Francisco ORNELAS-CHAVEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 458 F.3d 1052

BROWNING, Senior Circuit Judge: Francisco Ornelas-Chavez timely petitions this court for review of a Board of Immigration Appeals (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of his application for withholding of removal under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), 8 U.S.C. § 1231(b)(3), and the United Nations Convention Against Torture (“CAT”). He also appeals the BIA’s denial of his due process challenge to the proceedings before the IJ. Ornelas-Chavez claims (1) the BIA erroneously required that he must have reported third-party persecution to government authorities to qualify for withholding of removal under

section 1231(b)(3); (2) the BIA erred in denying protection under CAT by affirming the IJ’s decision requiring that the alleged torture occur within the control or custody of a state actor who “sanctioned” it; and (3) the IJ’s stereotyping of the way gay men dress and behave prevented him from receiving a fair hearing in violation of his due process rights. We have jurisdiction under 8 U.S.C. § 1252(a). We conclude the BIA applied the wrong legal standards to Ornelas-Chavez’s claims for withholding of removal under IIRIRA and CAT; therefore, we grant his' petition with respect to those claims.

Because we remand to the BIA for application of the correct standards, we do not reach his due process claim. I. Ornelas-Chavez is a Mexican national who came to the United States illegally in 1998 to escape a lifetime of abuse suffered on account of his female sexual identity. Ornelas-Chavez suffered a great deal of abuse in his youth because of his homosexuality and female sexual identity. As a young boy, his mother beat him for dressing in her clothes.

On several occasions, his father became so enraged at discovering evidence of his homosexuality that he beat Ornelas-Chavez savagely enough to leave noticeable injuries. Once, his father conspired with a friend to humiliate Ornelas-Chavez by permitting the friend to rape the boy after drugging him. When Ornelas-Chavez was six, two cousins raped him after seeing him dressed in women’s clothes and playing with dolls. The cousins repeated this abuse until Ornelas-Chavez was twelve years old.

A worker on his grandfather’s hacienda who witnessed the cousins’ abuse also raped him several times between the ages of seven and nine. Ultimately, Ornelas-Chavez fled his parents’ home and lived in hiding from most of his family. From his childhood through his adulthood in Mexico, Ornelas-Chávez’s dealings with government officials and employees was marked by either animus toward his female sexual identity or tacit acceptance of the abuse he received because of it.

After he reported to his second-grade teacher that his mother beat him for putting on her clothes, the teacher told him only “fags” dressed up in women’s clothes. When he told the teacher that he had performed sexual intercourse with older men, she told him he “shouldn’t do that because only homosexuals did that.” The teacher never reported the sexual abuse to the proper authorities.

When OrnelasChavez was sixteen, his father arranged to have the local police , chief arrest and detain him for .six hours to “teach[him] to behave.” (The father was apparently on close terms with the local police, even renting a home to some of the officers.) Upon releasing Ornelas-Chavez, the police chief threatened to detain him longer if he found out again he was sexually involved with men. In 1989 Ornelas-Chavez took a job as a correctional officer at a state-run prison in Uruapan. Co-workers there repeatedly threatened and beat him, telling him that homosexuals discredited the work.

Three times Ornelas-Chavez complained to his supervisor who, instead of disciplining the co-workers, encouraged him to quit, saying the job was “for men and not for homosexuals.” Ornelas-Chavez did quit but, two years later, returned because he thought conditions had improved. Soon after returning, however, four or five of his co-workers tried to smother him with a pillow, boasting they were “finally going to get rid of another homo.” When he reported this incident to his new supervisor, the man offered Ornelas-Chavez the choice of changing his shift or quitting but, again, took no action against the co-workers.

