*960In 2015, tattooed members of the Mara 18 gang held a gun to petitioner W.G.A.'s head and threatened to kill him.
The Department of Homeland Security apprehended W.G.A. for illegally entering the United States and began removal proceedings against him. W.G.A. applied for asylum, statutory withholding of removal, and deferral of removal under Article 3 of the Convention Against Torture, arguing that the Mara 18 gang would kill him if he returned to El Salvador. The immigration judge denied his applications and ordered removal. The Board of Immigration Appeals dismissed W.G.A.'s appeal, and he petitions this court for review. We grant W.G.A.'s petition for review and remand to the Board for further proceedings consistent with this opinion.
I. Factual & Procedural Background
W.G.A. is a citizen of El Salvador who arrived in the United States in January 2016. The immigration judge found W.G.A. credible, and the Board of Immigration Appeals affirmed that finding. We use W.G.A.'s testimony and the immigration judge's findings to provide the factual context in this case.
W.G.A. grew up in a small farming community of about 170 families. In 2013, the Mara 18 gang began operating in his rural community. By 2015 there were about 20 local gang members. The gang engaged in their usual activities: extorting la renta , or "rent," from local businesses, recruiting young men as new members, and "disappearing" (as a transitive verb) those who refused to join.
One day in 2014, petitioner's younger brother S.R.P. failed to return home from *961a trip to the store. Petitioner and his mother searched for S.R.P. When they could not find him, they guessed that the gang had forcibly recruited him. About two months later, S.R.P. called petitioner. He was crying and said that he did not know where he was and could not talk long because the gang might kill him. S.R.P. then hung up abruptly. Petitioner told his mother of the call, but neither contacted the police because they felt it would be useless. They had seen others in their community seek help from the police without success. Others had disappeared after reporting crimes to police.
A few months later, the family learned that S.R.P. had been arrested. Petitioner's mother attended a court proceeding, where she saw that S.R.P. had a gang tattoo on his hand. S.R.P. remained in prison until November 2015 when, on the day of his release, he called W.G.A. to say that he did not want to be a part of the gang anymore. S.R.P. said he could not come home for fear of what the gang would do, but he did not tell W.G.A. where he was going. W.G.A. assumed that his brother headed toward Guatemala.
The next day, a man called W.G.A. from a private number. The man told W.G.A. to "be careful" and that "they're looking for you," and hung up without identifying himself. The following day-two days after S.R.P. left prison-four tattooed gang members approached W.G.A. at his house. They asked him where his brother was. When W.G.A. responded that he did not know, one man grabbed him by the collar of his shirt, threw him to the ground, drew a gun, and put it to his head. One of the men told petitioner: "if you don't [hand] over your brother, you're going to die here."
Fearing for his life, W.G.A. fled two days later. He traveled through Guatemala and Mexico to the United States. Since W.G.A. left El Salvador, gang members have repeatedly threatened his family-over the phone and in person-to demand his and his brother's whereabouts. Petitioner's mother was so frightened by the threats that she arranged for her other teenage son, J.R.P., to go into hiding.
In January 2016, W.G.A. entered the United States through Texas without valid entry documents. The Department of Homeland Security initiated removal proceedings against him. See
The immigration judge concluded that W.G.A. did not qualify for any of his asserted grounds of relief and ordered removal. W.G.A. appealed to the Board of Immigration Appeals, which agreed with the immigration judge and dismissed W.G.A.'s appeal. The immigration judge's order of removal became final, see
*962Matter of Diaz-Garcia ,
II. Scope of Review
It is helpful to start by clarifying the scope of our review. The answer depends on whether the Board's order is independent of or supplemented the immigration judge's decision. See Liu v. Ashcroft ,
III. Asylum and Withholding of Removal
To qualify for asylum, W.G.A. must show that he is "unable or unwilling to return" to El Salvador "because of persecution or a well-founded fear of persecution."
W.G.A. has shown past persecution. He testified, and the immigration judge credited his testimony, that the Mara 18 threatened his life at gunpoint. That point is not in dispute in this case. The Board found that the threat amounted to persecution. See Nakibuka v. Gonzales ,
The first disputed issue is whether the persecution was motivated by a reason covered by the asylum statutes. W.G.A. contends that the gang was motivated by his membership in one of two particular social groups: (1) members of his nuclear family or (2) family members of tattooed *963former Salvadoran gang members. The immigration judge and the Board found that this persecution was not sufficiently connected to W.G.A.'s membership in a particular social group. We decide the issue by addressing two questions: (1) whether W.G.A. has shown that he is a member of a qualifying social group; and (2) whether he has shown that the Mara 18 persecuted him on account of his membership in that group. We agree with W.G.A. that he has identified a cognizable social group and that the record compels the conclusion that the Mara 18 persecuted him on account of his membership in it.
A. General Remand
We first address the Attorney General's request for a general remand. The Attorney General made no substantive arguments related to asylum or withholding of removal in this appeal. Instead, he requests that we remand to the Board for reconsideration without engaging in any review ourselves.
