United States Court of Appeals

For the First Circuit

No. 22-1881

DARWIN MURILLO MOROCHO,

Petitioner,

v.

MERRICK B. GARLAND,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS

Before

Gelpí, Howard, and Montecalvo,

Circuit Judges.

Tasha J. Bahal, with whom WilmerHale LLP was on brief, for 

petitioner.

Rachel P. Berman-Vaporis, Trial Attorney, Office of

Immigration Litigation, Civil Division, with whom Brian M. 

Boynton, Principal Deputy Assistant Attorney General, and Dawn S. 

Conrad, Senior Litigation Counsel, Office of Immigration 

Litigation, were on brief, for respondent.

August 21, 2023
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MONTECALVO, Circuit Judge. Petitioner Darwin Murillo 

Morocho seeks review of an order of the Board of Immigration 

Appeals ("BIA") affirming the denial of his application for 

deferral of removal to Ecuador under the Convention Against Torture 

("CAT"). Murillo Morocho claims that, if returned to Ecuador, it 

is more likely than not that he would be tortured by the Ecuadorian 

government itself or by private actors acting with the consent or 

acquiescence of public officials. Before this court, he argues 

that the BIA applied the wrong standard of review to the 

Immigration Judge's ("IJ's") legal conclusions. He further claims 

that both the BIA and the IJ applied the incorrect legal standard 

in assessing whether the Ecuadorian government would more likely 

than not consent or acquiesce in his torture. Finally, he argues 

that even if the BIA and IJ applied the proper legal standards, 

the BIA's decision, which adopts the IJ's decision, is not 

supported by substantial evidence and that the IJ erred in not 

giving him the opportunity to further corroborate his testimony.

We agree that the agency1 applied the incorrect legal 

standard to the "consent or acquiescence" prong of Murillo 

Morocho's CAT claim. We therefore grant his petition for review 

in part, vacate the order of the BIA denying Murillo Morocho CAT 

1 We refer to the BIA and the IJ collectively as the "agency."
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relief as to Ecuador, and remand for further proceedings consistent 

with this opinion.

I. Background

Murillo Morocho is a citizen of Ecuador. In 2017, he

was involved in an incident with, what he says, is a powerful 

family in Ecuador. The 2017 incident ultimately resulted in 

attempted-murder charges against Murillo Morocho in Ecuador.

The details of the 2017 incident are disputed. Murillo 

Morocho asserts that the alleged victim2 was attempting to rape 

Murillo Morocho's girlfriend, that he intervened to stop the 

attempted assault, and that a tussle between the two men ensued, 

causing the victim's injuries. But the victim and other witnesses 

tell a different story. They claim that Murillo Morocho became 

upset because his girlfriend's shorts had been lowered, that 

Murillo Morocho cast blame on the victim, and that a fight arose 

between the two men. During the fight, they say, Murillo Morocho 

stabbed the victim ten times with a piece of broken glass. 

Following the incident, Murillo Morocho was charged with attempted 

murder.

Whose story is correct is largely beside the point for 

purposes of the present petition for review. As we discuss below, 

2 For the ease of the reader, from here on, we will refer to 

the alleged victim simply as victim. We cast no judgment as to 

what occurred.
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the IJ's adverse credibility determination is not before us. And 

so for purposes of this petition, we assume that Murillo Morocho's 

testimony regarding the 2017 incident is accurate.

Before the IJ, Murillo Morocho's uncle attested that the 

victim's family threatened him twice, informing him that they would 

kill Murillo Morocho and Murillo Morocho's family. The second 

time that the victim's family threatened Murillo Morocho's uncle, 

his uncle was at home. The victim's family remained at his uncle's 

house for about half an hour, until the uncle's family informed 

them that Murillo Morocho no longer lived there, let alone in 

Ecuador -- even though Murillo Morocho still was in Ecuador at the 

time. Following the second threat, the uncle obtained a "stay 

away" order from the Ecuadorian police. He and his family also 

moved to another town. Since the issuance of the "stay away" order 

and relocation to another city, the uncle has not received 

additional threats from the victim's family.

Murillo Morocho, for his part, testified that the victim 

threatened him during the incident and that individuals associated 

with the victim's family likewise threatened him shortly after the 

incident. He further claims that the victim's family has 

interfered with his attempts to obtain counsel in the criminal 

proceedings in Ecuador.