Finally, while Ornelas-Chavez was living in Uruapan, the police killed two of his acquaintances who were homosexuals. The men were found stabbed to death with sticks inserted in their rectums. In 1993, Ornelas-Chavez went to live with a sympathetic aunt in Mexicali. Though occasionally taunted in the streets, Ornelas-Chavez was able to live there relatively free of trouble for five years because he only went to work, otherwise staying inside his aunt’s house. Then, in 1998, his father, who had discovered his whereabouts, came to Mexicali and beat him severely, breaking his nose with a bottle.

Soon after, Ornelas-Chavez left Mexico for the United States. In July 2003, United States Immigration and Customs Enforcement began removal proceedings against him. Ornelas-Chavez then filed an application for asylum and with-holding of removal on the basis of a well-founded fear of persecution and torture on account of his female sexual identity. At his removal hearing, the IJ held that Ornelas-Chavez was ineligible for asylum because he failed to show exceptional circumstances for filing his application later than one year after entering the United States.

The IJ also found Ornelas-Chavez failed to establish eligibility for withholding of removal under IIRIRA and that he “provided no evidence of past torture or any mental or physical intentionally inflicted severe pain or suffering that is sanctioned by a public official or by a State Actor.” Accordingly, the IJ denied the petition for withholding of removal. Ornelas-Chavez appealed the IJ’s withholding of removal decisions to the BIA. He also claimed that the IJ’s hostile comments and stereotypes about the way a gay man should appear and sound prevented him from receiving a fair hearing. In affirming the IJ’s

section 1231(b)(3) decision, the BIA found that Ornelas-Chavez suffered one incident of harm, a detention of several hours apparently at [the] request of his father, at the hands of government agents. This single incident does not rise to the level of persecution. All of the other harm suffered by the respondent occurred at the hands of private citizens. The respondent did not report any of these incidents to government authorities.

The BIA also found that some of Ornelas-Chavez’s extensive documentation on the conditions of gay men in Mexico described only general police abuse, not necessarily against gay people, and some described only “individual incidents that do not reflect a pattern in any particular police force.” It further found that some of the documentation actually reflected “improvements in the situation of gay people in Mexico.” The BIA concluded: [W]here the respondent never reported his incidents of harm to government authorities, and where the background evidence in the record is inconclusive, the Immigration Judge properly found that the respondent did not prove that the Mexican government is unwilling or unable to control those who harmed or may harm him.

As to Ornelas-Chavez’s CAT claim, the BIA affirmed the IJ’s decision in a one-sentence ruling. Finally, the BIA held that Ornelas-Chavez did not establish a due process violation. This timely petition for review followed. II. We review the BIA’s construction and application of the law de novo, subject to established principles of deference. See Murillo-Espinoza v. INS, 261 F.3d 771, 773 (9th Cir.2001) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)).

We review the BIA’s determination that Ornelas-Chavez did not establish eligibility for withholding of removal for substantial evidence. Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.1999). We also review for substantial evidence “the factual findings underlying the BIA’s determination that [Ornelas-Chavez] was not eligible for relief under the Convention Against Torture.” Zheng, 332 F.3d at 1193. The “substantial evidence” standard requires us to uphold the BIA’s determination if supported by “reasonable, substantial, and probative evidence on the record.” INS v.

Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quotation marks omitted). However, our review is “confined to the BIA’s decision and the bases upon which the BIA relied.” Navas v. INS, 217 F.3d 646, 658 n. 16 (9th Cir.2000) (quoting Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir.1988)) (quotation marks omitted). III. A. Ornelas-Chavez claims the BIA applied the wrong legal standard in determining that he was not eligible for withholding of removal based upon the alleged persecution he suffered in Mexico at the hands of private persons. We agree.

Under IIRIRA, Ornelas-Chavez may not be removed to Mexico if his “life or freedom would be threatened ... because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Ornelas-Chavez is entitled to the presumption that such a threat exists if he can show he suffered past persecution on account of his membership in a protected social group. See 8 C.F.R. § 208.16(b)(l)(I); Baballah v.

