Regalado-Escobar v. Holder, Jr., No. 09-72964 (9th Cir. 2013)
Annotate this CasePetitioner, a native and citizen of El Salvador, petitioned for review of the decision of the BIA denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court reversed the BIA's denial of petitioner's applications for asylum and withholding of removal, and remanded for the BIA to determine whether petitioner had a well-founded fear of persecution on account of a political opinion or whether he was more likely than not to be persecuted on account of a political opinion. The court denied the petition with regards to petitioner's claims for relief under the CAT where substantial evidence supported the BIA's conclusion that petitioner failed to show that he was more likely than not to be tortured if he returned to El Salvador. Accordingly, the court granted and remanded in part and denied in part.
Court Description: Immigration. The panel granted in part and denied in part a petition for review of the Board of Immigration Appeals’ denial of asylum, withholding of removal, and protection under the Convention Against Torture to a native and citizen of El Salvador, and remanded for the Board to address in the first instance whether petitioner’s opposition to violence constitutes a political opinion and whether he established a claim for future persecution on that basis. The panel granted the petition with respect to petitioner’s applications for asylum and withholding of removal because the Board failed to address whether petitioner established a well-founded fear or sufficient likelihood of future persecution on account of a protected ground. The panel directed the Board on remand to re-evaluate whether petitioner’s opposition to the strategy of the National Liberation Front for Farabundo Marti (“FMLN”) of using violence constitutes a political opinion. The panel held that substantial evidence supported the finding of no past persecution because the record did not compel the conclusion that petitioner was attacked on account of any principled opposition to the FMLN or its violence, rather than on account of his failure to cooperate in the FMLN’s recruitment efforts, and that substantial evidence supported the Board’s determination that petitioner failed to establish a clear probability of future torture. Dissenting, Judge Kleinfeld wrote that after determining that petitioner failed to establish that his past harm was connected to his political opinion, there was no reason for the Board to speculate further about such a possible nexus in the future, and that there is no need for either this court or the Board to reach the issue of when, if ever, views on violence constitute a political opinion.
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