In some past cases, we have allowed the Attorney General to seek a remand without confessing error so that the Board can reconsider asylum decisions "in light of the emerging case law." Ren v. Gonzales ,
The Attorney General offers two reasons for a general remand. First, he requests that the Board have a chance to reconsider whether "family members of tattooed former Salvadoran gang members" is cognizable in light of circuit and Board precedents that predate this case. The Attorney General does not explain why the Board needs a second chance to apply case law that was available when it decided W.G.A.'s appeal, and we decline to remand on that basis.
Second, the Attorney General seeks a remand to permit the Board to consider Matter of L-E-A- ,
B. Cognizable Social Group
The first substantive question is whether W.G.A. is a member of a particular social group within the meaning of the Immigration and Nationality Act, *964
In Matter of Acosta , the Board interpreted "membership in a particular social group" to mean "an individual who is a member of a group of persons all of whom share a common, immutable characteristic."
In the decades since Acosta , the Board has added social distinction (also called social visibility) and particularity as two requirements in addition to the immutable-characteristic test. See, e.g., In re C-A- ,
W.G.A. correctly points out that we have not yet accorded Chevron deference to the Board's interpretation that includes social distinction and particularity. He also cites several cases in which we have disapproved-sometimes strongly-of these two requirements. See, e.g., N.L.A. v. Holder ,
*965We decline to make the Chevron determination in this case, where the government has chosen not to make any substantive arguments on the issue and there are alternative grounds for decision. The Board and immigration judge agreed that W.G.A.'s second proposed group-membership in his nuclear family-is cognizable. See Torres v. Mukasey ,
C. Nexus to Persecution
Next, W.G.A. challenges the Board's finding that he was not persecuted "on account of" his membership in his family. Whether W.G.A. met this burden is a question of fact that we review for substantial evidence. Martinez-Buendia v. Holder ,
To be eligible for asylum, W.G.A. must show that he was persecuted "on account of" his social-group membership.
To start, in W.G.A.'s case, the Board stated the wrong legal standard for withholding of removal. Confusingly, the Board reasoned that because "the respondent did not establish the lower burden of proof applicable to asylum, he necessarily did not establish his eligibility for withholding of removal, which carries a higher burden of proof." This is not quite correct. Withholding of removal carries a higher burden on two questions: the severity of the harm the applicant faces (persecution versus threat to life or freedom) and the likelihood that the applicant will be harmed (well-founded fear versus clear probability). See Matter of H-L-H- & Z-Y-Z- ,
*966Returning to the merits, this record compels the conclusion that W.G.A.'s membership in his nuclear family was one central reason for the persecution that both sides agree he suffered. Testimony by W.G.A. and his family members leaves no doubt that the gang repeatedly targeted the entire family because of their relationship to S.R.P. Country reports and news articles throughout the record corroborate this testimony and demonstrate widespread recognition that the Salvadoran gangs target nuclear family units to enforce their orders and to discourage defection. In other words, substantial evidence does not support the immigration judge's finding on the lack of a nexus between the gang's persecution of W.G.A. and his membership in the family.
To start, the timing of the persecution demonstrates that W.G.A.'s family relationship with his brother caused the gang to target W.G.A. The gang members threatened W.G.A. at gunpoint just two days after S.R.P. said he was defecting. The immigration judge and Board doubted whether S.R.P. had actually defected, but that detail is unimportant. What matters is that the gang was looking for S.R.P., likely because they believed he had defected. What's more, the gang's own words reveal their motivation. When the gang held a gun to W.G.A.'s head, they demanded that W.G.A. reveal his brother's location. And when the gang warned W.G.A. not to notify the police, they threatened to kill his entire family.
W.G.A. also provided examples from his community as circumstantial evidence of the gang's motivation. See Martinez-Buendia ,
Country reports and news articles corroborate this testimony. A report by the U.S. Department of State says that "the families of gang members often face the same risks of being killed or disappearing as the gang members themselves." R. 290. The United Nations also reports that family members can "also be a target for attacks and assassination by gangs, sometimes even after the person who was initially targeted by the gang in question has fled or has already been killed." R. 368. One news article describes a woman who went into hiding after the gang accused her husband of talking to police. R. 477-78. Another describes a man who rescued his daughter after gang members abducted and raped her. As retribution, the gang shot and killed the man's wife. R. 463. These reports are only a few examples. We see nothing in the record that calls into question W.G.A.'s claim that he was targeted because of his family membership.
