Stephen Fon v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN TAMUFOR FON, No. 20-73166

Petitioner,

Agency No.

v. A203-679-900

MERRICK B. GARLAND, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted December 7, 2021 *

San Francisco, California

Filed May 18, 2022

Before: Susan P. Graber and Daniel P. Collins, Circuit

Judges, and Jennifer Choe-Groves, ** Judge.

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

**

The Honorable Jennifer Choe-Groves, Judge for the United States

Court of International Trade, sitting by designation.

2 FON V. GARLAND

Opinion by Judge Graber;

Concurrence by Judge Graber;

Concurrence by Judge Collins;

Partial Concurrence and Partial Dissent by

Judge Choe-Groves

SUMMARY ***

Immigration

Granting in part and denying in part Stephen Tamufor

Fon’s petition for review of a decision of the Board of

Immigration Appeals, and remanding, the panel held that:

(1) the record compelled a finding of past persecution;

(2) the agency’s flawed reasoning as to nexus precluded

meaningful review of that determination; and (3) substantial

evidence supported the denial of relief under the Convention

Against Torture.

While tending to the wounds of a separatist fighter at a

local hospital, Cameroonian soldiers punched Fon, attacked

him with a knife (requiring him to seek medical attention and

leaving a three-inch scar), and threatened to kill him if they

ever caught him treating separatists again. Although Fon did

not return to his job at the hospital, he continued treating

separatist fighters at his home. Cameroonian soldiers later

went looking for Fon and ransacked his home. The panel

held that the harm Fon suffered, including the physical

injury, the specific death threats connected to the physical

***

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

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

FON V. GARLAND 3

harm, and evidence of the country’s political and societal

turmoil, compelled the finding of past persecution.

The agency concluded that Fon failed to establish a

nexus to a protected ground for two reasons: (1) because he

had not provided any declarations from coworkers or family

members regarding what happened to him in Cameroon; and

(2) because he had not testified as to what happened to a

hospital coworker who helped Fon treat the wounded

separatist. The panel held that the first reason was invalid

because the immigration judge failed to give Fon advance

notice of what additional corroborating evidence was

required, and an opportunity to produce it, or to explain why

it was not available. The panel wrote that the IJ’s second

reason was vague, because it was not directly responsive to

Fon’s argument that, due to the medical assistance he

provided, Cameroonian soldiers perceived him as working

with the opposition. The panel wrote that it also was not

clear whether this reason rested on the flawed findings of

fact concerning past persecution or whether this reason (like

the first one) faulted Fon for not providing corroborative

evidence. In light of these ambiguities, the panel concluded

that it could not conduct a meaningful review of the agency’s

nexus determination, and it remanded for a clear

explanation.

The panel held that substantial evidence supported the

denial of CAT relief because Fon did not suffer past torture,

and the record contained no evidence of an individualized

future risk of torture.

Concurring, Judge Graber wrote separately to discuss

this circuit’s standard, and to note a circuit split concerning

the proper standard to use, when the court reviews the

Board’s determination that a particular set of facts does or

4 FON V. GARLAND

does not rise to the level of persecution. Judge Graber wrote

that this circuit has found a middle way by recognizing that

this is a mixed question of law and fact, and that although at

first glance there appears to be some inconsistency in this

circuit’s precedent, in her view, no true inconsistency exists.

Judge Graber explained that not all mixed questions are

alike, and that the applicable standard depends on whether

answering the mixed question entails primarily legal or

factual work. Judge Graber wrote that determining whether

an applicant’s harm crosses the persecution threshold

usually involves very little legal work, rather it requires

measuring the severity of the alleged harms that the

applicant has suffered, looking at the cumulative effect of all

the incidents, and comparing the facts of the applicant’s case

with those of similar cases. For that reason, the substantial

evidence standard usually applies. However, Judge Graber

wrote that in rare cases, answering the mixed question entails

very little factual work, such as cases involving the agency’s

evidentiary rules for showing past persecution, or the legal

nature or significance of the harm suffered, in which case de

novo review applies. Although in Judge Graber’s view this

circuit’s law is consistent, and more nuanced than that of

other circuits applying only substantial evidence or de novo

review to all cases, she shares Judge Collins’s view that

Supreme Court guidance on this important, recurring topic

would be welcome.

Concurring, Judge Collins agreed that the record

compelled the conclusion that Fon suffered past persecution.

Writing separately to respond to Judge Graber’s

concurrence, Judge Collins stated that Judge Graber made a

number of good points in favor of her position that, except

in rare cases, substantial evidence is the correct standard for

assessing whether a petitioner’s abuse rises to the level of

past persecution. However, in Judge Collins’s view, the

FON V. GARLAND 5

question is actually quite a bit more complicated than Judge

Graber’s concurrence suggests, and overlooks several

significant complicating considerations.

First, Judge Collins wrote that Judge Graber’s proposed

solution implicates a further intra-circuit split concerning the

standard of review for mixed questions of law and fact,

including whether standards for reviewing judicial decisions

are applicable in the administrative context. Second, Judge

Graber’s proposed resolution of these intra-circuit conflicts

does not fit well with the terms of the Immigration and

Nationality Act (INA), which states only that the

administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to

the contrary, but does not say that any other determinations

are subject to this highly deferential standard of review.

Third, resolution of these intra-circuit conflicts may also

require considering how traditional administrative law

principles bear on the question. For example, failing

properly to distinguish between the Board’s legal holdings

and its factual conclusions obscures the question of what

role, if any, principles of Chevron deference should play in

this area. Moreover, although some of this circuit’s cases

have assumed that the traditional “substantial evidence”

principles of administrative review require that the court

review mixed questions of law and fact only for substantial

evidence, this also raises the possibility that perhaps the

court should apply a different form of “substantial evidence”

review from the specific one that the INA expressly

establishes for findings of fact. Fourth, treating the question

of whether certain undisputed harms rise to the level of past

persecution as a factual finding, subject to the INA’s highly

deferential standard of review, seems hard to square with the

agency’s own view of the matter, where the Board has

squarely held that the clearly erroneous standard governing

6 FON V. GARLAND

factual findings does not apply to the application of legal

standards, such as whether the facts established by an alien

amount to past persecution or a well-founded fear of

persecution.

Judge Collins wrote that the level of internal

inconsistency and intellectual confusion in this circuit’s

caselaw has become so great that only the en banc court can

straighten it out (unless the Supreme Court decides to

address the existing circuit split). Judge Collins suggested

that the en banc court should take up these issues in an

appropriate case in which the standard of review would

make a difference. However, because the standard of review

would not affect the outcome in this case, Judge Collins

wrote that this is not that case.

Concurring in part and dissenting in part, Judge Choe-

Graves agreed with the majority’s denial of Fon’s request for

CAT relief. However, because in her view substantial

evidence supported the Board’s denial of Fon’s applications

for asylum and withholding of removal, Judge Choe-Graves

dissented from the remainder of the majority’s opinion

granting the petition in part and remanding to the Board.

COUNSEL

Danielle Beach-Oswald, Beach-Oswald Immigration Law

Associates PC, Washington, D.C., for Petitioner.

Brian Boynton, Assistant Attorney General; Cindy S.

Ferrier, Assistant Director; Sarai M. Aldana, Trial Attorney;

Office of Immigration Litigation, Civil Division, United

States Department of Justice, Washington, D.C.; for

Respondent.

