suffer past persecution on account of
his membership in the group of HIV-positive individuals.
8 VITUG V. HOLDER
relief. Finally, the IJ denied Vitug’s request for asylum
because of a procedural bar.
The government appealed. On November 6, 2007, the
BIA sustained DHS’s appeal, affirming the IJ’s denial of
asylum but vacating the IJ’s grant of withholding of removal
and CAT relief. In reaching its decision, the BIA did not
expressly find any of the IJ’s factual findings to be clearly
erroneous. Instead, the BIA found that Vitug “failed to meet
his burden of proof” for four major reasons: (1) Vitug failed
to prove that the attacks against him “r[o]se to the level of
past persecution”; (2) the rape was a “crime of opportunity”
and was not based on account of a protected ground; (3) “the
record does not support the conclusion that the government
would be unable or unwilling to protect [Vitug],” because
Vitug returned to the Philippines with “only limited
additional problems,” the attacks against him were illegal,
and he did not report the attacks; and (4) there was “no
evidence in the record that [Vitug] would face torture were he
to be returned to the Philippines.”
Vitug moved for reconsideration, which the BIA denied
because Vitug’s motion was one day late. The motion was
late due to a snowstorm and the grounding of FedEx’s planes.
On February 26, 2008, the BIA issued an amended order
to correct a misstatement in the original November 6, 2007
order. Vitug timely moved for reconsideration of the
amended order, arguing that the BIA failed to give due
deference to the IJ’s factfinding.
On April 22, 2008, the BIA denied Vitug’s motion for
reconsideration of the amended order. In its denial, the BIA
defended its original decision, arguing that it had properly
VITUG V. HOLDER 9
applied the clear error standard of review: “[W]e did not
determine that the Immigration Judge’s findings of facts were
clearly erroneous, including the finding that he was credible.
Therefore, we accepted the respondent’s testimony, and all
reasonable inferences that can be drawn from it, as true.”
Yet, later in the order, the BIA contradicted itself by stating
that one of the IJ’s findings —that the Philippine government
“failed or refuse[d] to protect homosexuals” from
abuse—was “clearly erroneous.” The BIA concluded that:
(1) Vitug failed to establish that the government was
unwilling or unable to protect him in light of the documentary
evidence that showed no official discrimination, Vitug’s
testimony that he was never “harmed” by the police, and
Vitug’s failure to report any of his attacks; (2) on the record
before it, the facts were insufficient for Vitug to carry his
burden of proving past persecution; and (3) on the record
before it, the facts were insufficient for Vitug to prove that it
was more likely than not he would be persecuted if he
returned to the Philippines.
II. STANDARD OF REVIEW
Our review is limited to the BIA’s decision where the
BIA conducts its own review of the evidence and law,
“except to the extent that the IJ’s opinion is expressly
adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.
2006) (quoting Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th
Cir. 2000)). “Where the standard of review the BIA
employed is unclear, we may look to both the BIA’s decision
and the IJ’s oral decision as a guide to what lay behind the
BIA’s conclusion.” Benyamin v. Holder, 579 F.3d 970, 974
(9th Cir. 2009) (internal quotation marks omitted).
10 VITUG V. HOLDER
We review for substantial evidence the factual findings
underlying the BIA’s determination that a petitioner is not
eligible for withholding of removal or CAT protection.
Morales v. Gonzales, 478 F.3d 972, 977, 983 (9th Cir. 2007),
abrogated on other grounds as stated in Anaya-Ortiz v.
Holder, 594 F.3d 673, 678 (9th Cir. 2010). Under substantial
evidence review, “[t]o reverse [the BIA finding], we must
find that the evidence not only supports that conclusion, but
compels it.” Zheng v. Holder, 644 F.3d 829, 835 (9th Cir.
2011) (citation and internal quotation marks omitted).
De novo review applies to the BIA’s determinations of
questions of law and legal conclusions. Hamazaspyan v.
Holder, 590 F.3d 744, 747 (9th Cir. 2009). Whether the BIA
applied the correct standard of review to the IJ’s decision is
a question of law, and is thus reviewed de novo. Rodriguez
v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012).
