F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

D E N N I S Q U I A M B A O V I T U G ,

P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 07-74754

B I A No. A095-728-132

D E N N I S Q U I A M B A O V I T U G ,

P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 08-71038

B I A No. A095-728-132

D E N N I S Q U I A M B A O V I T U G ,

P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 08-72088

B I A No. A095-728-132

OPI NI ONV I T U G V

. H O L D E R

2

O n Petition for Review of an Order of the

B oard of I

mmig ration Appeals

Arg ued and Submitted F ebruary 7, 2013—Pasadena, California

F iled J uly 24, 2013

B efore: Harry

Preg erson, W illiam A. F letcher, and J acqueline H. Ng

uy en, Circuit J udg es.

Opinion by

J udg e Preg erson

SUMMARY *

Im m igration

The panel g ranted in part a petition for review because the B oard of I mmig ration Appeals v iolated its factfinding authority in reversing an imm i gr a t ion judg e’s g r ant o f withholding of removal to a homosex ual native and citiz e n o f the Philippines.

The p a n e l held that the B oard erred by eng ag ing in its

own factfinding

, rather than clear error review, in violation o f 8 C.F .R. § 1003.1(d)(3)(i), when it determined that the harm petitioner suffered did not rise to the level of past persecution,

an d that the Philippine g overnment was not unwilling o r

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.V I T U G V

. H O L D E R 3

unable to protect petitioner. The pane l f u rther held that the B oard abused its discretion by ig noring evidence.

The panel held that substantial evidence supported the B oard’s determination tha t p etitioner failed to establish a clear probability of torture, b ut it remanded for the B o ard to g rant withholding of removal because no reasonable factfinder could conclude that the harm petitioner suffered did not rise to the level of persecut i o n , and the g overnment failed to meet its burden of proof to show change d c o u n try conditions such that petitioner no long er faces a threat to his life or freedom in the Philippines.

COUNSEL

J oanna S. McCallum, Manatt, Phelps, & Phillips, L L P, L os Ang eles, California, for Petitioner.

Carol F ederig hi, United States Department o f J u stice, Civil Division, Office of I mmig ration L itig ation, Washing ton, D.C., for Respondent.

OP INION

PREGERSON, Circuit J udg e :

Dennis Vitug

, a native and citi z e n o f the Philippines, petitions for review of the B oard o f I mmig ration Appeals’ (“B I A”) order vacating an immig ration judg e’s (“I J ”) g rant o f withholding of removal and p rotection under the Convention Ag ainst T orture (“CAT”). W e have j u r isdiction underV I T U G V

. H O L D E R

4

8 U.S.C. § 1 252. The evidence compels the conclusion that Vitug will more likely than not be persecuted if he is removed
to the Philippines. W e therefore g r ant the p e t i t ion in part, reversing the B I A’s denial of withholding of removal.

I. BACK G R OUND

A. F actual Background

Dennis Vitug is a 37-y ear-old g ay native and c itiz en o f the Philippines. F rom the ag e of three, Vitug k n e w h e was “different.” He was effeminate and p lay ed w ith B arbie d o lls and o ther toy s meant for g irls, which his fam i l y re sented. Throug hout his c hildhood, Vitug w a s t eased and bullied b y his classmates for “being a sissy .” W hen he was eig ht or n ine
y e ar s o l d

, Vitug was sex ually a b u sed by a man his
g randparents hired to do housework a nd ta ke him to school. This man sex ually abused Vitug for two y ears and threatened to kill him and his family if he ever told any

one.

I n h ig h school, Vitug continued to be teased a n d b u l lied by his classmates because of h i s perceived effeminate behavior and homosex uality

. The principal called Vitug into his office numerous times, threatening to ex pel him if he did
not chang e and “act according ly .” School administrators also asked V itug ’s parents to intervene or risk Vitug ’s ex pulsion.

