United States Court of Appeals For the First Circuit
No. 23-1443
AMGAD SAMIR HALIM KHALIL,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Howard, and Rikelman, Circuit Judges.
Saher J. Macarius, with whom Audrey Botros and Law Offices of Saher J. Macarius LLC were on brief, for petitioner.
Yanal H. Yousef, Trial Attorney, Office of Immigration Litigation, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Julian Bava, with whom Adriana Lafaille, Sabrineh Ardalan, Tiffany Lieu, American Civil Liberties Union Foundation of Massachusetts, Inc., and Harvard Immigration & Refugee Clinical Program, were on brief, for amici curiae. March 29, 2024 RIKELMAN, Circuit Judge. Amgad Samir Halim Khalil is an
Egyptian citizen and a Coptic Christian. After he acquired
sensitive, personal information about the family affairs of a
Muslim religious leader, he was beaten and subject to demands that
he convert to Islam. Several months later, Khalil came to the
United States and applied for asylum, withholding of removal, and
protection under the Convention Against Torture ("CAT"). An
Immigration Judge ("IJ") denied Khalil's asylum application,
concluding that the attackers who beat him were motivated by his
personal dispute with the imam, not Khalil's religion, and that
other, separate experiences of harm did not amount to persecution.
Under similar reasoning, the IJ also denied Khalil's withholding
of removal claim. Finally, the IJ rejected Khalil's CAT claim.
She held that Khalil had failed to establish that, if he returned
to Egypt, the Egyptian government would more likely than not
consent to or acquiesce in his torture by private actors. The
Board of Immigration Appeals ("BIA") affirmed. Khalil now
petitions this court for review, challenging the denial of his
claims.
We grant the petition for review in part, vacate the
decision of the BIA as to Khalil's asylum claim premised on
mixed-motive persecution and as to his CAT claim, and remand for
further proceedings consistent with this opinion.
- 3 - I. BACKGROUND
A. Relevant Facts1
Khalil was born and lived most of his life in Minya,
Egypt, where he attended a Coptic Christian church each week.
Because of gold jewelry that he wears and two visible tattoos of
a cross on his hand, Khalil was recognizable to others in his
community as a Coptic Christian. For many years before he left
for the United States in 2016, Khalil worked in a hospital as a
medical laboratory technician, where his duties included drawing
blood from patients.
Khalil's asylum claim is premised largely on two,
interconnected incidents that occurred while he was working in the
hospital lab. One evening in early May 2016, an imam came to the
lab to request bloodwork for his unmarried, fourteen-year-old
daughter. The bloodwork revealed that the imam's daughter was
pregnant. When Khalil informed the imam of the results, the imam
became irate and demanded that Khalil change or destroy the
results, which Khalil refused to do.
About one week later, a different female patient visited
Khalil's lab requesting bloodwork and a "vaginal sample." After
Khalil drew the patient's blood, he told her to sit behind a
1"We draw the facts from the administrative record, including [Khalil's] testimony before the IJ." Caz v. Garland, 84 F.4th 22, 25 n.2 (1st Cir. 2023).
- 4 - curtain in the room, change, and wait for a nurse to come in to
collect the sample. The patient started to undress in front of
Khalil and accused Khalil of sexually harassing her.
When Khalil opened the door to leave the room, he found
four men standing in the hallway armed with sticks; based on their
clothing, he identified them as members of the Muslim Brotherhood.
The men stated that they were the brothers of the female patient
Khalil allegedly sexually harassed and that they were there to
defend her. They called Khalil an infidel, and they demanded that
he convert to Islam or marry their sister if he ever wanted to
leave. When Khalil refused to do so, the men "got so angry" that
they "almost br[oke] [his] arm." They again demanded that Khalil
convert, and when he again refused, they beat him. The violence
quickly escalated. Each time Khalil refused to renounce his
religion, the men grew angrier and intensified their attack,
eventually punching Khalil's face, kicking his stomach, and
beating him with sticks. When they finally stopped, the attackers
told Khalil that he "should have list[en]ed to the imam and changed
the results [of the blood test] for his daughter."
Khalil was treated at the hospital for the injuries he
sustained during the attack. Because of the beating, he requested
a one-year leave of absence from the hospital, which was approved.
Around May 20, 2016, a week and a half after the incident, Khalil
moved with his wife and three sons from Minya to Giza, a different
- 5 - area of Egypt, where some of his extended family lives.
Khalil resided in Giza for about two-and-a-half months.
During that time, he received a phone call from a friend who had
accompanied him to receive medical treatment after the beating.
This friend told Khalil that his attackers were looking for him at
Khalil's lab and that they threatened to kill Khalil if they ever
found him unless he converted. Soon thereafter, Khalil left Egypt.
He entered the United States on August 24, 2016, on a tourist visa.