Ashcroft, 367 F.3d 1067, 1079 (9th Cir.2004). “Persecution may be inflicted either by the government or by persons or organizations which the government is unable or unwilling to control.” Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997) (quotation marks omitted). Ornelas-Chavez can meet his burden either by offering credible and persuasive testimony, 8 C.F.R. § 208.16(b) (“The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”), or by producing specific documentary evidence to support his claim, see Al-Harbi v.

INS, 242 F.3d 882, 891 (9th Cir.2001) (holding that “documentary evidence pertaining to the asylum applicant himself and to the events in which he was involved ... can independently establish facts essential to ... an asylum claim”). In concluding that Ornelas-Chavez did not establish he was persecuted in the past by private parties the Mexican government was unable or unwilling to control, the BIA cited only two pieces of evidence: background country conditions and OrnelasChavez’s failure to report the incidents to the authorities.

Evidence of background country conditions alone cannot establish that specific acts of persecution did or did not occur. See Duarte de Guinac v. INS, 179 F.3d 1156, 1162 (9th Cir.1999). Its proper use is “to provide information about the context in which the alleged persecution took place, in order that the factfinder may intelligently evaluate the petitioner’s credibility.” Id. Thus, the BIA’s decision could not properly rest on this evidence unless it specifically held that some or all of Ornelas-Chavez’s testimony was not credible in light of the background conditions. But the BIA did not do so.

Because it made no adverse credibility finding, it was therefore required to accept Ornelas-Chavez’s testimony, and all reasonable inferences to be drawn from it, as true. See Zheng, 332 F.3d at 1189 n. 4. ' Ornelas-Chavez offered testimonial evidence both at the hearing and in his declaration supporting his asylum application, which described his alleged persecution and, more importantly, the indifference and danger that characterized his dealings with government officials. While only a very small boy, his teacher chastised him for suffering sexual abuse.

At his father’s bidding, his hometown police jailed him and threatened to do so again if he continued dating men. His supervisors at the Uruapan state prison refused to keep coworkers from harassing him for being homosexual. Even in Guadalajara, where Ornelas-Chavez for a short time performed in transvestite shows, he had “to go out in the street without any makeup ... so [he was] not attacked] by the police.” ER at 78. Indeed, when asked directly why he did not report his alleged persecution to the police, Ornelas-Chavez answered, “Because the same police mistreated you and harrasse[d] you.

Even two of my friends were assassinated.” ER at 54. The latter statement refers to the Uruapan police’s brutal maiming and murder of two of Ornelas-Chavez’s homosexual friends.

Although the BIA was required to accept all this testimony regarding Ornelas-Chavez’s experience with government authorities as true, its decision mentions only that “the respondent never reported his incidents of harm to government authorities.” We must therefore conclude that the only credible testimonial evidence the BIA considered in determining that the Mexican government was unwilling or unable to control Ornelas-Chavez’s alleged persecutors was the fact that Ornelas-Chavez did not report the incidents of abuse he suffered to the police.

Such treatment of the evidence was tantamount to making the reporting of private persecution a sine qua non for the success of Ornelas-Chavez’s withholding of removal claim. Neither IIRIRA nor the regulations implementing it require that an alien seeking withholding of removal based on third-party persecution must have reported that persecution to the authorities. In fact, any such requirement would contradict the BIA’s own precedent. See, e.g., In re SA-, 22 I. & N.

Dec. 1328, 1335, 2000 WL 827754 (BIA 2000) (holding that an applicant who convincingly demonstrated that she “could not rely on the authorities to protect her” from her father’s abuse and that, by turning to governmental authorities for help, “her circumstances may well have worsened,” was not required to report private persecution to government authorities to qualify for asylum). Moreover, a reporting requirement conflicts with the way this court has implicitly handled a petitioner’s evidence of governmental unwillingness or inability to control private persecution.