In response to the threats, and out of fear for his 

safety, Murillo Morocho stayed at his grandmother's house for two 
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weeks. He then moved to a city a few hours outside of his hometown.

There, he lived in hiding until, in May 2018, he fled Ecuador for 

the United States.

Almost three years after Murillo Morocho settled in the 

United States, the Department of Homeland Security served Murillo 

Morocho with a Notice to Appear, charging him with removability 

for entering the country without admission or parole under Section 

212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1182(a)(6)(A)(i). After various procedural events that are 

irrelevant to the present petition for review, Murillo Morocho 

conceded removability and sought deferral of removal under CAT.3 

The IJ denied CAT relief, finding that Murillo Morocho was not 

credible, that he failed to provide adequate corroborating 

evidence on the critical aspects of his claim, and accordingly

failed to meet his burden of proof under the CAT. Notwithstanding 

the IJ's conclusion that the adverse credibility finding doomed 

Murillo Morocho's CAT claim, the IJ alternatively assessed

whether, even considering Murillo Morocho's testimony, he could 

succeed on his CAT claim. The IJ concluded that Murillo Morocho's 

claim would fail on the merits because, even with his testimony,

3 The parties agree that deferral of removal under CAT was 

the only form of immigration relief Murillo Morocho was eligible 

for due to an Interpol Red Notice issued in connection with the 

pending charges in Ecuador and Murillo Morocho's subsequent 

flight.
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he did not marshal sufficient evidence to show that it was more 

likely than not that, upon return to Ecuador, he would be tortured 

with the consent or acquiescence of the Ecuadorian government.

Murillo Morocho appealed the IJ's decision to the BIA 

who dismissed Murillo Morocho's appeal in a brief decision. The 

BIA opted to bypass the IJ's adverse credibility finding and rest 

its affirmance solely on the IJ's merits analysis that considered 

Murillo Morocho's testimony. It adopted the IJ's merits analysis 

in full, placing particular emphasis on the IJ's finding that the 

victim's family was not more likely than not to seek out Murillo 

Morocho if he were to return to Ecuador and that the Ecuadorian 

courts had offered to protect Murillo Morocho from the victim's 

family.

Murillo Morocho timely filed the present petition for 

review. Shortly after, he moved for an emergency stay of removal, 

which this court eventually denied. In early 2023, Murillo Morocho 

was removed to Ecuador. We now address the petition for review, 

mindful that our decision to deny the stay does not foreclose us 

from granting the petition for review today. See, e.g., Ali v. 

Garland, 33 F.4th 47, 52, 63 (1st Cir. 2022) (granting petition 

for review after previously denying petitioner's motion to stay 

removal).
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II. Legal Standards

"To establish eligibility for CAT protection, [a 

petitioner] must demonstrate that he would more likely than not be 

subject to torture if removed . . . ." H.H. v. Garland, 52 F.4th 

8, 16 (1st Cir. 2022). Torture is defined as "(1) an act causing 

severe physical or mental pain or suffering; (2) intentionally 

inflicted; (3) for a proscribed purpose; (4) by or at the 

instigation of or with the consent or acquiescence of a public 

official who has custody or physical control of the victim; and 

(5) not arising from lawful sanctions." Elien v. Ashcroft, 

364 F.3d 392, 398 (1st Cir. 2004) (quoting In re J-E-, 

23 I. & N. Dec. 291, 297 (BIA 2002)).

An IJ's determination regarding an applicant's 

eligibility for CAT is a mixed question of law and fact. H.H., 

52 F.4th at 16. "[W]hether a person is likely to suffer a 

particular harm and the role of the foreign government in causing 

or allowing that harm" are findings of fact. Id. (quoting 

DeCarvalho v. Garland, 18 F.4th 66, 73 (1st Cir. 2021)). On the 

other hand, questions, such as, "whether the government's role 

renders the harm by or at the instigation of[,] or with the consent 

or acquiescence of[,] a public official," i.e., how the law applies 

to the facts, are legal ones. Id. (alterations in original) 