FON V. GARLAND 7

OPINION

GRABER, Circuit Judge:

Petitioner Stephen Tamufor Fon, a native and citizen of

the United Republic of Cameroon, seeks review of the Board

of Immigration Appeals’ (“BIA”) denial of his applications

for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). The BIA denied

asylum and withholding of removal on the grounds that

Petitioner had (a) failed to demonstrate past persecution and

(b) failed to prove a nexus between the feared harm and a

protected ground. We conclude that the record compels a

finding of past persecution and that the agency’s flawed

reasoning as to nexus leaves us unable to conduct a

meaningful review of that determination. We therefore grant

the petition in part and remand for further proceedings as to

asylum and withholding of removal. But substantial

evidence supports the agency’s denial of relief under CAT,

so we deny the petition in part.

BACKGROUND

Cameroon contains both an English-speaking region and

a French-speaking region. In October 2016, activists in the

English-speaking region campaigned to expand the use of

the English language in schools and courtrooms. The

campaign turned violent and, when separatist fighters

declared the English-speaking region’s independence, the

violence escalated into an ongoing war with the government

of Cameroon. According to the 2018 Country Report from

the United States Department of State, both sides have

committed human rights abuses, including torture, rape,

kidnappings, and indiscriminate killings of civilians.

8 FON V. GARLAND

Petitioner lived in Cameroon’s English-speaking region.

He worked as a laboratory assistant at a local hospital, and

part of his work included cleaning patients’ wounds. In

December 2018, the hospital treated a patient who Petitioner

suspected was a separatist fighter. While Petitioner tended

to the wounds, four soldiers from the Cameroonian military

“bashed into the ward” and “seized” the patient. Two

soldiers took the patient away. The remaining two soldiers

shouted at Petitioner and threatened to kill him if they caught

him treating separatist fighters again. They then punched

Petitioner and attacked him with a knife, leaving him with a

three-inch scar on his left side.

Petitioner never returned to work at the hospital. But he

continued to treat separatist fighters in his home. On two

occasions, three separatist fighters knocked on Petitioner’s

door in the middle of the night, seeking medical treatment.

Petitioner treated them. In January 2019, Petitioner’s

neighbor told him that Cameroonian soldiers “had come

looking for” him and had ransacked his home. Assuming

that the soldiers had “credible information” that “I had

treated people at my place,” and mindful of the earlier threat

at the hospital, Petitioner hid at his friend’s house. He

returned home once to collect his things, but he otherwise

lived with his friend until he left Cameroon in February

2019.

Six months later, in August 2019, Petitioner arrived in

the United States. He applied for asylum, withholding of

removal, and relief under CAT. In January 2020, an

immigration judge (“IJ”) expressly found him credible but

denied all three applications. The BIA affirmed the denials,

and this petition ensued.

FON V. GARLAND 9

DISCUSSION

We address, in turn, the BIA’s denial of asylum,

withholding of removal, and relief under CAT.

A. Asylum

To qualify for asylum, Petitioner must demonstrate that

he “is unable or unwilling” to return to Cameroon “because

of persecution or a well-founded fear of persecution on

account of . . . [his] political opinion.” 8 U.S.C.

§ 1101(a)(42)(A). If Petitioner demonstrates past

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

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

the BIA concluded that Petitioner did not suffer past

persecution and, without a presumption of future

persecution, had not established a well-founded fear of

future persecution. The BIA also held that Petitioner failed

to show a nexus between his feared harm and a protected

ground. See, e.g., Navas v. I.N.S., 217 F.3d 646, 656 (9th

Cir. 2000) (explaining that an asylum applicant must show

harm “that is ‘on account of’ one of the statutorily-protected

grounds”). We address below the agency’s findings

pertaining to past persecution and nexus.

1. Past Persecution

To establish past persecution, Petitioner must show past

harm of a severity “that rise[s] to the level of persecution[.]”

Id. The BIA rejected Petitioner’s argument that the severity

of the harms that he experienced rose to the level of

persecution. We “review for substantial evidence the BIA’s

particular determination that a petitioner’s past harm ‘do[es]

not amount to past persecution.’” Sharma v. Garland,

10 FON V. GARLAND

9 F.4th 1052, 1060 (9th Cir. 2021) (alteration in original)

(citation omitted). 1

“This circuit has 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 v. I.N.S., 158 F.3d 1038, 1043 (9th Cir. 1998)

(internal quotation marks omitted). But “persecution is an

extreme concept that does not include every sort of treatment

our society regards as offensive.” Ghaly v. I.N.S., 58 F.3d

1425, 1431 (9th Cir. 1995) (citation omitted). Accordingly,

“some circumstances that cause petitioners physical

discomfort or loss of liberty do not 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).

“[A] good starting point for determining whether

substantial evidence supports the BIA’s resolution of the

issue” are the seven non-exhaustive factors identified in

Sharma. Sharma, 9 F.4th at 1063. Although those factors

are not determinative, they “often arise in these types of

cases” and they “guide our analysis.” Id. at 1061.

Three of those factors are present here: physical injury,

specific threats, and evidence of the country’s political and

societal turmoil. Id. at 1061–63. Soldiers stabbed Petitioner

in the stomach, causing him to bleed enough that he required

stitches, and leaving a three-inch scar. Petitioner testified

1

Because we would reach the same conclusion under any standard

of review, we need not address whether a less deferential standard should

pertain. See Xue v. Lynch, 846 F.3d 1099, 1104–06 & n.11 (10th Cir.

2017) (noting a circuit split as to whether substantial evidence review or

de novo review applies to the question whether particular facts rise to the

level of persecution).

FON V. GARLAND 11

that the soldiers threatened him that, “[i]f they catch me

treating [separatist fighters], they will treat – they will kill

me.” In his written application, Petitioner stated that the

soldiers “warned me if caught again, I will be killed.” 2 Over

the next few weeks, Petitioner treated more separatist

fighters at his house. Soldiers then came to his home, did

not find him, and ransacked the home. Finally, undisputed

evidence describes the English-speaking region of

Cameroon as mired in a “crisis” that “developed into an

armed conflict,” which has triggered “serious human rights

violations and abuses by” both sides.

We compare those facts to those in our recent decision

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

members of Al-Shabaab, a group in Somalia, raided a movie

theater owned by the petitioner’s brother. Id. at 1083. They

beat the petitioner “and cudgeled him on the head with the

butt of a rifle, causing him to bleed profusely.” Id. To

ensure that the theater remained closed, they stole equipment

from the theater. Id. And, two weeks later, the petitioner’s

brother received a phone call from Al-Shabaab with a death

threat aimed at the petitioner. Id. The petitioner never

returned to his job at the theater, remained in hiding, and fled

Somalia within two months. Id. We emphasized that, “[i]n

addition to physically beating [the petitioner], members of

Al-Shabaab kept tabs on him by contacting his brother and

warn[ing] they would kill [the petitioner] and his brother if

2

The BIA commented that Petitioner “characteriz[ed] the soldiers’

threats as a joke.” The BIA clearly misread Petitioner’s testimony.

Petitioner testified in both his oral and written testimony that the soldiers

“made a joke about me playing Jesus Christ by trying to save the patient.”

The joke was not the threat made by the soldier; rather, the soldier

mocked Petitioner as purportedly thinking that he was a messianic figure.

Petitioner plainly took the threat seriously and not as a joke. After the

soldiers came to his house, he abandoned his home and fled the country.

12 FON V. GARLAND

they continued to disobey Al-Shabaab’s command.” Id.

Finally, the country-conditions evidence confirmed that Al-

Shabaab remained a major force in the country and a danger

to many. Id. at 1084. We concluded that, “[t]ogether, this

evidence compels the conclusion that [the petitioner]

suffered persecution while in Somalia.” Id.