III. DISCUSSION
A. BIA’s Failure to Use Proper Clear Error Standard
of Review
Under DHS regulations, the BIA may review questions of
law de novo. 8 C.F.R. § 1003.1(d)(3)(ii). The BIA has
interpreted “questions of law” to include not only pure
questions of law but also the application of a particular
standard of law to a set of facts, for example, “whether the
facts established by an alien amount to past persecution or a
well-founded fear of future persecution.” Matter of A-S-B-,
24 I. & N. Dec. 493, 496 (BIA 2008) (citation and internal
quotation marks omitted); see also Matter of V-K-, 24 I. & N.
Dec. 500, 501 (BIA 2008).
VITUG V. HOLDER 11
DHS regulations prohibit the BIA from “engag[ing] in de
novo review of findings of fact determined by an immigration
judge.” 8 C.F.R. § 1003.1(d)(3)(i). Instead, “[f]acts
determined by the immigration judge, including findings as
to the credibility of the testimony, shall be reviewed only to
determine whether the findings of the immigration judge are
clearly erroneous.” Id. “Facts include past events, but they
are not restricted to historical events.” Kaplun v. Att’y Gen.,
602 F.3d 260, 269 (3d Cir. 2010). They also include “states
of mind such as intentions and opinions,” id. (internal
quotation marks deleted), and “expressions of likelihood
based on testimony (both lay and expert) and/or documentary
evidence,” id. at 270. Where there are mixed questions of
fact and law, the BIA “must break down the inquiry into its
parts and apply the correct standard of review to the
respective components; it cannot “glue[] the two questions
together” and review the factual question de novo. Id. at 271;
see also Ridore v. Holder, 696 F.3d 907, 915–16 (9th Cir.
2012).
Further, “[t]he BIA cannot, under a clear error standard of
review, override or disregard evidence in the record and
substitute its own version of reality” or “rel[y] simply on its
own interpretation of the facts.” Ridore, 696 F.3d at 917.
Under clear error review, if the BIA rejects a finding of the IJ,
a “conclusory pronouncement” that the IJ has erred is
insufficient; “the BIA [is] obligated to explain why the IJ
clearly erred in so finding.” Id. If the IJ has left certain facts
unresolved and the BIA believes that it cannot decide the case
without them, it cannot make its own factual findings but
instead “must remand to the IJ for further factual findings.”
Rodriguez, 683 F.3d at 1173.
12 VITUG V. HOLDER
In its denial of Vitug’s second motion for reconsideration,
the BIA stated that it had applied the proper clear error
standard of review in its original decision. As we stated in
Rodriguez, however: “[w]e do not rely on the Board’s
invocation of the clear error standard; rather, when the issue
is raised, our task is to determine whether the BIA faithfully
employed the clear error standard or engaged in improper de
novo review of the IJ’s factual findings.” Id.
We conclude that in its original November 6, 2007
decision, the BIA engaged in its own factfinding. Such
factfinding was improper under Rodriguez, which dictates
that the BIA must remand to the IJ for additional factfinding
under the clear error standard of review. Id. In determining
that the attacks against Vitug did not “rise to the level of past
persecution,” the BIA made a factual finding that the IJ never
made—that “the alleged rape . . . was more a crime of
opportunity.” And in determining that “the record does not
support the conclusion that the government would be unable
or unwilling to protect [Vitug],” the BIA made additional
factual findings that the IJ never made: (1) that Vitug faced
“only limited additional problems” when he returned to the
Philippines; (2) that the abuse and attacks against Vitug in
Manila were illegal; and (3) that there was a “lack of official
discrimination against homosexuals” in the Philippines.
These are findings about past events and about the intentions
of others, and thus the BIA was not entitled to make them in
the first instance.
Moreover, the BIA abuses its discretion where it ignores
arguments or evidence. “[W]here there is any indication that
the BIA did not consider all of the evidence before it, a
catchall phrase does not suffice, and the decision cannot
stand. Such indications include misstating the record and
VITUG V. HOLDER 13
failing to mention highly probative or potentially dispositive
evidence.” Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir.
