Lydia Garcia-Milian v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LYDIA GARCIA-MILIAN, No. 09-71461

Petitioner,

Agency No.

v. A096-180-239

ERIC H. HOLDER, JR., Attorney

General, ORDER AND

Respondent. AMENDED

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 9, 2013—Pasadena, California

Filed September 18, 2013

Amended February 13, 2014

Before: Diarmuid F. O’Scannlain, Richard A. Paez, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Partial Concurrence and Partial Dissent by Judge Paez

2 GARCIA-MILIAN V. HOLDER

SUMMARY*

Immigration

The panel replaced its prior opinion and concurrence and

dissent, filed on September 18, 2013, and published at 730

F.3d 996, with an amended opinion and amended concurrence

and dissent, denied a petition for panel rehearing, denied a

petition for rehearing en banc on behalf of the court, and

ordered that no further petitions shall be entertained.

In the amended opinion, the panel denied a petition for

review of the Board of Immigration Appeals’ decision

denying asylum and withholding of removal to a native and

citizen of Guatemala because the evidence did not compel the

conclusion that petitioner was persecuted on account of her

imputed political opinion. The panel further held that the

evidence did not compel the conclusion that petitioner was

attacked with the acquiescence of the Guatemalan

government for purposes of CAT relief.

Concurring in part and dissenting in part, Judge Paez

agreed with the majority that the Board did not err in denying

petitioner’s CAT claim, but wrote that the evidence in the

record compelled the conclusion that petitioner was attacked

and raped because of her ex-husband's political opinions.

*

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

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

GARCIA-MILIAN V. HOLDER 3

COUNSEL

Joubin P. Nasseri, Nasseri Law Group, Los Angeles,

California, for Petitioner.

Tony West, Assistant Attorney General, Emily Anne

Radford, Assistant Director, Nicole Murley and Jesse L.

Busen (argued), Trial Attorneys, Office of Immigration

Litigation, United States Department of Justice, Civil

Division, Washington, D.C., for Respondent.

ORDER

The opinion and dissent filed on September 18, 2013 are

amended. The superseding amended opinion and dissent will

be filed concurrently with this order.

With these amendments, a majority of the panel has voted

to deny petitioner’s petition for panel rehearing and her

petition for rehearing en banc. Judge Paez voted to grant the

petitions. The petition for rehearing en banc was circulated

to the judges of the court, and no vote for rehearing en banc

was taken. The petition for rehearing and the petition for

rehearing en banc are DENIED. No further petitions for

rehearing or petitions for rehearing en banc will be

entertained.

4 GARCIA-MILIAN V. HOLDER

OPINION

IKUTA, Circuit Judge:

Lydia Garcia-Milian, a native and citizen of Guatemala,

petitions for review of the denial of her applications for

asylum, withholding of removal, and relief under the

Convention Against Torture (CAT) by the Board of

Immigration Appeals (BIA). Because substantial evidence

supports the BIA’s determinations that Garcia-Milian was not

persecuted on account of an imputed political opinion and

that the attack she suffered did not occur with the

acquiescence of the Guatemalan government, we deny her

petition.

I

Garcia-Milian entered the United States illegally in June

2003. After the government initiated removal proceedings,

she conceded removability and, on May 3, 2004, applied for

asylum, withholding of removal, and CAT relief. See

8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 208.18.

Garcia-Milian testified at the removal proceedings and the

IJ concluded that her testimony was credible. According to

Garcia-Milian, she lived in Salama, Guatemala, a small city

of approximately 15,000 people. Between 1985 and 1989,

she lived with Noe Garcia, her common law husband.1 As a

truck driver, Garcia was frequently away from Salama and

1

We use the term “common law husband” because Garcia-Milian

testified that Noe was her husband but that they were never formally

married. The record does not reveal the exact legal status of their

relationship.

GARCIA-MILIAN V. HOLDER 5

would stay with Garcia-Milian for only two days each month.