B. Legal Proceedings
In December 2016, while his visa was still valid, Khalil
applied for asylum, withholding of removal, and protection under
the CAT. After an interview with an asylum officer, his asylum
application was denied, and he was referred for removal
proceedings. In January 2018, the United States Department of
Homeland Security served Khalil with a notice to appear alleging
that he had overstayed his visa and charging him as removable under
the Immigration and Nationality Act ("INA"). Khalil conceded
removability and renewed his prior application. His principal
claims were that he had been persecuted on account of his Coptic
Christian religion and that he would be tortured if forced to
return to Egypt.
At his merits hearing before the IJ, the government
cross-examined Khalil about his encounter with the imam and the
- 6 - subsequent beating.2 Khalil testified that, in addition to the
beating, he had been harmed due to his faith when individuals threw
rocks and cursed at him while he was on his way to work or church.
Along with his testimony, Khalil offered supporting documents for
the IJ's consideration, including the declaration attached to his
asylum application and a transcript of his asylum interview, in
which he recounted many of the facts detailed above.
The IJ explicitly declined to make a credibility
finding, although she noted that parts of Khalil's story seemed
implausible and that there were some inconsistencies between his
testimony, declaration, and asylum interview. Nevertheless, the
IJ "assum[ed] that the events played out exactly as [Khalil]
described" and that the beating at the hospital rose to the level
of persecution. She denied Khalil's asylum application, however,
on the ground that he had not established a nexus between the harm
he suffered and a protected ground. The men attacked Khalil
"because he did not listen to the [i]mam and would not destroy the
[blood] test results," the IJ concluded. In her view, "[i]f
[Khalil's] religion played any role in this attack[,] it was minor
at best and clearly was not 'at least one central reason' for the
persecution." The IJ therefore denied Khalil's asylum claim to
2 Under an agreement between the parties, Khalil was first cross-examined by the government and then only briefly questioned by his own attorney.
- 7 - the extent it was premised on the interaction with the imam and
the subsequent beating. As to the incidents of verbal harassment
and rock-throwing, the IJ presumed that those past events occurred
because of Khalil's religion but concluded that they did not amount
to persecution.
The IJ then addressed Khalil's remaining claims. She
concluded that because Khalil had not shown he was entitled to
asylum, he necessarily could not meet the higher burden of proof
required for withholding of removal. Turning to his CAT claim,
the IJ denied relief because she determined that Khalil failed to
show it was more likely than not that he would be tortured with
the consent or acquiescence of the Egyptian government if he
returned to Egypt.
Khalil appealed to the BIA, which affirmed the IJ's
ruling.3 Specifically, the BIA agreed with the IJ's determination
that Khalil had not shown that he was beaten because of his
religion. In affirming the IJ's nexus conclusion, it held that
Khalil failed to meet his burden to demonstrate that his religion
"played any more than an incidental role in motivating the men to
attack him." The BIA also agreed that the incidents of verbal
3 Because the IJ did not explicitly make an adverse credibility finding, Khalil had a rebuttable presumption of credibility on appeal before the BIA. 8 U.S.C. § 1158(b)(1)(B)(iii). In reaching its decision, the BIA neither expressly stated nor implied that the presumption had been rebutted.
- 8 - harassment and rock-throwing were not sufficiently extreme to
constitute persecution. Like the IJ, it then reasoned that
Khalil's inability to satisfy the lower burden of proof for asylum
foreclosed his withholding of removal claim. Lastly, it held that
the IJ's findings underpinning the denial of CAT protection were
not clearly erroneous. The BIA therefore dismissed the appeal.
Khalil timely petitioned this court for review.
II. STANDARD OF REVIEW
In immigration cases, our review "typically focuses on
the final decision of the BIA." Loja-Tene v. Barr, 975 F.3d 58,
60 (1st Cir. 2020). But "to the extent that the BIA deferred to
or adopted the IJ's reasoning, we review those portions of the
IJ's decision" as well. Chavez v. Garland, 51 F.4th 424, 429 (1st
Cir. 2022). We apply de novo review to the BIA's legal conclusions
with "some deference to [the BIA's] interpretations of statutes
and regulations related to immigration matters." Aldana-Ramos v.
Holder, 757 F.3d 9, 14 (1st Cir. 2014). We apply the substantial
evidence standard to factual findings, meaning that we will disturb
such findings only if "in reviewing the record as a whole, 'any
reasonable adjudicator would be compelled to conclude to the
contrary.'" Barnica-Lopez v. Garland, 59 F.4th 520, 527 (1st Cir.
2023) (quoting Gómez-Medina v. Barr, 975 F.3d 27, 31 (1st Cir.
2020)). When we discuss the BIA and IJ's decisions as a unit, we
- 9 - refer to the BIA and IJ as "the agency." See Pineda-Maldonado v.