I n 199 1
, a fter Vitug ’s family lost their home in the volcanic e ruption of Mount Pinatubo, Vitug soug h t t o live with his ex tended family members, but was turne d a w a y because of his sex ual orientation. At the a g e of six teen, Vitug

m oved to Manila alone. He tried to find a job, but w a s unsuccessful. At the a g e of seventeen, Vitug was dr ug g ed and raped by

a man he met at a g ay

bar.V I T U G V

. H O L D E R 5

I n Manila, Vitug was harassed a n d threatened b y police officers while he was waiting for a public bus. Th e o ff i cers targ e ted him b ecause of his sex ual orientation and threatened
to take him to jail for loitering if he did not g ive them money

. Vitug was also beaten and robbed five times on the street by private citiz ens. The attackers called him derog atory names, and two of the b eating s were severe. Vitug never reported the attacks to the police because—bas e d o n his personal

ex p eriences with the police as w ell a s reports of police abuse of g ay men—he feared the police would ridicule and further victimiz e him.

Vitug first came to the United States in 1996 o n a tourist visa. Six months later, when h is visa e x pired, he r eturned to the Philippines. Vitug ag ain tried to find a job in Manila but

was unsuccessful b ecause o f his sex ual o rientation. I n 1999, Vitug returned to the United States. This time he remained, overstay ing his tourist visa. Vitug worked a s a n assistant desig ner and as an auditor for the Radisson Hotel in Sherman Oaks, California.

Around 2001, Vitug became addicted to cry stal methamphetamine. Despite seeking d rug counseling a

nd rehabilitation for his a ddiction, Vitug repeatedly relapsed a nd

was arrested several times for drug possession. Despite these setbacks, V itug worked as a ship p i n g clerk and enrolled in L os Ang eles Trade Technical Colleg e, taking fashion desig n

courses.

I n 2005, Vitug was diag n osed with HI V. This diag nosis led to depression and another drug relapse. Vitug was

s u b s e q u e n t l y a r r e s t e d a g a i n f o r p o s s e s s i o n o f methamphetamine, and sentenced to one y ear in state prison. After serving e ig ht months of his sentence, Vitug was servedV I T U G V

. H O L D E R

6

with a Notice to A p p e a r in immig r ation court. The Departm ent of Homeland Security (“DHS”) charg ed Vitug

w ith being r emovable on the g rounds that he overstay ed h i s visa and was convicted of a controlled substance offense.

B. P rocedural History

I n April 2007, Vitug appeared pro se in immig r ation
court. Vitug admitted the charg es ag a inst him and applied for
asy lum, withholding o f removal, and CAT relief based o n his

sex ual orientation and HI V-positive status.

At Vitug ’s J u n e 2 0 07 merits hearing

, the I J found Vitug
to b e credible. The I J made factual finding s based on Vitug ’s testimony a

nd documentary evidence t hat Vitug h ad provided. The documentary evidence included articles about

an org aniz ed raid by the Philippi n e National Police on a theater frequented by g ay men. During this raid, police beat patrons, stole their money , and a rrest e d them for “ public scandal” o r immoral or indecent activity

. T h e I J ’s finding s included:

(1) V itug was beaten and robbed five times in Manila after being targ ete d as a homosex ual. Two of these beating s were severe.

(2) W hile w aiting for th e bus in Manila, Vitug was harassed by police officers on account of his perceived sex u a l orientation. The officers t hreatened to a rrest him for loitering if he did not g ive them money

.V I T U G V

. H O L D E R 7

( 3 ) Vitug was unable to find a job in th e Philippines o n a c count of his sex ual orientation.

(4) T h e p o l ice will not do any thing to help
g ay men who r e p o rt abuse but will r ather ridicule them and tell them they deserve it.

(5) The g overnment has f a i l e d or refused to protect g ay

men from persecution.