(quoting DeCarvalho, 18 F.4th at 73).
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Where, as here, "the BIA adopts and affirms the IJ's 

ruling but also examines some of the IJ's conclusions, this [c]ourt 

reviews both the BIA's and IJ's opinions." Id. (quoting Sanabria 

Morales v. Barr, 967 F.3d 15, 19 (1st Cir. 2020)). We examine the 

agency's findings of fact under the substantial evidence standard,

upholding its factual findings so long as they are "supported by 

reasonable, substantial, and probative evidence on the record 

considered as a whole." Sanabria Morales, 967 F.3d at 19 (quoting 

Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir. 2014)). Our review 

of conclusions of law, on the other hand, is de novo. Id. We 

confine ourselves to the reasoning relied on by the agency and 

will not affirm on other bases. Lasprilla v. Ashcroft, 365 F.3d 

98, 100 (1st Cir. 2004). Similarly, we limit our review to those 

issues properly exhausted before the agency. Sunoto v. Gonzales, 

504 F.3d 56, 59 (1st Cir. 2007).

III. Discussion

Murillo Morocho premises his CAT claim on dual threats: 

(1) the likelihood of torture by way of the victim's family, 

whether that be through violent acts by the family or violent acts 

by others operating at the direction of the family; and (2) the 

likelihood that he would be detained upon return to Ecuador in a 
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prison system where gruesome, medievalesque violence is running 

rampant.4

Murillo Morocho raises four issues in his petition for 

review, arguing that: (1) the BIA applied the wrong standard of 

review to the IJ's "consent or acquiescence" determination; (2) 

the IJ -- and the BIA by its adoption of the IJ's decision --

applied the wrong legal test in determining whether Murillo Morocho

would be tortured by private criminal actors in prison with the 

consent or acquiescence of government officials; (3) the agency's 

4 At oral argument, counsel for Murillo Morocho seemed to 

concede that Murillo Morocho's claim rested only on the first 

ground. But we are reluctant to read too much into this arguable 

concession, especially as Murillo Morocho's briefing before this

court and the BIA clearly puts forth both potential threats as 

bases for his CAT claim. See, e.g., Corrected Br. for Pet'r at 16 

("Murillo Morocho argued to the IJ that he was more likely than 

not to face torture in Ecuador at the hands of prison officials or 

other prison inmates acting with officials' consent or 

acquiescence because of the failure of state control in Ecuadorian 

prisons and the fact that he was being targeted for vengeance by 

. . . a notoriously dangerous and violent family"), 34-41 ("Murillo 

Morocho faces dual threats following removal. He faces a direct 

and ominous threat from the prison system itself[]" as well as a 

threat from the victim's family.); Corrected App. at 10 (Murillo 

Morocho's Br. to the BIA) ("[I]t is more likely than not that 

[Murillo Morocho] will be physically harmed in jail; a likelihood 

that only increases if the [victim's] family has the influence to 

target him in jail. . . . [Murillo Morocho] is likely to be 

tortured irrespective of whether the [] family targets him."), 23 

(stressing that even if the IJ found the family could not reach 

him, his CAT claim did not necessarily fail because his "CAT claim 

is not dependent on the [] family"). Moreover, we have held, in 

other contexts, that "[t]his court is not bound by a party's 

concessions," United States v. Borrero-Acevedo, 533 F.3d 11, 15

n.3 (1st Cir. 2008), and we find that such caution likewise is 

warranted in this case where the briefing is at odds with a seeming 

oral concession.
- 10 -

decision is unsupported by substantial evidence; and (4) the IJ 

erred in not giving him an opportunity to further corroborate his 

testimony regarding the powerful reach of the victim's family. We 

address each argument in turn.

A. Consent or Acquiescence Determination

We need not spend time on Murillo Morocho's first 

argument because even if the BIA understood and purported to apply 

the correct standard of review, we agree with Murillo Morocho that 

the IJ and BIA did not apply the correct legal test to the "consent 

or acquiescence" question.

We start by addressing whether the IJ had to reach this 

issue and make a legal determination as to whether the Ecuadorian 

government's actions or inactions constituted "consent or 

acquiescence" to torture by private criminal actors.

"In assessing whether CAT relief is appropriate," an IJ 

engages in two steps, first "mak[ing] findings of fact (e.g., 

whether a person is likely to suffer a particular harm and the 

role of the foreign government in causing or allowing that harm)" 

and then "determin[ing] how the law applies to those facts (e.g., 

whether such harm rises to the level of torture and whether the 

government's role renders the harm 'by or at the instigation of or 

with the consent or acquiescence of a public official[)].'" 

DeCarvalho, 18 F.4th at 73 (quoting Samayoa Cabrera v. Barr, 939 

F.3d 379, 382 (1st Cir. 2019)). Accordingly, if the IJ finds that 
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a person is not more likely than not "to suffer a particular harm," 

it follows that the IJ need not reach the second question of 

"consent or acquiescence of a public official." Id. Indeed, such 

a determination would be futile in light of the IJ's finding that 

harm is unlikely to occur in the first place.