Garland, 91 F.4th 76, 80 (1st Cir. 2024).
III. DISCUSSION
Khalil raises multiple issues in his petition, but we
need address only some to resolve this case. We first examine
Khalil's asylum claim. Khalil argues that the agency legally erred
because it did not meaningfully consider whether his religion was
intertwined with his personal dispute with the imam such that both
were central reasons for his beating by the Muslim Brotherhood.
In addition, he contends that the factual record compels the
conclusion that his beating was on account of his religion and
that the verbal harassment and rock-throwing he experienced were
sufficiently serious to constitute past persecution. We conclude
that the agency did not legally err in the nexus analysis, but we
agree that the record compels the conclusion that religion was one
central reason for Khalil's beating. Regarding the incidents of
verbal harassment and rock-throwing, however, substantial evidence
supports the agency's determination that such mistreatment was not
sufficiently severe to rise to the level of persecution. We then
turn to Khalil's CAT claim and conclude that the BIA erred when it
failed to review the IJ's legal conclusions de novo.
A. Asylum Claim
We begin with the legal framework that governs Khalil's
asylum claim before turning to the issues raised in his petition.
- 10 - To be eligible for asylum, Khalil bears the burden of showing that
he is a "refugee" within the meaning of the INA. 8 U.S.C.
§ 1158(b)(1)(B)(i). A refugee is an individual who is "unable or
unwilling" to return to their home country because of "persecution
or a well-founded fear of persecution" that is "on account of"
their "race, religion, nationality, membership in a particular
social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A).
To satisfy the "on account of" test, commonly referred to as the
nexus requirement, "the protected ground need not be the only
reason for the harm the applicant suffered, but it must be 'at
least one central reason for [the] persecuti[on].'"
Espinoza-Ochoa v. Garland, 89 F.4th 222, 230 (1st Cir. 2023)
(alterations in original) (quoting 8 U.S.C. § 1158(b)(1)(B)(i)).
1. Past Persecution Based on Mixed Motives
The "one central reason" test does "not require an asylum
applicant to demonstrate that [they were] singled out only due to
[their] protected trait." Barnica-Lopez, 59 F.4th at 531 (quoting
Enamorado-Rodriguez v. Barr, 941 F.3d 589, 596 (1st Cir. 2019)).
Instead, the test "contemplates the possibility that multiple
motivations can exist." Aldana-Ramos, 757 F.3d at 18-19. For
instance, we have held that an applicant suffers persecution on
account of a protected ground when it is "impossible to
disentangle" a non-protected motive and the protected ground.
Pineda-Maldonado, 91 F.4th at 89 (finding that the applicant
- 11 - established the requisite nexus when a pecuniary motive and the
applicant's particular social group were "two sides of the same
coin" (quoting Perez-Sanchez v. U.S. Att'y Gen., 935 F.3d 1148,
1158 (11th Cir. 2019))); see also Malek v. Mukasey, 274 F. App'x
1, 5 (1st Cir. 2008) (recognizing that a non-protected ground can
be "inextricably intertwined with [the applicant's] religious
beliefs and the pressures that were placed on [them] . . . to
convert"). Therefore, an asylum applicant can still be eligible
for relief "even if one reason -- perhaps even the primary reason
-- for the persecution is not a basis for asylum." Espinoza-
Ochoa, 89 F.4th at 235.
This same standard applies to personal disputes. We
have explained that "[e]vents that stem from personal disputes are
generally not enough to show the required nexus" between past harm
and a protected ground. Sompotan v. Mukasey, 533 F.3d 63, 71 (1st
Cir. 2008) (citations omitted). At the same time, we have
recognized that even if a personal dispute "'partially
motivate[s]' a persecutor's mistreatment of an applicant, record
evidence can nonetheless indicate that the applicant's [protected
status] may be 'another central reason for the persecution.'"
Espinoza-Ochoa, 89 F.4th at 237 (first alteration in original)
(quoting Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013));
see also Pineda-Maldonado, 91 F.4th at 89; Aldana-Ramos, 757 F.3d
at 19 n.8.
- 12 - Accordingly, "to prevail on a mixed-motive theory,
[Khalil] 'need not prove that a protected ground was the most
important reason'" that his attackers beat him. Espinoza-Ochoa,
89 F.4th at 235 (quoting Enamorado-Rodriguez, 941 F.3d at 596).
Rather, he "must show only that [his religion] was not 'incidental,
tangential, superficial, or subordinate to another reason for
[the] harm.'" Id. (second alteration in original) (quoting
Barnica-Lopez, 59 F.4th at 531).
