Rebeca Cristobal Antonio v. Merrick GarlandRebeca Cristobal Antonio v. Merrick Garland
FOR PUBLICATION
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted July 13, 2022 Pasadena, California
Filed January 26, 2023
Before: Mark J. Bennett and Gabriel P. Sanchez, Circuit Judges, and Elizabeth E. Foote,* District Judge.
Opinion by Judge Bennett; Concurrence by Judge Sanchez
SUMMARY**
Immigration
Granting Rebeca Cristobal Antonio’s petition for review of the Board of Immigration Appeals’ decision upholding the denial of asylum and related relief, and remanding, the panel held that (1) substantial evidence did not support the agency’s determination that the treatment Antonio suffered did not amount to persecution, (2) the agency erred in characterizing Antonio’s proposed social group and concluding that it was not cognizable, and (3) the agency erred by failing to consider highly probative evidence regarding the Guatemalan government’s willingness or ability to control the persecution.
Individuals in Antonio’s community verbally and physically harassed and threatened her with death because they perceived her to be a lesbian because she wore men’s clothing to work. Specifically, Antonio’s neighbors threatened that if she dressed in men’s clothing they would “get together and burn her down and whip her,” and told her that if she did not leave the community, they would kill her. The panel explained that in concluding that this treatment amounted simply to threats the immigration judge failed to recognize that threats may be compelling evidence of past persecution, particularly when the threats are specific and menacing and accompanied by violent confrontations, near-confrontations and vandalism.
The panel explained that in this case, the record revealed much more than threats alone. A crowd met Antonio at her workplace and threatened to lynch and burn her if she did not remove the men’s clothing. Her neighbors told her husband they believed she was bisexual or lesbian, and even spoke with her grandparents, who were scared for her safety. Community members took her to the police because they perceived her to be a lesbian, and Antonio’s family members violently attacked her. Taken together, the panel concluded that the death threats, mob violence, involuntary transport to the police station, and repeated whipping by her uncles compelled the conclusion that Antonio suffered past persecution.
Antonio asserted that she was persecuted on account of her membership in a social group comprised of “wom[e]n in Guatemala who are perceived to have male tendencies and are seen as dangerous to the community.” The IJ found this articulation too “amorphous” and reasoned that the style of Antonio’s dress was not an immutable characteristic qualifying as a particular social group. The IJ further stated that Antonio’s claim was not a gender or sexual orientation issue because Antonio indicated that she was not a lesbian. The panel wrote that this finding ignored Antonio’s arguments before both the IJ and the BIA that she belonged to a different particular social group comprised of “women in Guatemala who are perceived to be lesbian.” The panel explained that the agency is not free to ignore arguments raised before it, and that the failure to address a social group claim, or failure to analyze such a claim under the correct legal standard, constitutes error and requires remand. The panel observed that although this court has discussed the issue, neither this court in a published opinion, nor the BIA, has explicitly recognized perceived or imputed sexual orientation as a cognizable social group. The panel remanded for the agency to determine whether women in Guatemala perceived to be lesbian constitute a particular social group, and if so, whether Antonio’s persecution was on account of her membership in that group.
In concluding that Antonio did not show persecution committed by the government or by forces that the government was unwilling or unable to control, the IJ’s analysis focused on Antonio’s complaint to the Justice of the Peace and the Justice of the Peace’s decision to remit the matter for criminal investigation. The panel explained that this decision does not end the inquiry, as the government’s failure to take promised future action may establish that the government was either unable or unwilling to exercise such control. The panel wrote that in this case no record evidence indicated whether the criminal referral by the Justice of the Peace led to any arrests, criminal prosecution, or other action by authorities to minimize the threats against Antonio.
Further, the panel wrote that the record suggested that the agency failed to consider all of the evidence, such as Antonio’s statements that the mayor of her village “would be behind [her neighbors] if they try to kill [her],” and that she fears the mayor the most because “[h]e is the one who has the last decision whether to kill me or not.” Moreover, the panel wrote that the record revealed that the police took some action to end Antonio’s harassment temporarily but did not make any arrests—even when the police arrived at the scene of a crowd threatening to kill Antonio. The panel noted that the IJ did not explicitly address evidence that the death threats continued despite police awareness. Nor did it address the abuse Antonio’s uncles inflicted against her.
