Vitug v. Holder, 723 F.3d 1056

Background

Vitug is a 37-year-old native and citizen of the Philippines who is gay and HIV-positive, who alleges persecution based on sexual orientation and health status.
He faced long-standing abuse in the Philippines, including police harassment, beatings, and rape, and could not secure employment due to his sexual orientation.
Vitug first came to the United States in 1996, overstayed, and has since remained in the United States with past drug addiction and an HIV diagnosis in 2005.
An Immigration Judge found Vitug credible and granted asylum-related relief (including withholding of removal and CAT relief) based on past persecution and future risk.
The Board of Immigration Appeals vacated the IJ’s grant of withholding of removal and CAT relief and denied asylum, initiating the current appeal; Vitug challenged BIA’s guidance and the factual findings underlying its decision.
The Ninth Circuit ultimately held that the BIA failed to apply the correct standard of review and that substantial evidence supports withholding of removal, while CAT relief was denied.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the BIA properly apply the clear error standard and avoid de novo fact-finding?	Vitug (V) argues BIA engaged in improper de novo factfinding.	HSD (DHS) contends the BIA properly reviewed the record under the applicable standard.	Yes; the court held the BIA did not apply the clear error standard and improperly rewrote IJ findings.
Whether Vitug met the standard for withholding of removal based on past persecution and future risk	Vitug contends past persecution plus ongoing risk based on sexual orientation warrants withholding.	DHS argues the attacks did not meet past persecution and that country conditions permit internal relocation or protection.	Vitug is presumed eligible for withholding; the court granted relief based on substantial evidence showing past persecution and government unwillingness to protect.
Whether Vitug established a likelihood of future torture under CAT	Vitug contends the record supports CAT relief.	DHS argues the evidence does not show it is more likely than not Vitug would be tortured.	The petition for CAT relief was denied.
Did the documentary evidence of Philippines’ conditions undermine Vitug’s claims of persecution?	Vitug relies on records of police abuse and discrimination as supportive evidence.	DHS argues limited evidence shows only isolated incidents and did not establish systemic failure to protect.	Evidence did not compel a finding against Vitug’s withholding claim; it did not negate his individual risk under the standard.
Were the IJ’s factual findings adequately protected in the appeal or require remand?	Vitug asserts IJ’s factual findings were credible and uncontradicted.	BIA claims contradictions and mischaracterizations undermine those findings.	Remand not required; the court reversed the BIA on withholding, while CAT denial remained.

Key Cases Cited

Ahmed v. Keisler, 504 F.3d 1183 (9th Cir. 2007) (reversed BIA on asylum and withholding; cumulative harm supports withholding)
Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. 2012) (legal standard for reviewing BIA de novo vs. IJ findings; remand guidance)
Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012) (requires proper breakdown of fact vs law; remand where appropriate)
Brezilien v. Holder, 569 F.3d 403 (9th Cir. 2009) (remand when BIA fails to apply correct standard of review)
Karouni v. Gonzales, 399 F.3d 1163 (9th Cir. 2005) (homosexuality as a protected ground; relevance to social group)
Mousa v. Mukasey, 530 F.3d 1025 (9th Cir. 2008) (presumption of eligibility for withholding based on past persecution)