Khalil and amici contend that the agency erred as a
matter of law when it conducted the "at least one central reason"
analysis. They assert that the agency failed to apply properly
the mixed-motive nexus standard because it presumed that the
presence of a retributory motive for persecution signaled the
absence of a religious motive.4
We conclude that the agency did not preclude the
possibility of mixed-motive persecution or incorrectly apply the
mixed-motive standard in examining the nexus between Khalil's
religion and the harm he suffered. We have held that the BIA errs
as a matter of law when it fails to consider whether a statutorily
4 Although Khalil states on appeal that he is entitled to asylum based on his religion, political opinion, and particular social group, we limit our asylum analysis solely to religion, as that was the only protected ground that the agency addressed. See James v. Garland, 16 F.4th 320, 321 n.1 (1st Cir. 2021)(explaining that "our review is limited to the grounds the [agency] offered for its decision").
- 13 - protected ground was a central reason for the petitioner's
persecution, even if the petitioner also was targeted for other,
non-protected grounds. See, e.g., Enamorado-Rodriguez, 941 F.3d
at 596; Aldana-Ramos, 757 F.3d at 14. But neither the IJ's nor
the BIA's opinion suggests that occurred here. Rather, the
opinions demonstrate that the agency "acknowledged the possibility
of a mixed-motive case, but based on the evidence presented, made
a fact-specific determination that [Khalil] had not shown that the
persecution was motivated by [his religion]." Barnica-Lopez, 59
F.4th at 529-30 (quoting Villalta-Martinez v. Sessions, 882 F.3d
20, 24 (1st Cir. 2018)).
For instance, the IJ and BIA each acknowledged that
multiple motives could exist and that Khalil's religion could have
played some role in the beating. But the IJ determined as a
factual matter that religion played only an incidental role, and
the BIA agreed. Specifically, the IJ held that "[i]f [Khalil's]
religion played any role in [his] attack[,] it was minor at best
and clearly was not 'at least one central reason' for the
persecution." Similarly, the BIA acknowledged the attackers'
demands that Khalil convert but agreed with the IJ that Khalil had
not met his burden to demonstrate that "religion played any more
than an incidental role in motivating" the beating, applying the
correct legal standard.
To be sure, it is not enough for the agency simply to
- 14 - invoke the "one central reason" standard in its nexus analysis
while simultaneously reasoning that the persecution cannot be
motivated by a protected ground simply because a non-protected
ground for the persecution also exists. See Enamorado-Rodriguez,
941 F.3d at 596; Aldana-Ramos, 757 F.3d at 14. In other words,
the agency cannot conclude that there are no mixed motives simply
by identifying one motive. And "[e]ven on its own terms," the
agency's conclusion that Khalil's persecutors were motivated by
his refusal to destroy the blood test results "does not itself
exclude" the possibility that they were also motivated by Khalil's
religion. Enamorado-Rodriguez, 941 F.3d at 597. But the agency
did not "prematurely terminate the analysis upon the finding of
another motive," Sompotan, 533 F.3d at 70, or find that Khalil
"posit[ed] a plausible alternative motive to the one found by the
[IJ]" but nevertheless reason that motive could not co-exist with
an unprotected one, Enamorado-Rodriguez, 941 F.3d at 595. It went
on to determine that the evidence here was insufficient to
establish a nexus between the beating and Khalil's faith. In sum,
the opinions below do not suggest that the agency spurned the
possibility of mixed motives. See Barnica-Lopez, 59 F.4th at
529-30; Villalta-Martinez, 882 F.3d at 24.
We turn, then, to Khalil's argument that the factual
record compels the conclusion that religion was at least one
central reason for his beating. We review the factual finding
- 15 - against Khalil on this issue under the substantial evidence
standard. Pineda-Maldonado, 91 F.4th at 87.
Here, a reasonable adjudicator would be compelled to
conclude that Khalil's religion qualifies as a central reason for
the beating. Khalil's attackers demanded he convert, beat him
when he refused to do so, demanded again that he convert, and beat
him more intensely when he again refused. The attackers' own
statements show that, regardless of whatever else prompted the
beating, Khalil would not have been harmed had he agreed to
convert. See Sanchez-Vasquez v. Garland, 994 F.3d 40, 47 (1st
Cir. 2021) (deeming perpetrators' statements essential to the
nexus determination); Ivanov v. Holder, 736 F.3d 5, 14-15 (1st
Cir. 2013) (determining persecutors were driven by a religious
motive that they "recognized and gave voice to" during their attack
of the applicant); Singh v. Mukasey, 543 F.3d 1, 7 (1st Cir. 2008)
(explaining that perpetrators' statements "are a crucial factor"
for determining the central reason for harm); cf. Esteban-Garcia
v. Garland, 94 F.4th 186, 194 (1st Cir. 2024) (finding no nexus
because persecutors "didn't say anything" about the applicant's
protected ground).