During the time they were together, Garcia never discussed

politics or the ongoing civil war in Guatemala with Garcia-

Milian, and never told her that he was in a guerilla group or

organization. In approximately 1989, Garcia married another

woman and did not return to Salama. Garcia-Milian did not

have any further contact with him from that time forward.

Around 2000, Garcia-Milian noticed two masked men

following her when she was out shopping or going to school.

This occurred around twenty times. Garcia-Milian did not

report these incidents to the police because she did not think

that the police would help her. Subsequently, in May 2003,

the two masked men came to her home at night and

demanded that she open the door. When she did so, they told

her that they were looking for Noe Garcia because he had

been in a guerilla group and ordered her to tell them his

current whereabouts. Although she did not know where he

lived, she lied and told them he was living in San Miguel (a

non-existent city). The men subsequently beat and raped her.

Before leaving, they told Garcia-Milian that if they could not

find Garcia, they would return and kill her.

After the men left, Garcia-Milian took a taxi to her

mother’s home in another town. Garcia-Milian did not seek

treatment at a hospital because she was afraid that the men

would find out and kill her. Two days later, she reported the

incident to the Salama police, who told her they could not

investigate the incident because she could not identify her

assailants. Fearing for her life, Garcia-Milian left Guatemala

for Mexico, and then paid a “coyote” to smuggle her across

the border into the United States.

6 GARCIA-MILIAN V. HOLDER

In addition to testifying at the proceeding, Garcia-Milian

submitted a State Department report on Guatemala titled

Country Reports on Human Rights Practices – 2006, and four

Amnesty International reports. The reports indicate that

Guatemalan police had minimal training or capacity for

investigating or assisting victims of sexual crimes, and that

the Guatamalan government had been ineffective in

investigating violence against women and homicides

generally, due to weaknesses throughout the criminal justice

and law enforcement system.

The IJ denied Garcia-Milian’s applications for asylum,

withholding of removal, and CAT relief. The BIA affirmed

the IJ’s decision. It noted that “[w]hile the respondent

appears to have been the victim of criminal acts on the

several occasions described, she has not established a nexus

between any incident and a protected ground under the Act.”

Based on its review of the record, the BIA concluded that

there was “no evidence the respondent ever expressed a

political opinion and no evidence to suggest that she was

harmed based on any real or imputed political opinion.” As

a result, the BIA denied Garcia-Milian’s asylum and

withholding of removal claims. The BIA also rejected

Garcia-Milian’s CAT claim. It held that the record did not

establish that “it is more likely than not that the respondent

will face torture by or with the acquiescence or willful

blindness of an officer of the government of Guatemala.”

II

We have jurisdiction under 8 U.S.C. § 1252 to review

final orders of removal. Li v. Holder, 656 F.3d 898, 904 (9th

Cir. 2011). We review the BIA’s denials of asylum,

withholding of removal, and CAT relief for “substantial

GARCIA-MILIAN V. HOLDER 7

evidence” and will uphold a denial supported by “reasonable,

substantial, and probative evidence on the record considered

as a whole.” Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th

Cir. 2010) (internal quotation marks omitted) (asylum);

Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir. 2011)

(internal quotation marks omitted) (withholding of removal);

see Haile v. Holder, 658 F.3d 1122, 1130–31 (9th Cir. 2011)

(CAT relief). In order to reverse the BIA, we must determine

“that the evidence not only supports [a contrary] conclusion,

but compels it—and also compels the further conclusion” that

the petitioner meets the requisite standard for obtaining relief.

INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). The

agency’s “[f]indings of fact are conclusive unless ‘any

reasonable adjudicator’ would be compelled to conclude to

the contrary.” Kamalyan, 620 F.3d at 1057 (quoting 8 U.S.C.

§ 1252(b)(4)(B)).

A

We begin by considering Garcia-Milian’s challenge to the

BIA’s denial of her asylum application.