At the h earing

, the g overnment ag r eed t h a t Vitug was credible. T he g o vernment did not present any evidence to contradict Vitug ’s testimony or documentary evidence. However, it did n o t e t hat Vitug ’s documentary evidence included accounts o f g ay and l es b i a n activism in the Philippines and a recently passe d Q uez on city ordinance
p r o hibiting sex ual orientation discrimination in the workplace.

T he I J held that Vitug was persecuted on a ccount of h i s membership in the social g roup of h omosex ual F ilipino men. 1 The I J noted that the g overnme n t d i d n ot prove that country conditions had improved or t h at Vitug c ould internally relocate within t h e Philippines to avoid future persecution. The I J concluded that Vitug would more likely than not suffer further p ersecution if he w as removed to the Philippines, a nd therefore g ranted Vitug withholding of removal. The I J also concluded th at it was more likely than n ot that Vitug would be tortured in the Philippines, and therefore g ra n ted CAT

1 T h e IJ f o u n d th at Vitu g d i d n o t su f f er p ast p ersecu tio n o n acco u n t of h is m em b ersh ip in th e g ro u

p o f HIV- p o sitiv e in d iv id u als.V I T U G V

. H O L D E R

8

r e l i e f. F inally

, the I J d enied Vitug ’s request f or asy lu m because of a procedural bar.

The g overnme n t appealed. On November 6, 2007, the BI A sustained DHS’s appeal, affirming the I J ’s denial o f
asy lum but vacating the I J ’s g r ant of withholding of removal and CAT relief. I n r eaching its decision, the B I A d id not

ex p ressly f

i n d any of the I J ’s factual finding s to be clearly

erroneous. I n stead, the B I A found that Vitug “failed to meet his burden of proof” for four major reasons: (1) Vitug failed
to prove that the attacks ag a inst him “r[ o] se to the level o f past persecution”; (2) t he rape was a “crime of o pportunity ” and was not based on account o f a protected g round; (3) “the record does n o t support the conclusion that the g overnment would be unable or unwilling to pr o tect [ Vitug ]
, ” because Vitug returned to the Philippi n e s with “only limited additional problems,” the attacks ag a inst him we r e illeg a l, and he did n o t report the attacks; a n d ( 4 ) t h ere was “ no evidence in the record that [ Vitug ] would face torture were he to be returned to the Philippines.”

Vitug moved for reconsiderat i o n , which the B I A denied b e c a use Vitug ’s motion was one d ay late. The motio n w a s late due to a snowstorm and the g r ounding of F edEx ’ s planes.

On F ebruary 26, 2008, the B I A issued an amended order
to correct a misstatement in th e o r i ginal November 6, 2007 order. Vitug timely moved fo r r econsideration of the amended order, arg u ing that the B I A failed to g ive d ue deference to the I

J ’s factfinding

.

O n April 22, 2008, the B I A denied Vitug ’s motion f o r reconsideration of the amended order. I n its denial, the B I A defended its orig inal decision, ar guing that it had properlyV I T U G V

. H O L D E R 9

applied the clear error standard of review: “[ W ] e d id no t determine that the I mmig ration J u dg e’s finding s of facts were clearly e rroneous, including the finding that he was c redible. Therefore, we accepted the respondent’s testimony

, and all reasonable inferences that c an be drawn from it, as t r ue.” Yet, later in the order, the B I A contradicted itself by stating that one o f the I J ’ s finding s —that the Philippine g overnment “failed or re f

u s e [d] to protect homosex uals” from abuse— was “ clearly erroneous.” The B I A concluded that: (1) Vitug failed to e stabl i s h that the g o vernment was unwilling or unable to protect him in lig ht of the documentary evidence that show ed no official discrimination, Vitug ’s testimony that he was never “harmed” by the police, a nd Vit ug ’s f ailure to report any of his attacks; ( 2) on the record before it, the facts we re i n sufficient for Vitug to carry his burden of proving past p ersecution; a nd (3) on the record before it, the facts were insufficient for Vitug to prove that it

was more likely than not he would be persecut e d i f he returned to the Philippines.