Finally, the panel observed that although the IJ considered the Country Condition Report as to Antonio’s CAT claim, the report indicated that Guatemala’s antidiscrimination laws do not apply to LGBTI individuals who often face police abuse, and that the government’s efforts to address widespread discrimination against LGBTI people have been “minimal.” The panel noted that the IJ found the report irrelevant because Antonio stated she is not a lesbian. However, given the reasons for remand of Antonio’s social group claim, the panel wrote that the agency might view this country report evidence differently on remand.
Concurring, Judge Sanchez wrote separately to address the question of perceived or imputed sexual orientation and whether such group should be recognized as a particular social group. Judge Sanchez agreed that neither this court nor the BIA has recognized in published authority that such a group would qualify, and that remand was warranted for the BIA to address this issue in the first instance. Judge Sanchez explained, however, that under longstanding circuit and BIA precedent involving persecution on account of imputed protected characteristics
COUNSEL
Marco A. Jimenez (argued), Jimenez Law Office, Riverside, California, for Petitioner.
John F. Stanton (argued), Rosanne M. Perry, and Nelle M. Seymour, Trial Attorneys; Leslie McKay, Senior Litigation Counsel; Brian Boynton, Acting Assistant Attorney General; United States Department of Justice, Office of Immigration Litigation, Civil Division; Washington, D.C.; for Respondent.
OPINION
BENNETT, Circuit Judge:
Rebeca Cristobal Antonio, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA“) streamlined affirmance of the immigration judge’s (“IJ“) denial of her claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT“). Antonio was verbally and physically harassed and received death threats because her community in Guatemala perceived her to be a lesbian, including because she wore men’s clothing to work. In her petition for review, Antonio challenges the IJ’s findings that: (1) this treatment did not amount to persecution, (2) the relevant social group for asylum purposes is based on “manner of dress,” and (3) no persecution was committed by the Guatemalan government or by forces that the government was unwilling or unable to control. The first finding is not supported by substantial evidence in the record. The second finding suffers from several errors discussed below. And in making the third finding, the agency did not consider all highly probative evidence in the record. We therefore grant the petition and remand for further proceedings.
I. BACKGROUND
When Antonio applied for entry into the United States in March 2014, an asylum officer found that she had a credible fear of persecution. In the notes of the credible fear interview, the asylum officer wrote:
You stated that starting about one year ago you began to dress in men’s clothing in order to find work. As a result, the townspeople from your village labeled you a lesbian. Your neighbors threatened to kill you if you remained in the village because they do not approve of lesbians. Your uncles whipped you up frequently because they wanted you to give them food and money, and they also insulted you about being a lesbian.
Although Antonio specifically told the asylum officer that she was not a lesbian, she described threats she received because the villagers believed she was a lesbian: “[T]hey would get together and burn me down and whip me.” “They said that if I didn’t leave that place they would kill me.” “[T]hey did not want any lesbian women in the village.” Based on these threats, the asylum officer noted that Antonio alleged membership in a particular social group: “The people from your village and your family members are motivated to harm you with at least one central reason being that they believe that you are a member of the particular social group that is lesbian women in Guatemala.”
The Department of Homeland Security issued a notice to appear charging Antonio with removability as an individual without a valid entry document at the time of application for admission.
In a written declaration Antonio submitted in lieu of testimony at her asylum hearing before the IJ, she said that her community tortured her “for dressing up as a man,”
including by taking her to the police, because they believed “dressing up as a man means that [she is] a lesbian” and sets “a bad example for the children” in the village.3 The police let her go, but the death threats did not stop. The declaration adds that Antonio’s “grandparents got worried and told [her] not to work so the community would not hurt [her].” She married a man but eventually “separated from [her] husband” due to the persistent rumors and harassment. She left for the United States because she wanted to end her torment.
