Lapadat v. Bondi

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ION LAPADAT; GIOVANI No. 23-1745

BECALI LAPADAT; LAURA

Agency Nos.

LAPADAT; MIRABELA

A208-585-239

LAPADAT; SIMONA LAPADAT,

A209-171-053

A208-585-240

Petitioners,

A209-171-054

v.

A209-171-052

PAMELA BONDI, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted May 14, 2024

Pasadena, California

Filed February 12, 2025

Before: Ronald Lee Gilman, * N. Randy Smith, and

Salvador Mendoza, Jr., Circuit Judges.

Opinion by Judge Mendoza;

Dissent by Judge N. Randy Smith

*

The Honorable Ronald Lee Gilman, United States Circuit Judge for the

Court of Appeals, 6th Circuit, sitting by designation.

2 LAPADAT V. BONDI

SUMMARY **

Immigration

Granting Ion Lapadat’s petition for review of the Board

of Immigration Appeals’ decision affirming the denial of

asylum and withholding of removal, and remanding, the

panel concluded that the record compelled the conclusion

that Ion’s past experiences rose to the level of persecution,

and that the BIA erred when it determined that the Roma are

not a disfavored group in Romania.

The panel concluded that the BIA erred by ignoring Ion’s

credible, highly probative, and potentially dispositive

testimony when it determined that his mistreatment was

insufficiently severe to constitute persecution. Ion’s

testimony that he was shot in the back, together with his

family’s credible testimony and the remaining record

evidence, collectively compelled a finding of serious harm

that rose to the level of past persecution. The panel wrote

that this was especially so given the severe assaults,

attempted kidnappings, threats, violence, and mistreatment

that Ion and his family faced in Romania.

The panel noted that it was deciding only whether the

Lapadats had established the first prong of the past-

persecution claim—serious harm rising to the level of

persecution. The panel left it to the agency to determine in

the first instance the other two prongs—whether the

persecution was motivated on account of a protected ground

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

LAPADAT V. BONDI 3

and was committed by the government, or by forces that the

government was unable or unwilling to control.

The panel concluded that the BIA also erred when it held

that the Roma are not a disfavored group in

Romania. Eliding centuries of anti-Roma abuse in Romania,

the BIA mistakenly swapped the European Union’s

proposed reforms, designed to aid Europe’s Roma

population, with the Romanian government’s own

documented and persecutory conduct toward the

Roma. Moreover, the record unmistakably established that

the Roma are a disfavored group in Romania.

Given the errors in its past-persecution and disfavored-

group analyses, the panel wrote that the BIA likely erred

when it determined that Ion lacked a sufficient

individualized risk of future persecution to make his fear of

return to Romania objectively reasonable. The panel left it

to the agency to determine whether Ion established a

sufficiently individualized risk of persecution considering

the egregious evidence of group persecution.

Dissenting, Judge N.R. Smith wrote that the majority

incorrectly limited its review to the BIA’s decision,

improperly substituted its own view for that of the IJ and the

BIA in determining past persecution, and assessed the harms

the Lapadats suffered out of context by failing to tie them to

persecution on account of a protected ground. Additionally,

in remanding for a disfavored group analysis, the majority

ignored the BIA’s alternative determination that even if the

Roma constitute a disfavored group there was insufficient

evidence that any of the individuals who targeted Lapadat

were likely to do so in the future.

4 LAPADAT V. BONDI

COUNSEL

Colyn B. Desatnik (argued), Colyn B. Desatnik APLC,

Irvine, California, for Petitioners.

Jonathan Needle (argued) and Roberta O. Roberts; Zoe J.

Heller, Senior Litigation Counsel; Office of Immigration

Litigation, Civil Division; Bernard A. Joseph, Senior

Litigation Counsel; Brian M. Boynton, Principal Deputy

Assistant Attorney General; United States Department of

Justice, Washington, D.C.; for Respondent.

OPINION

MENDOZA, Circuit Judge:

As appellate judges, we generally defer to the reasoned

and expert judgment of our colleagues in the Board of

Immigration Appeals (“BIA”), whom we trust to carefully

review the record and apply the law. But judges are human,

and like all humans, they sometimes make mistakes. Such

is the case today. Ion Lapadat, a native of Romania, seeks

asylum for himself and his family because he fears

persecution on account of their Roma ethnicity. The BIA

was unpersuaded by his petition, and it affirmed the

Immigration Judge’s (“IJ”) denial of Ion’s application and

his family’s derivative applications for asylum, withholding

of removal, and protection under the Convention Against

Torture (“CAT”). Relevant here, the BIA concluded that Ion

had established neither past persecution nor a well-founded

fear of future persecution in Romania.

LAPADAT V. BONDI 5

Our ruling today does not decide whether the Lapadats

have met all the elements required to attain asylum or the

withholding of removal. Rather, we write to address only

the two errors on which the BIA’s decision rests. First, the

BIA ignored Ion’s credible, highly probative, and potentially

dispositive testimony when it determined that Ion’s

mistreatment was insufficiently severe to constitute

persecution. Ion’s testimony that he was shot in the back,

together with his family’s credible testimony and the

remaining record evidence, collectively compels a finding of

serious harm that rises to the level of past persecution. This

is especially so given the severe assaults, attempted

kidnappings, threats, violence, and mistreatment that the

Lapadats faced in Romania. Second, the BIA erred when it

held that the Roma are not a disfavored group in Romania.

Eliding centuries of anti-Roma abuse in Romania, it

swapped the European Union’s proposed reforms, designed

to aid Europe’s Roma population, with the Romanian

government’s own documented and persecutory conduct

toward the Roma. In our view, the record unmistakably

establishes that the Roma are a disfavored group in Romania.

At base, our opinion today does little more than

accomplish Congress’s goal when it passed the Refugee Act

of 1980. We give proper deference to the BIA’s analysis and

correct its clear missteps, thus preserving our nation’s

systematic procedures for admitting refugees who have been

persecuted in their countries of origin. Accordingly, we

grant Ion’s petition and remand for further proceedings

consistent with this opinion.

I.

Ion, his wife Simona, and their children—Giovani,

Laura, and Mirabela—are Roma and natives and citizens of

6 LAPADAT V. BONDI

Romania. 1 The Roma—commonly and derogatively known

as “gypsies”—are Europe’s largest ethnic minority,

identifiable by their darker complexions, historically

nomadic lifestyle, and characteristic mode of dress. See

Mihalev v. Ashcroft, 388 F.3d 722, 726 (9th Cir. 2004)

(“There is no question that Gypsies are an identifiable ethnic

group and that being a Gypsy is a protected ground under

§ 208 of the INA.”). The Lapadats lived in Romania until

2013, moved to France for two years, returned to Romania

in 2015, and fled to the United States in 2016. After the

Department of Homeland Security served the Lapadats with

notices to appear, they timely sought asylum, withholding of

removal, and protection under CAT, citing the “racial hate”

that they faced living in Romania. Ion submitted the

application, and his wife and four children are named as

derivative asylum applicants.

A.

At the Lapadats’ removal hearing, the IJ found each

testifying family member—Ion, Simona, and Laura—

broadly credible. Over the course of multiple days, they

each testified that they endured years of significant hardship

while living in Romania on account of their Roma ethnicity.

Ion described a particularly harrowing incident from

2007, when he attempted to collect firewood on land that he

said belonged to the city hall. While Ion was collecting

wood, a man appeared and accused him of trespassing. The

man grabbed a rifle from his car and, as Ion apologized and

tried to flee in his horse-drawn cart, the man began cursing

1

The record also contains an application for Mariana Lapadat—Ion’s

and Simona’s fourth child. The record reflects that Mariana failed to

appear for the merits hearing and was ordered removed in absentia. That

decision was not appealed.

LAPADAT V. BONDI 7

him for being a “gypsy.” The man then opened fire: Ion

heard at least one shot, and bullets struck his back and skull.

Bleeding profusely, Ion rushed to the hospital, only for the

police to take him in for questioning before he could receive

treatment. Once he told the police who shot him, they

refused to take his story, threatened to imprison him if he

tried to press charges, and left him to find his own way home.

As it turns out, the police knew the shooter. Ion luckily made

it back to his family, changed his blood-soaked shirt, and

returned to the hospital, where a doctor discharged him,

casually remarking that he was “not going to die [from]

this.” Ion testified that shards of the bullets remain in his

body to this day.

Simona and Laura credibly shared their own horrifying

story. Laura and her sister, Mariana, were each younger than

fourteen years old when a group of young Romanian men

attempted to abduct them outside of their school, dragging

them into a car while threatening to rape them. Men

frequently harassed and assaulted the girls at school for

being “gypsies,” but had never attempted actual kidnap

before. When Simona tried to stop the men from abducting

her daughters, the men slashed her back with a knife,

threatening to kill her and rape her and her daughters if she

called for help. 2 Thankfully, she thwarted the attack. But a

few days later, before dawn, the men came to the Lapadats’

home and tried to break in, again threatening to rape Simona

and her children if Simona tried to file a complaint with the

police. As with Ion’s shooting, Romanian officials were also

uninterested in prosecuting this crime—the police just

2

The BIA mistakenly found that the men cut Simona’s hand, but that

factual finding is directly contradicted by the record.

8 LAPADAT V. BONDI

“didn’t believe them” and indicated that they had “no

problem with that.”

That testimony was just the tip of the iceberg. For one,

Ion credibly testified that he was frequently and arbitrarily

detained by police, who often beat him. He described one

such event in detail. In 2011, an officer detained and

handcuffed Ion after he discovered Ion on the streets without

identification after 7:00 p.m. He carted Ion to the police

station and cursed him for being a “gypsy.” While at the

station, the officer did not charge Ion with a crime. Instead,

he slapped Ion across the face twice, kicked him in the

abdomen, and sent him on his way. Apparently, walking

while Roma will get you arrested and beaten, but not

formally charged.

Ion also testified that he and his family frequently

struggled to obtain consistent and prompt government or

public services, and that they suffered from pervasive

discrimination. He described, for example, seeking

treatment at a Romanian hospital for acute appendicitis.

Despite the hospital stating that he needed “urgent” care,

doctors let him languish in pain for two days before

removing his appendix.

It is not just hospitals that refused to accommodate Ion.

Before he left for France, Ion recalls being denied entrance

to a store by a security officer, who pointed to a sign on a

window that said “gypsies and dogs” were not allowed

inside. In a separate incident, a waitress refused to take his

order, explaining the restaurant’s policy of denying services

to Roma people. These types of events also occurred after

he returned to Romania from France. Ion recalls being

denied the simple pleasure of going to a public swimming

pool because the man selling tickets refused him entry and

LAPADAT V. BONDI 9

punched Ion in the chest when he inquired why. Ion’s family

has also experienced discrimination of a similar ilk. Ion’s

brother, for instance, tried to purchase a house in a non-

Roma neighborhood. The Romanian residents of that

neighborhood threatened to set his house on fire rather than

let him live there.

As for employment, Ion testified that he had to rely on

the kindness of friends, and like others in his community, he

could not obtain official employment because he is Roma

and has “no right to work in Romania.” No company would

hire him, no office would consider his application, and he

lacked the right documents to secure formal employment.

He testified that hiring personnel turned him away because

he is a “gypsy.” Accordingly, Ion worked odd jobs for other

Romani people—building their fences and houses. When

the Lapadats moved to France, Ion tried to find stable work

but, just as in Romania, he lacked the necessary paperwork

to get a job. So his wife resorted to begging to support them.