II. STANDARD OF REVIEW

Our review is limited to the B I A’s de cision where the B I A conducts i t s o w n review of the evidence and law,

“ ex cept to the ex tent that the I J ’s opinion is ex pressly adopted.” Hosseini v. G onzales

, 471 F .3d 953, 957 (9th Cir. 2006) (quoting Cordon-Garcia v. INS
, 204 F .3d 985, 990 (9th Cir. 2000)). “W here the standard of r eview the B I A employ e d is unclear, we may look to both the B I A’s decision

a n d the I J ’s oral decision as a g uide to what lay be h i n d t h e B I A’s conclusion.” Benyamin v. Holder , 579 F .3d 970, 974 (9th Cir. 2009) (internal quotation marks omitted).V I T U G V

. H O L D E R

10

W e r evi ew f

or substantial evidence the factual finding s underly ing the B I A’s determination that a petitioner is not elig ible for w ithholding of removal o r CAT protection. Morales v. G onzales

, 478 F .3d 972, 977, 983 (9th Cir. 2007), abr o g a t ed on other grounds as stated in Anaya-Ortiz v

. Holder

, 594 F .3d 673, 678 (9th Cir. 2010). Under substantial evidence review, “[ t] o rev e r se [ the B I A finding ]
, we must find that the evidence not o nly supports that conclusion, but compels it.” Zheng v. Holder

, 6 44 F .3d 829, 835 ( 9 t h Cir. 2011) (citation and internal quotation marks omitted).

De n ovo review a

p plies to the B I A’s determin at i o n s o f questions of l a w and leg al conclusions. Hamazaspyan v

. Holder

, 590 F .3d 744, 747 (9th Cir. 2009). W hether the B I A applied the c orrect standard of revie w to the I J ’s decision is

a question of law, and is thus reviewed de novo. R o d r i g uez v. Holder , 683 F .3d 1164, 1169 (9th Cir. 2012).

III. DISCUSSION

A. BIA’s F ailure t o Use P roper Clear Error Standard of Review

Under DHS reg ulations, the B I A may review questions o f law de novo. 8 C.F .R. § 1 003.1(d)(3)(ii). The B I A has interpreted “questions o f l a w” to include not only pure questions of law but also the application of a p a r t i c ular
st a n d a r d o f law to a set of facts, for e x ample, “whether the facts established by a

n alien amount to past persecution or a well-founded fear of future persecution.” Matter of A-S-B-
, 24 I

. & N

. D ec. 493, 496 (BI A 2008) (citation and internal quotation marks omitted); see a lso Matter of V-K-
, 24 I

. & N

. Dec. 500, 501 (B I A 2008).V I T U G V

. H O L D E R 11

DHS reg u lations prohibit the B I A from “eng ag [ing ] in de

novo r eview of finding s of fact d etermined by an immig r ation judg e.” 8 C.F .R. § 1 003.1(d)(3)(i). I nstead, “[ f] acts determined by the immig ration judg e, including findings a s to t h e cr e d ibility of the testimony

, shall be r eviewed only to determine whether the finding s o f the immig ration judg e a re clearly erroneous.” Id. “F acts include past e v e n t s , but they

are not restricted to historical events.” Kaplun v. A tt’y Gen.
, 602 F .3d 260, 269 (3d Cir. 2010). They also include “states of mind such a s intentions and opinions,” id. (inter n al quotation marks deleted), and “ex pressions of likelihood based on testimony (both lay and ex pert) and/or documentary evidence,” id. at 270. W here there are mix ed q u e s t i o ns o f f a c t a n d law, the B I A “must break d own the inquiry into i t s parts and apply th e c o rrect standard of review to the respective components; it cannot “ g lue[ ] t h e t w o questions tog ether” and r eview the factual question de novo. Id. at 271;

see also Ridore v. Holder

, 696 F

. 3d 9 0 7
, 9 1 5 –16 (9th Cir. 2012).

