Jose Patricio Boer-Sedano, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA’s) summary affirmance of the Immigration Judge’s (IJ’s) denial of his requests for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We grant his petition for review in part, reverse the BIA’s decision on his asylum claim and remand for the Attorney General to exercise his discretion on this claim. We also remand to the BIA to reevaluate Boer-Sedano’s withholding of removal and CAT claims in light of this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Boer-Sedano last entered the United States on September 6, 1990, as a nonim-migrant visitor with authorization to remain in the United States for six months. On November 7, 1997, Boer-Sedano was placed in removal proceedings for overstaying this visa. On November 15 and 20, 2001, during a merits hearing before the IJ, Boer-Sedano conceded his remova-bility based on overstay. However, he sought asylum, withholding of removal, and protection under the CAT. Because the IJ found Boer-Sedano to be credible, the following facts to which he testified, including the reasonable inferences to be drawn from these facts, must be accepted as true.
See Damon v. Ashcroft,
Boer-Sedano was born in Tampico, a small Mexican city, and is a homosexual man living with Acquired Immune Deficiency Syndrome (AIDS). Boer-Sedano testified that he has known he was gay since the age of seven and that he could not live “a gay life openly in Mexico” because of how he would be treated if his sexuality were known. Despite his attempts to conceal his sexuality, others could perceive it and Boer-Sedano was *1086 ostracized by his family, friends, and coworkers on this basis. His family refused to allow him to interact with other family members or his friends, fearing that Boer-Sedano would be a “bad influence” on them. Boer-Sedano was also harassed at his Tampico workplace because of his sexuality. Co-workers called him a “mañ-con ” (“faggot”) and tried to convince another department head to accept him, but the department head refused because he did not want “queers” working in his department.
Boer-Sedano’s asylum claim centers on his interactions, in 1988, with a “high-ranking police officer.” Late one evening, the officer stopped Boer-Sedano and a friend in the town square and arrested and detained the two men for twenty-four hours. The officer told the two men they were being held for being gay and because he believed they were on their way to a hotel together. Boer-Sedano correctly testified that being gay is not a crime in Mexico. Over the next three months, the same police officer stopped Boer-Sedano on nine separate occasions. On each occasion, the officer ordered Boer-Sedano into his official police car, drove to a dark location, and forced Boer-Sedano to perform oral sex on him.
To get Boer-Sedano to comply, the officer told Boer-Sedano that he knew “where [he] lived and where [he] worked” and would tell others that Boer-Sedano was a homosexual if he resisted. After each time Boer-Sedano performed oral sex on the officer, the officer would hit Boer-Sedano’s head and arms and insult him by saying that he “didn’t know how to [perform oral sex] well.” The officer also warned Boer-Sedano that “if he killed [him] and threw [his] body somewhere no one would ask about [him], ... because ... [he] was a gay person” and the officer would not be committing murder, but simply “cleaning up society.” During one encounter with this officer, the officer “pulled out his hand gun and put a bullet in the chamber and rolled the cylinder and put the gun to [Boer-Sedano’s] head and said ‘if you’re lucky this is going to be your fate.’ ”
After these events, Boer-Sedano quit his job and “didn’t go out of [his] house” because he was afraid the officer would find him and continue this abuse. Seeking safety, Boer-Sedano fled to Monterrey, Mexico. For about a year, Boer-Sedano lived in Monterrey, worked at an underground gay discotheque, and began to apply for a visa to enter the United States. His life in Monterrey remained difficult and he could not openly identify as a homosexual. In April 1989, Boer-Sedano was granted a U.S. visitor’s visa, but he testified that he did not immediately use the visa to enter the United States because he wanted to save money to assist in his permanent relocation.
Around the time of regional gubernatorial elections, approximately in July 1989, the local police conducted many raids, including one on Boer-Sedano’s workplace. The police arrested the customers and the staff who were performing a strip show and closed down the bar. Boer-Sedano testified that the police asked him if he was a homosexual and that he denied his homosexuality to avoid arrest. After this raid Boer-Sedano testified that he was “very, very much afraid” because he feared that the officers were going to assault him and “the same story [was] going to repeat itself.” Boer-Sedano testified that after the raid he felt he would not be safe living in Mexico as a gay man. After the raid, Boer-Sedano acquired money for his resettlement by traveling for a period of over one year between the United States and Mexico to purchase goods and resell them in Mexico.
*1087 Boer-Sedano fled to San Francisco in September 1990 and has not returned to Mexico. In 1992, he was diagnosed with the Human Immunodeficiency Virus (HIV) and later with AIDS. 1 For the last ten years, Boer-Sedano has worked as a waiter and a bus boy at a hotel, which provides him with health insurance that covers his AIDS treatment, including a combination of six drugs. Over the course of his treatment, Boer-Sedano has developed resistance to some medications, necessitating changes to new drugs. His doctor testified via phone and submitted a letter stating that Boer-Sedano “will require undoubtedly early access to new anti-retroviral agents” in the future. Boer-Sedano testified that he would not be able to get a job in Mexico because he is a homosexual man with AIDS. Without a job, Boer-Sedano testified that he could not afford health insurance or the drugs he currently takes to maintain his health. He also testified that the drugs he uses are not available in Mexico and provided corroborating evidence to support this claim.