We see no meaningful distinction between the extent of

harm in Aden and the extent of harm suffered by Petitioner.

Here, as in Aden, Petitioner experienced a single episode of

bloody physical violence, with Petitioner’s assault resulting

in a visible scar. Here, as in Aden, the death threat was

connected to the physical harm. And here, as in Aden, after

receiving the death threat, Petitioner never returned to work

and fled the country instead. If anything, Petitioner may

have suffered greater harm than did the petitioner in Aden,

because the knife wound in his abdomen required medical

treatment, whereas the beating in Aden did not. And the

soldiers followed up on their death threat to Petitioner,

whereas Al-Shabaab did not.

To be sure, as the dissent notes, the effect of the death

threat in Aden differs from the effect here. There, the “chain

of events reveals that Al-Shabaab intended to coerce Aden

to submit to its new political and religious order, and used

offensive strategies—beatings, destruction of property, and

death threats—to achieve this goal.” Id. By contrast, here,

the strategies “did not coerce Fon into abandoning his lawful

beliefs[.]” Dissent at p. 33. But that distinction misses the

mark. “What matters in assessing the sufficiency of the

threat to establish persecution[] is whether the group making

the threat has the will or the ability to carry it out—not

whether it is, in fact, carried out.” Aden, 989 F.3d at 1083

(internal quotation marks omitted). Here, as in Aden, the

persecutors harmed Petitioner physically and threatened

FON V. GARLAND 13

him. The persecutors showed that they had the will or the

ability to carry out their death threat by visiting Petitioner’s

home and ransacking it. Thus, the combination of physical

harm and threat here sufficed to establish persecution. See

id. at 1082 (“[W]hen the incidents have involved physical

harm plus something more, such as credible death threats,

we have not hesitated to conclude that the petitioner suffered

persecution.” (emphasis omitted)). Considering the facts

here in the context of the country-conditions evidence, we

conclude that the record compels the conclusion that

Petitioner suffered past persecution.

Our other decisions are not to the contrary. For example,

in Hoxha v. Ashcroft, 319 F.3d 1179, 1181 (9th Cir. 2003),

the petitioner suffered a one-time beating and experienced

threats. In rejecting Petitioner’s argument that the record

compelled a finding of past persecution, we emphasized that

the single incident of physical violence “was not connected

with any particular threat” and that there was “no evidence

that the attackers knew who [the petitioner] was or that they

showed any continuing interest in him.” Id. at 1182. By

contrast, here, a connection exists between the physical harm

and the death threat because the soldiers made the threat

while they stabbed Petitioner. In addition, because the

soldiers later came to Petitioner’s home and looked for him

there, the record contains further “evidence that the attackers

knew who [the petitioner] was” and that they showed

“continuing interest in him.” Id.; see also Gu v. Gonzales,

454 F.3d 1014, 1019–21 (9th Cir. 2006) (holding that a one-

time beating did not compel a finding of past persecution);

Prasad v. I.N.S., 47 F.3d 336, 339–40 (9th Cir. 1995)

(holding that a one-time beating plus another incident that

caused damage to the petitioner’s home did not compel a

finding of past persecution).

14 FON V. GARLAND

In sum, the incidents that Petitioner suffered compel a

finding that Petitioner experienced past persecution.

2. Nexus

To prevail on an asylum claim, an applicant also must

demonstrate that the persecution was “on account of” a

statutorily protected ground. Parussimova v. Mukasey, 555

F.3d 734, 739 (9th Cir. 2009). To meet this “nexus”

requirement, an applicant must show that the protected

ground was “at least one central reason” why the applicant

was persecuted. 8 U.S.C. § 1158(b)(1)(B)(i). “[A] motive

is a ‘central reason’ if the persecutor would not have harmed

the applicant if such motive did not exist.” Parussimova,

555 F.3d at 741.

Here, the BIA wrote in full: “Contrary to his contentions

on appeal, [Petitioner] did not establish any nexus between

his mistreatment and a protected ground, including his status

as an Anglophone or an imputed political opinion contrary

to the government.” The BIA provided no further

explanation, but it cited the IJ’s discussion of this point. The

BIA’s lack of analysis, along with the citation to the IJ’s

opinion, “suggests that the BIA gave significant weight to

the IJ’s findings.” Avetova-Elisseva v. I.N.S., 213 F.3d 1192,

1197 (9th Cir. 2000). Thus, we may “look to the IJ’s oral

decision as a guide to what lay behind the BIA’s

conclusion.” Id.

The IJ addressed Petitioner’s “nexus” argument that,

because he was an Anglophone, he would be perceived as

“working with the opposition group” and that, therefore, “he

has an imputed political opinion.” The IJ rejected

Petitioner’s “nexus” arguments for two reasons: because

Petitioner had “not provided any declarations from

coworkers or family members regarding what happened to

FON V. GARLAND 15

him in Cameroon” and because he had not testified as to

“what happened to his coworker that was helping him with

this individual who was wounded.”

The first reason was invalid. The IJ could not rely on the

absence of corroborative evidence to reject a finding of

nexus without having given Petitioner advance notice of

what additional evidence was required and an opportunity to

produce it or to explain why it was not available. Bhattarai

v. Lynch, 835 F.3d 1037, 1042–43 (9th Cir. 2016) (citing Ren

v. Holder, 648 F.3d 1079, 1093 (9th Cir. 2011)). Because

that did not occur here, “we must grant the petition and

remand.” Id. at 1043.

The IJ’s second reason is vague. Petitioner argued that

the Cameroonian soldiers perceived him as working with the

opposition group because he personally had provided

medical treatment to separatist fighters. The IJ’s second

reason is not directly responsive to that argument. It also is

not clear whether this reason rested on the flawed findings

of fact concerning past persecution or whether this reason

(like the first one) faulted Petitioner for not providing

corroborative evidence. In light of these ambiguities, we

cannot know whether there are valid grounds on which the

BIA rejected Petitioner’s nexus argument. “Without

knowing the basis of the [BIA]’s decision, we cannot

conduct a meaningful review. We therefore remand to the

BIA for a clear explanation.” Delgado v. Holder, 648 F.3d

1095, 1108 (9th Cir. 2011) (en banc).

In sum, a remand is required.

B. Withholding of Removal

The BIA denied withholding of removal for the same

reasons it denied asylum—lack of past persecution and lack

16 FON V. GARLAND

of nexus. We therefore grant the petition as to the claim for

withholding of removal and remand for further proceedings

as to this form of relief.

C. CAT Relief

Substantial evidence supports the BIA’s determination

that Petitioner failed to show that it is “more likely than not

that he . . . would be tortured if removed to the proposed

country of removal.” 8 C.F.R. § 208.16(c)(2). Petitioner did

not suffer past torture, and the record contains no evidence

of individualized future risk of torture. We therefore deny

the petition as to CAT relief.

PETITION GRANTED IN PART, DENIED IN

PART, AND REMANDED. Each party shall bear its

own costs on appeal.

GRABER, Circuit Judge, concurring:

I write separately to discuss our standard of review in

cases of this kind. As noted in the opinion, there is a circuit

split concerning the proper standard to use when we review

the BIA’s determination that a particular set of facts does or

does not rise to the level of persecution. Our circuit has

found a middle way by recognizing that this is a mixed

question of law and fact.

In general, “[p]etitions for review from BIA decisions in

asylum cases are reviewed under the substantial evidence

standard.” Chand v. I.N.S., 222 F.3d 1066, 1073 (9th Cir.

2000). Under this standard, “[t]he [agency]’s decision must

be affirmed unless the petitioner can establish ‘that the

evidence he presented was so compelling that no reasonable

FON V. GARLAND 17

factfinder could fail to find [eligibility for asylum].” Pal v.