F urther, “[ t] he B I A cannot, under a clear error standard o f review, override or disreg ard evidence in the re c o r d and substitute its own version of r e a lity ” o r “rel[ y ] simply on its

own interpretation of the f a c t s.” Ridore

, 6 9 6 F .3d at 917. Under clear error review, if the B I A rejects a f inding of the I J
, a “concluso ry p ronouncement” that the I J h as erred is insufficient; “the BI A [ i s] o blig ated to ex plain why the I J clearly erred in so f

inding .” Id. I f the I J has left certain facts unresolved and the B I A believes that it cannot decide the case without them, it cannot make its own factual find i n gs but instead “must remand to the I J f or further factual finding s.” Rodriguez , 683 F .3d at 1173.V I T U G V

. H O L D E R

12

I n its denial of Vitug ’s second motion for reconsideration, the B I A stated that i t h ad applied the proper clear error standard o f review in its orig inal decision. As w e s tated in Rodriguez

, however: “[ w] e d o not rely on the B oard’s invocation of the clear error standard; rather, when the issue is raised, our task is to determine whether the B I A faithfully employ e d the clear error standard or eng ag ed in improper de novo review of the I J ’s factual finding s.” Id.

W e c onclude that in its orig inal November 6, 20 0 7 decision, the B I A eng ag ed in its o wn factfinding

. Such factfinding was im p r oper under R odriguez

, which dictates that the B I A must remand to the I J for additional factfinding under the clear error standard of review. Id. I n determining that the attacks ag ainst Vitug did not “rise to the level of past persecution,” the B I A made a f actual finding that the I J never made—that “the alleg ed rape

. . . w a s m ore a crime o f opportunity .” And in determining that “ the r e cord does not support the conclusion that the g overnment would b e unable

or unwilling to protect [ Vitug ] ,” the BI A made additional factual f inding s that the I J never made: (1) that Vitug faced “only limited additional p roblems” w h en h e returned to the Philippines; (2) that the a b use and attacks ag ainst Vitug in Manila were illeg al; and (3) that there was a “lack of official discrimination aga inst homosex uals” in the Philippines. These are finding s a

bout past events and about the intentions of others, and thus the B I A was not entitled to make them in the first instance.

Moreover, the B I A abuses its discretion where it ig nores arg uments or evidence. “[ W] here there is any indication that the B I A did not consider all of the evidence before i t , a

c atchall phrase d o es not suffice, and the decision ca n n o t stand. Such indications i n clude misstating the record a ndV I T U G V

. H O L D E R 13

failing to mention hig hly probative or potentially d ispositive evidence.” Cole v. Holder

, 659 F .3d 762, 771–72 ( 9 th Ci r. 2011).

I n its orig inal decision, the B I A ig nored factual f in d i n gs of the I J that w ere key to the I J ’s holding : (1) that Vitug was beaten five times on the street, a nd two of these beating s were “severe”; (2) that Vitug was harassed and threatened by the police because of his perceived sex ua l o r i e ntation; (3) that Vitug was unable to obtain employ ment in the Philippines; and (4) that “police [ in the Philippines] will not do any thing
to help g ay men who report abuse.” T he B I A di d n o t reject these finding s as clearly erroneous , so its disreg ard of this evidence w as not only a failure to apply clear error review but also an abuse of its discretion. Id.

W e conclude that the B I A failed t o a p p l y the clear error standard of r eview to the I J ’ s factua l f i nding s, and also abused its discretion b y ig noring factual finding s of the I J

. I n similar situations, we ty

pically r emand s o that the B I A may apply the correct standard of review and p roperly consider the I J ’s factual finding s. See, e.g. , Ri dore

, 696 F .3d at 922; Rodriguez

, 683 F .3d at 1177; Brezil i e n v. Holder

, 5 69 F .3d 403, 415 (9th Cir. 2009). H owever , w e n e e d not do so here because, a s we ex plain below, substantial evidence does not
supp o r t the B I A’s denial of withholding of removal. See Baballa h v