Ion also testified at length about his fear of a local police

officer, whom he knows by name and who, like the officer

from the 2011 incident, has repeatedly harassed and beaten

him. This officer made a habit of kicking, slapping, and

threatening Ion with physical harm and false imprisonment,

all because Ion is a “gypsy” and “[y]ou gypsies are idiots.”

That harassment continued when the Lapadats briefly

returned to Romania from France, before making their way

to the United States. One day before the Lapadats left for

the United States, that same officer recognized Ion on the

street. As before, the officer physically assaulted Ion,

slapping him over the head, kicking him, and demanding to

know why he had “crawl[ed]” back to Romania. It seems

that this incident cemented in Ion’s mind that he and his

10 LAPADAT V. BONDI

family were not and would never be safe in their homeland.

The beatings, the shootings, the threatened rape, the

harassment, the discrimination, the unemployment, the

poverty, and the lack of medical attention had taken their toll

on the Lapadats.

B.

The Lapadats’ testimony reflects the experiences of

many Romani people living in Europe and Romania. The

Roma have been marginalized and vilified throughout

Europe for centuries, and are frequently derided as

swindlers, petty criminals, and scum. According to the

European Union (“EU”), anti-Roma “discrimination

continues to be widespread across the EU and is present in

all societies, and in all key areas.” Romania is no exception.

The EU classifies Romania as a “Cluster 1” country, which

means it has one of the largest Roma communities in Europe

and faces the “most acute challenges” relating to

“antigypsyism.” Defined as “the specific racism towards

Roma who are stigmatized as ‘gypsies’ in the public

imagination,” antigypsyism animates severe mistreatment of

the Roma in Romania.

The EU has recently taken measures to combat

antigypsyism in Europe. Starting in 2011, the EU developed

and implemented a “Framework” for national Roma

integration strategies across the continent. Seeking to “close

the gap between Roma and non-Roma in four key areas:

education, employment, healthcare and housing,” the EU’s

Framework “invited Member States to design national Roma

integration strategies.” The record is silent as to whether

Romania has designed or otherwise proposed such a

strategy.

LAPADAT V. BONDI 11

As of 2020, the EU’s Framework had not accomplished

its goals. Relying on survey data, the EU reports that “[a]n

overwhelming majority of [stakeholders] think that the

situation of Roma is worse than that of non-Roma” in all

target areas. And the EU concedes that its Framework has

failed to meaningfully counteract antigypsyism. Since its

inception, EU stakeholders report that while there have been

modest improvements in Roma access to education and

health outcomes, discrimination against Romani populations

in housing and employment has worsened since 2011, and

Roma are generally discriminated against more than they

were before in Europe. Accordingly, the EU projects that

“real impact may not be seen for at least a generation.”

C.

After considering this documentary evidence and Ion’s,

Simona’s, and Laura’s credible testimony, the IJ denied

Ion’s application and his family’s derivative applications for

relief. The BIA affirmed the IJ’s decision. First, although

the BIA concurred with the IJ that Ion had faced

discrimination, it found that the mistreatment that he

suffered in the past “did not rise to the level of persecution.”

Second, the BIA affirmed that the Lapadats could not

establish a well-founded fear of future persecution. It held

that the Roma are not a disfavored group in Romania, given

the EU’s steps to combat anti-Roma sentiment in Europe

through its Framework. And it agreed with the IJ that Ion’s

evidence of past harm was insufficient to show that he would

12 LAPADAT V. BONDI

be “single[d] out and target[ed] for persecution in the

future.” 3 This appeal timely followed.

II.

We have jurisdiction under 8 U.S.C. § 1252(a). When,

as here, “the BIA conducts its own review of the evidence

and law, rather than adopting the IJ’s decision, our review is

limited to the BIA’s decision, except to the extent the IJ’s

opinion is expressly adopted.” 4 Rodriguez v. Holder, 683

F.3d 1164, 1169 (9th Cir. 2012) (citation and quotation

marks omitted). “We review factual findings for substantial

evidence and legal questions de novo.” Guerra v. Barr, 974

F.3d 909, 911 (9th Cir. 2020). Because the IJ found Ion,

Simona, and Laura credible, their “statements must be taken

as true.” Mendez-Gutierrez v. Gonzales, 444 F.3d 1168,

3

The BIA also determined that Ion waived his challenge to the IJ’s denial

of CAT protection. In his briefing before this court and at oral argument,

Ion failed to raise any issues or advance any arguments in favor of relief

under CAT. Accordingly, “petitioners waived review of their CAT

claim.” Tampubolon v. Holder, 610 F.3d 1056, 1058 n.3 (9th Cir. 2010).

4

The dissent suggests that we have ignored the record. Dissent at

37. Not so. We review the IJ’s decision only to the extent that the

agency has expressly adopted the IJ’s reasoning. See Rodriguez, 683

F.3d at 1169; Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006);

Cordon-Garcia v. I.N.S., 204 F.3d 985, 990 (9th Cir. 2000); Ghaly v.

I.N.S., 58 F.3d 1425, 1430 (9th Cir. 1995). Here, although it might be a

close call because the BIA agreed with the IJ’s conclusion that the harm

did not rise to the level of persecution, the BIA conducted its own review

of the evidence and relied on the IJ’s reasoning regarding only four out

of the five harms discussed. The shooting—the most severe harm—was

absent from the BIA’s consideration. Thus, we review only the BIA’s

decision and disregard the IJ’s discussion of the shooting, as the BIA did

not expressly adopt—or even mention—that discussion.

Regardless, even if we look to the IJ’s reasoning, it is clear that the IJ

also erred. See infra Section III.A.i.2.

LAPADAT V. BONDI 13

1171 (9th Cir. 2006). We consider factual findings

“conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B). “While this standard is deferential,

‘deference does not mean blindness.’” Parada v. Sessions,

902 F.3d 901, 909 (9th Cir. 2018) (quoting Nguyen v.

Holder, 763 F.3d 1022, 1029 (9th Cir. 2014)).

III.

To qualify for asylum, Ion must demonstrate that he “is

unable or unwilling” to return to Romania “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.” Melkonian v. Ashcroft,

320 F.3d 1061, 1064 (9th Cir. 2003) (quoting 8 U.S.C.

§ 1101(a)(42)(A)). To be well-founded, Ion’s “fear of

persecution must be both subjectively genuine and

objectively reasonable.” Sael v. Ashcroft, 386 F.3d 922, 924

(9th Cir. 2004). As is the case here, “[a]n applicant ‘satisfies

the subjective component by credibly testifying that [he]

genuinely fears persecution.’” Id. (quoting Mgoian v. I.N.S.,

184 F.3d 1029, 1035 (9th Cir. 1999)). The objective

component can be established in two different ways: either

by demonstrating (1) past persecution or (2) a well-founded

fear of future persecution. See Ratnam v. I.N.S., 154 F.3d

990, 994 (9th Cir. 1998). If an applicant demonstrates past

persecution, “then fear of future persecution is presumed.”

Deloso v. Ashcroft, 393 F.3d 858, 863 (9th Cir. 2005).

Here, the BIA affirmed the IJ’s holding that Ion failed to

establish either past persecution or a well-founded fear of

future persecution. Ion raises challenges to both objective-

component determinations, and we consider each in turn.

14 LAPADAT V. BONDI

See Flores Molina v. Garland, 37 F.4th 626, 630, 637 (9th

Cir. 2022).

A.

We acknowledge that our standard of review for past-

persecution determinations appears to be in flux. In Kaur v.

Wilkinson, we held that “[w]hether particular acts constitute

persecution for asylum purposes is a legal question reviewed

de novo.” 986 F.3d 1216, 1221 (9th Cir. 2021) (alterations

omitted) (quoting Boer-Sedano v. Gonzales, 418 F.3d 1082,

1088 (9th Cir. 2005)). But we have also held that we “review

for substantial evidence the BIA’s particular determination

that a petitioner’s past harm ‘does not amount to past

persecution.’” Sharma v. Garland, 9 F.4th 1052, 1060 (9th

Cir. 2021) (alteration omitted) (quoting Villegas Sanchez v.

Garland, 990 F.3d 1173, 1179 (9th Cir. 2021)). Other

circuits’ decisions reflect this intra-circuit inconsistency.

See Xue v. Lynch, 846 F.3d 1099, 1105 n.11 (10th Cir. 2017)

(explaining that “[t]he circuits are split as to the standard of

review applicable to the question [of] whether an undisputed

set of facts constitute persecution” and collecting cases).

Since 2021, our colleagues have thoughtfully explained why

we ought to consider reviewing past-persecution

determinations de novo, seeing as our review generally

requires the “application of a legal standard to settled facts.”

Flores Molina, 37 F.4th at 640 (Korman, J., concurring). 5

5

In their concurring opinions in Fon v. Garland, Judge Graber and Judge

Collins present competing concerns about resolving this standard-of-

review issue. 34 F.4th 810 (9th Cir. 2022). Judge Graber recommends

“a middle way” for this mixed question of law and fact, in which we

adapt our review of a past-persecution determination depending on

whether the question “entails primarily legal or factual work.” Id. at

LAPADAT V. BONDI 15

Like many panels before us, 6 we need not resolve this

question today. Here, the record compels our conclusion

that Ion experienced persecutory treatment under either

standard of review.

i.

To establish past persecution, Ion must demonstrate

(1) serious harm “ris[ing] to the level of persecution”;

(2) that “the persecution was committed by the government,

or by forces that the government was unable or unwilling to

control”; and (3) that “the persecution was on account of one

or more protected grounds.” Kaur, 986 F.3d at 1221. Like

in Flores Molina, here the BIA reached only the first

element, finding that the Lapadats failed to establish a past-

persecution claim because the harms they suffered did not

rise to the level of persecution. See 37 F.4th at 633. The

BIA erred in concluding so and in dismissing the past-

816–17 (Graber, J., concurring). Judge Collins rejoins that “the question

is actually quite a bit more complicated” than Judge Graber suggests, and

he reasons that her path is foreclosed by our and the Supreme Court’s

precedent. Id. at 819–20 (Collins, J., concurring).

6

See, e.g., Singh v. Garland, 97 F.4th 597, 603 (9th Cir. 2024) (“We

need not address which standard should apply because the harm suffered

by Singh rose to the level of persecution even under the substantial

evidence standard, which affords greater deference to the BIA’s

determinations.”); Flores Molina, 37 F.4th at 633 n.2 (applying the

“more deferential ‘substantial evidence’ standard” to avoid “discuss[ing]

the nuances” of the competing standards); Singh v. Garland, 57 F.4th

643, 652 (9th Cir. 2023) (declining to address the competing standards

because “the harm [Singh] suffered rose to the level of persecution under

the more deferential ‘substantial evidence’” standard (alteration in

original) (quoting Flores Molina, 37 F.4th at 633 n.2)); Fon, 34 F.4th at

823 (Collins, J., concurring) (“[G]iven that the Petitioner here prevails

even if we apply a more deferential standard of review to the agency’s

decision, this is not [the] case [to clarify the standard of review].”).

16 LAPADAT V. BONDI

persecution claim. Accordingly, we address only the first

element of the past-persecution claim.

We assess a past-persecution finding by “looking at the

cumulative effect of all the incidents [that the] [p]etitioner

has suffered.” Singh v. I.N.S., 134 F.3d 962, 967 (9th Cir.