I.N.S., 204 F.3d 935, 937 n.2 (9th Cir. 2000) (third alteration

in original) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478,

483–84 (1992)). “This strict standard bars a reviewing court

from independently weighing the evidence and holding that

the petitioner is eligible for asylum, except in cases where

compelling evidence is shown.” Kotasz v. I.N.S., 31 F.3d

847, 851 (9th Cir. 1994).

Our cases contain, at first glance, an apparent

inconsistency. In scores of cases, both published and

unpublished, we have held that we “review for substantial

evidence the BIA’s particular determination that a

petitioner’s past harm ‘do[es] not amount to past

persecution.’” Sharma v. Garland, 9 F.4th 1052, 1061 (9th

Cir. 2021) (alteration in original) (citation omitted). 1 But in

two cases, we held that we review de novo “[w]hether

particular acts constitute persecution for asylum purposes.”

Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir. 2021);

accord Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th

Cir. 2005). In my view, no true inconsistency exists.

Whether facts meet a legal standard presents a mixed

question of law and fact. See U.S. Bank Nat’l Ass’n ex rel.

CWCapital Asset Mgmt. LLC v. Village at Lakeridge, LLC,

1

Accord Villegas Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir.

2021); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028–29 (9th Cir.

2019); Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009);

Karapetyan v. Mukasey, 543 F.3d 1118, 1124–25 (9th Cir. 2008),

superseded by statute on other grounds as stated in Owino v. Holder,

575 F.3d 956, 958 (9th Cir.2009) (per curiam); Gu v. Gonzales, 454 F.3d

1014, 1018–19 (9th Cir. 2006); Mansour v. Ashcroft, 390 F.3d 667, 672

(9th Cir. 2004); Mihalev v. Ashcroft, 388 F.3d 722, 726, 730 (9th Cir.

2004); Singh, 134 F.3d at 967–69; Prasad v. I.N.S., 47 F.3d 336, 339–40

(9th Cir. 1995).

18 FON V. GARLAND

138 S. Ct. 960, 966 (2018) (holding that “whether the

historical facts found satisfy the legal test” presents a “mixed

question of law and fact” (internal quotation marks

omitted)). “Mixed questions are not all alike.” Id. at 967.

Which standard we apply “all depends—on whether

answering [the mixed question] entails primarily legal or

factual work.” Id. If answering the mixed question is

primarily a legal exercise, then we review de novo. See

Cordoba v. Holder, 726 F.3d 1106, 1113 (9th Cir. 2013)

(“[W]e review de novo both purely legal questions and

mixed questions of law and fact requiring us to exercise

judgment about legal principles.” (quoting Mendoza-Pablo

v. Holder, 667 F.3d 1308, 1312 (9th Cir. 2012))). But if

answering the mixed question is primarily factual, then we

review with deference to the fact-finder. See also Cha Liang

v. Att’y Gen., 15 F.4th 623, 626–30 (3rd Cir. 2021) (Jordan,

J., concurring) (opining that past persecution is a mixed

question of law and fact).

Usually, determining whether an applicant’s harm

crosses the persecution threshold involves very little legal

work. See, e.g., Singh v. I.N.S., 134 F.3d 962, 967 (9th Cir.

1998) (“This inquiry is heavily fact-dependent . . . .”);

Cordon-Garcia v. I.N.S., 204 F.3d 985, 991 (9th Cir. 2000)

(“The determination that actions rise to the level of

persecution is very fact-dependent . . . .”). In those

circumstances, our task is to measure the severity of the

alleged harms that the applicant has suffered, and then,

“looking at the cumulative effect of all the incidents[,] . . .

compar[e] the facts of [the p]etitioner’s case with those of

similar cases.” Singh, 134 F.3d at 967–68. In other words,

we “take[] a raft of case-specific historical facts, consider[]

them as a whole, balance[] them one against another—all to

make a determination” as to whether the facts in our case

compare favorably to the facts in other cases. Village at

FON V. GARLAND 19

Lakeridge, LLC, 138 S. Ct. at 968 (footnote omitted). “That

is about as factual sounding as any mixed question gets.” Id.

For those reasons, generally we “review for substantial

evidence the BIA’s particular determination that a

petitioner’s past harm does not amount to past persecution.”

Sharma, 9 F.4th at 1060 (internal quotation marks omitted).

In rare cases, though, answering the mixed question

entails very little factual work. For example, in Kaur, 986

F.3d at 1219, a group of men attempted to gang-rape the

petitioner. The petitioner sought asylum, but the BIA

rejected her claim, concluding that “the attempted gang rape

could not rise to the level of persecution unless [the

petitioner] produced evidence of treatment for psychological

harm or further specific testimony regarding ongoing issues

stemming from the attack.” Id. at 1221, 1222 (internal

quotation marks omitted). On de novo review, we rejected

the agency’s evidentiary rule. Id. at 1222. But, unlike in

other persecution cases, we did not compare the factual

severity of the attempted rape of petitioner with similar facts

in other cases. Instead, we analogized the nature of

attempted rape to the “highly offensive” nature of rape itself.

See id. at 1224 (“Attempted rape, like rape itself, carries the

hallmarks of persecutory conduct.”). And we concluded that

the BIA erred as a matter of law “by diminishing this serious

sexual violence and insisting that [the petitioner] produce

evidence of additional or ongoing harms.” Id. at 1227.

Similarly, in Boer-Sedano, our analysis centered on the

legal nature of sexual assault. 418 F.3d at 1088 (“We have

held that sexual assault, including forced oral sex, may

constitute persecution. Therefore, there can be no doubt that

the nine sex acts that [the petitioner] was forced to perform

rise to the level of persecution.” (internal citation omitted)).

Boer-Sedano cited Hernandez-Montiel v. I.N.S., 225 F.3d

20 FON V. GARLAND

1084 (9th Cir. 2000), overruled on other grounds by Thomas

v. Gonzales, 409 F.3d 1177 (9th Cir. 2005), vacated, 547

U.S. 183 (2006), for the proposition that de novo review was

appropriate. Hernandez-Montiel held that the BIA had erred

as a matter of law by ruling that sexual assault by police

officers did not count as persecution. Id. at 1097–98.

Hernandez-Montiel, in turn, cited Pitcherskaia v. I.N.S., 118

F.3d 641, 646 (9th Cir. 1997), which reviewed de novo the

meaning of the statutory term “persecution” and held that an

intent to punish the petitioner is not a necessary element.

Pitcherskaia cited Fisher v. I.N.S., 79 F.3d 955, 961 (9th Cir.

1996) (en banc), which reviewed the BIA’s legal

interpretations of the immigration statutes de novo but

reviewed for substantial evidence the BIA’s determination

that the petitioner failed to establish that she suffered past

persecution. In other words, if one follows the entire trail of

citations, the originating precedent, Fisher, reviewed for

substantial evidence the BIA’s ruling that the petitioner had

failed to establish past persecution. Thus, the provenance of

Boer-Sedano’s method of analysis is questionable.

Regardless of that transformation, though, Boer-Sedano,

like Kaur, illustrates the unusual circumstance in which the

focal point of the analysis of a mixed question was not the

factual nature of the specific harm that the petitioner had

suffered, but rather the legal significance of that kind of

harm. In Kaur, we also analyzed the legal nature of what

additional evidence the BIA could demand which, similarly,

is not a factual issue. Because those analyses pertained to

“developing auxiliary legal principles of use in other cases,”

Village at Lakeridge, LLC, 138 S. Ct. at 967, we reviewed

de novo the mixed question whether the general category of

harm qualifies to meet the persecution threshold.