Applicants for asylum bear the burden of proving

eligibility for asylum. 8 C.F.R. § 208.13(a). In order to carry

this burden, an applicant must first establish “refugee” status,

8 U.S.C. § 1158(b)(1) (2000), by proving past persecution or

well-founded fear of future persecution “on account of race,

religion, nationality, membership in a particular social group,

or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (2000).2

2

Under the REAL ID Act of 2005, an applicant for asylum must

establish that a protected ground “was or will be at least one central reason

for persecuting the applicant,” in addition to proving that persecution was

or will be “on account of” a protected ground. 8 U.S.C. § 1158(b)(1)(B)(i)

8 GARCIA-MILIAN V. HOLDER

Persecution is “on account of” a protected ground only where

the persecution occurred “because of” that ground.

Elias-Zacarias, 502 U.S. at 483; Parussimova v. Mukasey,

555 F.3d 734, 739 (9th Cir. 2009). Accordingly, the

persecutor’s motive is “critical” and the applicant must come

forward with “some evidence of [motive], direct or

circumstantial.” Elias-Zacarias, 502 U.S. at 483.

Here, Garcia-Milian based her asylum claim on the

ground that the masked men persecuted her on account of her

political opinion. Although she does not claim to have any

political opinion of her own, an applicant “can also establish

persecution on account of imputed political opinion—that is,

on account of a political opinion attributed to him by his

persecutors.” Navas v. I.N.S., 217 F.3d 646, 658 (9th Cir.

2000). “In establishing an imputed political opinion, the

focus of inquiry turns away from the views of the victim to

the views of the persecutor.” Sangha v. I.N.S., 103 F.3d

1482, 1489 (9th Cir. 1997). Therefore, the applicant for

asylum must present evidence of the persecutor’s views. A

persecutor’s statements attributing political views to the

applicant may be persuasive evidence. “For example, one

party to a conflict may insist to the victim that the victim is

aligned with the other side.” Id. (citing Singh v. Ilchert,

63 F.3d 1501, 1509 (9th Cir. 1995)). Similarly, persecutors’

statements that they are retaliating against the victim for the

political views of the victim’s family would support an

imputed political opinion claim. Kebede v. Ashcroft,

366 F.3d 808, 812 (9th Cir. 2004). In the absence of such

(2006); Parussimova v. Mukasey, 555 F.3d 734, 738 (9th Cir. 2009).

Because Garcia-Milian filed her asylum application before May 11, 2005,

the effective date of the REAL ID Act, the pre-REAL ID standard applies

to her case. Sinha v. Holder, 564 F.3d 1015, 1021 n.3 (9th Cir. 2009).

