Vitug v. Holder

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.