FON V. GARLAND 21

The pertinent issue in this case is primarily factual, not

legal. No one disputes that the general forms of harm that

Petitioner experienced—a stabbing, the ransacking of a

home, and credible death threats—can amount to

persecution. Instead, the parties dispute whether the

particular events that Petitioner experienced were severe

enough, factually, to rise to the level of past persecution. We

review that determination for substantial evidence. Sharma,

9 F.4th at 1061.

In sum, our circuit’s law is consistent. Moreover, our

precedent is, wisely, more nuanced than that of the circuits

that have chosen substantial-evidence review in all cases or

de novo review in all cases. That said, I share the view

expressed in Judge Collins’s concurrence that Supreme

Court guidance on this important, recurring topic, on which

the circuits have taken inconsistent positions, would be

welcome.

COLLINS, Circuit Judge, concurring:

I concur in the panel opinion, which correctly holds that

“the record compels the conclusion that Petitioner suffered

past persecution.” See Opin. at 13. I am unaware of any

case in which we or any other circuit court has held that a

stabbing—much less one with a 2–3-inch scar that required

stitches and a hospital stay—does not entail a level of

physical abuse sufficient to qualify as “persecution.” 1

1

The dissent ignores the deferential standard of review that applies

to the agency’s factual findings when it downplays the severity of

Petitioner’s injury based on the dissent’s own assessment of the record

evidence concerning the nature of that injury. In his ruling, the

22 FON V. GARLAND

Indeed, as the opinion notes, we have held that comparable

violence constitutes persecution. See Hoque v. Ashcroft, 367

F.3d 1190, 1193, 1198 (9th Cir. 2004) (petitioner who was

abducted, beaten with sticks, and stabbed established past

persecution); see also Kaur v. Wilkinson, 986 F.3d 1216,

1222 (9th Cir. 2021) (noting that we have generally

“concluded that physical violence is persecution”) (citations

and internal quotation marks omitted); see also Li v. Holder,

559 F.3d 1096, 1107 (9th Cir. 2009) (“It is well established

that physical violence is persecution.”); Chand v. INS, 222

F.3d 1066, 1073 (9th Cir. 2000) (“Physical harm has

consistently been treated as persecution.”). Accordingly,

even if the question whether Petitioner’s harms rose to the

level of persecution is reviewed under the deferential

standard of substantial-evidence review set forth in

§ 242(b)(4)(B) of the Immigration and Nationality Act

(“INA”), see 8 U.S.C. § 1252(b)(4)(B), the petition here

must be granted. I therefore agree with the opinion’s

conclusion that we need not decide whether that is in fact the

correct standard of review.

I write separately only to respond to Judge Graber’s

concurrence, which argues that substantial evidence is the

Immigration Judge (“IJ”) credited Petitioner’s testimony and found that

he “was stabbed with a knife on his left midsection” (emphasis added).

The IJ made that finding after personally examining the scar in court and

explaining that it “appeared to be a two-and-a-half to three-inch scar on

the left side of his midsection.” The dissent suggests that the better

reading of the record is that Petitioner was only “cut” and not stabbed,

see Dissent at 34, but we lack the authority to set aside the IJ’s finding

that Petitioner was stabbed. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he

administrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.”).

Moreover, given the size of the scar, and the need for stitches and a

hospital stay, the dissent’s characterization of the resulting wound as a

“minor physical injury” is plainly incorrect. See Dissent at 33.

FON V. GARLAND 23

correct standard of review for assessing whether a

petitioner’s abuse rises to the level of past persecution,

except in “rare cases” in “which the focal point of the

analysis of a mixed question was not the factual nature of the

specific harm that the petitioner had suffered, but rather the

legal significance of that kind of harm.” See J. Graber

Concurrence at 19–20. Judge Graber makes a number of

good points in favor of that position, but I think that the

question is actually quite a bit more complicated than her

concurrence suggests. At some point, it will fall to the en

banc court, or perhaps the Supreme Court, to straighten out

this area of the law.

As an initial matter, our caselaw on this specific issue is

internally inconsistent. In Kaur, we stated that “[o]nly the

BIA’s findings of fact are reviewed for substantial evidence”

and that, consequently, “[w]hether particular acts constitute

persecution for asylum purposes is a legal question reviewed

de novo.” 986 F.3d at 1221 (simplified). We made the same

observation in Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th

Cir. 2005), even using italics to underscore the point:

“Whether particular acts constitute persecution for asylum

purposes is a legal question, which we review de novo.” Id.

at 1088. In support of that view, Boer-Sedano relied on

Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000),

where we stated that de novo review applies to “the legal

question of the meaning of persecution.” Id. at 1097

(citation omitted). 2 By contrast, in a different line of

decisions, we have endorsed the exact opposite view that,

even if the underlying facts are undisputed, the question

2

Hernandez-Montiel was overruled on other grounds in Thomas v.

Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc), and Thomas was in

turn vacated and remanded on other grounds, see Gonzales v. Thomas,

547 U.S. 183 (2006).

24 FON V. GARLAND

whether the petitioner’s harms “rise to the level of past

persecution” is reviewed only for substantial evidence. See

Villegas Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir.

2021) (citing Prasad v. INS, 47 F.3d 336, 339 (9th Cir.

1995)); see also, e.g., Sharma v. Garland, 9 F.4th 1052, 1060

(9th Cir. 2021) (citing Villegas Sanchez and Prasad).

Judge Graber argues that these conflicting lines of cases

can be reconciled by viewing them as appropriately applying

different standards of review to this “mixed question of law

and fact.” See J. Graber Concurrence at 17–20. Relying on

the standards that the Supreme Court has set forth for

reviewing the findings of lower courts, see U.S. Bank N.A.

ex rel. CWCapital Asset Management LLC v. Village of

Lakeridge, LLC, 138 S. Ct. 960 (2018), Judge Graber argues

that if the question whether a petitioner’s past mistreatment

rises to the level of “persecution” is one that “involves very

little legal work,” then it should be reviewed only for

substantial evidence, but if it “entails very little factual

work,” then it should be reviewed de novo. See J. Graber

Concurrence at 18–19. There is some force to this position,

but it overlooks several significant complicating

considerations.

First, Judge Graber’s proposed solution implicates a

further intra-circuit split. We have said many times that

“[w]e review de novo the BIA’s determinations on questions

of law and mixed questions of law and fact.” Conde

Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020)

(emphasis added); see also Medina-Rodriguez v. Barr, 979

F.3d 738, 744 (9th Cir. 2020) (same); Cordoba v. Barr, 962

F.3d 479, 481–82 (9th Cir. 2020) (“We review the agency’s

factual findings for substantial evidence, but review ‘de novo

both purely legal questions and mixed questions of law and

fact requiring us to exercise judgment about legal

FON V. GARLAND 25

principles.’”) (citation omitted); Cordoba v. Holder, 726

F.3d 1106, 1113 (9th Cir. 2013) (“We review the BIA’s

purely factual determinations for substantial evidence.

However, we review de novo both purely legal questions and

mixed questions of law and fact requiring us to exercise

judgment about legal principles.”) (citation omitted);

Khunaverdiants v. Mukasey, 548 F.3d 760, 765–66 (9th Cir.

2008) (after identifying issue as a “mixed question of law

and fact,” court held that “[w]e review the agency’s

application of legal standards de novo”).

But, once again, we have also said the exact opposite in

a different set of cases. See Haile v. Holder, 658 F.3d 1122,

1125 (9th Cir. 2011) (“Questions of law are reviewed de

novo. We review factual findings and determinations of

mixed questions of law and fact for substantial evidence.”)