GARCIA-MILIAN V. HOLDER 9

direct evidence, an alien may point to “the applicant’s

association with, or relationship to, people who are known to

hold a particular political opinion” in order to raise the

inference that the persecutors have imputed a political view

to the alien. Navas, 217 F.3d at 660. For example, evidence

that “the applicant is a member of a large, politically active

family many of whom have already been persecuted for their

political beliefs” may raise the inference that persecutors

have imputed or would impute the same political opinion to

the applicant. Sangha, 103 F.3d at 1489. Similarly, a

petitioner may demonstrate facts “necessary to prove an

imputed political asylum claim” where she is victimized by

an anti-government party with a long history of harassing and

persecuting the petitioner’s family due to her father’s pro-

government position, and her abusers “made comments

indicating that [petitioner] was chosen as a victim because of

her father’s ties to the [ ] government.” Silaya v. Mukasey,

524 F.3d 1066, 1072 (9th Cir. 2008).

By contrast, we have upheld the BIA’s denial of an

asylum application based on imputed political opinion where

there was neither direct evidence of the persecutor’s

viewpoint, nor indirect evidence sufficient to compel a

conclusion contrary to that reached by the BIA. In Molina-

Estrada, for example, the BIA denied the alien’s asylum

claim because he failed to show persecution on account of a

protected ground. Molina-Estrada v. INS, 293 F.3d 1089,

1094 (9th Cir. 2002). On appeal, the alien pointed to his

testimony that guerillas had attacked his family’s house in

Guatemala and threatened members of his family because his

father was a high ranking officer in the armed forces. Id. at

1092, 1094. Noting that the petitioner “offered no evidence

that his father held particular political beliefs, that the

guerillas knew of or assumed any such beliefs, or that they

10 GARCIA-MILIAN V. HOLDER

had made any statements suggesting that they attacked his

father’s home because of his father’s political beliefs,” id. at

1094–95, we concluded that petitioner’s testimony was not

enough to “compel any reasonable factfinder to conclude that

Petitioner was subject to persecution because of imputed

political beliefs.” Id. at 1094 (internal quotation marks

omitted).

As in Molina-Estrada, the record here does not compel

the conclusion that the masked men imputed a political

opinion to Garcia-Milian. First, there is no direct evidence

that they did so. The masked men did not make any

statements attributing political views to Garcia-Milian or

indicating that they were retaliating against her due to the

views of her ex-husband. Nor did the masked men

themselves express any political views. Garcia-Milian

provided no evidence as to the political opinions of the

masked men; there is no evidence that they were part of a

political organization or that they opposed Noe Garcia’s

political position (if any). Cf. Silaya, 524 F.3d at 1068–70

(noting that petitioner’s abusers were members of an anti-

government group which had targeted the family due to the

father’s pro-government position since petitioner’s

childhood). Further, Garcia-Milian points to only a single

piece of indirect evidence: the masked men’s statement that

they were looking for Noe Garcia because he had been in a

guerilla group. In the circumstances of this case, however,

this single statement is insufficient to compel a conclusion

contrary to that reached by the BIA. The statement could

have been interpreted as evidence that the men either imputed

a political opinion to Garcia-Milian or merely wanted to

extract information from her about Noe Garcia’s

whereabouts. Unlike the victim in Kebede, therefore, Garcia-

Milian failed to identify circumstantial evidence in the record

GARCIA-MILIAN V. HOLDER 11

raising a compelling inference that the masked men were

imputing Noe Garcia’s political opinions to her. For the same

reason, the evidence in the record does not raise the inference

that the men sought to punish Garcia-Milian for her

association with Noe Garcia. Because Garcia-Milian’s single

piece of indirect evidence provides little or no support for her

claim that she was persecuted for an imputed political

opinion, it clearly does not compel that conclusion, and we

must uphold the BIA’s holding to the contrary.3

Because Garcia-Milian did not present evidence of

imputed political opinion that “would compel any reasonable

factfinder to conclude that Petitioner was subject to

persecution because of imputed political beliefs,” Molina-

Estrada, 293 F.3d at 1094 (internal quotation marks omitted),

we conclude that substantial evidence supports the BIA’s

conclusion that Garcia-Milian was not persecuted “on

account of” a protected ground. Accordingly, we reject

Garcia-Milian’s challenge to the BIA’s denial of her asylum

application.4

3

In the circumstances of this case, the fact that Garcia-Milian had not

associated with Noe Garcia in over a decade, and that the masked men had

followed her long enough to learn this fact, weakens any inference that the

masked men were retaliating against her because of her association with

Garcia or that they imputed Garcia’s political opinion to her. Cf. Belayneh

v. I.N.S., 213 F.3d 488, 491 (9th Cir. 2000) (holding that the record was

“devoid of any suggestion that the alleged persecutors have imputed to

[the petitioner] her former husband’s views” in part because “the two have

been divorced for more than fifteen years”).

4

For the same reasons, we reject Garcia-Milian’s challenge to the BIA’s

denial of her claim for withholding of removal. An applicant who fails to

satisfy the standard of proof for asylum also fails to satisfy the more

stringent standard for withholding of removal. Farah v. Ashcroft,

348 F.3d 1153, 1156 (9th Cir. 2003).

12 GARCIA-MILIAN V. HOLDER

B

We turn to Garcia-Milian’s claim that the BIA erred in

denying her CAT claim. To qualify for CAT relief, an alien

must establish that “it is more likely than not that he or she

would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 208.16(c)(2); see also Nuru v.

Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005). Torture is

“an extreme form of cruel and inhuman treatment,” 8 C.F.R.

§ 208.18(a)(2), “that either (1) is not lawfully sanctioned by

that country or (2) is lawfully sanctioned by that country, but

defeats the object and purpose of CAT,” Nuru, 404 F.3d at

1221. In addition, the torture must be “inflicted by or at the

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.” Zheng

v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003) (quoting

8 C.F.R. § 208.18(a)(1)) (emphasis and internal quotation

marks omitted). “Thus relief under the Convention Against

Torture requires a two part analysis—first, is it more likely

than not that the alien will be tortured upon return to his

homeland; and second, is there sufficient state action

involved in that torture.” Tamara-Gomez v. Gonzales,

447 F.3d 343, 351 (5th Cir. 2006).

In addressing the state-action prong of her CAT claim,

Garcia-Milian points to her testimony that the police were

unwilling to investigate the attack by the masked men which

occurred before she left the country, implicitly arguing that

because the police previously acquiesced in torture, the police

are likely to acquiesce in future instances of torture. See

Reyes-Sanchez v. Atty. Gen., 369 F.3d 1239, 1242 n.7 (11th

Cir. 2004). She has also submitted evidence that the

Guatemalan government has been generally ineffective in

preventing or investigating violence against women. We

GARCIA-MILIAN V. HOLDER 13

must determine whether this evidence compels the conclusion

that the Guatemalan government would acquiesce in torture

if Garcia-Milian returned to Guatemala.

Public officials acquiesce in torture if, “prior to the

activity constituting torture,” the officials: (1) have awareness

of the activity (or consciously close their eyes to the fact it is

going on); and (2) breach their legal responsibility to

intervene to prevent the activity because they are unable or

unwilling to oppose it. Ornelas-Chavez v. Gonzales,

458 F.3d 1052, 1059 (9th Cir. 2006) (quoting 8 C.F.R.

§ 208.18(a)(7)); see also Cole v. Holder, 659 F.3d 762, 771

(9th Cir. 2011). By contrast, “[a] government does not

acquiesce in the torture of its citizens merely because it is

aware of torture but powerless to stop it.” Mouawad v.

Gonzales, 485 F.3d 405, 413 (8th Cir. 2007) (internal

quotation marks omitted).

Evidence that the police were aware of a particular crime,

but failed to bring the perpetrators to justice, is not in itself

sufficient to establish acquiescence in the crime. Instead,

there must be evidence that the police are unable or unwilling

to oppose the crime. Otherwise, “a person could obtain CAT

relief merely because he was attacked by a gang of

neighborhood thugs whom the police were unable to

apprehend.” Reyes–Sanchez, 369 F.3d at 1243. In Rreshpja

v. Gonzales, for example, the applicant claimed that the

police had acquiesced in her attempted kidnaping because

when she reported the crime, the police told her “that the

information she had provided was insufficient to identify or

arrest the man who had attacked her.” 420 F.3d 551, 553 (6th

Cir. 2005). The court upheld the BIA’s denial of her CAT

claim because the police’s inability to solve a crime under

those circumstances did not constitute acquiescence in the

14 GARCIA-MILIAN V. HOLDER

crime. Id. at 557. Similarly, in this case, Garcia-Milian’s

testimony that the police declined to investigate the masked

men’s attack because they lacked sufficient information does

not compel the conclusion that the police acquiesced in the

attack, and therefore does not support Garcia-Milian’s claim

that it is more likely than not the police will acquiesce in any

future attacks if she returns to Guatemala.