2011).
In its original decision, the BIA ignored factual findings
of the IJ that were key to the IJ’s holding: (1) that Vitug was
beaten five times on the street, and two of these beatings were
“severe”; (2) that Vitug was harassed and threatened by the
police because of his perceived sexual orientation; (3) that
Vitug was unable to obtain employment in the Philippines;
and (4) that “police [in the Philippines] will not do anything
to help gay men who report abuse.” The BIA did not reject
these findings as clearly erroneous, so its disregard of this
evidence was not only a failure to apply clear error review but
also an abuse of its discretion. Id.
We conclude that the BIA failed to apply the clear error
standard of review to the IJ’s factual findings, and also
abused its discretion by ignoring factual findings of the IJ. In
similar situations, we typically remand so that the BIA may
apply the correct standard of review and properly consider the
IJ’s factual findings. See, e.g., Ridore, 696 F.3d at 922;
Rodriguez, 683 F.3d at 1177; Brezilien v. Holder, 569 F.3d
403, 415 (9th Cir. 2009). However, we need not do so here
because, as we explain below, substantial evidence does not
support the BIA’s denial of withholding of removal. See
Baballah v. Ashcroft, 367 F.3d 1067, 1078 n.11 (9th Cir.
2004) (declining to remand for fact-finding where petitioner
showed past persecution and government made no showing
of changed circumstances).
14 VITUG V. HOLDER
B. Withholding of Removal
Withholding of removal is a form of relief from
deportation for an alien who would be persecuted on account
of her race, nationality, religion, political opinion, or
membership in a particular social group were she to return to
her native country. 8 U.S.C. § 1231(b)(3). An alien who
shows that it is “more likely than not” that she would be
persecuted on account of a protected ground by the
government or an actor the government is unable or unwilling
to control meets the requirements of withholding of removal
and may not be removed to her native country. 8 C.F.R.
§ 208.16(b)(2); Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.
2001). We have held that homosexuals are a “particular
social group,” and therefore that homosexuality is a protected
ground. See Karouni v. Gonzales, 399 F.3d 1163, 1171–72
(9th Cir. 2005).
Eligibility for withholding of removal is presumed if a
petitioner shows past persecution. Mousa v. Mukasey,
530 F.3d 1025, 1030 (9th Cir. 2008). An alien who seeks
withholding of removal “on the basis of past persecution at
the hands of private parties the government is unwilling or
unable to control need not have reported the persecution to
the authorities if he [or she] can convincingly establish that
doing so would have been futile or have subjected him [or
her] to further abuse.” Ornelas-Chavez v. Gonzales, 458 F.3d
1052, 1058 (9th Cir. 2006). To rebut the presumption
created by past persecution, the government must show by a
preponderance of the evidence that “[t]here has been a
fundamental change in circumstances such that the
[petitioner]’s life or freedom would not be threatened” or that
the petitioner could relocate internally within his home
VITUG V. HOLDER 15
country to avoid persecution. 8 C.F.R. § 1208.16(b)(1); see
also Hanna v. Keisler, 506 F.3d 933, 940 (9th Cir. 2007).
In Ahmed v. Keisler, 504 F.3d 1183 (9th Cir. 2007), we
reversed the BIA’s denial of asylum and withholding of
removal where the petitioner had been beaten three times by
the Bengali police or army on account of his political opinion.
We reasoned,
[p]hysical harm has consistently been treated
as persecution. Where an asylum applicant
suffers such harm on more than one occasion,
and, as in this case, is 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 level of persecution.
Id. at 1194 (citations omitted). In Ahmed, the government did
not rebut the presumption of withholding of removal
eligibility generated by past persecution. Thus, we concluded
that the BIA’s decision that the petitioner was not entitled to
withholding of removal was not supported by substantial
evidence. Id. at 1200.