1998). In Sharma v. Garland, we identified seven factors to

guide a past-persecution analysis: physical injury or

violence; “isolated” or “ongoing pattern[s] of serious

maltreatment”; length and quality of detention; evidence of

“threats” that “are repeated, specific[,] and combined with

confrontation or other mistreatment”; harm to family and

friends; “substantial economic deprivation that constitutes a

threat to life or freedom”; or “political and social turmoil.”

9 F.4th at 1060–63 (citations and quotation marks omitted).

No single factor is necessarily dispositive, and the list is non-

exhaustive; but Sharma’s factors provide a helpful set of

relevant indicia to assess whether mistreatment rises to the

level of persecution, which is “an extreme concept” that

eclipses mere harassment or discrimination. Ghaly v. I.N.S.,

58 F.3d 1425, 1431 (9th Cir. 1995).

1.

The record makes clear that Ion demonstrated harm

rising to the level of persecution when he credibly testified

that he was shot in the back for collecting firewood. This is

not a close case. As we noted in Sharma, “physical

violence” is “often a significant consideration” to a past-

persecution analysis, and “when we have granted petitions

for review because the record compelled a finding of past

persecution,” we have frequently done so because the

petitioner “experienced serious physical violence.” 9 F.4th

at 1061. “There is no question” that “assaults on one’s life,

family and business”—like, say, shooting someone—is

LAPADAT V. BONDI 17

serious physical violence, “ris[ing] to the level of

persecution.” Singh v. I.N.S., 94 F.3d 1353, 1360 (9th Cir.

1996); see also Kaur, 986 F.3d at 1223 (“[W]e have held that

attempted murder constitutes persecution.” (citing Lopez v.

Ashcroft, 366 F.3d 799, 803 (9th Cir. 2004))); Madrigal v.

Holder, 716 F.3d 499, 504 n.2 (9th Cir. 2013).

2.

The BIA affirmed the IJ’s denial of Ion’s petition on

past-persecution grounds, determining that the abuse he

suffered did not reach the level of persecution. It committed

legal and factual errors in the process.

First, the BIA declined to consider or mention the

shooting in its past-persecution analysis, despite Ion’s clear

testimony that he was shot in the back. For its part, the IJ

not only minimized the shooting, but mischaracterized it by

noting that “[Ion] was physically harmed in the sense that he

was shot at by an individual for trespassing onto property,”

and that the shooting was “isolated.” The statement “in the

sense that he was shot at,” is vague and makes unclear the

extent of the harm Ion suffered. Moreover, saying that he

was merely “shot at” is incorrect. Ion was struck with a

bullet in the back and the head, where bullet fragments

remain today. He was clearly physically harmed.

Considering that the IJ had found Ion’s testimony credible,

the IJ knew this. And pretending otherwise, or minimizing

it, is not supported by substantial evidence.

The BIA did not mention, much less explicitly adopt, this

aspect of the IJ’s decision when it affirmed the IJ’s past-

persecution finding. Accordingly, we are bound to consider

the BIA’s decision on this point, see Rodriguez, 683 F.3d at

1169, and its oversight was legal error, see Flores Molina,

37 F.4th at 632 (“Where the BIA does not consider all the

18 LAPADAT V. BONDI

evidence before it, either by ‘misstating the record [or]

failing to mention highly probative or potentially dispositive

evidence,’ its decision is legal error and ‘cannot stand.’”

(alteration in original) (quoting Cole v. Holder, 659 F.3d

762, 772 (9th Cir. 2011))).

Second, the IJ held, and the BIA agreed, that the

Lapadats’ other evidence of maltreatment “did not rise to the

level of persecution.” After considering and rejecting the

“isolated” shooting, the IJ characterized the attempted

kidnapping of the Lapadats’ daughters as an abhorrent-but-

not-persecutory crime under our precedent. The IJ then

rejected as insufficiently persecutory a laundry list of abuse

(like being denied healthcare, work, and access to public

pools and restaurants), as well as criminal acts, police

beatings, and threats—each stretching across years. This too

was error.

3.

The shooting, the attempted kidnapping and the rape and

death threats—accompanied by the Lapadats’ credible

testimony regarding an ongoing pattern of serious

maltreatment—collectively compel a finding of harm rising

to the level of persecution. 7 See Gu v. Gonzales, 454 F.3d

7

The dissent disagrees that the attempted kidnapping, and the rape and

death threats rise to the level of persecution, but in doing so, the dissent

conflates prong one with prong three. Dissent at 40–48. To meet prong

one and establish a qualifying harm, a petitioner does not need to also

prove prong three—whether the persecution was motivated on account

of a protected ground. In Gormley v. Ashcroft, for example, we did not

consider whether the perpetrators “victimized [the petitioner] on account

of his race” or whether they were “groups that the government is

unwilling or unable to control” until the analysis of the second and third

LAPADAT V. BONDI 19

1014, 1020 (9th Cir. 2006). We have held as much in similar

cases. In Korablina v. I.N.S., for example, we considered a

petition by a Jewish woman who suffered a physical attack

on her life, watched other Jewish individuals suffer physical

attacks, struggled to secure employment, and received

threatening phone calls. 158 F.3d 1038, 1044–45 (9th Cir.

1998). In reversing the BIA’s past-persecution finding, we

held that “[w]here evidence of a specific threat on [a

petitioner]’s life . . . is presented in conjunction with

evidence of political and social turmoil, the [petitioner] has

succeeded in establishing a prima facie eligibility for

asylum.” Id. at 1045. Likewise, in Guo v. Sessions, we

considered a Christian Chinese citizen’s petition for asylum.

897 F.3d 1208, 1213 (9th Cir. 2018). Drawing on our

decision in Korablina, we reversed the BIA, and we held that

the record “compel[led] a finding of past persecution”

because police beat the petitioner, even though the beating

resulted in “no permanent injuries”; the beating required a

hospital stay; and the petitioner received a short detention,

was forced to disavow his faith, and was impeded from

prongs. 364 F.3d 1172, 1177 (9th Cir. 2004); see also Navas v. I.N.S.,

217 F.3d 646, 658–61 (9th Cir. 2000) (identifying two distinct issues—

whether the petitioner had demonstrated persecution and “whether the

persecution was on account of [his] political opinion”—and proceeding

to analyze them separately).

We decide today only that the Lapadats have established the first prong

of the past-persecution claim—serious harm “ris[ing] to the level of

persecution.” See Kaur, 986 F.3d at 1221. We leave the other two

prongs—including whether the persecution was motivated on account of

a “protected ground”—to the agency to determine in the first instance.

See id.

We do not dispute that the Lapadats must satisfy all three prongs in order

to prevail on their asylum claim, but we rebut the assertion that prong

three subsumes the first prong.

20 LAPADAT V. BONDI

practicing it. Id. at 1215. Or take our decision in Baballah

v. Ashcroft, where we considered an Israeli citizen’s petition

for asylum based on mistreatment that he received for his

parents’ “mixed marriage.” 367 F.3d 1067, 1071 (9th Cir.

2004). The Baballah petitioner presented evidence that

Israeli citizens and officials “shot bullets in the air over” his

fishing boat; sprayed him, his brother, and his boat with

“pressurized water in freezing weather” in an apparent effort

to sink it; called him religious and ethnic slurs; “made it

impossible” for the petitioner “to earn a living”; and

“refused” to employ his family members. Id. at 1071–72.

We reversed the BIA because, “[w]hen analyzed in the

aggregate, the physical assaults and economic harassment

endured by [the petitioner] compel a finding of persecution.”

Id. at 1076.

Our recent decision in Kaur is also instructive. 986 F.3d

at 1219. There, we addressed a petition by an Indian

petitioner largely based on an attempted rape connected to

her political beliefs, and we determined that the BIA’s

rejection of her petition was “marred by legal error.” Id. at

1219, 1222. First, we held that “[s]imilar to attempted

murder and attempted kidnapping, attempted rape almost

always constitutes persecution.” Id. at 1224. After all, “in

evaluating whether past treatment rises to the level of

persecution, we do not look to the level of harm experienced

by the petitioner.” Id. at 1226. It is the “treatment” that

counts. Id. (quoting Mihalev, 388 F.3d at 729). Second, we

held that it was “plain on the record” that petitioner “suffered

past persecution.” Id. at 1227. In addition to the attempted

rape, petitioner “endured death threats,” and her parents

“were attacked on multiple occasions.” Id. We found such

LAPADAT V. BONDI 21

evidence sufficient to compel a finding of mistreatment

rising to the level of persecution. 8 Id.

Trying to compare harms between past and present

petitioners is often a perverse task. But we conclude that the

Lapadats’ persecution is plain on the record and falls

squarely within the bounds established by our precedent. “It

is, of course, ‘well established that physical violence is

persecution under 8 U.S.C. § 1001(a)(42)(A).’” Parada,

902 F.3d at 909 (quoting Li v. Holder, 559 F.3d 1096, 1107

(9th Cir. 2009)). Like the Korablina and Baballah

petitioners, each of whom recounted assaults that could have

turned deadly, Ion too experienced a violent physical attack

on his life. 9 His account of being cursed and shot—and then

8

The dissent invokes Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir.

2006), for the proposition that the degree of harm suffered “must be

assessed with regard to the context in which the mistreatment occurs.”

Dissent at 43. In other words, if the harm suffered is not connected to a

protected ground, it necessarily cannot amount to harm rising to the level

of persecution. But that is not what Beskovic stands for. Beskovic

elaborated that “even mistreatment that, in other contexts, could fairly be

characterized as the mere annoyance and distress of harassment can take

on an entirely different character when officially inflicted on an

individual while detained on account of [a] protected ground[].” Id. at

226 (internal quotation marks and citation omitted). First, being shot and

receiving death and rape threats can hardly be considered a “mere

annoyance and distress.” Second, Beskovic explains a one-way ratchet—

harassment and mistreatment that would typically not be considered a

harm rising to the level of persecution might be considered such a harm

when it is motivated by a protected ground. Beskovic does not provide

a general rule allowing courts to downgrade or disregard severe harms

(like being shot) simply because prong three is not satisfied.

9

The dissent criticizes our reliance on Korablina, Baballah, and Kaur

because, in those cases, the persecutory conduct was connected to a

protected ground. Dissent at 53. The dissent’s concern is unwarranted.

22 LAPADAT V. BONDI

dragged by the police from the hospital, blood soaking his

clothes, only to have those same police threaten to imprison

him for reporting the crime—is chilling. Indeed, he must

relive this experience every time he contemplates the

shrapnel still embedded in his body. In our opinion, this

shooting eclipses the harm we deemed sufficient in Guo,

where petitioner testified to “repeated baton blows” to parts

of his body by police, which required a hospital examination

but left no lasting injuries. 897 F.3d at 1215.

Likewise, the attempted kidnapping of Laura and

Mariana, and the threatened rape and threatened murder of

the girls and their mother, echo the events described in Kaur.

As we explained there, “some forms of physical violence,”

like “attempted murder and attempted kidnapping,” “are so

extreme that even attempts to commit them constitute

persecution.” 10 See Kaur, 986 F.3d at 1223–24; see also

Of course, when you discuss all three prongs of a past-persecution claim,

like in Korablina and Baballah, prongs one and three may bleed

together. And in Kaur, it is unsurprising that the court repeatedly

mentioned that the persecutory conduct was motivated on a protected

ground because it was “uncontested that Kaur had suffered past physical

abuse and death threats on account of her political opinion.” 986 F.3d at

1222. Thus, we do not read those cases as precluding us from analyzing

only prong one—persecutory conduct—particularly when that is the

only prong addressed by the BIA here.