Nor does evidence that a government has been generally

ineffective in preventing or investigating criminal activities

raise an inference that public officials are likely to acquiesce

in torture, absent evidence of corruption or other inability or

unwillingness to oppose criminal organizations. In Tamara-

Gomez, for example, the court rejected the petitioner’s claim

that the Columbian government acquiesced in attacks by a

narco-terrorist organization, even though the police informed

the petitioner that it lacked the resources to protect individual

families, and the record contained significant evidence that

the Columbian government was unable to prevent the terrorist

group’s crimes. 447 F.3d at 346. The court held that “neither

the failure to apprehend the persons threatening the alien, nor

the lack of financial resources to eradicate the threat or risk

of torture constitute sufficient state action for purposes of the

Convention Against Torture.” Id. at 351. Similarly, in

Menjivar v. Gonzales, the court rejected a petitioner’s claim

for CAT relief despite her evidence that she had been

attacked by a gang member and the record included

newspaper articles detailing the government’s difficulty in

controlling gangs. 416 F.3d 918, 922–23 (8th Cir. 2005).

The court explained that “[t]he newspaper articles at most

demonstrate that the government has a problem controlling

gang activity of which it is aware,” but such evidence did not

compel a finding that the police acquiesced, or would

acquiesce in the future, to gang members’ criminal activities.

GARCIA-MILIAN V. HOLDER 15

Id. By contrast, evidence that police officials were corrupt,

and worked on behalf of criminals or gangsters, may establish

that the government has acquiesced in criminal activities. See

Madrigal v. Holder, 716 F.3d 499, 510 (9th Cir. 2013)

(holding that the petitioner had a plausible CAT claim based

on the Mexican government’s inability to control the Los

Zetas drug cartel where “[v]oluminous evidence” showed

“that corruption of public officials in Mexico remains a

problem, particularly at the state and local levels of

government, with police officers and prison guards frequently

working directly on behalf of drug cartels”); see also

Ramirez-Peyro v. Holder, 574 F.3d 893 (8th Cir. 2009)

(holding that petitioner had a plausible CAT claim where the

evidence showed “wide-scale police participation in harmful

actions on behalf of” Mexican drug traffickers).

In this case, the record shows that the Guatemalan

government and the police have taken steps to combat

violence against women including imposing hefty penalties

for the crime of rape, establishing a Special Prosecutor for

Crimes against Women, establishing a Special Unit for Sex

Crimes, and prosecuting crimes against women. Even

though, as a practical matter, these steps have not achieved

the desired goals of resolving crimes and protecting citizens,

they support the BIA’s determination that the government is

not wilfully blind to attacks on women in Guatemala. See

Tamara-Gomez, 447 F.3d at 351; Menjivar, 416 F.3d at 923.

Accordingly, the reports submitted by Garcia-Milian do not

compel the conclusion that the Guatemalan government has

acquiesced in torture against women, whether as a result of

corruption or through cooperation with criminals. Therefore,

substantial evidence supports the BIA’s determination that

16 GARCIA-MILIAN V. HOLDER

Garcia-Milian has failed to establish the state action

necessary for CAT relief.5

PETITION FOR REVIEW DENIED.

PAEZ, Circuit Judge, concurring in part and dissenting in

part:

Although I agree with the majority that the Board of

Immigration Appeals (“BIA”) did not err in denying Garcia-

Milian’s CAT claim, I respectfully dissent from the

majority’s decision to deny her petition with respect to her

claims for asylum and withholding of removal. In my view,

the evidence in the record compels the conclusion that

Garcia-Milian was attacked and raped because of her ex-

husband’s political opinions. I would therefore grant the

petition and remand to the BIA for further proceedings on

Garcia-Milian’s asylum and withholding of removal claims.

I.

The majority effectively requires Garcia-Milian to

produce direct evidence of the reasons for her persecution.

First, the majority holds that the record “does not compel the

conclusion that the masked men imputed a political opinion”

to Garcia-Milian because the attackers “did not make any

statements attributing political views to Garcia-Milian.” Maj.