It is true that “where non-governmental actors are responsible for persecution ... we consider whether an applicant reported the incidents to police.” Baballah, 367 F.3d at 1078. We do so “because in such cases a report ... may show governmental inability to control the actors.” Id. But we have never held, as the BIA essentially did here, that reporting private persecution is a prerequisite for relief. Indeed, in Reyes-Reyes v.

Ashcroft, 384 F.3d 782 (9th Cir.2004), a case similar to this one, we stated that the imposition of a reporting requirement “would indeed be troubling,” especially in light of precedent documenting police abuse of men with female sexual identities in Latin America and record evidence that victims of rape generally under-report such crimes. Id. at 789 n. 3. However, we declined there to decide whether imposing a per se reporting requirement under

section 1231(b)(3) was improper because we granted the petition on other grounds. See id. at 789. In contrast, in Castro-Perez v. Gonzales, 409 F.3d 1069 (9th Cir.2005), we denied the petition of a young Honduran woman who was raped twice by her boyfriend because she had not carried her burden of showing the government was unable or unwilling to control her boyfriend’s abusive conduct. Id. at 1070-72.

But we reached this conclusion both because she failed to report the rapes to government authorities and because her reasons for not reporting them—she believed “the police would not investigate a date rape, and ... she was afraid of how her father would react”—did not compel our finding that “the Honduran government must bear some responsibility for Castro-Perez’s rapes.” Id. In other words, we denied her petition only after considering whether she had provided sufficient evidence to justify not reporting her alleged persecution to the authorities. Accord Boer-Sedano v.

Gonzales, 418 F.3d 1082, 1088 (9th Cir.2005) (considering, where petitioner claimed fear kept him from reporting private persecution to the police, whether that fear was reasonable under the circumstances). We now make explicit what was implicit in these earlier cases: an applicant who seeks to establish eligibility for withholding of removal under

section 1231(b)(3) on the basis of past persecution at the hands of private parties the government is unwilling or unable to control need not have reported that persecution to the authorities if he can convincingly establish that doing so would have been futile or have subjected him to further abuse. Ornelas-Chavez argues that, when reviewed under the correct legal standard, the evidence in the record supports a finding that he is entitled to withholding of removal under

section 1231(b)(3). But where the BIA applies the wrong legal standard to an applicant’s claim, the appropriate relief from this court is remand for reconsideration under the correct standard, not independent review of the evidence. See INS v. Orlando Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002); Azanor v. Ashcroft, 364 F.3d 1013, 1020-21 (9th Cir.2004). Because the BIA improperly applied a reporting requirement in its analysis of Ornelas-Chavez’s

section 1231(b)(3) claim, we grant his petition on this claim and remand to the BIA for reconsideration of the evidence under the correct standard. B. The BIA rendered its CAT decision in a single sentence, saying simply that it “agree[d] with the Immigration Judge that the respondent did not prove that, if removed to Mexico, he more likely than not will suffer torture as specifically defined by regulation.” “[Tjhis court has required the Board to ‘state its reasons and show proper consideration of all factors when weighing equities and denying relief.’ ” Hassan v.

INS, 927 F.2d 465, 467 (9th Cir.1991) (quoting Mattis v. INS, 774 F.2d 965, 968 (9th Cir.1985)). Where, as here, the BIA does not expressly state whether it conducted de novo review and the lack of analysis in its order suggests it gave significant weight to the IJ’s decision, we will review the IJ’s decision “as a guide to what lay behind the BIA’s conclusion.” Kozulin v. INS, 218 F.3d 1112, 1115 (9th Cir.2000) (citing Avetova-Elisseva v. INS, 213 F.3d 1192, 1196-97 (9th Cir.2000) and Alaelua v. INS, 45 F.3d 1379, 1381-82 (9th Cir.1995)).

But the BIA may not discharge the burden of supporting its decision with a proper consideration of all factors by adopting an IJ’s decision that is deficient. See Tukhowinich v. INS, 64 F.3d 460, 465 (9th Cir.1995). The IJ concluded that OrnelasChavez did not meet his burden of proof under CAT because the evidence did not establish that the government “sanctioned” his torture. This decision is deficient, requiring us to remand, because the IJ applied the wrong legal standard.