10

The dissent’s quibbling with the Lapadats’ characterization of the

shooting as “attempted murder,” dissent at 46, misses the mark. What is

relevant is that Ion was shot in the back and the head. Whether the

shooting can be characterized as an attempted murder is not dispositive

because, regardless of the verbiage used, as we outline above, “serious

physical violence,” such as being shot, is sufficient to establish

persecution. See Sharma, 9 F.4th at 1061; see also Guo, 897 F.3d at

1215 (noting that “it would be a strange rule if the absence or presence

of a broken arm were the dispositive fact”).

LAPADAT V. BONDI 23

Sangha v. I.N.S., 103 F.3d 1482, 1487 (9th Cir. 1997)

(attempting to forcibly conscript a petitioner, which was

tantamount to attempted kidnapping, constituted

persecution). Indeed, those moments appear seared in

Laura’s mind: she still cries each time she recalls this

incident, making tangible the Kaur court’s thoughtful

explanation that loss of “bodily autonomy” causes severe

psychological damage. 986 F.3d at 1224–25 (explaining that

attempted rape and sexual assault impose “severe

psychological effects,” like shame, clouded memory, self-

blame, and a “pervasive feeling of loss of control”). And the

Lapadats’ fear of further violence from this incident is

justified—the men, after all, returned to the Lapadats’ home,

threatening to kill and rape them if Simona or the girls tried

to go to the police.

These events, when considered in the context of the

ongoing mistreatment that the Lapadats experienced, compel

a finding of maltreatment rising to the level of persecution.

As we noted in Sharma, “serious maltreatment that is

sustained and recurring is more likely to compel the

conclusion of past persecution” when it is “[i]n combination

with other indicia of persecution.” 9 F.4th at 1061; see also

Korablina, 158 F.3d at 1045 (holding that the conjunction of

social unrest and a credible threat on a petitioner’s life

satisfied the past-persecution standard). Ion’s shooting and

his daughters’ attempted kidnapping did not occur in

isolation, contrary to what the IJ held. 11 Far from it. That

11

And even if the shooting and attempted kidnappings were the only

persecutory acts in the record, those standing alone would be sufficient.

It is clear beyond peradventure that a single, “isolated,” persecutory act

can—and often does—amount to harm reaching the level of persecution

24 LAPADAT V. BONDI

“contention disregards the reality that . . . persecution was

ongoing”: the Lapadats, like many Romani people, had been

mistreated by the police and Romanian public for years

because of their ethnicity. Guo, 897 F.3d at 1216. Ion

testified to repeated harassment and beatings by Romanian

police and his inability to secure meaningful or formal

employment, basic healthcare, or public services. And both

he and his family recounted the death, rape, and arson threats

that they have endured. Such pernicious maltreatment

clearly satisfies the past-persecution criteria established in

our caselaw. See Ahmed v. Keisler, 504 F.3d 1183, 1194

(9th Cir. 2007) (“Where an asylum applicant suffers

[physical harm and threats] on more than one occasion . . . ,

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.”).

For its part, the government asks us to discount the

persecution that the Lapadats suffered because it produced

no “lasting injuries.” Our law has never imposed such a

requirement. See Guo, 897 F.3d at 1215 (“[A] beating ‘may

constitute persecution, even when there are no long-term

effects and the [petitioner] does not seek medical attention.’”

(second alteration in original and citation omitted)). Indeed,

we’ve routinely held the opposite. In Kaur, for example, we

considered and rejected the BIA’s attempts to require a

petitioner to produce “evidence of ongoing trauma or

psychological treatment to establish a claim to past

persecution on account of attempted rape.” 986 F.3d at

1225–26. Holding that such a view is legal error, we

if that act is sufficiently severe. See, e.g., Kaur, 986 F.3d at 1224 (noting

that “attempted murder[,] attempted kidnapping, [and] attempted rape

almost always constitutes persecution”).

LAPADAT V. BONDI 25

determined that, when evaluating “whether past treatment

rises to the level of persecution, we do not look to the level

of harm experienced by the petitioner.” Id. at 1226

(emphasis added). Rather, we look at the “conduct of the

persecutor.” Id. Or, as we put it more colloquially in

Mihalev, “it would be a strange rule if the absence or

presence of a broken arm were the dispositive fact” for a

past-persecution finding. 388 F.3d at 730 (overturning

agency’s past-persecution finding, despite petitioner’s lack

of “serious bodily injury”). Here, the “treatment” Ion

suffered was extreme: he was shot for being a “gypsy.” The

“treatment” his wife and children suffered was also extreme:

Simona was slashed for attempting to protect her daughters

from an attempted kidnapping and threatened rape. We

would “miss[] the forest for the trees,” Guo, 897 F.3d at

1215, if we required the Lapadats to prove that they suffered

lasting injuries from these assaults in order to demonstrate

persecution.

Additionally, the underlying conduct described in the

three decisions cited by the BIA to support its findings bears

no resemblance to the violence, threats, and mistreatment

that the Lapadats have experienced. In Fisher v. I.N.S., for

example, we denied an Iranian petitioner’s appeal based in

part on inadequately persecutory police conduct. 79 F.3d

955, 959 (9th Cir. 1996). In that case, Iranian police

questioned and detained the petitioner for attending a party

at a male friend’s home where that friend wore a bathing suit;

ordered her, albeit at gunpoint, to cover her hair beneath her

chador; and visited her family home seeking information

about potential political dissidents. Id. That conduct left the

Fisher petitioner “ill,” id. at 960, but it hardly resembles (and

pales in comparison to) the persecution suffered by the

Lapadats. The BIA and the dissent also invoked Gormley v.

26 LAPADAT V. BONDI

Ashcroft, but that case is inapposite. 364 F.3d 1172, 1177–

78 (9th Cir. 2004). The Gormley petitioner experienced a

few robberies committed by “anonymous thieves” who the

government would willingly punish if they could. Id. at

1177–81. He also stated that white men like himself

struggled to find jobs in post-apartheid South Africa. Id. at

1175; see also Hussain v. Rosen, 985 F.3d 634, 646–47 (9th

Cir. 2021) (dismissing civil unrest and violence that harmed

petitioner because it was “the result of a general attack on

the town” and did not involve “any individualized physical

attacks or threats”). None of “these factual scenarios are

close to the sustained, repeated, specific” threats and

violence to which Ion was subjected. Flores Molina, 37

F.4th at 637. There is no evidence in the record that targeted

shootings and attempted kidnappings are “all too common”

“general conditions” in Romania. Cf. Gormley, 364 F.3d at

1177 (concluding that robberies “are an all too common

byproduct of civil unrest and economic turmoil” in South

Africa).

The dissent also relies on Gormley (and a host of other

cases) for the proposition that “not all incidents qualify as

persecution,” such as discrimination or harassment or other

general conditions like criminal activity. Dissent at 41–42.

We agree, but those are far from the circumstances presented

here. Additionally, none of those cases hold that whether an

incident is a “general condition” hinges on whether the

harmful conduct is motivated by the petitioner’s status. See

id. (finding that two robberies did not rise to the level of

persecution because “robberies of this sort are an all too

common byproduct of civil unrest and economic turmoil”).

In sum, by properly applying our caselaw to the entirety

of the record, any reasonable factfinder would be compelled

to find that Ion’s past experiences “rose to the level of

LAPADAT V. BONDI 27

persecution.” Baghdasaryan v. Holder, 592 F.3d 1018, 1023

(9th Cir. 2010). On remand, the BIA must address the

remaining elements of Ion’s claim for asylum based on past

persecution. 12 Assuming that Ion satisfies those elements, a

“rebuttable presumption of a well-founded fear arises,” and

the government has the burden to prove “that there has been

a fundamental change in circumstances such that the

applicant no longer has a well-founded fear.” Tawadrus v.

Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (citation and

quotation marks omitted).

B.

Because the BIA must still address whether Ion’s

persecutory treatment was on account of his Roma ethnicity

and whether Romanian officials were unable or unwilling to

protect him, we also consider Ion’s challenge to the BIA’s

determination that he failed to demonstrate a well-founded

fear of future persecution. See Flores Molina, 37 F.4th at

637. “An asylum applicant demonstrates a well-founded

fear of future persecution in either of two ways”: (1) by

showing a “pattern or practice of persecution” for similarly

situated people or (2) by demonstrating that he “is a member

of a ‘disfavored group’” and is “likely to be targeted as a

member of that group.” Sael, 386 F.3d at 925 (internal

12

Specifically, the BIA must determine whether Ion’s persecution was

on account of one or more of the five protected grounds, and that the

persecution was committed either by the government or by forces that

the government was unable or unwilling to control. See Chand v. I.N.S.,

222 F.3d 1066, 1073 (9th Cir. 2000). As discussed, the “record evidence

strongly suggests that” Ion was persecuted on account of his Roma

ethnicity, often by government officials and police, and that those police

were unwilling to do anything to protect him or his family. Flores

Molina, 37 F.4th at 637 n.5. But “that is a determination the agency must

make in the first instance.” Id.

28 LAPADAT V. BONDI

quotations and citations omitted). Ion chose the latter route.

Under our disfavored-group precedent, we have held that the

relationship between disfavored-group status and individual

risk is “correlational”: “the more serious and widespread the

threat of persecution to the group, the less individualized the

threat of persecution needs to be.” Mgoian, 184 F.3d at 1035

n.4. And we require the BIA to “evaluate all relevant

evidence in the record to determine whether [a petitioner]

carried her burden” of proving a fear of future persecution.

Davila v. Barr, 968 F.3d 1136, 1143 (9th Cir. 2020).

i.

This record compels a finding that the Roma are a

disfavored group in Romania. 13 A “disfavored group” is “a

group of individuals in a certain country or part of a country,

all of whom share a common, protected characteristic, many

of whom are mistreated, and a substantial number of whom

are persecuted.” Wakkary v. Holder, 558 F.3d 1049, 1052

(9th Cir. 2009). In Sael, we held that Indonesia’s Chinese

minority were a “disfavored group” because of Indonesia’s

centuries-long history of anti-Chinese persecution, which

included near genocidal pogroms, bloody riots, and burned

homes. 386 F.3d at 925–26, 929. In reversing the BIA’s

well-founded fear analysis, we determined that Indonesia’s

anti-Chinese history outweighed the economic success that

some ethnic Chinese had recently enjoyed in the country, as

well as the Indonesian government’s official policies

promoting ethnic tolerance. Id. at 929. So too in

Tampubolon v. Holder, where we held that “Christian

Indonesians” are a disfavored group. 610 F.3d 1056, 1062

(9th Cir. 2010). Like the Sael court, the Tampubolon court

considered the Indonesian government’s failure to

13

The dissent does not dispute this finding.

LAPADAT V. BONDI 29

adequately protect the rights of its religious minorities, the

country’s history of violently persecuting Christian

residents, and its official and private acts of discrimination.

Id. at 1060–62. By contrast, in Halim v. Holder, we held that

the petitioner had not carried his burden of demonstrating

that ethnic Chinese were still a disfavored group in

Indonesia. 590 F.3d 971, 979 (9th Cir. 2009).