. Ashcroft

, 367 F .3d 1067, 1078 n.11 (9th Cir. 2004) (declining to remand for fact-finding where petitioner showed pa s t persecution and g overnment made no showing of chang e d circumstances).V I T U G V

. H O L D E R

14

B. Withholding of

Rem oval

W ithholding of removal is a form of r e l i e f from deportation f

or an a lien who would b e persecuted on account of her race, nationality

, relig ion, political opinion, o r membership in a particular social g roup were she to return to her native c ountry

. 8 U.S

. C. § 1 2 31(b)(3). An alien w ho shows that it is “more like l y than not” that she w ould be persecuted on account o f a protected gr o u nd by the
g overnment or an actor the g overnment is unable or u nwilling
to c ontrol meets the r equirements of withholding of removal and may n o t b e removed to her native country

. 8 C.F .R. § 208.16(b)(2); Al-Harbi v. INS
, 242 F .3d 882, 8 88 ( 9th Cir. 2001). W e h ave h eld that homosex uals are a “particular social g roup,” a

nd therefore that homosex uality is a protected
g round. See Karouni v. G onzal e s , 3 9 9 F .3d 1163, 1171–72 (9th Cir. 2005).

Elig ibility for withholding of removal is p r e s u med if a petitioner shows past persecution. Mousa v. Mukasey

, 530 F .3d 1025, 1030 (9th Cir. 2008). An alie n w h o seeks withholding of removal “on the ba s i s of past persecution at the h ands of private parties the g o vernment is unwilling o r unable to control need not h a v e r e ported the persecution to the authorities if he [ or she] can convincing ly establish that doing so would have b een f utile or have subje ct ed him [ o r her] to further abuse.” O rnelas-Chavez v. Gonzales

, 458 F .3d 10 5 2
, 1058 ( 9th Cir. 2006). T o rebut the presumption created by

past persecution, the g overnment must show by a preponderance of t h e evidence that “[ t] here has been a fundamental chang e in c ircumstances such that the [ petitioner] ’s life or freedom would not b e threatened” or that the p etitioner could r elo c at e internally within his homeV I T U G V

. H O L D E R 15

country to avoid p e rsecution. 8 C.F .R. § 1208.16(b)(1); see also Hanna v. Keisler , 506 F .3d 933, 940 (9th Cir. 2007).

I n Ahmed v. Keisler

, 504 F .3d 1183 (9th Cir. 2007)

, we

rev ersed the B I A’s denial o f asy lum and withholding o f removal where the petitioner had b een beaten three times by the B eng ali police or a

rmy on account of h is political opinion

. W e reasoned,

[ p] hy sical harm has c onsistently been treated

as persecution. Wher e a n asy lum applicant suffers such harm on more than one occasion, and, as in this case, is victimiz ed at different times over a period o f y ears, the cumulative eff e c t o f the harms is severe enoug h that no

re asonable fact-finder could conclude that it did not rise to level of persecution.

Id. at 1194 (citations omitted). I n Ahmed

, the g overnment did
not r ebut the presumption of withholding of removal elig ibility g enerated by past persecution. Thus, we concluded that the B I A’s decision that the petitioner was not entitled to withhol d i n g of removal was not supported by substantial evidence. Id. at 1200.

Here, the I J found Vitug to be c redible and thus accepted his testimony

, and all reasonable inferences drawn from that testimony

, as true. At the he ar i n g, the g overnment ag reed that V itug was credible and did not introduce any evidence to contradict his testimony

. On appeal, the B I A did no t reject
any of the I J ’ s factual finding s as clearly erroneous. Thus, in determining whether the facts in Vitug ’s case compel a finding of w ithholding o f removal elig ibility

, we consider theV I T U G V

. H O L D E R

16

factual f i n d ing s of the I J
, which were based on Vitug ’s credible testimony

.