On November 20, 2001, the IJ found Boer-Sedano ineligible for asylum because he failed to establish past persecution on account of a protected basis. The IJ concluded that the sex acts that Boer-Sedano was forced to perform by the police officer were simply “a personal problem” he had with this officer. The IJ further concluded that Boer-Sedano had not established a well-founded fear of persecution because “he was not subject to systematic persecution which prevented him from living his chosen life style, ... particularly after he moved to Monterrey.” The IJ also denied Boer-Sedano’s withholding of removal and CAT claims. Boer-Sedano timely appealed to the BIA, which on August 4, 2003, affirmed the IJ without opinion. Boer-Sedano timely petitioned for review.
STANDARD OF REVIEW
We review the BIA’s decision on whether a petitioner established eligibility for asylum under the substantial evidence standard.
Njuguna v. Ashcroft,
DISCUSSION
I. Asylum Claim
A. Boer-Sedano Established Past Persecution
To qualify for asylum, Boer-Sedano must show that he is a refugee or one “who is unable or unwilling to return to ... [his native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion[.]”
See
8 U.S.C. §§ 1101(a)(42)(A), 1158(b). The IJ rejected Boer-Sedano’s argument that he was persecuted on account of his membership in the particular social group of male homosexuals in Mexico because she found that this did not constitute a particular social group for asylum purposes. We recently held that “alien homosexuals” con
*1088
stitute a particular social group.
Karouni v. Gonzales,
Whether particular acts constitute persecution for asylum
purposes is a legal question, which we review de novo.
Hernandez-Montiel v. INS,
“[W]e have [also] consistently held that death threats alone can constitute persecution.”
Navas v. INS,
To establish past persecution, Boer-Sedano must also show that the persecution he suffered was “inflicted either by the government or by persons or organizations which the government is unable or unwilling to control.”
Sangha v. INS,
Although the IJ faulted Boer-Sedano for not reporting the persecution he suffered to the police, we generally consider whether an asylum applicant reported persecution to the police only when a nongovernmental actor is responsible for the persecution.
Baballah v. Ashcroft,
The IJ concluded that the officer’s persecution of Boer-Sedano was not on account of his status as a homosexual. The evidence in the record does not sup
*1089
port this conclusion. The police officer initially arrested Boer-Sedano only
after
asking him if he was gay and only after seeing him with a friend, whom the officer concluded was his gay partner. Furthermore, the officer’s words during the assaults make clear that he was motivated by Boer-Sedano’s sexuality.
See, e.g., Borja v. INS,
B. Boer-Sedano Has a Wellr-Founded Fear of Persecution
Because Boer-Sedano has established past persecution, he is presumed to have a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1). According to the regulations, the burden then shifts to the government to show, by a preponderance of the evidence, that either there has been a “fundamental change in circumstances,” such that Boer-Sedano no longer has a well-founded fear, or that he could “avoid future persecution by relocating to another part of [Mexico] ..., and under all the circumstances, it would be reasonable to expect [him] to do so.” Id. at § 1208.13(b)(1)(i)(A)-(B). The IJ concluded that Boer-Sedano did not have a well-founded fear of persecution if returned to Mexico because: (1) the country conditions indicate that “there is no evidence of systematic official persecution of homosexuals,” (2) relocation was possible, and (3) Boer-Sedano’s “fear of persecution is completely alleviated by his repeated voluntary return[trips] to Mexico.”
1. Changed Country Conditions
We have repeatedly held that the government has not rebutted the presumption of a well-founded fear of persecution when, as is the case here, evidence in the country report indicates that persecution similar to that experienced by the petitioner still exists.
Agbuya v. INS,
Amnesty International has reported that homosexual men and women are likely to be victims of abuse and violence. In its 1999 annual report, the Citizen’s Commission Against Homophobic Crimes reported that on average three murders are committed because of sexual orientation per month, and ... that the police fail to investigate these crimes seriously.
2001 U.S. Dep’t of State, Mexico: Country Reports on Human Rights Practices: 2000, at 17, reprinted in AR at 292. Boer-Sedano also submitted newspaper articles showing that the Mexican police have committed numerous violations of the rights of sexual minorities in Mexico, including beatings and sexual abuse. See, e.g., Tijuana Police Harass Gays in Park (1998) (newspaper article detailing abuses by police against homosexuals), reprinted in AR at 335; Lesbians and Gays, Victims of the Police (1997) (same), reprinted in AR at 420; Sam Dillon, Gay Rights, Prejtidice and Politics in Mexico, N.Y. Times, January 4, 1997, (same), reprinted in AR at 426-29. Based on the substantial evidence in the record, we hold that the government failed to rebut the presumption of a well-founded fear of persecution based on changed country conditions.