Distinguishing Sael, the Halim court renewed its focus on

“the government’s perspective,” noting that “the materials

before the court indicate that the Indonesian government

does not condone discrimination against ethnic Chinese.”

Id. After all, “the Indonesian ‘government has taken

concrete steps to suppress ethnic and religious violence and

to encourage reconciliation between opposing groups.’” Id.

(quoting Lolong v. Gonzales, 484 F.3d 1173, 1181 (9th Cir.

2007)).

Here, any reasonable factfinder would be compelled to

conclude that the Roma are a disfavored group in Romania.

As in Sael and Tampubolon, the record evidence documents

centuries of anti-Roma persecution and violence throughout

Romania and Europe. Often derided as swindlers, thieves,

beggars, and scum, European Roma have been viciously

persecuted for centuries. In the 1930s and 1940s, Nazi racial

ideology put Romani, Jewish, and Black people at the

bottom of the racial scale, and the Nazi extermination of the

Romani was so thorough that it led to the extinction of the

Bohemian Romani language in 1970. Those pernicious

sentiments have not abated with time. Thomas

Hammarberg, Council of Europe Commissioner for Human

Rights, notes that “today’s rhetoric against the Roma is very

similar to the one used by Nazis and fascists before the mass

killings started in the thirties and forties.” Put simply, the

30 LAPADAT V. BONDI

Roma have endured centuries of exclusion and deprivation

at the hands of their European compatriots.

Romania’s persecution and mistreatment of its Roma

population is particularly severe. Although Romania has

one of the largest Roma populations in Europe, antigypsyism

pervades private and public life throughout the country.

According to the Romania 2018 Human Rights Report (the

“2018 Report”), “endemic official corruption and police

violence against the Roma” is a major problem, and Romani

groups complain that police harassment, brutality, and

beatings are routine. As was the case for Ion, officers assault

Romani people who use public spaces for improper

purposes. One example included officers using “excessive

force against two Romani teenagers caught fishing in a

public park.” Indeed, the 2018 Report and the record abound

with examples of police and constables mistreating and

abusing Romani people. This type of mistreatment is well-

tolerated by Romania’s government. As discussed in the

2018 Report, the European Court of Human Rights ruled that

the Romanian justice system has failed to deliver just

outcomes in cases of police brutality against Romani

individuals. Likewise, the Romani Center for Social

Intervention and Studies found that, in forty-three cases of

police brutality against Roma people over the previous

twelve years, there were no convictions at the national level.

The reason? Prosecutors refused to take the cases to court.

Unlike in Halim, the record here also reflects that

Romania’s local and national government takes a permissive

view of antigypsyism. In 2010, for example, a member of

Romania’s ruling Liberal Democratic Party sponsored

legislation that would rename the Roma “Tigan,” which

derives from the Greek word “untouchable” and is analogous

to “n****r” in the United States. He claimed that “those

LAPADAT V. BONDI 31

Gypsy fellows in Transylvania who wear big hats” supported

the move. Critics pushed back, describing Roma outrage

towards the legislation and noting that such a name-change

likely violates international law, given that it deprives the

Roma of their right to self-determination. The legislation

was quickly withdrawn, but the damage was done.

Likewise, right-wing political representatives have proposed

that Roma women be sterilized, endorsing plans to offer

money to any Romani woman willing to take them up on the

offer. Additionally, and despite prohibitions on educational

and physical segregation, several non-governmental

organizations and news outlets report that Roma are still

physically separated from their non-Roma peers. This

includes government-sponsored walls sealing off

“Romanian gypsy ghetto[s]”—a modern simulacrum of the

Josefov in Prague or the Judengasse in Frankfurt. Romanian

authorities also frequently and arbitrarily deny government-

sponsored pensions to Romani Holocaust survivors,

misclassifying them as “resettled” and “not deported” to

concentration camps during the war.

As in Tampubolon, Romania’s Roma “have also suffered

private discrimination and marginalization by the general

populace.” 610 F.3d at 1061. The 2018 Report describes

broad “societal discrimination against Roma.” Roma are

consistently denied access to, or refused service in, many

public spaces. They lack employment opportunities, and

they are frequently denied adequate health care and

educational opportunities. News outlets report that

Romanian Roma also face mass evictions. Indeed, one

article details an incident in which a municipal government

gave 400 Roma two days’ notice of eviction before

removing them from their homes and placing them in a

“garbage-dump” encampment on the outskirts of the city.

32 LAPADAT V. BONDI

Likewise, Romani people’s “lack of identity documents”

leaves many of them unable to participate in elections,

receive social benefits, access health insurance, or

participate in the labor market. Other mistreatment is quieter

but no less pervasive, and it is just as pernicious. The terms

“gypsy and cheater have been so interchangeable historically

that the word has entered the English language as a verb: he

gypped me.” Prominent Romanian and European thinkers

have written articles stating that “‘Gypsies’ are culturally

inclined towards theft[,] and [they] use their minority status

to ‘blackmail’ the majority.” Romanian academics have

even claimed that Romani music increases aggressiveness

and limits self-control, suggesting a “correlation” between

preference for Romani music and “low cognitive skills.”

Taken together, it is unsurprising that Romani people have a

higher unemployment rate and a lower life expectancy than

their non-Roma peers in Romania.

Given this robust record of Roma mistreatment, the BIA

conceded that “Roma individuals continue to experience

discrimination and harassment” in Romania. But the BIA

summarily discounted those concerns because the European

Union’s Framework “attempt[s] to address issues

experienced by Roma individuals” in Europe. By doing so,

the BIA appears to adopt the view that we analyze whether

a group is disfavored from the perspective of supranational

organizations and not national governments. That approach

distorts our precedent. “One factor critical to both a showing

of ‘disfavor’ as well as individual targeting is the

government’s perspective.” Halim, 590 F.3d at 979. The

European Union is not a “government” under Halim. Id.

And its policies are irrelevant, absent evidence that the

country to which a petitioner faces removal has adopted and

implemented them. After all, a “refugee” is one “who is

LAPADAT V. BONDI 33

outside any country of such person’s nationality” or country

of habitual residence and is “unable or unwilling to return to

. . . that country because of persecution or a well-founded

fear of persecution.” 8 U.S.C. § 1101(a)(42) (emphasis

added).

Moreover, under the removal statute, we remove

noncitizens to “countries,” not to regional collectives of

states. See 8 U.S.C. § 1231(b)(1) et seq.; 8 U.S.C.

§ 1158(c)(1)(A) (providing that a noncitizen granted asylum

shall not be removed or returned to his “country of

nationality” or, absent a nationality, his country of “last

habitual residence”); 8 C.F.R. § 241.15(a) (granting

“discretion” to remove a noncitizen to “any country

described in section 241(b)” of 8 U.S.C. § 1231(b)). Indeed,

our entire focus for a fear-of-future-persecution analysis

centers on a petitioner’s fear of being removed to his country

of origin or habitual residence. That is why we focus on

“government” policies and practices. See, e.g., Tampubolon,

610 F.3d at 1061 (considering whether the “Indonesian

government discriminates against Christians”); Sael, 386

F.3d at 929 (weighing whether “the Indonesian

government[’s]” official policy of “ethnic tolerance”

outweighs evidence of “[o]fficial discrimination” by the

government); Castro-Martinez v. Holder, 674 F.3d 1073,

1078 (9th Cir. 2011) (considering “the Mexican

government’s efforts to prevent violence and discrimination

against homosexuals”); Kotasz v. I.N.S., 31 F.3d 847, 854

n.12 (9th Cir. 1994) (“[T]he Hungarian government ha[s]

instituted a variety of programs specifically designed to

improve the gypsies’ economic situation.”). It would be

peculiar if we permitted the policy goals of a supranational

coalition of states to obviate or otherwise negate the conduct

34 LAPADAT V. BONDI

of a single state. Absent evidence to the contrary, the former

has no bearing on the latter.

Regardless, even if the BIA were permitted to impute the

EU’s efforts to combat antigypsyism onto the Romanian

government, the record still compels a finding that the Roma

are a disfavored group in Romania. Although official

attempts to counteract discrimination are relevant, “[w]hen

a minority group’s ‘disfavored’ status is rooted in centuries

of persecution, year-to-year fluctuations cannot reasonably

be viewed as disposing of an applicant’s claim.” Sael, 386

F.3d at 929. Here, the EU does not report on the success of

its Framework in individual countries or member states. Nor

does it report on how extensively any member state has

adopted its proposed measures to combat antigypsyism. At

best, it provides a table summarizing thirty-nine measures

that member states can “report,” each of which promote

Roma integration. Of those thirty-nine measures, Romania

“reported” ten of them: six of which related to “education”

(including one measure labeled “Other”); one related to

“employment” (the measure labeled “Other”); one related to

“healthcare;” and two related to housing (again, reporting

the measure labeled “Other”).

There is little that we can glean from Romania’s

“reporting” of these measures. Instead, we are left with the

EU’s assessment of the situation in Europe overall: (1) “no

real improvements can be seen on the ground” in combatting

discrimination; (2) there has been some attention given to

changing educational segregation; (3) “Roma participation

in the labour market remains very weak”; and (4) “[t]ackling

the health inequalities endured by Roma remains an ongoing

challenge.” Or, as the EU puts it: “Roma exclusion and

discrimination has existed for centuries,” “[s]tructural

changes need time,” and “real impact may not be seen for at

LAPADAT V. BONDI 35

least a generation.” This evidence compels the finding that

the Roma are a disfavored group in Romania—a reality that

the Roma have certainly grappled with for centuries.

ii.

Given the errors in its past-persecution and disfavored-

group analyses, it comes as no surprise that the BIA likely

erred when it determined that Ion lacked a “sufficient

individualized risk of future persecution to make his fear of

return to Romania objectively reasonable.” “Evidence of

both individual and group targeting are relevant to

demonstrate the likelihood that a particular individual will

be persecuted.” Tampubolon, 610 F.3d at 1062 (citing

Wakkary, 558 F.3d at 1062–63). When, as here, a petitioner

presents “egregious” evidence of “group persecution,” he

can provide “less evidence of individualized persecution” to

meet the objective prong of a well-founded fear showing.

Kotasz, 31 F.3d at 853; see also Wakkary, 558 F.3d at 1063.

We leave it to the agency, however, to determine whether

Ion meets this requirement. 14

14

The BIA denied Ion’s claim for withholding of removal because it

determined that he had not met the requirements for asylum. Because

the BIA erred in its denial of asylum, we remand Ion’s withholding of

removal claim for further consideration. As we noted in Flores Molina,

“if the BIA determines that [Ion] experienced past persecution on

account of a protected ground,” then it “must credit [Ion] with a

rebuttable presumption of eligibility for withholding of removal.” 37

F.4th at 638 (citing 8 C.F.R. § 1208.16(b)(1)(i); Ahmed, 504 F.3d at

1199). If the BIA determines that Ion is not entitled to a presumption of

eligibility for withholding of removal, it must consider “all probative

evidence related to [Ion’s] fear of future persecution.” Id. at 638–39.

36 LAPADAT V. BONDI

IV.

The record compels our conclusion that Ion Lapadat’s

past experiences rise to the level of persecution, and that the

BIA erred when it determined that Ion failed to demonstrate

his membership in a disfavored group. Accordingly, we

grant Ion’s petition and remand for further proceedings,

consistent with this opinion.