As to the portion of Murillo Morocho's claim linked to 

the victim's family, a legal determination on the consent or 

acquiescence question was unnecessary because of the IJ's factual 

finding that the victim's family was unlikely to seek out Murillo 

Morocho if he were back in Ecuador. Specifically, the IJ was "not 

convinced that the [] family would or could arrange for [Murillo 

Morocho's] torture, including death, in prison" and found that the 

"family [would likely] comply with government-issued orders 

regarding [Murillo Morocho]." Thus, as the IJ found that the 

victim's family was unlikely to seek out Murillo Morocho and that, 

in any event, the family would likely respect any protective orders 

that the government issued regarding Murillo Morocho, the IJ did 

not need to reach whether the Ecuadorian government would consent 

or acquiesce in this proposed harm.

As to the portion of Murillo Morocho's claim premised on 

general violence in prisons, the same cannot be said. This portion 

of Murillo Morocho's claim does not rely on the likelihood of the 

victim's family seeking vengeance. Instead, it depends on the 

likelihood of torture at the hands of private or public actors in 
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prison even if the victim's family chooses not to target Murillo 

Morocho. On this front, we discern three findings by the IJ: (1)

"acts of violence appear to be widespread i[n] prisons"; (2) acts 

of violence, including those rising to torture, "appear to 

primarily be the conduct of prisoners"; and (3) acts rising to 

torture by police and prison guards "d[o] not appear to be 

widespread."

From these findings, it is clear that although the IJ 

did not foresee a likelihood of direct torture by public officials, 

the IJ also did not find harm, including acts of torture, by 

private actors to be unlikely. In fact, the IJ acknowledged that 

"acts of violence" were "widespread." Therefore, having found 

that "[a]cts that rise to the level of torture [] appear to 

primarily be the conduct of prisoners" and not clearly stating 

that such acts were not more likely than not to occur, the IJ had 

to proceed and determine what steps the government likely would or 
- 13 -

would not take and whether that action or inaction constituted 

consent or acquiescence.5

The IJ did just that, making several findings about what 

steps the Ecuadorian government has taken to address violence in 

its prisons and determining that Murillo Morocho had failed to 

show it was more likely than not that the government would consent 

or acquiesce to any torture inflicted by private parties. The 

BIA, for its part, adopted the IJ's analysis and likewise 

determined that the government would not consent or acquiesce in 

any likely torture. But the agency's failure to break down Murillo 

Morocho's CAT claim into its constituent parts makes it difficult 

5 The government encourages us not to reach Murillo Morocho's 

arguments regarding the agency's consent or acquiescence 

determination for a separate reason: exhaustion. It argues that 

Murillo Morocho failed to exhaust his argument that private 

criminal actors will more likely than not torture him with the 

Ecuadorian government's acquiescence. We disagree. It is true 

that we typically will not review an issue when a petitioner has 

failed to present and sufficiently develop it before the BIA. 

Sunoto, 504 F.3d at 59. But where an issue "has been squarely 

presented to and squarely addressed by the agency . . . even if 

the agency raised [the issue]" itself, we will deem it exhausted. 

Mazariegos-Paiz v. Holder, 734 F.3d 57, 63 (1st Cir. 2013). Such 

is the case here as evinced by the discussion of acquiescence in 

both the BIA's and IJ's decisions. What is more, Murillo Morocho's 

arguments before the BIA more than alluded to the acquiescence 

issue. Indeed, Murillo Morocho's brief to the BIA explicitly 

argued that the IJ failed to properly evaluate whether he would be 

subject to torture by private actors with the acquiescence of the 

Ecuadorian government. Thus, we are reluctant to agree with the 

government that Murillo Morocho "insufficiently developed" his 

consent or acquiescence argument. See Sunoto, 504 F.3d at 59 

(opting to apply the "insufficiently developed" standard 

"generously").
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for us to discern whether the agency understood and applied the 

proper legal test to the consent or acquiescence question.

We previously have clarified that "acquiescence" occurs 

when (1) officials are "aware[] of [torture]" and (2) "thereafter 

breach [their] legal duty to prevent such activity." H.H., 52 

F.4th at 19 (second alteration in original) (quoting 8 C.F.R. 