Despite the extensive record, the Board adopted the immigration judge's conclusion that W.G.A. had not shown a sufficient nexus because other family members continue to live in El Salvador unharmed. This is factually inaccurate. W.G.A., his mother, and his sister described how the gang continued to target the family. W.G.A.'s mother reported that she had received at least four threatening phone calls from "angry," yelling gang members and that the calls continued until she threw her cell-phone chip away. W.G.A.'s *967mother and sister described how masked gang members have appeared at their home at least twice, threatening them and demanding to know where S.R.P. and W.G.A. were. We cannot accept the immigration judge's conclusion that threatening phone calls and home invasion by masked gang members are not evidence that other family members have been harmed. Plus, as the government correctly acknowledged in oral argument, it was improper for the immigration judge to rely on a lack of harm to other family members, without more, to find that W.G.A. was not targeted on account of his kinship ties. See R.R.D. v. Holder ,
The immigration judge also relied on W.G.A.'s testimony that the gang has a personal vendetta against him. But that testimony does not actually support the immigration judge's finding. On cross-examination, the government's lawyer asked W.G.A. if the "gangs just have a ... personal vendetta against you." W.G.A. responded affirmatively. But this question does not contradict the overwhelming record evidence that the gang targeted W.G.A. because of his familial relationship to S.R.P. The government did not ask W.G.A. why the gang had a personal vendetta against him, and the most plausible answer is because he is related to S.R.P. The record suggests only one other potential motive for the persecution. W.G.A. testified that, in 2014, members of the gang asked him to do favors for the gang and he refused. Even if W.G.A.'s refusal to help the gang in 2014 influenced the gang's decision to target him in 2015, that one fact does not undermine the overwhelming evidence showing that W.G.A.'s familial ties were one central reason for his persecution.
Finally, the immigration judge also improperly stressed that W.G.A.'s parents and seven siblings remain in El Salvador. This is true, although the family is so fearful that they sent their other teenage son, J.R.P., into hiding. This is not evidence of a safe family. Additionally, the fact that some family members have not relocated within El Salvador has little force in light of the rest of the record. Country reports describe how relocation is difficult and often dangerous: the choice is between remaining in the Mara 18's territory and risking retribution, or relocating to the rival gang's territory and being killed by them. A United Nations report estimates that 600,000 to 700,000 Salvadorans-or 10% of the population-are affiliated with the gangs and act as lookouts in the gangs' territories. R. 338. The record describes various incidents when gangs killed non-members who had crossed gang boundaries for innocent reasons like visiting a family member or walking to school. R. 338, 470, 547. And W.G.A. testified about a community member who went to work at a business in MS-13 territory and who, upon arrival, was asked to identify himself and where he came from. When he revealed that he lived in Mara 18 territory, the questioner told him he would be killed if he entered MS-13 territory again. Once again, W.G.A.'s testimony corroborates the indirect evidence in the record. It means little, therefore, that W.G.A.'s family has not sought to move elsewhere to avoid threats.
IV. Convention Against Torture
As a third ground for relief, W.G.A. seeks to defer removal under Article 3 of the Convention Against Torture.
*968W.G.A. bears the burden of showing "that it is more likely than not that he ... would be tortured if removed" to El Salvador.
W.G.A. argues that a remand is necessary because the Board and immigration judge applied the wrong legal standard and ignored key evidence. We agree. Neither the immigration judge nor the Board considered W.G.A.'s key evidence that he would likely be tortured in El Salvador. The agency must consider "all evidence relevant to the possibility of future torture,"
The Board also applied the wrong legal standard when it found that W.G.A. had not shown government acquiescence. The Board stated that W.G.A. had "not indicated that there was any involvement of a public official" in "any of the threats directed" at him. W.G.A. does not need to show that a public official was involved directly. Sarhan ,
Conclusion
We remand to the Board for further proceedings consistent with this opinion. On remand, the Board must also consider two issues that we do not discuss. First, the Board must consider the immigration judge's finding that W.G.A. would be able to relocate within El Salvador. Because the immigration judge incorrectly found that W.G.A. had not been persecuted in the past, the judge applied the wrong burden on the question of relocation. See
We therefore GRANT the petition for review and REMAND the case to the agency for further proceedings consistent with this opinion.
We refer to petitioner with an initialed pseudonym to protect his identity. See Doe v. Gonzales ,
According to a report in the record by the U.S. Department of State, the 2015 homicide rate in El Salvador was 103 murders per year for every 100,000 citizens. For context, Chicago has a murder rate of about 17.5 homicides per 100,000 inhabitants. Matthew Friedman, Ames Grawert & James Cullen, NYU School of Law Brennan Center for Justice, Crime in 2016: Updated Analysis , Table 2, p. 3 (data updated Dec. 19, 2016), available at http://www.brennancenter.org/analysis/crime-2016-updated-analysis. The State Department estimates that the national homicide rate in the United States is about 4.5 murders per year per 100,000 citizens.
The transcript reads: "if you don't have over your brother, you're going to die here." We read "have" as a typographical error.
W.G.A.'s arguments that the Board's interpretation is unreasonable have some force. He argues that social distinction and particularity create a conceptual trap that is difficult, if not impossible, to navigate. The applicant must identify a group that is broad enough that the society as a whole recognizes it, but not so broad that it fails particularity. And as we have stated, rejecting a social group because it is too broad "would be akin to saying that the victims of widespread governmental ethnic cleansing cannot receive asylum simply because there are too many of them." N.L.A. ,
The Ninth Circuit has recently held that position unreasonable and not entitled to Chevron deference. See Barajas-Romero v. Lynch ,
The briefs misread what the record says about the gang's motivation for this murder. W.G.A. testified that on that night, the gang was out looking for the friend, W.G.A., and S.R.P. W.G.A.'s sister and mother both said that the gang murdered the family friend because he refused to join them and collect extortion on their behalf.