717 F.3d 724
9th Cir.2013Background
- Regalado-Escobar, a Salvadoran citizen, sought asylum, withholding of removal, and CAT relief after fleeing to the U.S. in 2006 to escape FMLN violence.
- He was attacked by alleged FMLN members in 2002, 2003, and 2005 for opposing or not cooperating with the group’s activities.
- The IJ denied asylum/withholding, citing lack of nexus to a protected ground and belief that harm was criminal activity or recruitment rather than political persecution.
- The BIA affirmed, holding Regalado lacked a political opinion opposing the FMLN, and denied CAT relief.
- The BIA did not address whether opposition to the FMLN’s violence could constitute a political opinion, or whether Regalado had a well-founded fear.
- This court granted in part, remanding for determination of future persecution and whether a political opinion existed; CAT relief was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether opposition to violence can be a political opinion for asylum. | Regalado contends opposition to the FMLN’s violence is a political opinion. | Regalado did not show a protected political opinion. | Remand for BIA to decide if opposition to violence can be a political opinion. |
| Whether Regalado has a well-founded fear of future persecution on a protected ground. | Regalado asserts future fear based on protected ground. | BIA did not determine future fear on this basis. | Remand to assess well-founded fear on basis of protected ground. |
| Whether past harm was inflicted on account of a protected ground or merely recruitment/refusal to join. | Past beatings were because he opposed recruitment, potentially protected. | Past harm due to non-cooperation, not protected ground. | Record supports remand to re-evaluate nexus and political-opinion basis. |
Key Cases Cited
- Lombardi, Inc. v. Smithfield, 11 A.3d 1180 (Del. 1989) (irreparable harm is the most important factor for a preliminary injunction)
- I.N.S. v. Elias-Zacarias, 502 U.S. 478 (Sup. Ct. 1992) (establishes nexus standard for persecutory harm)
- Zhiqiang Hu v. Holder, 652 F.3d 1011 (9th Cir. 2011) (nexus and persecution inquiries are distinct)
- Grava v. I.N.S., 205 F.3d 1177 (9th Cir. 2000) (opposition to violence can be political opinion when tied to political goals)
- Reyes-Guerrero v. I.N.S., 192 F.3d 1241 (9th Cir. 1999) (opposition to corruption can be political opinion when tied to politics)
- Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2009) (central-reason nexus standard for asylum)
- Montes-Lopez v. Gonzales, 486 F.3d 1163 (9th Cir. 2007) (remand when agency has not addressed issues first raised)
- Andia v. Ashcroft, 359 F.3d 1181 (9th Cir. 2004) (limits review to grounds relied upon by agency)