§ 1208.18(a)(7)). Public officials have awareness of torture not 

only when they know of an activity constituting torture, but also 

when they remain willfully blind to it. Id. at 20. As for a 

government satisfying its obligation to intervene, we have 

"express[ed] skepticism that any record evidence of efforts taken 

by the foreign government to prevent torture, no matter how 

minimal, will necessarily be sufficient to preclude the agency 

from finding that a breach of the duty to intervene is likely to 

occur." Id. at 21 (citing De La Rosa v. Holder, 598 F.3d 103, 

110-11 (2d Cir. 2010)).
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Neither the IJ nor the BIA articulated this standard 

with any clarity.6 To be fair, the agency did make several 

statements that go to the acquiescence question. For example, the 

IJ noted that "the President has been aggressive in addressing" 

the torture of detainees, "has invited outside organizations into 

Ecuador to propose solutions[,] . . . has increased funding [to 

prisons,] and [has] reduced overcrowding." In addition, the IJ 

acknowledged the President's use of "police and military forces to 

6 Prior to recounting the evidence relevant to the 

acquiescence question and engaging in its analysis on this point, 

the IJ cited and briefly explained the BIA's decision in In re 

J-E-, 23 I. & N. Dec. 291. This reference leaves us with further 

doubt that the agency understood and applied the proper legal test. 

In re J-E- is largely inapposite here. There, the petitioner 

premised his CAT claim upon Haiti's indefinite detention practice, 

its substandard prison conditions, and police violence. Id. at 

292. The BIA rejected the petitioner's arguments regarding Haiti's 

detention practice and prison conditions because they failed at 

the second prong of the CAT analysis -- that is, neither the 

detention practice nor the prison conditions, such as inadequate 

food, were "specifically intended to inflict severe pain or 

suffering." Id. at 300. As to the portion of the petitioner's 

claim regarding intentional police mistreatment, the BIA concluded 

that such violence was isolated and therefore not more likely than 

not to occur. Id. at 303-04. Here, the agency was not dealing 

with a claim that the government is intentionally inflicting 

substandard prison conditions, such as inadequate food, medical 

care, water, or exercise. Rather, the agency was faced with a 

claim that the government was consenting to or acquiescing in 

intentionally inflicted, gruesome violence by private actors. 

Thus, In re J-E- provides little guidance in evaluating this facet 

of Murillo Morocho's claim, which turns on the fourth, not second, 

prong of the CAT analysis.
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reduce violence and contraband" and that "[s]ome prison officials 

have been held accountable for abuses."7 

It is less clear, however, whether the agency evaluated 

the effectiveness of those steps and whether they met the 

government's duty to intervene. Neither the IJ's nor the BIA's 

decision addressed what "legal duty" Ecuadorian authorities had in 

this situation and whether the government's efforts satisfied it. 

These omissions prevent us from determining whether the agency's 

analysis reflects reasoned consideration of Murillo Morocho's CAT 

claim that he is more likely than not to be tortured by private 

actors with the acquiescence of the government based on the general 

state of violence in Ecuador's prisons. Cf. Scarlett v. Barr, 957 

F.3d 316, 334-35 (2d Cir. 2020) (vacating in part the agency's 

denial of CAT relief and remanding for similar omissions). That 

is particularly so when other parts of the record suggest that the 

government's steps have been inadequate and ineffectual. See, 

e.g., Corrected App. at 50, 133-35 (expert testimony acknowledging 

the government's efforts but describing them as "too little, too 

late"), 207 (Reuters article noting how "[t]he Constitutional 

Court has questioned the measures rolled out across prisons, saying 

7 The specific type of abuses that the IJ found the President 

was combatting effectively -- i.e., violence inflicted by 

officials themselves or the enabling of violence by private actors 

through furnishing of contraband -- is not clear.
- 17 -

that the crisis will require more than temporary emergency 

actions").

Adding to our concern, to the extent that the agency 

contemplated whether the government's actions or inaction met its 

legal duty to intervene, it appears that the agency may have 

thought that any efforts by high-level officials satisfy the 

government's duty to intervene. Not only have we expressed 

skepticism that "any record evidence of efforts" to prevent torture 

will "necessarily" meet the duty to intervene, H.H., 52 F.4th at 

21, the agency's approach overlooks the possibility that other 

lower-level government officials, such as prison guards, still may 

be acquiescing in torture by private actors notwithstanding other 

officials' attempts to thwart such complicity, see De La Rosa, 598 

F.3d at 110. Stated differently,

[w]here a government contains officials that 

would be complicit in torture, and that 

government, on the whole, is admittedly 

incapable of actually preventing that torture, 

the fact that some officials take action to 

prevent the torture would seem neither 

inconsistent with a finding of government 

acquiescence nor necessarily responsive to the 

question of whether torture would be 

"inflicted by or at the instigation of or with 

the consent or acquiescence of a public 

official or other person acting in an official 

capacity."