The attackers' demands that Khalil convert to another
faith and their increased violence in response to his refusal to
do so make this case unlike Sompotan v. Mukasey, 533 F.3d 63 (1st
Cir. 2008), which the IJ relied on in finding that the beating was
- 16 - the result of a personal dispute only. In Sompotan, we held that
the record did not compel the conclusion that those who robbed the
petitioners and their restaurant while yelling "Chinese bastard,
crazy Christian, crazy Chinese" were motivated by religious and
racial animus rather than by a desire to rob because "[t]he fact
that [robbers] would stoop to the level of using racial slurs is,
unfortunately, not surprising." 533 F.3d at 70. By contrast, the
attackers here did not make just a passing reference to Khalil's
religion. Rather, they made religious demands on him during the
attack and beat him more vigorously when he refused to cede to
those demands.
The arguments the government offers as to why
substantial evidence supports the agency's no-nexus determination
do not alter our conclusion. The government emphasizes that Khalil
recounted his attackers' demands that he convert only in his asylum
interview and written declaration attached to his asylum
application, but not in his testimony before the IJ. But in
evaluating whether substantial evidence supports the agency's
conclusion, we are tasked with reviewing "the record as a whole."
Barnica-Lopez, 59 F.4th at 527. Further, at his hearing, Khalil
described the beating exclusively during the government's
cross-examination, and the government strategically asked him only
one question about what his attackers said during the beating: Did
they reference the blood test results? The framing of the
- 17 - government's questions on cross-examination does not change our
assessment of the record as a whole. The government also contends
that, because Khalil testified that the imam had no issue with him
until the imam found out about the blood test results, religion
did not motivate the attack. But that argument ignores the
attackers' own words and actions.
For all these reasons, we find that the record compels
the conclusion that Khalil's religion played more than an
incidental role in his beating. We therefore grant the petition
for review as to Khalil's asylum claim premised on mixed-motive
persecution.5
5We acknowledge that our nexus analysis has no bearing on whether the beating itself meets the required "threshold[s] of seriousness" and "regularity" to qualify as persecution, Hernandez-Martinez v. Garland, 59 F.4th 33, 38 (1st Cir. 2023) (quoting Ivanov, 736 F.3d at 11), which remains a factual determination for the agency to make on remand because the IJ only "assum[ed]" the beating amounted to persecution and the BIA affirmed on nexus grounds. If the agency determines that the beating did rise to the level of persecution, Khalil's resultant showing of past persecution entitles him to a presumption of a well-founded fear of persecution. That presumption may be rebutted only if the government shows by a preponderance of the evidence that (1) "there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution," or (2) the applicant could avoid future persecution by safely internally relocating and, "under all the circumstances, it would be reasonable to expect the applicant to do so." 8 C.F.R. § 1208.13(b)(1)(i). Below, the IJ held in the alternative that, even if Khalil had established past persecution on account of a protected ground, "the record indicate[d] that Khalil had safely relocated within the country before leaving for the United States." But "it is not clear from the BIA's opinion whether it adopted that [alternative] ground provided by the IJ." Chavez, 51 F.4th
- 18 - 2. Other Incidents of Past Harm
We reach a different conclusion as to Khalil's past
persecution claim based on incidents of verbal harassment and
rock-throwing.
As Khalil points out, the IJ inaccurately described the
record evidence in concluding that such mistreatment was not
sufficiently severe to constitute past persecution, and the BIA
did not correct the IJ. Specifically, the IJ stated that Khalil
"testified that he was never physically harmed" by the incidents
of verbal harassment and rock-throwing. But Khalil testified that
he had in fact been harmed. At his merits hearing, he confirmed
that he had sought medical treatment at the hospital where he
worked for injuries from the rock-throwing.6
at 433. And "[w]hen the BIA does not consider an IJ's alternative ground for denying relief, that ground is not before us." Id. (quoting Bonilla v. Mukasey, 539 F.3d 72, 81-82 (1st Cir. 2008)). As for Khalil's withholding of removal claim, the BIA denied that claim solely on the ground that he failed to show he was entitled to asylum. If the BIA concludes on remand that Khalil has a well-founded fear of future persecution, it should consider the withholding of removal claim in light of that conclusion. 6 Khalil also notes that the IJ stated that "having rocks thrown in one's general direction does not rise to the level of persecution," even though he testified that the rocks were aimed at him specifically. But earlier in the same paragraph of her decision, the IJ did accurately recount this evidence. She explained that Khalil testified that "[w]hile living in Egypt, he was constantly exposed to people . . . throwing rocks at him because of his religion." The IJ's accurate description mitigates the concern that she failed to understand that aspect of Khalil's testimony.
- 19 - The BIA did not recognize any mischaracterization of the
record by the IJ. Rather, it stated only that on de novo review
it "affirm[ed] the [IJ's] determination that the verbal harassment
and incidents of rock[-]throwing experienced by [Khalil] [were]
not sufficiently extreme to amount to persecution."