To qualify for protection under CAT, Ornelas-Chavez must establish that he suffered torture, i.e., severe pain or suffering intentionally inflicted for discriminatory purposes “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” See 8 C.F.R. § 208.18(a)(1). “Acquiescence of a public official requires that the public official, pri- or to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 208.18(a)(7).

In Zheng we reversed a BIA decision interpreting the regulations implementing CAT to require that public officials be “willfully accepting of’ torture. See Zheng, 332 F.3d at 1194. We held they require only that government officials “turn a blind eye” to the torture. Id. at 1196 (“The correct inquiry ... is whether a respondent can show that public officials demonstrate ‘willful blindness’ to the torture of their citizens by third parties, or ... would turn a blind eye to torture.” (citations and quotation marks omitted)).

Because “sanction” connotes greater volition and approbation than “acquiescence,” “awareness,” “willful blindness,” and even “willful acceptance,” the IJ used a higher legal standard to assess Ornelas-Chavez’s CAT claim than is permitted under the law. The government claims the IJ’s “misstatement” of the law was harmless because “none of the mistreatment of which [Ornelas-Chavez] complains occurred by or at the instigation of or with the consent or acquiescence of a public official ‘who ha[d] custody or physical control’ of him.” The government relies on In re J-E-, 23 I. & N.

Dec. 291 (BIA 2002) (en banc), for the proposition that 8 C.F.R. § 208.18(a)(1) requires an applicant to have been in the custody or control of a public official at the time of his torture. But we clearly rejected that

interpretation of the regulation in Azanor. See 364 F.3d at 1020. Therefore, we reject the government’s harmless error claim. The dissent argues that the IJ’s “errant word choice” amounts to harmless error since a closer inspection of the IJ’s actual “mode of analysis” reveals that she did not review the evidence under a different standard than the regulations dictate. Op. at 1067.

The dissent bases this argument on the IJ’s finding that Ornelas-Chavez “presented no evidence that the authorities refused to protect him or that the authorities did not protect him, since he never reported any of these incidents to authorities.” But the dissent’s argument is unpersuasive because the standard implicit in this finding is also higher than that dictated by CAT.

As indicated above, the implemeriting regulations require an applicant to prove that, before the alleged torture occurred, a public official had “awareness of such activity and thereafter breach[ed] his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 208.18(a)(7). With logic similar to that underpinning the BIA’s

section 1231(b)(3) decision, the IJ’s decision rests on the unwarranted premise that the only way a public official can have such awareness, and thus that the duty to intervene can arise, is if the applicant reports the alleged torture to him. But, as with

section 1231(b)(3), we have never required that an applicant report his alleged torture to public officials to qualify for relief under CAT. Indeed, in Zheng we specifically held that CAT does not even require that a public official have “actual knowledge” of the alleged torture. See Zheng, 332 F.3d at 1196. It is enough that public officials could have inferred the alleged torture was taking place, remained willfully blind to it, or simply stood by because of their inability or unwillingness to oppose it. See id. at 1195 n. 8.

By assuming in its analysis of Ornelas-Chavez’s CAT claim that public officials must be informed of alleged torture by the victim, the IJ imposed a higher burden of proof than is permitted under CAT, and consequently her resulting decision was improper. Like the dissent, we have our doubts about whether the record evidénce supports a claim for relief under CAT. But it is not our job to make that determination. Our job is to ensure that the IJ employed the proper legal standards in reaching her decision and that her conclusions are supported by substantial evidence.

In performing this task, we are limited to “granting] or denying] the petition for review based on the [IJ’s] reasoning rather than our independent analysis of the record.” Azanor, 364 F.3d at 1021. With this restriction in mind, we note what the IJ did not find. First, she did not specifically find that the rapes or beatings Ornelas-Chavez suffered in his youth failed to satisfy the high standard for torture as defined in 8 C.F.R. § 208.18(a)(1)..