Op. at 10. But we have never required asylum applicants to

5

Because we decide on this basis, we do not address whether the record

compels the conclusion that it would be more likely than not that

Garcia-Milian would be tortured upon her return to Guatemala.

GARCIA-MILIAN V. HOLDER 17

establish a nexus solely through direct evidence. To the

contrary, an asylum applicant can establish a nexus between

the act of persecution and the relevant political opinion by

presenting “direct or circumstantial evidence” of her

attackers’ motivations. I.N.S. v. Elias-Zacarias, 502 U.S.

478, 483 (1992) (emphasis added); see also, e.g., Deloso v.

Ashcroft, 393 F.3d 858, 864 (9th Cir. 2005) (“An applicant

need not present direct evidence of a persecutor’s motives if

there is compelling circumstantial evidence.”); Gafoor v.

I.N.S., 231 F.3d 645, 650 (9th Cir. 2000) (“Because it is so

difficult to prove motives with any precision, the Supreme

Court teaches that an applicant does not have to provide

direct evidence that his persecutors were motivated by one of

the protected grounds; instead, compelling circumstantial

evidence is sufficient.”), superseded by statute on other

grounds, REAL ID Act of 2005, Pub. L. No. 109-13, div. B,

§ 101(h)(2), 119 Stat. 231, 305 (2005).1 Our case law thus

requires us to look beyond the fact that the masked men did

not directly tell Garcia-Milian they were attributing any

political views to her, and consider whether the circumstantial

evidence nevertheless compels the conclusion that they

1

We have recognized that compelling evidence of imputed political

opinion may include, inter alia, the persecutor’s “conduct or statements,”

Navas v. I.N.S., 217 F.3d 646, 659 (9th Cir. 2000), “the timing and

substance of the persecution,” Singh v. Gonzales, 439 F.3d 1100, 1111

(9th Cir. 2006), the location of the persecution, Donchev v. Mukasey,

553 F.3d 1206, 1222 (9th Cir. 2009), “the applicant’s association with, or

relationship to, people who are known to hold a particular political

opinion,” Navas, 217 F.3d at 659, and “obvious signs connecting

persecutory acts to the alleged persecutors and suggesting the alleged

persecutors’ motives,” Karouni v. Gonzales, 399 F.3d 1163, 1174 (9th Cir.

2005) (internal quotation marks and alteration omitted). “We have also

found . . . persecution [on the basis of political opinion] when there is no

other logical reason for the persecution.” Sangha v. I.N.S., 103 F.3d 1482,

1490 (9th Cir. 1997).

18 GARCIA-MILIAN V. HOLDER

targeted her because of her association with her ex-husband.

See Silaya v. Mukasey, 524 F.3d 1066, 1070–71 (9th Cir.

2008) (“[E]vidence that the alleged persecutor acted because

of a petitioner’s family’s political associations is sufficient to

satisfy the motive requirement.” (internal quotation marks

and alteration omitted)); see also Zhang v. Gonzales,

408 F.3d 1239, 1246 (9th Cir. 2005); Kebede v. Ashcroft,

366 F.3d 808, 812 (9th Cir. 2004).

The majority also provides several related reasons for

concluding that Garcia-Milian has failed to establish a nexus:

her attackers did not “indicat[e] that they were retaliating

against her due to the views of her ex-husband,” and there is

an absence of evidence of the masked men’s political views.

Maj. Op. at 10. Here, again, the majority errs by requiring

Garcia-Milian to provide direct evidence of motive. We have

explicitly held that an applicant is not required to present

evidence of her attackers’ own stated reasons for attacking

her. Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1075 (9th

Cir. 2004) (“By seizing upon the soldiers’ failure explicitly to

state why they were raping Garcia, the IJ appeared to require

that Garcia provide direct evidence of the soldiers’ motive,

when we have consistently allowed circumstantial evidence

to suffice.”). Indeed, in Garcia-Martinez, we held that it

would be “patently unreasonable” to “rely solely upon . . . a

persecutor’s own statements regarding motive” when

deciding if a nexus exists. Id. at 1076. Thus, we concluded,

“the fact that the soldiers failed explicitly to inform Garcia

that they were raping her on account of a protected ground

[was] not highly relevant.” Id.; see also Gafoor, 231 F.3d at

650 (“Persecutors do not always take the time to tell their

victims all the reasons they are being beaten or kidnapped or

killed.”).