Ultimately, however, we agree with the government that
substantial evidence supports the BIA's conclusion that the
mistreatment Khalil described was insufficient to qualify as past
persecution.7 "Persecution" is not defined by statute, and "what
constitutes persecution is resolved on a case-by-case basis."
Panoto v. Holder, 770 F.3d 43, 46 (1st Cir. 2014). "Generally, it
involves a discriminatory harm . . . that 'surpasses
unpleasantness, harassment, and even basic suffering.'" Yong Gao
v. Barr, 950 F.3d 147, 152 (1st Cir. 2020) (quoting Panoto, 770
F.3d at 46). To constitute persecution, the discriminatory
experiences "must have reached a fairly high threshold of
seriousness, as well as [occurred with] some regularity and
We have in the past noted the "tension between the standards 7
of review applied to past persecution by the BIA and circuit courts," explaining that the BIA characterizes the ultimate determination of whether a given set of facts amounts to persecution as a legal question that it reviews de novo whereas we review this same determination under the substantial evidence standard reserved for factual findings. Aguilar-Escoto v. Garland, 59 F.4th 510, 519 (1st Cir. 2023). As in Aguilar-Escoto, neither party raises this tension and the case does not require us to address it, so we again "leave this issue to another day." Id. at 520.
- 20 - frequency." Martínez-Pérez v. Sessions, 897 F.3d 33, 39-40 (1st
Cir. 2018) (alteration in original) (quoting Alibeaj v. Gonzales,
469 F.3d 188, 191 (1st Cir. 2006)). Factors relevant to this
determination therefore include: "[t]he severity, duration, and
frequency" of the harm, "whether harm is systematic rather than
reflective of a series of isolated incidents," the nature and
extent of the applicant's injuries, and whether the applicant had
to seek medical attention for their injuries. Thapaliya v. Holder,
750 F.3d 56, 59 (1st Cir. 2014) (internal quotation marks and
citations omitted); Martínez-Pérez, 897 F.3d at 40; Topalli v.
Gonzales, 417 F.3d 128, 133 (1st Cir. 2005).
Considering the incidents as Khalil described them, we
are not compelled to conclude that they rose to the level of
persecution. Khalil testified that, from the ages of twenty to
thirty, he "constantly" had rocks thrown at him when he was going
to church, and people cursed at him "a lot" on his way to church
and work. He did not describe any specific incidents. As noted,
he did seek medical attention for injuries he sustained. But the
record contains no information on the nature and extent of his
injuries, the severity of the harm, or whether the harm was
systematic. Accordingly, even if the IJ inaccurately described
part of Khalil's testimony and the BIA did not correct the error,
substantial evidence supports the conclusion that Khalil did not
suffer past persecution as a result of the verbal harassment and
- 21 - rock-throwing.
B. CAT Claim
Next, we turn to Khalil's challenge to the denial of his
CAT claim. We address one initial matter before describing the
governing legal framework and turning to the substance of Khalil's
petition.
Khalil premised his CAT claim on two threats: (1) the
likelihood that he would be tortured because of the incidents with
the imam and Muslim Brotherhood and (2) the likelihood that he
would be tortured because he is a Coptic Christian. We agree with
the government that Khalil has waived any challenge based on the
first portion of his claim by failing to raise it in his opening
brief, so we focus only on the second portion of his claim. See
Ouk v. Keisler, 505 F.3d 63, 66 n.3 (1st Cir. 2007) (explaining
that issues not raised in an appellant's opening brief are waived).
To establish eligibility for CAT protection, Khalil must
show that "it is more likely than not that he will be tortured if
returned to his home country." Bonnet v. Garland, 20 F.4th 80, 84
(1st Cir. 2021) (quoting Mazariegos v. Lynch, 790 F.3d 280, 287
(1st Cir. 2015)); see 8 C.F.R. § 208.16(c)(2). In contrast to
asylum, Khalil may obtain CAT relief even if the risk of torture
he faces is not on account of any protected ground. Chavez, 51
F.4th at 435 (citing Rashad v. Mukasey, 554 F.3d 1, 6 (1st Cir.
2009)). Torture involves, among other things, "an act causing
- 22 - severe physical or mental pain or suffering . . . by or at the
instigation of or with the consent or acquiescence of a public
official." Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004);
see 8 C.F.R. § 208.18(a)(1).
Khalil's arguments focus on the acquiescence standard,
which requires that a public official, "prior to the activity
constituting torture, have awareness of [the torture] and
thereafter breach his or her legal responsibility to intervene to
prevent such activity." 8 C.F.R. § 208.18(a)(7). We have
explained that this regulation "anticipates a two-part, successive
inquiry": (1) "the likelihood of a foreign government's awareness
of torture," and (2) "a likely breach of the government's duty to
intervene to prevent the torture." H.H. v. Garland, 52 F.4th 8,
19-20 (1st Cir. 2022). Awareness includes not just actual
knowledge of the torture but also willful blindness to it. Id.