GRANTED and REMANDED.

Smith, N. Randy, Circuit Judge, dissenting.

My colleagues begin their opinion by giving lip service

“to the reasoned and expert judgment of our colleagues in

the [BIA], who we trust to carefully review the record and

apply the law.” Maj. Op. at 4. Then, in order to reach the

result they seek, they make no effort to apply the correct

standard of review to the judgment of these experts they

profess to trust. Instead, they substitute their judgment for

that of the IJ and the BIA in order to reach their desired

result, overturning the holdings of these “trusted” decision

makers.

The record demonstrates that the BIA and the IJ did not

make any reversible mistakes. Instead, my colleagues make

the following mistakes in determining whether Lapadat

suffered past persecution. 1

1

I agree with the majority that Lapadat failed to challenge his CAT claim

both before the BIA and here. Thus, the claim is forfeited.

LAPADAT V. BONDI 37

1. The majority first incorrectly limits its review to

the BIA’s decision.

In determining which underlying decision to review, my

colleagues state that the “the BIA conduct[ed] its own

review of the evidence and law, rather than adopting the IJ’s

decision.” Maj. Op. at 12. Thus, they limited their review to

the BIA’s decision. See id. at 12–13. In so doing, they

allowed themselves to ignore the record and the reasoning

behind the BIA’s decision.

This narrow review was error. When one reads and

reviews this decision, the BIA explicitly stated that it

reviewed the IJ’s decision under the “clearly erroneous”

standard of review. Although the BIA did not “adopt” the

IJ’s decision, it expressly agreed with the IJ and cited to her

opinion. In these situations, we “look to the IJ’s oral decision

as a guide to what lay behind the BIA’s conclusion.” Tekle

v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008). “In so

doing, we review here the reasons explicitly identified by the

BIA, and then examine the reasoning articulated in the IJ’s

oral decision in support of those reasons.” Id.; see also

Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir.

2018) (noting that when “the BIA agrees with the IJ’s

reasoning, we review both decisions”); see also Bhattari v.

Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016) (reviewing both

opinions when the BIA “agrees with and incorporates

specific findings of the IJ while adding its own reasoning”).

Moreover, even if “the BIA announced it was conducting de

novo review,” our review is not limited to the BIA decision

“when the BIA incorporates parts of the IJ’s reasoning,”

including “by giving examples from it.” Szonyi v. Barr, 942

F.3d 874, 897 (9th Cir. 2019); see also Fon v. Garland, 34

F.4th 810, 815 (9th Cir. 2022) (explaining that we may look

to the IJ’s decision because “[t]he BIA’s lack of analysis,

38 LAPADAT V. BONDI

along with the citation to the IJ’s opinion, suggests that the

BIA gave significant weight to the IJ’s findings” (internal

quotation marks and citation omitted)).

To justify their mistake regarding this review, my

colleagues assert that they do not need to review the IJ’s

decision, because the BIA did not “expressly adopt” the

decision. Maj. Op. 12 n.4. However, this justification does

“not hold water.” As the reviewing court, we look to whether

the BIA adopted or incorporated an IJ’s decision in order to

determine what portions of the IJ’s decision we may review.

To suggest that we cannot look at the IJ’s “decision as a

guide to what lay behind the BIA’s conclusion,” Tekle, 533

F.3d at 1051, would ignore the Supreme Court’s directive

that “a reviewing court must ‘uphold’ even ‘a decision of

less than ideal clarity if the agency’s path may reasonably be

discerned,’” Garland v. Ming Dai, 593 U.S. 357, 369 (2021)

(citation omitted). Notably, “reviewing courts remain bound

by traditional administrative law principles, including the

rule that judges generally must assess the lawfulness of an

agency’s action in light of the explanations the agency

offered for it rather than any ex post rationales a court can

devise.” Id.

2. The majority next improperly substitutes its view

for that of the IJ and the BIA in determining past

persecution.

While my colleagues cite to the proper standard of

review for reviewing factual findings, Maj. Op. at 12–13,

they fail to apply the standard they cite. To reiterate the

proper standard of review: an appellate court reviews the IJ’s

factual findings for substantial evidence. Kalulu v. Garland,

94 F.4th 1095, 1099 (9th Cir. 2024). “Substantial evidence

is more than a mere scintilla and is such relevant evidence as

LAPADAT V. BONDI 39

a reasonable mind might accept as adequate to support a

conclusion.” Rivera v. Mukasey, 508 F.3d 1271, 1274 (9th

Cir. 2007). The substantial evidence standard of review is

“deferential,” Parada v. Sessions, 902 F.3d 901, 909 (9th

Cir. 2018), and a “stricter” standard of review than “clearly

erroneous,” see Dickinson v. Zurko, 527 U.S. 150, 156

(1999). “The BIA’s determination that [Lapadat] was not

eligible for asylum must be upheld if ‘supported by

reasonable, substantial, and probative evidence on the record

considered as a whole’ . . . and [that determination] can be

reversed only if the evidence presented by [Lapadat] was

such that a reasonable factfinder would have to conclude that

the requisite fear of persecution existed.” INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992). In other words, “the

evidence [must] compel[] a contrary conclusion from that

adopted by the BIA.” Parada, 902 F.3d at 909.

Instead of applying this proper standard of review, my

colleagues substitute their own judgment for that of the IJ

and the BIA and make new determinations based on facts

that were never argued by the Lapadats. Because these

findings are dispositive to their decision, these mistakes are

paramount.

3. The majority improperly reviews Lapadat’s

claims.

My colleagues make several errors in reviewing the

BIA’s denial of Lapadat’s claim based on his failure to

establish that the incidents he suffered rose to the level of

persecution. First, my colleagues assess the harms suffered

out of context by failing to tie them to persecution. Second,

my colleagues conclude that the kidnapping incident rises to

the level of persecution individually. Third, my colleagues

conclude that the shooting incident rises to the level of

40 LAPADAT V. BONDI

persecution individually. Finally, my colleagues conclude

that cumulatively the incidents suffered rise to the level of

persecution.

A. Incidents must be tied to persecution.

An applicant for asylum must have been subjected to

past “persecution” or have “a well-founded fear of [future]

persecution.” 8 U.S.C. § 1101(a)(42). In order to establish

eligibility for asylum, an applicant “who seeks to

demonstrate that []he was persecuted in the past must prove

(1) that []he was the victim of ‘an incident, or incidents, that

rise to the level of persecution’; (2) that the persecution was

‘on account of’ one of the protected grounds; and (3) that

such persecution was ‘committed by the government or

forces the government is either unable or unwilling to

control.’” Parussimova v. Mukasey, 555 F.3d 734, 738 (9th

Cir. 2009) (quoting Navas v. INS, 217 F.3d 646, 655–56 (9th

Cir. 2000)).

In this case, the BIA and the IJ concluded that Lapadat

was not eligible for asylum, because he failed to meet his

burden of showing the incidents rose to the level of

persecution. My colleagues do not assess the validity of

these findings under the substantial evidence standard of

review but instead merely assert that the harms suffered, by

themselves, compel a different conclusion. In so concluding,

my colleagues apply too broad of a reading to the first prong.

We do not consider every harm that has been subjected upon

an applicant regardless of context. Instead, we only consider

the “incidents” that could constitute “persecution.” See

Navas, 217 F.3d at 655.

We have “defined persecution as the infliction of

suffering or harm upon those who differ (in race, religion or

political opinion) in a way regarded as offensive.” Korablina

LAPADAT V. BONDI 41

v. INS, 158 F.3d 1038, 1043 (9th Cir. 1998) (emphasis

added) (internal quotation marks and citation omitted). We

have also recognized that persecution “is an extreme concept

that means something considerably more than

discrimination or harassment.” Sharma v. Garland, 9 F.4th

1052, 1060 (9th Cir. 2021). Thus, not all incidents “qualify

as persecution, despite the fact that such conditions have

caused the petitioners some harm.” Mihalev v. Ashcroft, 388

F.3d 722, 729 (9th Cir. 2004). Accordingly, before an IJ

determines whether the “incident” can rise to the level of

persecution, he or she must necessarily first determine

whether “the infliction of suffering or harm” arose because

the applicant differed from the persecutor. In other words,

for an incident to rise to the level of persecution, some

evidence must exist that shows the incident was not the result

of civil unrest or criminal activity.2 See Gormley v. Ashcroft,

364 F.3d 1172, 1177 (9th Cir. 2004) (holding that the two

2

My colleagues agree that not all incidents qualify as persecution. Maj.

Op. at 26. Yet, they assert that context does not matter, disregarding

Gormley’s clear holding. They attempt to distinguish Gormley by

asserting that “targeted shootings and attempted kidnappings” are not

“all too-common general conditions.” Maj. Op. at 26. First, there is no

evidence in this record that Lapadat’s shooting was targeted. Lapadat

was admittedly trespassing on private property when he was shot.

Moreover, this court has rejected social groups of persons who “are

subject to kidnappings and extortion,” because asylum cannot be based

on “fear of harm resulting from general conditions of violence and civil

unrest affecting the home country’s populace as a whole.” Alanniz v.

Barr, 924 F.3d 1061, 1064–65 (9th Cir. 2019). In this case, country

condition evidence noted that “[i]n 2016 the Directorate for Investigating

Organized Crime and Terrorism (DIICOT) uncovered a human

trafficking ring that had forced its kidnapped victims, including children,

into beggary, slavery, and other forms of forced labor.” Thus, substantial

evidence would support the agency’s conclusion that the attempted

kidnapping was a criminal act, not persecution.

42 LAPADAT V. BONDI

criminal attacks petitioner suffered did not rise to level of

persecution because “robberies of this sort are an all too

common byproduct of civil unrest and economic turmoil”);

see also Matter of M-E-V-G-, 26 I. & N. Dec. 227, 235 (BIA

2014) (explaining that “asylum and refugee laws do not

protect people from general conditions of strife, such as

crime and other societal afflictions”); Ming Ming Wijono v.

Gonzales, 439 F.3d 868, 872 (8th Cir. 2006) (“Low-level

intimidation and harassment alone do not rise to the level of

persecution, nor does harm arising from general conditions

such as anarchy, civil war, or mob violence ordinarily

support a claim of persecution.” (citation omitted)); Lie v.

Ashcroft, 396 F.3d 530, 532 (3d Cir. 2005) (superseded in

unrelated part by 8 U.S.C. § 1158(b)(1)(B)(I)) (holding that

“substantial evidence supports the BIA’s conclusion that

these robberies were not motivated by religion or ethnicity,

and that, at all events, such robberies were not sufficiently

severe so as to rise to the level of persecution”). To be sure,

a criminal act by its very nature cannot constitute

persecution, because it bears no nexus to a protected

ground. 3 See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir.

3

My colleagues claim that assessing harm under the lens of persecution

conflates the two prongs of the past persecution analysis. Maj. Op. at 18

n.7. Not so. Our precedent is clear: each prong is tied to persecution. See

Parussimova, 555 F.3d at 738. “[W]e do not look to the level of harm

experienced by the petitioner,” but rather we look at “whether the

treatment the victim received rises to the level of persecution.” Kaur v.