Id. (quoting Article 1, 1465 U.N.T.S. 85(CAT)).

We are mindful that it is ultimately Murillo Morocho's 

burden to demonstrate acquiescence and that it may well have been 
- 18 -

his task to show that the Ecuadorian government had a 

responsibility to do more. So too are we cognizant of the 

"presumption of regularity" that attaches to the BIA's actions, 

Enwonwu v. Gonzales, 232 F. App'x 11, 15 (1st Cir. 2007) (per 

curiam); see Samayoa Cabrera, 939 F.3d at 383, and that there is 

no requirement for the agency to "expressly parse or refute on the 

record each individual argument or piece of evidence offered by 

the petitioner" where it "has given reasoned consideration to the 

petition, and made adequate findings," H.H., 52 F.4th at 23 

(quoting Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)).

But here the findings are inadequate. On the current 

record, we cannot tell whether the agency concluded Murillo Morocho 

failed to carry his burden on the acquiescence point or whether 

the agency failed to understand and properly apply the acquiescence 

test. See Scarlett, 957 F.3d at 335 ("[O]n the existing record, 

we cannot discern whether the agency found that [petitioner] failed 

to carry his burden on the point of legal responsibility, or 

whether it failed to apply this part of the acquiescence standard 

all together."). We therefore remand the portion of Murillo 

Morocho's claim premised upon the rampant violence in prisons for 

reconsideration of the acquiescence question under the proper 

legal test. See Castañeda-Castillo v. Gonzales, 488 F.3d 17, 22 

(1st Cir. 2007) (en banc) ("If the IJ and [BIA] rested their 

decision upon a misunderstanding of the legal elements of [a 
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claim], the ordinary remedy is a remand to allow the matter to be 

considered anew under the proper legal standards.").

B. Factual Findings Regarding Threat From Victim's Family

We turn next to Murillo Morocho's claim that the agency's 

factual findings are unsupported by substantial evidence. 

Murillo Morocho contends that the agency erred in 

finding that the victim's family was not likely to seek him out 

and follow through on their threats, especially if a court ordered 

the family to leave Murillo Morocho alone.8 Focusing on the 

seriousness of the two threats that the family made to his uncle 

and the vagueness of the court's offer of "protection" during 

Murillo Morocho's criminal proceedings, Murillo Morocho claims 

8 In advancing his argument that the IJ's factual findings 

are unsupported by substantial evidence, Murillo Morocho also 

purports to challenge several factual findings relating to the 

likely steps that the Ecuadorian government would take to protect 

him in prison. Murillo Morocho's challenges on this front, 

however, primarily repeat his arguments regarding the agency's 

failure to apply the proper legal test to the acquiescence question 

under the guise of substantial evidence. He does not dispute that 

the Ecuadorian government is taking the actions that the IJ found 

it was taking, e.g., inviting help from outside and using military 

force to reduce violence, but rather disputes how these actions 

stack up against the acquiescence test. As explained above, we 

already have concluded that Murillo Morocho's claim must be 

remanded for correction of this legal error.
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that the record compels a conclusion that the victim's family 