Khalil contends that when the BIA affirmed the IJ's
ruling that he failed to show that the Egyptian government would
acquiesce in his torture if he returned to Egypt, it applied the
wrong standard of review. He states that the BIA was required to
review de novo the IJ's legal determination that any harm he would
suffer if he returned to Egypt would not satisfy the regulatory
definition of torture, but the BIA instead used a clearly erroneous
standard. For our part, we review de novo the question of whether
the BIA applied the correct standard of review. See Adeyanju v.
- 23 - Garland, 27 F.4th 25, 38-39 (1st Cir. 2022).
"An IJ's determination regarding CAT relief is reviewed
as a mixed question of law and fact." H.H., 52 F.4th at 16.
"[W]hether a person is likely to suffer a particular harm and the
role of the foreign government in causing or allowing that harm"
are factual findings that the BIA reviews for clear error, but
"whether such harm rises to the level of torture and whether the
government's role renders the harm 'by or at the instigation of or
with the consent or acquiescence of a public official'" are legal
questions it reviews de novo. DeCarvalho v. Garland, 18 F.4th 66,
73 (1st Cir. 2021) (citation omitted). Framed more specifically
in terms of acquiescence: "[H]ow [a public official] would likely
act in response to the harm the applicant fears" is a factual
question, but "whether this response establishes that a public
official was 'aware of [the torturous] activity' and subsequently
breach[ed] his or her 'legal responsibility to intervene to prevent
such activity'" is a question of law. Myrie v. Att'y Gen., 855
F.3d 509, 517 (3d Cir. 2017) (cleaned up) (quoting 8 C.F.R.
§ 1208.18(a)(7)).
Here, the BIA's opinion does not indicate that it
reviewed de novo the IJ's legal conclusion that the Egyptian
government's likely actions would not amount to acquiescence. The
BIA stated that Khalil did not "meet his burden to establish" that
the Egyptian government would more likely than not acquiesce in
- 24 - the torture he fears. But its sole support for that conclusion
was its statement that "[t]he [IJ's] findings regarding the
likelihood that a public official would torture or acquiesce to
the torture of [Khalil] are not clearly erroneous, given the
government's efforts to protect Coptic Christians and suppress
religious fundamentalists in the Muslim Brotherhood and other
organizations designated as terrorist groups." The opinion thus
suggests that the BIA erroneously treated the issue of whether the
government would acquiesce in Khalil's torture as a factual finding
subject only to clear error review. See H.H., 52 F.4th at 19.
Importantly, the BIA discussed the legal issue of government
acquiescence in the same breath as the IJ's factual findings. Its
use of the "clearly erroneous" language also suggests that it
blended the factual question of the Egyptian government's likely
behavior with the legal question of whether that behavior shows
awareness and breach of a legal duty. But those inquiries are
distinct. See id.; Murillo Morocho v. Garland, 80 F.4th 61, 69
(1st Cir. 2023). Further, unlike in other sections of its decision
when the BIA expressly stated it applied de novo review, the BIA
did not do so in its discussion of Khalil's CAT claim.
The government does not contend that the BIA applied de
novo review on the legal issue or that it was not required to do
so. Rather, it says that the BIA's "review of the factual findings
and the evidence underpinning them under the clear error standard
- 25 - was proper." But that simply ignores Khalil's arguments about the
standard of review on the legal issue.
To be sure, we have concluded that the BIA used the
proper standard of review even if it did not "expressly specify"
which standard it applied when it "call[ed] the IJ's determination
'correct' and 'cite[d] legal authority for its conclusion.'"
DeCarvalho, 18 F.4th at 74 (quoting Samayoa Cabrera v. Barr, 939
F.3d 379, 383 (1st Cir. 2019)). But in those cases, the BIA either
explicitly stated the clearly erroneous standard applied only to
the IJ's factual findings about the applicant's likely treatment,
or it adhered to the distinction between its review of factual
findings and its review of legal issues. See Samayoa Cabrera, 939
F.3d at 382-83; DeCarvalho, 18 F.4th at 73-74.
By contrast, we have remanded when the BIA's opinion
suggests that the BIA extended the clearly erroneous standard to
the issue of whether the government's likely actions would qualify
as acquiescence in torture as a matter of law. See H.H., 52 F.4th
at 19 (finding that the BIA did not apply the correct standard of
review when it found no "clear error in the specific finding that
the potential harm [the applicant would experience] would not be
with any consent or acquiescence of the Honduran government"
(emphasis omitted)); cf. Myrie, 855 F.3d at 517 (vacating and
remanding when the BIA stated that it found "no clear error in the
Immigration Judge's finding that the government of Panama would
- 26 - not be acquiescent to any torture" because the BIA "should have
determined de novo whether [the factual] findings were sufficient
to establish acquiescence"). That is the case here.