At the asylum hearing, Antonio also submitted a complaint that she filed against her harassers with a Justice of the Peace of the municipality of San Pedro. In it, she explained how her marriage fell apart because of the rumors about her sexuality. The harassment escalated after that. On December 20, 2013, members of the community waited for her at her place of work and attempted to lynch her. They demanded that she remove the men’s clothing, or else she “was going to burn.” Someone called the authorities, who “rescue[d]” her. Antonio also submitted the decision; the local court denounced the behavior as “crimes of [d]iscrimination, insult and threats” and “remit[ted] the proceedings to the municipal Prosecutor of the Public Ministry... for the corresponding criminal investigation.”4
The IJ found Antonio credible, noting “that her declaration is consistent with the
she provided, specifically, the police report that she gave in her documents.” On the issue of past persecution, the IJ first found that the community’s threats did not rise to the level of persecution, although the decision did not discuss the repeated whipping by her uncles that Antonio described in her credible fear interview. Second, the IJ denied that Antonio belonged to a cognizable particular social group, finding that “style of her dress” is not an immutable characteristic and stating that Antonio’s “articulated particular social group“—which the IJ did not restate in her order—“is... too amorphous for [the IJ] to be able to say it fits within the particular social group analysis.”5 The IJ specifically rejected the notion that Antonio presented a “sexual orientation issue because Respondent stated she was not a lesbian.” Finally, the IJ found that the Guatemalan government did not persecute her or acquiesce in her persecution.6 The IJ highlighted that the “criminal branch municipality of San Pedro Soloma Court of La Paz... denounced [the facts] as discrimination, insults, and threats, and then said that the court was inhibited and remits proceedings to headquarters for a corresponding criminal investigation.” Thus, the IJ denied her application for
asylum.7 A single member of the BIA affirmed the IJ without opinion under
II. JURISDICTION
We have jurisdiction to review Antonio’s final order of removal under
III. STANDARD OF REVIEW
“Where, as here, the BIA summarily adopts the IJ’s decision without opinion pursuant to
Under this “‘highly deferential’
IV. DISCUSSION
To qualify for asylum based on past persecution, an applicant must establish that: “(1) [her] treatment rises to the level of persecution; (2) the persecution was on account of one or more protected grounds; and (3) the persecution was committed by the government, or by forces that the government was unable or unwilling to control.” Bringas-Rodriguez, 850 F.3d at 1062. We review each prong in turn.
A. Past Persecution
Persecution is “the infliction of suffering or harm upon those who differ... in a way regarded as offensive.” Lanza v. Ashcroft, 389 F.3d 917, 934 (9th Cir. 2004) (quoting Korablina v. I.N.S., 158 F.3d 1038, 1043 (9th Cir. 1998)). “[P]ersecution... is ‘an extreme concept that does not include every sort of treatment our society regards as
offensive.’” Id. (quoting Nagoulko v. I.N.S., 333 F.3d 1012, 1016 (9th Cir. 2003)).
Antonio’s neighbors “threatened that if [she] dressed [in men’s clothing] they would get together and burn [her] down and whip [her].” They specifically told her that if she did not leave, they would kill her. The IJ discussed in her order how Antonio’s community “told her to remove her clothes or else burn.” The IJ’s conclusion that this harassment amounted to “simply threats,” failed to consider that this Court has “repeatedly held that threats may be compelling evidence of past persecution, particularly when they are specific and menacing and are accompanied by... violent confrontations, near-confrontations and vandalism.” Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir. 2004). Indeed, although the government correctly argues that there is no “blanket rule that in every case threats, without more, compel a finding of past persecution,” “[d]eath threats alone can constitute persecution.” Kaur, 986 F.3d at 1227; see also Navas v. I.N.S., 217 F.3d 646, 658 (9th Cir. 2000).
In this case, the record reveals much more than threats alone. A crowd met Antonio at her workplace and threatened to lynch and burn her if she did not remove the men’s clothing. Her neighbors told her husband they believed she was bisexual or lesbian, and “even spoke with [her] grandparents,” who were “scared for [her] safety.” The community took her to the police because they perceived her to be a lesbian. We have held that the frequency, escalation, and seriousness of threats, as well as the fact that persecutors threatened a petitioner in close confrontations and confronted petitioner’s family, can be sufficient to compel the conclusion that the threats rise to the level of persecution. See Ruano v. Ashcroft, 301 F.3d 1155, 1160–61 (9th Cir. 2002). That is the case here.
Antonio also experienced actual violent attacks. During her credible fear interview, she told the asylum officer that
Taken together, the death threats, mob violence, involuntary transport to the police station, and repeated whipping by her uncles10 compel a conclusion contrary to
the IJ’s determination. See Borja v. I.N.S., 175 F.3d 732, 736–37 (9th Cir. 1999) (en banc), superseded by statute on other grounds as stated in Parussimova v. Mukasey, 555 F.3d 734, 739–40 (9th Cir. 2009); Singh, 48 F.4th at 1067–69 (finding persecution in part because the petitioner “was forced to flee his home after being repeatedly assaulted” and faced a death threat).11 Under our case law, this behavior amounts to past persecution.