likely would seek him out and has the power to do so.9 

But this overlooks contrary evidence considered and 

emphasized by the IJ. The IJ stressed that Murillo Morocho has 

not been physically harmed in Ecuador; that although his family 

had been threatened, they had not been harmed; and that after his 

uncle obtained a "stay away" order, the victim's family did not 

bother him. Thus, even if we would weigh this competing evidence 

differently than the agency, we cannot say that the agency clearly 

erred in finding that the victim's family was not more likely than 

not to seek out Murillo Morocho or to ignore a court order to leave 

Murillo Morocho alone. See Adeyanju v. Garland, 27 F.4th 25, 33 

(1st Cir. 2022) ("To demonstrate clear error, one 'must do more 

than show that the finding is "probably wrong," for [a court] can 

reverse on clear-error grounds only if -- after whole-record review 

-- [it] ha[s] "a strong, unyielding belief" that the judge 

stumbled.'" (quoting United States v. Rivera-Carrasquillo, 933 

F.3d 33, 42 (1st Cir. 2019))); Mashilingi v. Garland, 16 F.4th 

9 At oral argument, counsel for Murillo Morocho also referred 

to the sealed material submitted with Murillo Morocho's motion to 

expedite argument in this case, arguing that this new evidence 

showed that Murillo Morocho currently is not safe. In the petition

before us, however, our review is limited to the record upon which 

the agency made its decisions, and we therefore may not consider 

the new evidence. Sanabria Morales, 967 F.3d at 20 ("Our review 

is limited to 'the administrative record on which the order of 

removal is based.'" (quoting 8 U.S.C. § 1252(b)(4)(A))).
- 21 -

971, 978 (1st Cir. 2021) ("When the facts give rise to competing 

inferences, each of which is plausible, the IJ's choice between 

those competing inferences cannot be found to be unsupported by 

substantial evidence.").

C. Credibility and Corroboration

Finally, Murillo Morocho argues that to the extent the 

IJ did not credit Murillo Morocho's testimony regarding the reach 

of the victim's family, he should have been permitted to provide 

additional corroborating evidence. In light of our conclusion 

that the IJ's alternative determination that, even when crediting 

Murillo Morocho's testimony, the portion of Murillo Morocho's CAT 

claim linked to the victim's family fails is supported, we need 

not address this argument.10 See Morgan v. Holder, 634 F.3d 53, 

57 (1st Cir. 2011) ("[C]redibility determination is superfluous 

when the [applicant's] testimony, even if taken at face value, is 

insufficient to compel an entitlement to relief.").

We add that to the extent that Murillo Morocho is arguing

that the BIA and IJ permitted the taint of the IJ's credibility 

finding to bleed through to the alternative merits determination 

on Murillo Morocho's CAT claim, we are not persuaded. The agency's 

merits determination regarding the reach of the victim's family 

10 Murillo Morocho does not argue that the BIA erred in 

concluding that it did not need to reach his arguments relating to 

the adverse credibility determination notwithstanding its 

conclusion that the IJ's alternative merits rulings were sound.
- 22 -

did not rest on its perceived inconsistencies in Murillo Morocho's 

testimony or lack of corroborating evidence. Rather, as just 

explained, it weighed the competing evidence about the family's 

purported power and its respect for government orders, determining 

that in the end, the family was not more likely than not to seek 

out Murillo Morocho. The mere fact that the agency assumed for 

the sake of argument that Murillo Morocho's testimony was credible 

did not require the agency to treat it as persuasive. See Garland

v. Ming Dai, 141 S. Ct. 1669, 1680 (2021) ("[E]ven if the BIA 

treats a[] [noncitizen's] evidence as credible, the agency need 

not find his evidence persuasive or sufficient to meet the burden 

of proof."); Dahal v. Holder, 489 F. App'x 470, 472 (1st Cir. 2012) 

(Souter, J.) (unpublished) (noting that an applicant's credible 

testimony may, but does not necessarily, suffice to establish 

entitlement to CAT relief); Joumaa v. Ashcroft, 111 F. App'x 15, 

20 (1st Cir. 2004) (unpublished) (drawing distinction between 

credibility and persuasiveness of testimony by applicant for 

asylum, withholding of removal, and CAT protection). Nor did it 

mean that Murillo Morocho's testimony could not be outweighed by 

other competing evidence that showed the family was likely to 

comply with government orders to stay away from Murillo Morocho. 

See Ming Dai, 141 S. Ct. at 1681 ("[E]ven credible testimony may 

be outweighed by other more persuasive evidence . . . .").
- 23 -

IV. Conclusion

For the reasons stated above, we conclude that the BIA 

and IJ failed to apply the proper legal test in assessing whether 

the Ecuadorian government would consent or acquiesce to acts of 

torture by private actors in Ecuadorian prisons. The IJ's factual 

findings regarding the reach and desires of the victim's family, 

however, are supported by substantial evidence. Accordingly, 

based on the record before us, Murillo Morocho's CAT claim premised 

on the likelihood of torture by the victim's family fails. We 

therefore grant the petition for review in part, deny it in part, 

vacate the agency's decision insofar as it denied Murillo Morocho's 

CAT claim linked to the general violence in Ecuadorian prisons, 

and remand the case to the BIA for further proceedings consistent 

with this opinion.