GARCIA-MILIAN V. HOLDER 19

II.

The majority next recites its duty to consider

circumstantial evidence, but fails to actually do so. First, the

majority states that the “single piece of indirect evidence” in

the record is “the masked men’s statement that they were

looking for [Garcia-Milian’s ex-husband] because he had

been in a guerrilla group,” and concludes in the amended

opinion that this is “insufficient to compel a conclusion

contrary to that reached by the BIA.” Maj. Op. at 10. I

disagree. The masked men’s statement is not the “single”

piece of indirect evidence in support of Garcia-Milian’s

claims. Consider the facts of the case: at 11:00 p.m., the

masked men began “hitting the door very loudly,” demanding

that Garcia-Milian let them into her house. Thinking that

they were the police, Garcia-Milian opened the door. The

men entered and told Garcia-Milian they were looking for her

ex-husband because he was a member of a guerrilla

organization. The following events then occurred, as credibly

described by Garcia-Milian:

They asked me where my husband was, and I

don’t know where he is. I told them I didn’t

know because it had been more than 15 years

since we were separated; that I didn’t know

anything about him. They said I did know.

They took me inside, and they put a weapon

on my chest, and they kept telling me to tell

them, to tell them, and I said I didn’t know

anything. They insisted that . . . if I wouldn’t

tell them, they would kill me. After they

threw me on the floor, and when I felt they

were going to kill me, I mentioned a place,

but I knew he wasn’t there so they would

20 GARCIA-MILIAN V. HOLDER

leave and they wouldn’t kill me. They began

to hit me. After they hit me a lot, they kicked

me very hard with their shoe. Then they

raped me. One was holding a weapon on my

head, and the other one was laughing. Then

the other one raped me, began to rape me. I

was unconscious. I couldn’t take it any

longer.

The record is thus replete with circumstantial evidence of

motive beyond the attackers’ own statements—namely, the

record shows that the attackers knew who Garcia-Milian was,

knew of her association with her ex-husband, knew where she

lived, visited her at her private home late at night, and

violently hit, kicked, and took turns raping Garcia-

Milian—while laughing—over the course of an interrogation

that focused on nothing other than information about her ex-

husband, whom the attackers sought to find because of his

political views.

This leads me to my ultimate point of disagreement: I fail

to see how any reasonable fact-finder could conclude that the

circumstantial evidence in this case is insufficient to meet the

nexus requirement, as the majority concludes. To the

contrary, I would hold that any reasonable fact-finder would

be compelled to find that Garcia-Milian was personally

targeted because of her ex-husband’s political beliefs. See

Silaya, 524 F.3d at 1070–72. Because “evidence that the

alleged persecutor acted because of a petitioner’s family’s

political associations is sufficient to satisfy the motive

requirement,” id. at 1070–71 (internal quotation marks and

alteration omitted), and because Garcia-Milian has provided

compelling circumstantial evidence of such a motive, I would

further hold that Garcia-Milian has established the requisite

GARCIA-MILIAN V. HOLDER 21

nexus. See Navas, 217 F.3d at 659 n.18 (“Where police beat

and threaten the spouse of a known dissident, it is logical, in

the absence of evidence pointing to another motive, to

conclude that they did so because of the spouse’s presumed

guilt by association.”).

III.

For the above reasons, I would hold that the record

compels the conclusion that Garcia-Milian was beaten and

raped because of her ex-husband’s political views, which

satisfies the requirements for showing “imputed political

opinion.” I would therefore grant the petition with respect to

Garcia-Milian’s claims for asylum and withholding of

removal and remand for further proceedings.