B. Nexus Requirement
Having established that she experienced harm rising to the level of persecution, Antonio must next satisfy the nexus requirement, showing that she was persecuted “on account of race, religion, nationality, membership in a particular social group, or political opinion.”
(emphasis added); see Fon v. Garland, 34 F.4th 810, 813 (9th Cir. 2022). Here, Antonio alleges membership in a particular social group.12 She must demonstrate both that she belongs to such a group and that her membership was “at least one central reason for [her] persecution.” Zetino v. Holder, 622 F.3d 1007, 1015 (9th Cir. 2010) (citing
Antonio’s counsel proposed this particular social group to the IJ: “wom[e]n in Guatemala who are perceived to have male tendencies and are seen as dangerous to the community.” The IJ found this articulation too “amorphous” for the court to “fit[] within the particular social group analysis.” The IJ reasoned that “style of her dress is not an immutable characteristic to be considered under a particular social group,” and that “this is not a gender issue” or a “sexual orientation issue” because Antonio stated she was not a lesbian.
This finding, however, ignores that Antonio’s arguments before both the IJ and the BIA reasonably proposed a different particular social group: “women in Guatemala who are perceived to be lesbian.”13 During her credible fear
interview, Antonio stated that although she is not a lesbian, “people can think that... [a] person is perhaps a lesbian.” At the hearing before the IJ, her counsel noted that she was “perceived to have male tendencies.” In the notice of appeal to the BIA, Antonio reiterated that she was persecuted “for dressing like a boy” and that “the town believed [her] to be a lesbian.” Her brief to the BIA notes that her persecution was based on “gender roles” and that “her claim was based on the perception that the community-at-large had of her being a lesbian because of her manner of dress.” The brief further predicated Antonio’s claim for asylum on the “perception that she was a lesbian, which went against the ingrained principles of gender roles in Guatemala, and what the community expect[s] its women to dress like, behave like and be like.” The record demonstrates that Antonio sufficiently proposed the social group of women in Guatemala that are perceived as lesbian.
“IJs and the BIA are not free to ignore arguments raised by a petitioner.” Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005). Failure to address a social group claim, or failure to analyze such a claim under the correct legal standard, “constitutes error and requires remand.” Rios v. Lynch, 807 F.3d 1123, 1126 (9th Cir. 2015). Our decision in Perdomo v. Holder is illustrative. 611 F.3d 662 (9th Cir. 2010). There, a petitioner “sought asylum based on her fear of persecution as a young woman in Guatemala.” Id. at 663. The petitioner alleged a particular social group “consisting of women [in Guatemala] between the ages of fourteen and forty.” Id. at 664. The IJ determined that the petitioner credibly feared persecution, but
proposed social group. Id. at 664–65. The BIA affirmed, concluding in part that the category of “women between the ages of fourteen and forty who are Guatemalan and live in the United States” and the petitioner’s revised category of “all women in Guatemala” were too broad to constitute particular social groups. Id. at 665, 668. We granted the petition for review, “reject[ing] the notion that a persecuted group may simply represent too large a portion of a population to allow its members to qualify for asylum.” Id. at 669 (citing Singh v. I.N.S., 94 F.3d 1353, 1359 (9th Cir. 1996)).
Concluding that the BIA erred in its social group analysis, the Perdomo panel explained “that under the ordinary remand rule, the agency should be given an opportunity in the first instance to make legal determinations entrusted to it by Congress.” Id. (citing Gonzales v. Thomas, 547 U.S. 183, 185 (2006)). Neither the BIA nor this Court had previously recognized a social group of women in Guatemala. Id. at 667–69. The panel emphasized that the ordinary remand rule is “particularly applicable” in the context of social group analysis because the term “particular social group” is “amorphous.” Id. at 669 (cleaned up) (quoting Ramos-Lopez v. Holder, 563 F.3d 855, 859 (9th Cir. 2009), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc)). Accordingly, the panel remanded “for the BIA to determine in the first instance whether women in Guatemala constitute a particular social group, and, if so, whether [the petitioner] demonstrated a fear of persecution ‘on account of’ her membership in such a group.” Id. at 669 (citing Thomas, 547 U.S. at 185).