Wilkinson, 986 F.3d 1216, 1226 (9th Cir. 2021) (cleaned up). “In other

words, it is the conduct of the persecutor . . . that matters for purposes of

determining what constitutes persecution.” Id. Here, my colleagues do

not consider the conduct of the persecutor, because they do not care who

caused the harm. Under their theory, it is merely the level of harm that is

assessed in the first prong without any context. Assessing harm in the

LAPADAT V. BONDI 43

2010) (“An [applicant’s] desire to be free from harassment

by criminals motivated by theft or random violence by gang

members bears no nexus to a protected ground.”).

Thus, in order for an IJ to properly assess whether an

applicant suffered from past persecution, the IJ cannot

ignore the cause of or reason for the harm when determining

whether the incidents rose to the level of persecution. See

Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir. 2006). In

assessing whether physical mistreatment amounts to

persecution, the Second Circuit explained that “persecution

is the infliction of suffering or harm upon those who differ

on the basis of a protected statutory ground, while

harassment is words, conduct, or action usually repeated or

persistent that, being directed at a specific person, annoys,

alarms, or causes substantial emotional distress in that

person and serves no legitimate purpose.” Id. at 225–26

(cleaned up). The court further explained that “the difference

between harassment and persecution is necessarily one of

degree, [and] the degree must be assessed with regard to the

context in which the mistreatment occurs.” Id. at 226

(internal quotation marks and citation omitted). The Second

Circuit cautioned the BIA to “be keenly sensitive to the fact

that a ‘minor beating’ or, for that matter, any physical

degradation designed to cause pain, humiliation, or other

suffering, may rise to the level of persecution if it occurred

in the context of an arrest or detention on the basis of a

context of persecution does not merge the two prongs; a separate analysis

is still required to determine whether the “protected ground represent[s]

‘one central reason’ for an asylum applicant’s persecution.” See

Parussimova, 555 F.3d at 740.

44 LAPADAT V. BONDI

protected ground.” 4 Id. Notably, asylum is limited to persons

subjected to persecution; thus, allowing any incident of

random violence to be included in an analysis would

unnecessarily burden the agency in assessing claims for

asylum. Moreover, it creates an unworkable standard.

B. Attempting kidnapping incident was unrelated

to a claim of persecution.

Lapadat challenged the BIA’s exclusion of the attempted

kidnapping incident, 5 claiming that the incident was not a

criminal act but that his daughters were targeted on account

of their Roma ethnicity. The BIA upheld the IJ’s findings

noting that the incident did not rise to the level of

persecution. The BIA recognized the IJ’s finding that the

incident was caused by unknown individuals. As the IJ

explained, the evidence showed “that the [attempted]

kidnapping [was] . . . essentially a crime, and though [it was]

abhorrent in nature, . . . [it did not] rise to the level of

persecution under 9th Circuit case law.”

4

My colleagues attempt to minimize the language in Beskovic, arguing

that the court does not “provide a general rule allowing courts to

downgrade or disregard severe harm” because there is no connection to

a protected ground. Maj. Op. at 21 n.8. Beskovic is clear: “the context in

which the mistreatment occurs” is a necessary factor to consider in

assessing whether physical mistreatment amounts to persecution. 467

F.3d at 226. Based on my colleagues interpretation, context does not

matter. Thus, any person who credibly testifies that he or she was shot

(accidentally or for some other reason) or subject to an attempted

kidnapping (even if a purely criminal act) automatically meets prong

one.

5

During the attempting kidnapping incident, Lapadat’s wife was

threatened with death if she continued to yell and was cut with a knife

on her back. Lapadat’s daughters were also threatened with rape.

LAPADAT V. BONDI 45

Although the facts surrounding a particular incident

maybe appalling, persecution may not be found unless there

is sufficient evidence in the record that would compel the

conclusion that the incident was anything but a criminal act.

See Bromfield v. Mukasey, 543 F.3d 1071, 1076–77 (9th Cir.

2008) (“If the perpetrator is motivated by his victim’s

protected status . . . he is engaging in persecution, not

random violence.”). Here, Lapadat’s wife and daughter

testified that they did not know who the assailants were. In

fact, Lapadat’s wife did not discount the possibility that the

assailants themselves could have been “gypsies.” During the

attack and subsequent threats, the assailants did not use

ethnic slurs or make any indication that they were targeting

the Lapadats based upon their Roma ethnicity or any other

protected ground. Thus, this purely criminal act cannot be

considered in Lapadat’s persecution claim. See Gormley,

364 F.3d at 1177.

My colleagues ignore this record evidence and only

consider the criminal acts out of context to conclude that the

incident rose to the level of persecution. 6 But the record is

clear there was no testimony that established the incident

6

Despite my colleagues’ claims that context does not matter, they

nevertheless include it in their analysis. They claim that Lapadat was

shot because he was a gypsy (ignoring the IJ’s findings that Lapadat was

shot because he was admittedly trespassing). Maj. Op. at 25. They also

attempt to sidestep the IJ’s other findings that the shooting was an

isolated incident and the attempted kidnapping was a criminal act by

arguing that the shooting and attempted kidnapping “did not occur in

isolation” but were ongoing acts of persecution, because “the Lapadats,

like many Romani people, had been mistreated by the police and

Romanian public for years because of their ethnicity.” See Maj. Op. at

24. These conclusions improperly disregard the IJ’s findings of fact, and

undermine my colleagues assertion that the harm suffered should be

assessed without context.

46 LAPADAT V. BONDI

was related to a claim of persecution. Accordingly, this

incident cannot rise to the level of persecution.

C. Shooting/trespassing incident was an isolated

incident.

Lapadat argues that the BIA erred because it did not

consider the shooting incident. 7 Although the BIA did not

specifically address this incident in its opinion, it did cite to

the IJ’s decision, Lapadat’s testimony before the IJ, and

Lapadat’s asylum application, all which included this

shooting incident. Thus, we are required to presume the BIA

considered this evidence. Cf. Larita-Martinez v. INS, 220

F.3d 1092, 1095 (9th Cir. 2000) (“We embrace the view of

our sister circuits and hold that an alien attempting to

establish that the [BIA] violated his right to due process by

failing to consider relevant evidence must overcome the

presumption that it did review the evidence.”). Moreover, in

circumstances such as these, we look to the IJ’s decision to

see what lies behind the BIA’s conclusion. See Tekle, 533

F.3d at 1051.

Here, the IJ found that the shooting incident was isolated.

Lapadat admits he was shot while he was trespassing.

Although the individual (who shot Lapadat) also shouted a

racial epithet, substantial evidence supports the IJ’s

conclusion that the incident was isolated. Notably, the

incident occurred over eight years before Lapadat fled to the

7

For the first time on appeal to us, Lapadat characterized the shooting

incident as an “attempted murder.” Before the IJ and the BIA, Lapadat

testified that the man “shot toward” or “shot at” him. Lapadat’s new

characterization has a much different connotation from that to which he

testified and which we are now reviewing. Thus, we should not consider

these newly raised assertions on appeal, which he uses merely to enhance

his claim here.

LAPADAT V. BONDI 47

United States, and there were no other incidents with this

individual. See Sharma, 9 F.4th at 1061 (explaining that

“sporadic incidents, unaccompanied by an ongoing pattern

of harm” are less likely to rise to the level of persecution).

Although my colleagues and Lapadat attempt to enhance

this claim on appeal, Lapadat’s actual argument about the

incident is revealing. Lapadat asserts that the

trespassing/shooting incident “cannot be excluded from the

realm of possibility that the Romanian aggressor shot the

Lead Petitioner knowing there would not likely be any

consequences; and, the police would not care because his

victim was a gypsy.” This characterization does not contest

the fact that he was trespassing; moreover, it does not

suggest an “attempted murder,” because Lapadat was Roma.

Instead, this argument merely provides a different

interpretation of the facts than those found by the IJ, for

which we cannot substitute our judgment. Cf. Lianhua Jiang

v. Holder, 754 F.3d 733, 740 (9th Cir. 2014), overruled on

other grounds by Alam v. Garland, 11 F.4th 1133 (9th Cir.

2021) (“Taking the position suggested by [petitioner] would

require that we supplant the IJ’s . . . determination with our

own, as if we were conducting a de novo review.”).

Although “significant physical violence” may compel a

finding of past persecution, past persecution is only found

when coupled with “other indicators of persecution.”

Sharma, 9 F.4th at 1061. Thus, we must consider “whether

the petitioner’s harm was an isolated incident or, conversely,

part of an ongoing pattern of serious maltreatment.” Id. In

this case, the IJ found that the incident was exactly that: an

isolated event caused by Lapadat’s trespassing. Notably, this

shooting was the first and only incident when Lapadat was

physically harmed and required medical attention.

Accordingly, the record supports the IJ’s finding that the

48 LAPADAT V. BONDI

shooting was caused by Lapadat’s trespass and was isolated

event. Thus, we have no basis for reversal. Dong v. Garland,

50 F.4th 1291, 1300 (9th Cir. 2022); see also Sharma, 9

F.4th at 1061 (noting that “serious maltreatment that is

sustained and recurring is more likely to compel the

conclusion of past persecution”).

Yet, ignoring this standard of review, my colleagues

instead substitute their judgment for that of the agency. 8 My

colleagues do not explain why the IJ’s depiction of this

incident compels a different conclusion. Maj. Op. at 17.

Instead, they presume that, just because Lapadat was

physically harmed, the incident rises to the level of

persecution. However, this presumption ignores our

standard of review. Although, as an IJ, one may have

concluded that an isolated shooting incident rises to the level

of persecution, Maj. Op. at 23 n.11, that is not our decision

to make on appeal, and the record does not compel it, see

Aden v. Wilkinson, 989 F.3d 1073, 1082 (9th Cir. 2021)

(holding that even if “a reasonable factfinder could

conclude” the harm rose to the level of persecution, the

record “did not compel” it).

As the IJ concluded, the act of shooting Lapadat for

trespassing was “offensive”; however, Lapadat did not

present sufficient evidence that would compel a conclusion

that the shooting was more than an isolated act of violence.

8

My colleagues argue that the BIA committed “legal error” because it

did not mention the shooting incident. Maj. Op. at 17. However, the BIA

did not commit legal error. Before the BIA (like here), Lapadat argued

that cumulatively the harm suffered amounted to past persecution. With

regard to this incident, Lapadat challenged the IJ’s finding that Lapadat

was shot because he was trespassing. Moreover, as addressed above, the

BIA cited to the IJ’s decision regarding why the incidents did not rise to

the level of persecution, thus we may look at the IJ’s reasoning.

LAPADAT V. BONDI 49

Accordingly, this incident individually does not rise to the

level of persecution.

D. Cumulatively, the record does not compel a

conclusion of harm rising to the level of

persecution.

Lapadat argues that the incidents of harm cumulatively

rise to the level of past persecution. 9 Lapadat and his family

testified that they experienced the following incidents of

persecution:

1. The Lapadats lived in segregated areas

where Roma live.

2. Romas were unwelcome and unable to

live outside major Roma population

centers because of entrenched

segregation enforced by social

convention. Lapadat claimed he has been

denied entry into restaurants and stores.

3. Lapadat was excluded from formal

employment market.

4. In 2005, Lapadat was unable to obtain

prompt healthcare for an appendicitis.

9

Lapadat did not argue that the kidnapping or shooting incident would

individually rise to the level of persecution. Rather, he only argued that

the BIA erred in not finding the harms cumulatively rose to the level of

persecution. Nevertheless, my colleagues ignore Lapadat’s argument

and assess the shooting and attempted kidnapping incidents individually.