Second, the IJ did not specifically find that those rapes and beatings, though they occurred when Ornelas-Chavez was still a boy, failed to provide sufficient support for the likelihood that he would be tortured if returned to Mexico.

Third, she did not find that either Ornelas-Chavez’s teacher or his supervisor at the prison had not been informed of the alleged torture “pri- or to” its occurrence, as required by 8 C.F.R. § 208.18(a)(7), such that she or he could not have breached the “legal responsibility to intervene to prevent such activity.” Fourth, she did not find that either the teacher or the prison supervisor was not a “public official” to whom this duty to intervene applied. The IJ did not make any of these specific findings.

Therefore, we cannot affirm the IJ’s decision on any of these specific grounds, even if we believe substantial evidence in the record supports them. See Navas, 217 F.3d at 658 n. 16 (“[T]his court cannot affirm the BIA on a ground upon which it did not rely.”). Instead, the IJ concluded simply that Ornelas-Chavez failed to show that the authorities “sanctioned” his alleged torture because he did not report it. As discussed above, this conclusion, besides being unsupported by substantial evidence in the record, misrepresents the relevant legal standard.

Because the IJ’s decision is fatally flawed, we must reverse the BIA’s decision and remand. See Tukhowinich, 64 F.3d at 465. Again, whether the record establishes that Ornelas-Chavez is eligible for withholding of removal under CAT should be determined under the correct- legal standard on remand, not by our own independent review of the evidence. See Azanor, 364 F.3d at 1020-21. IV. We hold that the BIA applied impermissibly strict standards to both Ornelas-Chavez’s

section 1231(b)(3) claim and his CAT claim. Accordingly, we grant OrnelasChavez’s petition for review and remand the case to the BIA for further proceedings consistent with this opinion. PETITION GRANTED IN PART, REMANDED. .

Article 3 of CAT, implemented by the Foreign Affairs Reform and Restructuring Act of 1998, § 2242, Pub.L. No. 105-277, Div. G, 112 Stat. 2681, 2681-761 (Oct. 21, 1998), provides that a signatory nation will not "expel, return!,] or extradite” an alien to another country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” See Khourassany v. INS, 208 F.3d 1096, 1099 (9th Cir.2000). .

Because the IJ found Ornelas-Chavez’s testimony credible and the BIA did not make a contrary finding, we accept the facts given by Ornelas-Chavez and all reasonable inferences to be drawn from them as true. See Zheng v. Ashcroft, 332 F.3d 1186, 1189 n. 4 (9th Cir.2003). . Whether Ornelas-Chavez belongs to a protected social group is not at issue in this appeal. See generally Hernandez-Montiel v. INS, 225 F.3d 1084, 1094 (9th Cir.2000) (recognizing as a distinct social group "gay men with female sexual identities in Mexico”). . BLACK'S LAW DICTIONARY 1369 (8th Ed.2004) ("To approve, authorize, or support”). .

Id. at 25 ("[Tjacit or passive acceptance; implied consent to

an act"). . MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 81 (10th Ed.1998) ("[Rjealization, perception, or knowledge” and "vigilance in observing or alertness in drawing inferences from what one experiences”). . BLACK’S LAW DICTIONARY 1630 ("Deliberate avoidance of knowledge of a crime, esp[ecially] by failing to make a reasonable inquiry about suspected wrongdoing despite being aware that it is highly probable.”). .We also note that the IJ’s finding, which simply ignores Ornelas-Chavez’s testimony, is unsupported by substantial evidence.

Ornelas-Chavez said at his hearing both that he told his second-grade teacher he had sexual intercourse with a man and that he repeatedly told his supervisor at the state prison that coworkers harassed and beat him because he was gay. Thus, the record shows, in direct contradiction to the IJ's finding of fact, that Ornelas-Chavez did report his alleged torture.