Our course here must be the same. We have concluded that the IJ erred in construing Antonio’s proposed social
group as “manner of dress” when it was in fact “women in Guatemala who are perceived to be lesbian.” For the reasons explained above, Antonio’s manner of dress was one reason her community associated her with the relevant proposed social group, not the basis of the group itself. Thus, the agency failed to conduct its particular social group analysis with respect to the correct group—women perceived to be lesbians.
Neither our Court in a published opinion nor the BIA has explicitly recognized perceived or imputed sexual orientation as a cognizable social group, though we have discussed the issue. Our precedent establishes that “[r]ape and sexual abuse due to a person’s gender identity or sexual orientation, whether perceived or actual, certainly rises to the level of torture for CAT purposes.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1079 (9th Cir. 2015) (emphasis added); see also Vitug v. Holder, 723 F.3d 1056, 1064 (9th Cir. 2013) (reversing the BIA’s withholding of removal determination in part because the BIA ignored the IJ’s finding that the petitioner “was harassed and threatened by the police because of his perceived sexual orientation“). The agency has also “assumed that the abuse [a petitioner] faced in his youth... qualifies as persecution due to his perceived sexual orientation, creating a ‘presumption’ that he would be persecuted in the future as well.” Iraheta-Martinez v. Garland, 12 F.4th 942, 955 (9th Cir. 2021) (quoting
But, again, neither a published
Thus, we grant Antonio’s petition for review and remand for the agency to determine: (1) whether women in Guatemala perceived to be lesbian constitute a particular social group; and (2) if so, whether Antonio’s persecution was “on account of” her membership in that group. See Perdomo, 611 F.3d at 669;
C. Government Involvement or Acquiescence
The final inquiry is whether Antonio’s persecution was committed by the government or by forces that the government was unwilling or unable to control. See Madrigal v. Holder, 716 F.3d 499, 506–07 (9th Cir. 2013).15
The IJ’s analysis focused on Antonio’s complaint to the Justice of the Peace and the Justice of the Peace’s decision to remit the matter for criminal investigation. But this decision does not end the inquiry. No record evidence indicates whether the criminal referral by the Justice of the Peace led to any arrests, criminal prosecution, or other action by authorities to minimize the threats against Antonio.16 When the government has promised future action but taken none, we have concluded the government was either unable or unwilling to exercise such control. See J.R. v. Barr, 975 F.3d 778, 782–83 (9th Cir. 2020).
Further, “where there is any indication that the [agency] did not consider all of the evidence before it... the decision cannot stand. Such indications include... failing to mention highly probative or potentially dispositive evidence.” Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011).17 Here,
[her].” Antonio told the asylum officer that she fears the mayor the most because “[h]e is the one who has the last decision whether to kill me or not.” The IJ’s omission of this evidence in her order suggests that the IJ may have failed to consider it.
Second, the record shows that the police took some action to end her harassment temporarily but did not make any arrests—even when the police arrived at the scene of a crowd threatening to kill Antonio. The IJ did not explicitly note this evidence, including evidence that despite police awareness, the death threats continued. We find nothing in the record to suggest that the police took any specific action to address Antonio’s persecution. See Mashiri, 383 F.3d at 1115 (finding persecution by forces the government was unable or unwilling to control where police “responded to the scene” of persecution but “never made any arrests“). And Antonio told the asylum officer that when she reported her harassment to the police, “they didn’t pay attention.” “[T]hey told me I have to tell them that I am not the kind of person that they think that I am.”18 The record also contains a statement from Antonio’s relative that even following complaints “against the aggressors, they still bothered” Antonio. No matter the level of actual police involvement, the record demonstrates that Antonio’s harassment continued after police were made aware.
Third, the IJ did not discuss that Antonio’s uncles whipped her. The record is unclear about whether Antonio
informed the local police of these beatings. If the police took no steps to stop the violence she experienced at her uncles’ hands despite knowing about it, this could show that the police were unwilling or unable to control the harm Antonio faced.
Finally, though the IJ considered the Country Condition Report as to Antonio’s CAT claim, the report notes that Guatemala’s antidiscrimination laws do not apply to LGBTI individuals who often face police abuse. The government’s efforts to address widespread discrimination against LGBTI people have been “minimal.” The IJ found the report irrelevant because Antonio stated she is not a lesbian. But given the reasons for our remand, the agency might view this evidence differently.