See Maj. Op. at 16–18. This determination only emphasizes the error

made by my colleagues. See Greenwood v. FAA, 28 F.3d 971, 977 (9th

Cir. 1994) (holding that “[w]e will not manufacture arguments for an

appellant”).

50 LAPADAT V. BONDI

5. In 2007, Lapadat was shot and called

“gypsy” after he trespassed on private

property.

6. In 2011, Lapadat was stopped by a

policeman who temporarily detained,

kicked, and slapped him.

7. In 2012, Lapadat’s daughters were

victims of attempted kidnapping by

unknown assailants.10 Lapadat’s wife

was injured when she thwarted the

attempted kidnapping. Thereafter,

Lapadat’s daughters were threatened with

rape if the Lapadats reported the

attempting kidnapping incident to the

police.

8. In 2015, Lapadat was hit in the chest

when he attempted to access a pool.

9. In 2015, Lapadat had an incident with

policeman, Chocolo, wherein he lightly

slapped him and kicked him.

My colleagues characterize the IJ as having rejected “a

laundry list of abuse (like being denied healthcare, work, and

access to public pools and restaurants), as well as criminal

acts, police beatings, and threats.” Maj. Op. at 18. But, even

considered cumulatively, the events do not compel a

conclusion of past persecution. “Cumulative-effect review is

essential where a single isolated incident may not rise to the

level of persecution, but the cumulative effect of several

incidents may constitute persecution.” Salguero Sosa v.

10

Lapadat’s wife testified that she did not know if the unknown

assailants were “Romanian or gypsies,” because “[y]ou can’t tell bad

guys now.”

LAPADAT V. BONDI 51

Garland, 55 F.4th 1213, 1218 (9th Cir. 2022) (internal

quotation marks and citation omitted). The BIA properly

considered the cumulative effect of all relevant harm when

assessing Lapadat’s persecution claim. See id. at 1218–19.

The BIA “agree[d] with the [IJ] that [Lapadat] did not

demonstrate that he experienced past persecution as his past

experiences do not together rise to the level of

persecution.”11

As explained above, the attempted kidnapping incident

was a criminal act that does not establish persecution in the

cumulative harm analysis.12 See Gormley, 364 F.3d at 1177

(“Random, isolated criminal acts perpetrated by anonymous

[persons] do not establish persecution.”). The remainder of

the incidents claimed by Lapadat were isolated or amount

11

As my colleagues recognized, our case law has tension with regard to

whether de novo or a substantial evidence standard of review applies to

whether past harm rises to the level of persecution. Maj. Op. at 14–15.

That said, I agree with my colleagues that we need not resolve that

tension here, because the result is the same. Under either de novo review

or substantial evidence review, we are not allowed “to substitute our

view of the matter for that of the [BIA].” Gu v. Gonzales, 454 F.3d 1014,

1020 (9th Cir. 2006) (citation omitted). Thus, because the IJ found that

the shooting incident was an isolated event caused by Lapadat’s

trespassing, and the kidnapping incident was a criminal act, neither

incident would not compel a conclusion that Lapadat suffered from

persecution under either standard of review. Moreover, the cumulative

harm also would not compel a different conclusion under either standard

of review.

12

My colleagues also improperly reference the subjective harm the

Lapadats continue to suffer. See Maj. Op. at 21–22. However, we have

made it clear that “‘it is the conduct of the persecutor’ that is relevant to

evaluating whether past treatment rises to the level of persecution—not

‘the level of harm’ or ‘subjective suffering’ the petitioner experienced.”

Flores Molina v. Garland, 37 F.4th 626, 636 (9th Cir. 2022) (quoting

Kaur, 986 F.3d at 1226).

52 LAPADAT V. BONDI

only to discrimination or harassment. See Ghaly v. INS, 58

F.3d 1425, 1431 (9th Cir. 1995) (“Discrimination . . . as

morally reprehensible as it may be, does not ordinarily

amount to ‘persecution’ within the meaning of the Act.”).

Although “[s]evere and sustained discrimination, or

discrimination in combination with other harms . . . may

compel a finding of past persecution,” Wakkary v. Holder,

558 F.3d 1049, 1059 (9th Cir. 2009), the IJ and the BIA

determined that the harm suffered here is not sufficient to

rise to the level of persecution.

Lapadat’s exclusion from formal employment does not

support a claim of persecution. Although “substantial

economic deprivation that constitutes a threat to life or

freedom can constitute persecution[,] . . . mere economic

disadvantage alone, does not rise to the level of persecution.”

Zehatye v. Gonzales, 453 F.3d 1182, 1186 (9th Cir. 2006)

(internal quotation marks and citation omitted). Here, even

though Lapadat could not enter the formal workforce in

Romania, Lapadat testified that he earned a living working

for other Roma citizens. Hence, he was not prevented from

earning a living. Lapadat’s employment restrictions, while

discriminatory, are not significant in comparison to our cases

that have concluded that there was substantial economic

deprivation. See, e.g., Chand v. INS, 222 F.3d 1066, 1074

(9th Cir. 2000) (citing cases). Moreover, Lapadat lived in

France for two of these years; thus, Lapadat’s employment

status during this time is not relevant to his persecution

claim.

The record does not show that Lapadat experienced

escalating harm over the last several years, Flores Molina,

37 F.4th at 634, nor does it show that there was an “ongoing

pattern of serious maltreatment,” Sharma, 9 F.4th at 1061.

Since the isolated trespassing/shooting incident in 2007,

LAPADAT V. BONDI 53

Lapadat did not experience any incidents that were anything

beyond mere discrimination and harassment.

My colleagues know that, absent the inclusion of the

shooting and kidnapping incidents, Lapadat only

experienced discrimination or harassment, which is

insufficient to establish persecution. Sharma, 9 F.4th at

1060. However, my colleagues avoid the standard of review

and our precedent, instead looking at the incidents in a

vacuum, ignoring the purpose of asylum claims.

My colleagues’ reliance on Korablina, 158 F.3d 1038

(death threats because of her religion), Baballah v. Ashcroft,

367 F.3d 1067 (9th Cir. 2004) (threats, physical violence,

and economic hardship based on ethnicity and religion), and

Kaur, 986 F.3d 1216 (attempted rape based on political

activities), to conclude these events compel a conclusion of

past persecution is misplaced. In all these cases, the harms

were not isolated and were linked to a protected ground.

My colleagues’ reliance on these cases highlight why

their broad focus on harm is unworkable. They suggested

that the prongs “may bleed together,” but that they can still

rely on these cases to assess prong one only. I agree the

prongs “bleed together,” because they must: whether an

incident rises to the level of persecution, cannot exist without

some evidence of “persecution.” Nevertheless, the fact that

the harm suffered in Korablina, Baballah, and Kaur was not

isolated and was linked to a protected ground established

that the incidents rose to the level of persecution.

In sum, a proper review of the agency’s decision requires

us to determine whether substantial evidence in record

supported its findings. My colleagues do not review the

agency’s findings in this deferential framework. If they had,

54 LAPADAT V. BONDI

they would have held that substantial evidence in the record

supports these factual findings.

4. Even assuming a disfavored group, the majority

improperly relies on its previous fact finding to

support a claim of future persecution.

Absent past persecution, the BIA must nevertheless

consider whether Lapadat has a well-founded fear of

persecution. Lapadat may establish a well-founded fear of

future persecution by “prov[ing] that []he is a member of a

‘disfavored group’ coupled with a showing that []he, in

particular, is likely to be targeted as a member of that group.”

Sael v. Ashcroft, 386 F.3d 922, 925 (9th Cir. 2004) (citation

omitted). My colleagues conclude that Lapadat has such a

fear, because he is a member of a disfavored group of Roma

citizens and, based on his past harm, he established an

individualized risk of future harm. Maj. Op. at 28–35.

However, even assuming that Roma people are a disfavored

group in Romania, the record does not compel the

conclusion that Lapadat has “an individualized threat” of

future persecution. Najmabadi v. Holder, 597 F.3d 983, 992

(9th Cir. 2010) (emphasis in original).

The BIA concluded that Lapadat did not have an

objectively reasonable fear of future harm, because his past

harm was based on “isolated incidents caused by different

individuals.” The BIA further concluded that there was

insufficient evidence that any of those individuals were

likely to target Lapadat in the future. These conclusions are

supported by substantial evidence.

My colleagues ignore these conclusions and instead

claim that they will now “leave it to the agency to determine”

whether Lapadat can meet the objective prong of a well-

LAPADAT V. BONDI 55

founded fear showing under a disfavored group analysis.13

Maj. Op. at 35. However, the agency has already made such

an alternative finding; my colleagues just fail to address the

agency’s conclusions in this regard.14 The BIA was clear that

Lapadat did not meet this lower standard:

We also agree with the Immigration Judge

that, even if Roma constituted a disfavored

group, the lead respondent has not

established that he has a sufficient

individualized risk of future persecution to

make his fear of return to Romania

objectively reasonable (IJ at 8; Respondent’s

Br. at 12-13). Most of the harm experienced

by the lead respondent occurred before he

moved to France in 2013 (IJ at 8). After

returning to Romania in 2015, the lead

respondent experienced an isolated

altercation at a swimming pool and another

13

My colleagues nevertheless attempt to bolster its opinion and Lapadats

claim, arguing that Lapadat is able to show a well-founded fear of future

persecution by dramatically reciting facts not established by the IJ. See

Maj. Op. at 6–10, 27 n.12. Notably, my colleagues mischaracterize the

evidence in the record by (1) asserting that Lapadat was shot because he

was a “gypsy,” id. at 25, (2) implying that the attempted kidnapping was

because of the Lapadats’ daughters ethnicity, id. at 7, and severely

overstate Lapadat’s encounter with a policeman, id. at 9–10. Further, my

colleagues ignore the fact that the Lapadats left and returned to Romania

freely and without incident. Despite my colleague’s desire for the facts

to be different, “[w]e are required to accept administrative findings of

fact unless any reasonable adjudicator would be compelled to conclude

to the contrary.” Dong, 50 F.4th at 1299–1300.

14

My colleagues avoid this issue, because the BIA must first determine

past persecution before it can properly assess a well-founded fear of

future persecution. See Maj. Op. at 35 n.14.

56 LAPADAT V. BONDI

brief encounter with a police officer who

lightly slapped his head kicked his buttocks

(IJ at 8). Although evidence of past harm is

relevant to whether an individual’s fear of

future persecution is objectively reasonable,

all of the harm described by the lead

respondent were isolated incidents caused by

different individuals. See Sael, 386 F.3d at

928–29. There is insufficient evidence in the

record that any of these individuals are

looking for the lead respondent or would be

inclined to single out and target him for

persecution in the future. In light of the

foregoing, the lead respondent has not shown

a sufficient individualized risk to establish a

well-founded fear of persecution under a

disfavored group analysis (IJ at 8). As a

result, the lead respondent and his derivative

beneficiaries are ineligible for asylum.

Even though Lapadat need only “demonstrate a

‘comparatively low’ level of individualized risk in order to

prove that []he has a well-founded fear of future

persecution,” Sael, 386 F.3d at 927, he did not present any

evidence that any individual (whom he encountered) was

still looking for him or would target him for future

persecution. Thus, there is insufficient evidence to compel

the conclusion that he will be persecuted upon his return to

Romania.