(citations omitted); Zumel v. Lynch, 803 F.3d 463, 471 (9th

Cir. 2015) (“‘We review agency factual findings and

determinations of mixed questions of law and fact for

substantial evidence,’ and legal questions de novo.”)

(citation omitted); Khan v. Holder, 584 F.3d 773, 776 (9th

Cir. 2009) (“We review agency factual findings and

determinations of mixed questions of law and fact for

substantial evidence.”). This additional intra-circuit conflict

only underscores the need for en banc review, in an

appropriate case, to restore coherence to our caselaw in this

area.

Judge Graber apparently believes that U.S. Bank already

resolves these intra-circuit conflicts, but that assumes that

U.S. Bank’s standards for reviewing judicial findings are

directly applicable to this administrative context. The

Supreme Court itself has not yet taken that step, however.

See Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020)

(holding that “the application of law to undisputed facts”

26 FON V. GARLAND

qualifies as a “question of law” that courts may review under

INA § 242(a)(2)(D), but expressly declining to address

whether U.S. Bank applies to such a “mixed question of law

and fact,” noting that the cases before it “present no such

question involving the standard of review”) (citation

omitted).

More importantly, Judge Graber ignores the gloss that

the Supreme Court itself put on U.S. Bank in its subsequent

decision in Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183

(2021). Addressing the standards for reviewing a mixed

question of law and fact, the Google Court “explained that a

reviewing court should try to break such a question into its

separate factual and legal parts, reviewing each according to

the appropriate legal standard. But when a question can be

reduced no further, we have added that ‘the standard of

review for a mixed question all depends—on whether

answering it entails primarily legal or factual work.’” Id. at

1199 (quoting U.S. Bank, 138 S. Ct. at 967) (emphasis

added). The U.S. Bank rule that Judge Graber invokes thus

applies only if the predicate question cannot first be broken

down into “separate factual and legal parts.” Id. As two

judges of the Third Circuit have argued, this aspect of

Google supports the view that the standard of review here is

de novo, contrary to the view reached by Judge Graber’s

concurrence. See Liang v. Attorney General, 15 F.4th 623,

626–27 (3d Cir. 2021) (Jordan, J., joined by Ambro, J.,

concurring); see also id. at 629 (criticizing another Third

Circuit case that appeared to endorse a position similar to the

one Judge Graber adopts). They concluded that, once the

factual and legal components are separated as Google

requires, “the question of whether those events meet the

legal definition of persecution is reviewed de novo because

it is plainly an issue of law.’’ Id. at 627 (simplified); see also

id. (concluding that Google requires de novo review

FON V. GARLAND 27

because, “when it comes to the determination of past

persecution, the factual and legal parts are separate and

distinct”).

Second, Judge Graber’s proposed resolution of these

intra-circuit conflicts does not fit well with the terms of the

INA. In setting forth the standard of review we are to apply

in deciding petitions for review in immigration cases,

§ 242(b)(4)(B) of the INA states only that “the

administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B) (emphasis added).

It does not say that any other determinations are subject to

this highly deferential standard of review. “Congress is

presumed to know the law,” see Miranda B. v. Kitzhaber,

328 F.3d 1181, 1189 (9th Cir. 2003), which has long

distinguished between pure questions of law, mixed

questions of law and fact, and factual findings, see Pullman-

Standard v. Swint, 456 U.S. 273, 288–90 & n.19 (1982). But

Congress chose only to subject “findings of fact” to this

deferential standard of review.

Third, resolution of these intra-circuit conflicts may also

require considering how “traditional administrative law

principles” bear on the question. Garland v. Ming Dai, 141

S. Ct. 1669, 1679 (2021) (stating that, in addition to the

specific rules set forth in the INA, “reviewing courts remain

bound by traditional administrative law principles”). For

example, failing properly to distinguish between the BIA’s

legal holdings and its factual conclusions obscures the

question of what role, if any, principles of Chevron

deference should play in this area. See INS v. Aguirre-

Aguirre, 526 U.S. 415, 425 (1999) (stating that “the BIA

should be accorded Chevron deference as it gives ambiguous

statutory terms ‘concrete meaning through a process of case-

28 FON V. GARLAND

by-case adjudication’”) (citation omitted). Moreover, some

of our cases have assumed that the traditional “substantial

evidence” principles of administrative review applied in INS

v. Elias-Zacarias, 502 U.S. 478 (1992), require that we

review “mixed questions of law and fact” only “for

substantial evidence.” See, e.g., Khan, 584 F.3d at 776. That

may or may not be correct, but it also raises the possibility

that perhaps we should apply a different form of “substantial

evidence” review from the specific one that the INA

expressly establishes for “findings of fact.” Cf. Ahearn v.

Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (holding that the

“substantial evidence” review applicable in social security

cases is distinct from the “compelled to conclude” standard

of INA § 242(b)(4)(B)); but cf. Elias-Zacarias, 502 U.S. at

481 & n.1 (equating the Court’s “compelled” standard—

which had not yet been added to the INA—to traditional

“substantial evidence” review generally).

Fourth, treating the question here—i.e., whether certain

undisputed harms rise to the level of past persecution—as a

factual finding subject to § 242(b)(4)(B)’s highly deferential

standard of review seems hard to square with the agency’s

own view of the matter. In reviewing a decision of an IJ, the

Board of Immigration Appeals (“BIA”) operates under an

analogous distinction between deferential review of factual

findings and de novo review of legal conclusions. The

applicable regulations state that “[t]he Board will not engage

in de novo review of findings of fact determined by an

immigration judge. Facts determined by the immigration

judge, including findings as to the credibility of testimony,

shall be reviewed only to determine whether the findings of

the immigration judge are clearly erroneous.” 8 C.F.R.

§ 1003.1(d)(3)(i). By contrast, the “Board may review

questions of law, discretion, and judgment and all other

issues in appeals from decisions of immigration judges de

FON V. GARLAND 29

novo.” Id. § 1003.1(d)(3)(ii). Notably, in applying these

rules, the BIA has squarely held that “[t]he clearly erroneous

standard therefore does not apply to the application of legal

standards, such as whether the facts established by an alien

amount to past persecution or a well-founded fear of

persecution.” In re A–S–B–, 24 I. & N. Dec. 493, 496–97

(BIA 2008) (simplified) (emphasis added), overruled in part

on other grounds by In re Z–Z–O–, 26 I. & N. Dec. 586, 589–

91 (BIA 2015).

As the Tenth Circuit has aptly noted, “[i]t is certainly

odd, to say the least, for this court to review for substantial

evidence a determination the BIA itself has concluded is

legal in nature,” and that “is especially true when the BIA’s

governing regulations forbid it from engaging in

factfinding.” Xue v. Lynch, 846 F.3d 1099, 1105 (10th Cir.

2017) (declining to decide the issue, because it had not

properly been raised in the petition for review); see also

Liang, 15 F.4th at 627 (Jordan, J., joined by Ambro, J.,

concurring) (noting that the BIA’s treatment of the issue as

a question of law supports applying de novo review in the

court of appeals). Treating the question here as a “factual

finding[]” subject to § 242(b)(4)(B) would effectively

require us to say that what is concededly a question of law

in the BIA somehow transmogrifies into a question of fact

when the case leaves the BIA and comes before our court.

That does not make much sense. The dissonance is all the

more striking given that the courts of appeals are sometimes

called upon to uphold and enforce the BIA’s treatment of

such questions as questions of law. See, e.g., Maldonado v.