2. Relocation Within Mexico
The IJ found that Boer-Sedano could relocate safely in Mexico because he did not prove a risk of countrywide persecution. However, because Boer-Sedano established past persecution, the burden was on the INS to show, by a preponderance of the evidence, that relocation was reasonable. 8 C.F.R. § 1208.13(b)(1)(ii). Cutting against such a finding is the evidence in the country report showing that violence against homosexuals is not limited to any one area and the fact that Boer-Sedano suffered persecution at the hands of a government official, which raises a presumption that “a threat exists nationwide” and that “internal relocation is unreasonable.”
Melkonian v. Ashcroft,
The IJ failed to consider the “serious harm” Boer-Sedano would face if he were relocated within Mexico or the “social and cultural constraints,” including his health status, which made such relocation unreasonable.
Id.
We have interpreted this regulation as precluding relocation when a petitioner’s age, limited job prospects, and lack of family or cultural connections to the proposed place of relocation militate against a finding that relocation would be reasonable.
See Knezevic v. Ashcroft,
The record reflects that Boer-Sedano would face significant social and cultural constraints as a gay man with AIDS in Mexico, as hostility towards and discrimination against HIV/AIDS patients is common in Mexico. Tijuana AIDS Hospice Shut Down by City (1999), reprinted in *1091 AR at 309 (describing closure of AIDS hospice by city and transfer of patients to a hospital that does not provide HIV drugs and noting allegations of abuse of patients at the hospice); International Gay and Lesbian Human Rights Commission, Mexican Refugees in 1990’s Canada: Beyond the Limits of Repression 62, 65, reprinted in AR at 328, 331 (noting numerous human rights complaints based on neglect and denial of treatment to HIV patients as well as businesses’ manipulation of physical exams to refuse to hire or to terminate employees with HIV); and Victor Janoff, Life Under Siege: In Mexico, do gay people face discrimination, extortion and murder?, Simon Fraser News (1996), reprinted in AR at 433 (“Mexican homosexuals are under siege, demoralized by rampant police brutality and mistreatment of people with AIDS.”).
In addition, the evidence reveals that Boer-Sedano’s health status would make relocation unreasonable. Boer-Sedano’s doctor testified that Boer-Sedano’s treatment has been complicated by his resistance to virtually all licensed AIDS medications. Letter from Boer-Sedano’s doctor, reprinted in AR at 473; see also a subsequent letter from this doctor, reprinted in AR at 302. In response, Boer-Sedano’s doctor prescribed investi-gational medications, which he testified are unavailable — even for purchase — in Mexico. Id.; AR 253 (doctor’s testimony). The doctor testified that Boer-Se-dano’s condition would “rapidly deteriorate” without these drugs. AR 253. Boer-Sedano produced evidence to corroborate the doctor’s testimony that the AIDS drugs he takes are unavailable in Mexico. See Dana Calvo, Less Help for Mexicans With AIDS, Associated Press (1997), reprinted in AR at 375-76 (article describing scarcity of AIDS drugs in Mexico); Scarcity in IMSS (1998), reprinted in AR at 378 (same); and Tijuana AIDS Clinic Faces Drag Shortage (1996), reprinted in AR at 431 (same). Boer-Sedano also testified that his status as a homosexual with AIDS would make it impossible to find a job to provide health insurance or money to pay to import the needed drugs from elsewhere. We hold, therefore, that after considering the cumulative evidence on the social and cultural constraints Boer-Sedano would face as a homosexual man in Mexico, his current health, and the likelihood that serious harm would come to him if forced to relocate to Mexico where he could not obtain his required medication, no reasonable factfinder could conclude that the INS has carried its burden of showing that such relocation was reasonable.
3. Return Trips
Despite Boer-Sedano’s testimony that the purpose of his trips between the United States and Mexico was to limit his time in Mexico while he gathered enough income to flee permanently, the IJ concluded that these trips rebutted the presumption of a well-founded fear of persecution. According to our precedent, return trips can be considered as one factor, among others, that rebut this presumption.
See Belayneh v. INS,
II. Withholding of Removal Claim
Relief under withholding of removal is mandatory if the petitioner establishes that his “life or freedom would be threatened” in the country to which he would be removed on account of one of the five protected grounds. 8 U.S.C. § 1231(b)(3)(A). The standard of proof required to establish eligibility for withholding of removal is higher than the standard for establishing eligibility for asylum.
Compare INS v. Stevic,
III. Convention Against Torture Claim
To obtain relief under the CAT an applicant must establish “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). The regulations interpreting the CAT define torture as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as ... punishing him or her for an act he or she or a third person has committed or is suspected of having committed, ... or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of ... a public official or any person acting in an official capacity.
Id. at § 1208.18(a)(1). Boer-Sedano has not presented evidence that compels any reasonable factfinder to determine that the IJ erred in denying him relief under the CAT. Accordingly, we affirm the IJ’s determination that he is ineligible for relief under the CAT.
CONCLUSION
The petition for review is granted in part, and the case is remanded for the Attorney General to exercise his discretion over Boer-Sedano’s asylum claim and for further consideration of Boer-Sedano’s withholding of removal claim. We also affirm the IJ’s denial of Boer-Sedano’s application for relief under the CAT.
PETITION GRANTED in part, REMANDED in part, and DENIED in part.
Notes
. Before coming to the United States, Boer-Sedano tested negative for HIV.