Further, we cannot discern from the opinions below that
either the IJ or the BIA applied the proper legal test on the
acquiescence question, which makes us particularly reluctant to
conclude that the BIA did indeed "complet[e] its own assessment of
whether the documentary evidence" satisfied the regulatory
definition of torture. Aguilar-Escoto, 59 F.4th at 518. The BIA
and IJ cited the correct legal test, as they explained that
acquiescence requires either actual knowledge or willful blindness
and a breach of legal responsibility. And the IJ made various
findings about the government's response to instances of deadly
violence against Coptic Christians by religious extremists. But
the opinions do not indicate that the BIA or IJ "evaluated the
effectiveness of those steps and whether they met the government's
duty to intervene." Murillo Morocho, 80 F.4th at 68. And,
"[n]either the IJ's nor the BIA's decision addressed what 'legal
duty' [Egyptian] authorities had in this situation and whether the
government's efforts satisfied it." Id. (finding that those
omissions made us unable to determine "whether the agency's
analysis reflect[ed] reasoned consideration" of the applicant's
CAT claim and remanding for the BIA to reconsider the acquiescence
question using the correct legal standard).
- 27 - Additionally, we have "expressed skepticism that 'any
record evidence of efforts' to prevent torture will 'necessarily'
meet the duty to intervene." Id. at 69 (quoting H.H., 52 F.4th at
21). That is because lower-level officials may still consent to
or acquiesce in torture notwithstanding higher-level officials'
attempt to address some violence. H.H., 52 F.4th at 21 (citing De
La Rosa v. Holder, 598 F.3d 103, 110-11 (2d Cir. 2010)). In other
words, "the fact that some officials take action to prevent the
torture" is "neither inconsistent with a finding of government
acquiescence nor necessarily responsive to the question of whether
torture would be 'inflicted . . . with the consent or acquiescence
of a public official.'" De La Rosa, 598 F.3d at 110 (citation
omitted).
Here, to the extent the IJ did consider whether the
Egyptian government's actions reflected willful blindness or a
breach of the duty to intervene, she relied heavily on the actions
of high-level officials: the Egyptian president's pledge to fight
terrorism after a particular attack, the president's alliance with
the Coptic Christian church, which "has offered Christians in Egypt
a measure [of] protection," and the fact that the Egyptian
government has formally designated the Muslim Brotherhood a
terrorist organization. The IJ also determined that the evidence
about the president's pledge "directly contradict[ed]" Khalil's
expert report, which stated that police inaction was a significant
- 28 - problem for Coptic Christians. But, as we have explained, one
high-level official's formal pledge in response to a particular
incident may be fully consistent with other officials' complicity.
The BIA reproduced the IJ's reasoning. In finding no
clear error in the IJ's findings, it referred only to (1) the fact
that the Egyptian government has designated the Muslim Brotherhood
a terrorist organization, which says little about whether public
officials would nevertheless acquiesce in torture of Coptic
Christians, and (2) "the government's efforts [to] protect Coptic
Christians and suppress religious fundamentalists," without
specifying those efforts, discussing whether they satisfy the
legal duty to intervene, or remarking upon their effectiveness.
We note that Khalil bears the burden to prove his
entitlement to protection under the CAT. We also recognize that
the country conditions evidence in this case before the IJ was
limited.8 Further, the BIA need not "expressly parse or refute on
the record" every one of the applicant's arguments when it "has
given reasoned consideration to the petition, and made adequate
findings." H.H., 52 F.4th at 23 (quoting Wei Guang Wang v. BIA,
437 F.3d 270, 275 (2d Cir. 2006)). But here, because the BIA's
brief analysis does not indicate it applied the correct legal test
or standard of review, we cannot determine that it gave reasoned
8 As a result, the IJ took administrative notice of two U.S. State Department human rights reports on Egypt.
- 29 - consideration to Khalil's CAT claim. Cf. Murillo Morocho, 80 F.4th
at 68; Myrie, 855 F.3d at 517 (remanding when, although it was
"possible that the BIA considered the appropriate . . . standard"
before concluding that the facts were insufficient to establish
acquiescence, the court "[could not] tell from the BIA's short
decision whether this is indeed the case").
On remand, the BIA should evaluate the consent or
acquiescence question de novo and under the proper legal test.
IV. CONCLUSION
For all these reasons, we grant the petition in part,
vacate the agency's decision insofar as it denied Khalil's asylum
claim premised on mixed-motive persecution and denied his CAT
claim, and remand for further proceedings consistent with this
opinion.
- 30 -