Barr, 776 F. App’x 29, 30 (2d Cir. 2019) (holding that BIA

properly applied de novo review in reversing IJ’s conclusion

that alien’s mistreatment “rose to the level of persecution”).

30 FON V. GARLAND

On top of all these considerations, there is a significant

circuit split on this issue, as Judge Graber acknowledges in

her concurrence. See J. Graber Concurrence at 16; see also

Xue, 846 F.3d at 1105 n.11 (“The circuits are split as to the

standard of review applicable to the question whether an

undisputed set of facts constitute persecution.”).

* * *

As the foregoing discussion makes clear, our caselaw on

this subject is a bit of a mess. It is not my purpose in this

concurrence to take a position as to how these issues should

ultimately be resolved. My point is that the level of internal

inconsistency and intellectual confusion in our caselaw has

become so great that only the en banc court can straighten it

out (unless the Supreme Court decides to address the

existing circuit split). Accordingly, in my view, the en banc

court should take up these issues in an appropriate case in

which the standard of review would make a difference. But

given that the Petitioner here prevails even if we apply a

more deferential standard of review to the agency’s decision,

this is not that case.

Subject to these observations, I concur in the panel

opinion in this case.

CHOE-GROVES, Judge, concurring in part and dissenting

in part:

I concur with the majority in denying Petitioner’s request

for relief under the Convention Against Torture (“CAT”).

Because substantial evidence supports the Board of

Immigration Appeals’ (“BIA”) denial of Petitioner’s

applications for asylum and withholding of removal, I

FON V. GARLAND 31

respectfully dissent from the remainder of the majority’s

opinion and decision to grant the petition in part and remand

to the BIA.

To succeed on a claim for asylum, Petitioner must

demonstrate that he is unable or unwilling to return to his

home country because of past persecution or a well-founded

fear of future persecution. Garcia v. Wilkinson, 988 F.3d

1136, 1142–43 (9th Cir. 2021). Petitioner must also

demonstrate a nexus between the persecution and a

statutorily protected ground: race, religion, nationality,

membership in a particular group, or political opinion. Id. at

1143. The majority concludes that the record demonstrates

that Petitioner suffered past persecution and that the BIA’s

analysis of whether a nexus exists between the alleged

persecution and a protected ground was inadequate and

flawed. I disagree that the record compels a conclusion that

the harms alleged by Petitioner amount to persecution.

The majority disagrees whether this case should be

reviewed de novo or under the substantial evidence standard,

but both Judges Graber and Collins acknowledge that the

caselaw on this issue does not provide a clear answer. See

J. Graber Concurrence at 17; J. Collins Concurrence at 22–

23. We review questions of law de novo and questions of

fact for substantial evidence. Bhattarai v. Lynch, 835 F.3d

1037, 1042 (9th Cir. 2016). Most of our prior cases

reviewing the BIA’s decisions to grant or deny asylum fall

into the latter of these categories. See, e.g., Sharma v.

Garland, 9 F.4th 1052, 1060 (9th Cir. 2021); Chand v. I.N.S.,

222 F.3d 1066, 1073 (9th Cir. 2000); Prasad v. I.N.S., 47

F.3d 336, 338–39 (9th Cir. 1995). I view the question before

us as straightforward: do the harms suffered by Petitioner

amount to past persecution? Because this is predominantly,

if not fully, a question of fact, the BIA’s asylum decision

32 FON V. GARLAND

should be reviewed for substantial evidence and affirmed

unless the evidence compels the conclusion that the decision

was incorrect. Gu v. Gonzales, 454 F.3d 1014, 1018 (9th

Cir. 2006). This standard is highly deferential to the BIA.

Sharma, 9 F.4th at 1060.

As the majority correctly notes, persecution is an

“extreme concept” and not every circumstance that causes

an asylum seeker pain or loss of liberty rises to the level of

persecution. Gu, 454 F.3d at 1019; Mihalev v. Ashcroft, 388

F.3d 722, 728–29 (9th Cir. 2004). We consider Petitioner’s

allegations as a whole to determine whether the incidents

cumulatively rise to the level of persecution. Sharma, 9

F.4th at 1061.

Petitioner suffered physical injury when he was

assaulted by four members of the Cameroonian military

while treating a separatist fighter at the hospital where he

worked. He testified that he was punched several times and

cut by a knife under his left rib, resulting in a two-and-a-half-

inch scar. Petitioner was treated for his injuries immediately

following the incident. During the assault, one of the

soldiers threatened Petitioner that he would be killed if he

continued to treat separatist fighters. A few weeks later, he

learned from a neighbor that soldiers had visited and

ransacked his home.

In analyzing whether Petitioner’s allegations rise to the

level of past persecution, the majority compares the facts of

this case to those in our recent decision in Aden v. Wilkinson,

989 F.3d 1073 (9th Cir. 2021). Aden was a citizen of

Somalia who lived in a town controlled by Al-Shabaab, a

militant terrorist organization affiliated with Al-Qaeda. Id.

at 1077. He worked in a theater owned by his brother that

screened American and Hindi films. Id. On two occasions,

members of Al-Shabaab visited the theater and demanded

FON V. GARLAND 33

that Aden’s brother stop showing the films, which Al-

Shabaab deemed “Satanic.” Id. Aden’s brother did not

comply with the demand and Al-Shabaab members later

raided the theater. Id. During the raid, Aden, his brother,

and others present at the theater were beaten with sticks and

the butt of a rifle and the equipment used to screen films was

taken. Id. Aden was struck in the head, resulting in profuse

bleeding. Id. Two weeks after the raid, while hiding with a

family member, Aden’s brother was contacted by members

of Al-Shabaab who threatened to kill both brothers if they

reopened the theater. Id. at 1077–78. Aden fled Somalia to

South Africa and eventually arrived in the United States. Id.

at 1078.

In reviewing the denial of Aden’s applications for

asylum and withholding of removal, a three-judge panel of

this Court concluded that the single physical beating and

subsequent death threat amounted to persecution because,

when viewed in the light of the societal and political turmoil

of Somalia, Al-Shabaab’s continued interest in Aden left

him with no choice other than to abandon his political and

religious beliefs or flee. Id. at 1083–84.

Unlike Aden, Fon experienced a single threat

accompanied by the minor physical injury of a stab wound.

The threat did not coerce Fon into abandoning his lawful

beliefs, and Fon’s only subsequent interaction with the

Cameroonian military was one instance of members of the

military visiting his home when he was not present. Because

of these distinctions, a reasonable factfinder would not be

compelled to reach the same conclusion as in Aden.

In most cases, an isolated incident resulting in a physical

injury does not rise to the level of persecution. See Gu, 454

F.3d at 1020–21 (finding no past persecution when petitioner

was detained and beaten once); Prasad, 47 F.3d at 339–40

34 FON V. GARLAND

(upholding the BIA’s determination that the petitioner

suffered no past persecution from a single incident of being

detained, interrogated, hit in his stomach, and kicked from

behind). The circumstances in which we have found past

persecution based on only a single incident of violence have

generally involved severe injuries or other extreme acts of

intimidation. See Sharma, 9 F.4th at 1061 (“[W]hen we have

granted petitions for review because the record compelled a

finding of past persecution, the petitioner often experienced

serious physical violence, among other indicators of

persecution.”); see also Hoque v. Ashcroft, 367 F.3d 1190,

1193, 1198 (9th Cir. 2004) (finding past persecution when

the petitioner had been kidnapped, taken to a camp, beaten

with an iron rod and stick, stabbed, and abandoned

unconscious on a street and required eight days of

hospitalization); Chanchavac v. I.N.S., 207 F.3d 584, 589–

91 (9th Cir. 2000) (finding that petitioner suffered past

persecution when he was severely beaten once and violent

acts and murder had been committed against his family and

neighbors).

