621 F. App'x 443
9th Cir.2015Background
- Regor Aguilar, a Filipino national, petitioned for review after the BIA denied his and derivatively his wife Maria’s applications for asylum, withholding of removal, and CAT deferral.
- Aguilar worked 1998–2001 as a surveillance agent on a Philippine law enforcement task force that targeted political figures and the press.
- Aguilar testified he knew a surveillance target disappeared (presumed dead) and that his surveillance was relied on in an abduction and murder; he also heard orders to torture abductees.
- The BIA found Aguilar participated in persecution and therefore ineligible for asylum and withholding of removal under the persecutor bar.
- Aguilar sought CAT deferral, alleging a risk of torture on return; the BIA denied this for lack of a showing that torture is "more likely than not" or that the government would acquiesce.
- The Ninth Circuit reviewed for substantial evidence and affirmed the BIA decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Aguilar is barred from asylum/withholding under the persecutor bar | Aguilar contends he did not know extent of illegal acts and worked under duress | Government argues Aguilar’s surveillance and knowledge made him individually accountable for persecution | Court held substantial evidence supports persecutor finding; asylum/withholding barred |
| Whether Aguilar acted under duress excusing participation | Aguilar asserts he served under duress | Government argues issue not exhausted and record lacks duress evidence | Court declined to resolve exhaustion but found record does not support duress |
| Whether Aguilar qualifies for CAT deferral due to likelihood of torture | Aguilar points to threats received in U.S. and alleged risk on return | Government argues no torture history, threats unrelated to Philippine officials, and no government acquiescence | Court held Aguilar failed to show more-likely-than-not torture or government acquiescence; CAT deferral denied |
| Whether private actors’ threats implicate government acquiescence | Aguilar argues government would acquiesce by refusing protection and ignoring offers to testify | Government contends refusal to provide protection doesn’t prove conscious acquiescence to torture | Court held Aguilar did not show awareness plus breach of duty required for acquiescence |
Key Cases Cited
- Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir.) ("continuum of conduct" can constitute participation in persecution; evaluate individual accountability)
- Federenko v. United States, 449 U.S. 490 (U.S. 1981) (definition of persecution and scope of individual conduct)
- Garcia‑Milian v. Holder, 755 F.3d 1026 (9th Cir.) (standard for substantial-evidence review and definition of government acquiescence)
- Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir.) (government acquiescence can render private actor mistreatment into torture under CAT)