For these reasons, we remand this issue. We recognize that the agency may not need to reach this issue, depending on its social group and nexus determinations. But in light of our articulation of Antonio’s proposed particular social group, the agency should reconsider, should it reach the issue, whether the probative record evidence discussed above constitutes governmental inability or unwillingness to address Antonio’s persecution. See I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002). The BIA may remand to the IJ for further factfinding as necessary. See id. at 18.
V. CONCLUSION
The agency erred in finding that the harm Antonio suffered did not rise to the level of persecution. The agency also failed to analyze the correct social group and may have failed to analyze all probative evidence regarding the government’s acquiescence in Antonio’s persecution. Accordingly,
further proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED; REMANDED.
SANCHEZ, Circuit Judge, concurring:
I concur in the majority’s well-reasoned opinion. I write separately to address the question of perceived or imputed sexual orientation and whether such group should be recognized as a “particular social group” for purposes of asylum relief under the Immigration and Nationality Act (“INA“). The majority correctly points out that no published authority from our court or the Board of Immigration Appeals (“BIA“) has expressly recognized imputed sexual orientation as a cognizable social group, and therefore remand is warranted to allow the BIA to pass on this question in the first instance. See Perdomo v. Holder, 611 F.3d 662, 669 (9th Cir. 2010). Under longstanding circuit and BIA precedent, the answer to this question seems clear.
We have long recognized homosexual applicants as members of a particular social group, as has the BIA. See Karouni v. Gonzales, 399 F.3d 1163, 1172 (9th Cir. 2005); Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 822–23 (BIA 1990). And the BIA has consistently held that applicants persecuted for imputed grounds are eligible for asylum. In Re S-P-, 21 I. & N. Dec. 486, 489–90 (BIA 1996) (citing Matter of A-G-, 19 I. & N. Dec. 502, 507 (BIA 1987)); see also Matter of T-M-B-, 21 I. & N. Dec. 775, 777 (BIA 1997) (an applicant for asylum must show “that the harm was motivated, at least in part, by an actual or imputed protected ground“) (emphasis added). In particular, the BIA has emphasized the importance of the “perception of the
persecutor” in asylum claims that involve persecution on account of imputed protected characteristics:
For example, an individual may present a valid asylum claim if he is incorrectly identified as a homosexual... in a society that considers homosexuals a distinct group united by a common immutable characteristic. In such a case, the social group exists independent of the persecution, and the perception of the persecutor is relevant to the issue of nexus (whether the persecution was or would be on account of the applicant’s imputed homosexuality).
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 243 (BIA 2014).
This Court has adopted the same reasoning in other types of asylum claims. For example, we have held that to show persecution on account of political opinion, a petitioner need not prove that she “actually held a political opinion or acted in furtherance of it,” but rather must provide evidence “that the persecutor was motivated by a belief that the petitioner held the political opinion.” Khudaverdyan v. Holder, 778 F.3d 1101, 1106 (9th Cir. 2015) (citing I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483 (1992)). We have applied the same precept to imputed religious belief. See Popova v. I.N.S., 273 F.3d 1251, 1258 (9th Cir. 2001) (“To establish a correlation between [the petitioner’s] persecution and her political opinion and religion, she must show, by direct or circumstantial evidence, her persecutors’ motive.“). And we have held that persecution on account of membership in a particular social group includes persecution on account of perceived membership in that group. See Thomas v.
Gonzales, 409 F.3d 1177, 1188 (9th Cir. 2005), cert. granted, rev’d on other grounds, 547 U.S. 183 (2006).
It is no leap to conclude that imputed homosexuality and homosexuality alike
The Immigration Judge in this case nonetheless concluded that because Antonio did not attest to being a lesbian, the persecution she suffered in Guatemala was “not a sexual orientation issue“: It was instead no more than a “dress issue.” This finding focused exclusively on Antonio, assigning no weight to the perceptions of her persecutors. But to establish persecution on account of a protected characteristic, Antonio was not obligated to prove that she is homosexual. Rather, she was required to provide evidence that her persecutors were “motivated by a belief” that she is. See Khudaverdyan, 778 F.3d at 1106. Faithful application of the foregoing precedent should lead the BIA to the same conclusion.