The majority sees no meaningful distinction between the

harm suffered by Petitioner and the harm suffered by Aden

and notes that it is possible that Petitioner’s injuries were

more severe because they required medical treatment. Both

men suffered a beating. Aden was struck by the butt of a

gun, which caused him to bleed profusely but he did not

receive medical treatment. Aden, 989 F.3d at 1077. The

specific type of injury suffered by Petitioner is not clear from

the record. Petitioner testified during his removal

proceeding that the soldiers “cut me on my left side.” He

also referred to the injury as a cut in his declaration

supporting his asylum application. Petitioner later described

the injury as a stabbing in his appeal to the BIA and in his

brief to the Court. Petitioner’s brief in this proceeding does

FON V. GARLAND 35

not allege that his injury was life-threatening or required

medical treatment beyond stitches and a single day of rest.

The record does not compel a conclusion that Petitioner’s

injuries were more severe than those suffered by Aden.

Substantial evidence also supports the BIA’s

determination that the threat made against Petitioner by a

Cameroonian soldier during the assault did not raise the

injury to the level of persecution. The BIA construed

Petitioner’s testimony as characterizing the threat as a joke.

The record suggests that Petitioner took the threat seriously

enough to flee his home and country. Regardless of whether

the threat was intended as a joke, the threat was not of the

severity that we have previously found amounts to

persecution. Death threats constitute past persecution only

when “the threats are so menacing as to cause significant

actual suffering or harm.” Lim v. I.N.S., 224 F.3d 929, 936

(9th Cir. 2000) (internal quotation omitted).

The Court in Aden found significant that the death threats

made against Aden eliminated all choices other than to

forsake his political and religious beliefs or flee. Aden, 989

F.3d at 1084. The record here does not suggest that the

Cameroonian soldiers attempted to coerce Petitioner to

abandon his lawful political or religious beliefs. In fact,

Petitioner conceded during his removal proceeding that he

does not consider himself to be an Anglophone

Cameroonian.1 The threats related to Petitioner providing

medical aid to separatist fighters. In his declaration

supporting his asylum application, Petitioner claimed that he

was trained and sworn to offer healthcare services

1

Petitioner’s concession during the removal proceeding is

inconsistent with his brief, in which he identifies himself as an

Anglophone.

36 FON V. GARLAND

indiscriminately and that healthcare providers who did not

provide treatment to suspected separatists risked

intimidation and harassment from members of the

community. In this case, the single threat made to Petitioner

conditioned on whether he continued to treat separatist

fighters was not based on his lawfully held beliefs and was

not so extreme as to raise the harm to the level of past

persecution. See Duran-Rodriguez v. Barr, 918 F.3d 1025,

1028–29 (9th Cir. 2019) (holding that two death threats did

not compel a determination that petitioner had suffered past

persecution); cf. Smolniakova v. Gonzales, 422 F.3d 1037,

1048–49 (9th Cir. 2005) (holding that repeated death threats

following the murder of family friends, during an assault,

and at the petitioner’s home amounted to past persecution).

It is undisputed that Cameroon is in a condition of

political and societal turmoil. Even considering the events

alleged by Petitioner in this light, a reasonable factfinder is

not compelled to find that the circumstances collectively

amount to past persecution.

In the absence of past persecution, Petitioner must

establish a well-founded fear of future persecution to

succeed in an asylum claim. Sharma, 9 F.4th at 1065. “A

well-founded fear of future persecution must be both

subjectively genuine and objectively reasonable.” Rusak v.

Holder, 734 F.3d 894, 896 (9th Cir. 2013) (internal quotation

omitted). The risk of persecution must be more than a

random or generalized possibility and Petitioner must make

a particularized showing that the risk to him is greater than

the risk to other citizens. Singh v. I.N.S., 134 F.3d 962, 967

(9th Cir. 1998).

In determining that Petitioner did not have an objective

fear of future persecution if returned to Cameroon, the BIA

offered no independent analysis but cited to the decision of

FON V. GARLAND 37

the immigration judge (“IJ”). Because the BIA did not

provide a new analysis and relied upon the determination of

the IJ, we consider the IJ’s reasoning to have informed the

conclusion of the BIA. See Avetova-Elisseva v. I.N.S., 213

F.3d 1192, 1197 (9th Cir. 2000). The IJ concluded that while

Petitioner had a subjective fear of persecution, he did not

establish an objective fear of persecution. The IJ noted

further that Petitioner testified that he was not a member of

any organization in Cameroon and that his fears were based

on a belief that he might be perceived as working with an

opposition group.

Petitioner has not demonstrated that he continues to be

of interest to the Cameroonian military or government and

there is no indication in the record that officials have

searched for Petitioner after the one visit to his home.

Petitioner testified that he had no significant dealings with

the military or government after December 2018. Although

Petitioner fears that he might be targeted as an Anglophone,

he conceded that he does not consider himself to be one.

Considering these facts, a reasonable factfinder would not be

compelled to conclude that Petitioner has a well-founded

fear that he would be persecuted if returned to Cameroon.

Because Petitioner has not demonstrated that he suffered

past persecution or has a well-founded fear of future

persecution, he is not eligible for asylum.

If Petitioner had suffered persecution, success on his

asylum claim would also require a nexus between a

statutorily protected ground and the alleged persecution.

Garcia, 988 F.3d at 1143. The Petitioner’s race, religion,

nationality, membership in a social group, or political

opinion must be a central reason for the suffered or feared

harm. Id. The BIA concluded that Petitioner did not

establish the requisite nexus. As with its determination on

38 FON V. GARLAND

Petitioner’s well-founded fear of future persecution, the BIA

relied on the determination of the IJ.

Petitioner argues that because he is an Anglophone

(though admitting during his removal proceeding that he

does not consider himself to be an Anglophone) and was

observed giving aid to an Anglophone separatist fighter, that

a political opinion of supporting the opposition group could

be imputed to him. An asylum applicant can establish

persecution based on an imputed political belief, even if the

applicant does not personally hold the belief. Garcia-Milan

v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). Because this

shifts the inquiry from the views of the applicant to those of

the persecutor, the applicant must provide evidence of the

persecutor’s views. Id.

The IJ found that Petitioner had not established a nexus

because he failed to offer declarations from coworkers and

family members describing the events that occurred in

Cameroon and did not testify as to what happened to the

other hospital employees who assisted in treating the

separatist fighter. The majority concludes that remand is

required because Petitioner was not given a meaningful

opportunity to provide necessary evidence and the IJ was

ambiguous as to why evidence regarding Petitioner’s

coworkers was relevant to its determination. See Bhattarai,

835 F.3d at 1042–43; Delgado v. Holder, 648 F.3d 1095,

1107–08 (9th Cir. 2011) (en banc). Because Petitioner’s

failure to establish past persecution or a well-founded fear of

future persecution would be dispositive for his asylum claim,

remand to the BIA on the question of nexus is unnecessary.

Because Petitioner does not meet the less-stringent standard

for asylum, he also fails to meet the higher standard for

withholding of removal. Sharma, 9 F.4th at 1066.

FON V. GARLAND 39

I agree with the majority’s conclusion that substantial

evidence supports the BIA’s determination that Petitioner

failed to qualify for protection under the CAT. Because I

believe that substantial evidence also supports the BIA’s

determination that Petitioner did not suffer past persecution

and does not have a well-founded fear of future persecution,

I would deny the petition in its entirety and respectfully

dissent.