Here, the IJ found Vitug to be credible and thus accepted
his testimony, and all reasonable inferences drawn from that
testimony, as true. At the hearing, the government agreed
that Vitug was credible and did not introduce any evidence to
contradict his testimony. On appeal, the BIA did not reject
any of the IJ’s factual findings as clearly erroneous. Thus, in
determining whether the facts in Vitug’s case compel a
finding of withholding of removal eligibility, we consider the
16 VITUG V. HOLDER
factual findings of the IJ, which were based on Vitug’s
credible testimony.
Like the petitioner in Ahmed, Vitug showed that he was
beaten multiple times over a period of years. Vitug
demonstrated that two of these beatings were severe. Vitug
also demonstrated that he is gay and perceived to be
effeminate and that his attackers called him names and beat
him because he was gay. 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. Vitug bolstered this
testimony with documentary evidence of a police raid on a
gay theater during which police beat and robbed the patrons.
Moreover, he credibly testified to his personal experience of
being threatened and harassed by police in the Philippines.
Vitug thus “convincingly establish[ed] that [reporting the
attacks] would have been futile or have subjected him to
further abuse,” thereby demonstrating that the government
was unwilling to control the attackers. Ornelas-Chavez,
458 F.3d at 1058.
In addition to being physically harmed on account of his
sexual orientation, Vitug was unable to find a job in the
Philippines because of his sexual orientation. Thus, Vitug
also faced the “deprivation of . . . employment,” which the IJ
noted the BIA has found to be another form of persecution.
Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007).
As in Ahmed, no 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
VITUG V. HOLDER 17
presume that Vitug is eligible for withholding of removal
relief.
As the IJ found, the government did not rebut the
presumption of withholding of removal eligibility by showing
either a fundamental change in country conditions or that it
was possible for Vitug to internally relocate within the
Philippines to avoid persecution. In fact, the government did
not introduce any evidence at Vitug’s hearing. The
government did refer to Vitug’s documentary evidence
regarding gay activism in the Philippines and the passage of
a local ordinance in Quezon to protect homosexuals from
employment discrimination. Such evidence, however, does
not indicate that there is any less violence against gay men or
that police have become more responsive to reports of anti-
gay hate crimes. The government therefore failed to meet its
burden of proof to show by a preponderance of the evidence
that the circumstances within the Philippines have changed
such that Vitug no longer faces a threat to his life or freedom
in the Philippines. Accordingly, we reverse the BIA’s denial
of withholding of removal relief under the substantial
evidence standard.
C. CAT Claim
To qualify for CAT relief, a petitioner must show that she
more likely than not will be tortured if she is removed to her
native country. Zheng, 644 F.3d at 835. DHS regulations
define torture as an “act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a
person . . . for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public
official . . . .” 8 C.F.R. § 208.18(a)(1). The regulations
18 VITUG V. HOLDER
further state, “[t]orture is an extreme form of cruel and
inhuman treatment and does not include lesser forms of cruel,
inhuman or degrading treatment or punishment that do not
amount to torture.” 8 C.F.R. § 208.18(a)(2). We have held
that “awareness and willful blindness” are sufficient to
constitute acquiescence by government officials; actual
knowledge or willful acceptance is not required. Zheng v.
Ashcroft, 332 F.3d 1186, 1197 (9th Cir. 2003).
On this record, substantial evidence does not compel a
finding that Vitug will more likely than not be tortured if he
returns to the Philippines. In Ahmed, although we reversed
the BIA’s denial of withholding of removal, we found that
substantial evidence did support the BIA’s denial of CAT
relief. 504 F.3d at 1200–01. We reasoned that while the four
beatings Ahmed suffered were “certainly forms of
persecution, it is not clear that these actions would rise to the
level of torture” under substantial evidence review. Id. at
1201. Similarly, it is not clear that Vitug’s beatings and
economic deprivation rise to the level of torture. Thus, we
deny Vitug’s petition for review of the BIA’s denial of CAT
relief.
IV. CONCLUSION
For the reasons set forth above, we grant the petition for
review as to Vitug’s application for withholding of removal,
deny the petition as to Vitug’s application for CAT relief, and
remand with instruction that the BIA enter an order granting
withholding of removal.
PETITION GRANTED IN PART, DENIED IN PART,
AND REMANDED.