L ike the petitioner in Ahmed

, Vitug showed that he was beaten multip l e times over a p eriod of y ears. Vitug demonstrated that two of these beating s were severe. Vitug also demonstrated that he is g ay an d p er c e ived to be effeminate and t h a t h i s a ttackers called him names and beat him because he was g ay

. W hi l e Vitug did not report these attacks, h e credibly testified that it is well known in the Philippines that police harass g ay men and turn a blind ey e to hate crimes committed ag ainst g ay men. Vitug bolstered this testimony with d ocumentary e vidence of a police raid on a g ay theater during which police b eat and robbed the patrons. Moreover, he credibly testified to h is personal ex p erience o f being threatened and harassed by police in the Phil i p p ines. Vitug thus “convincing ly establish[ ed] th a t [ reporting the attacks] would have been futile o r h ave subjected him to further abuse,” thereby d emonstrating t hat the g overnment

was unwilling to control the attackers. O r n e las-Chavez

, 458 F .3d at 1058.

I n addition to being phy sically harmed on account of his

sex ual o rientation, Vitug was u nable to fin d a j o b in the Philippines because of h i s sex ual orientation. Thus, Vitug also faced the “ deprivation of

. . . employ ment,” which the I J noted the B I A has f

ound to be a n o t h e r form of persecution. Matter of T-Z- , 24 I & N Dec. 163 (B I A 2007).

As in A hmed

, no r easonable f a c t f inder could conclude
t h at the harm Vitug suffered d id not rise to the l e v e l o f persecution in lig ht o f the cumulative effect of mu l t iple in stances o f phy sical harm and victimiz a tion. Thus, weV I T U G V

. H O L D E R 17

presume that V itug i s e l i g ible for withholding o f removal relief.

As the I J found, the g overnment did not reb u t the presumption of withholding of removal elig ibility b y show i ng either a fundamental chang e in country conditions or that it

was p o s s i b le for Vitug to internally relocate within the Philippines to avoid persecution. I n f act, the g overnment did

n o t introduce any evidence at V itug ’s hearing

. T h e g overnment did refer to V itug ’s documentary evidence
reg arding g ay activism in the Philippines and the passag e o f

a local o rdinance in Q uez on to protect homosex uals from employ ment discrimina t ion. Such e vidence, however, does
not indicate that there is any less violence ag ainst g ay men o r that police have become more responsive to reports of a n tig ay hate crimes. The g overnment therefore failed to meet its burden of proof to show by a preponderance of the evidence that the c ircumstances within the Philip p i n e s have chang ed such that Vitug no long er faces a threat to his life or f reedom in the Philippines. According ly

, we reverse the B I A’s denial of with h o lding of removal relief under the substantial evidence standard.

C. CAT Claim

To qualify for CAT relief, a petitioner must show that she

more likely than not w ill be tortured if she is removed to her native country

. Zheng

, 6 44 F .3d at 835. DHS r e gu lations d efine torture as an “act by which severe pain or sufferi n g, whether p h y sical or mental, is intentionally inflicted on a person

. . . f

o r any reason b a s e d on discrimination o f any kin d

, when such pain or suffering is inflicted by or at the instig a tion of or with the consent o r acquiescence o f a public official

. . . . ” 8 C.F .R. § 208.18(a)(1). The reg ulationsV I T U G V

. H O L D E R

18

further state, “[ t] o r t u r e i s an ex treme form of cruel a nd inhuman treatment and does not include lesser forms of cruel, inhuman or deg rading treatment o r punishment th at d o not

a m o u nt to torture.” 8 C.F .R. § 208.18(a)(2). W e have h e l d that “awareness and willful blindness” are sufficient t o constitute acquiescence by g o vernment officials; actual knowledg e or willful a cceptance is not required. Zheng v

. Ashcroft

, 332 F .3d 1186, 1197 (9th Cir. 2003).

On this record, substantial evidence d oes not compel a finding that V itug will more likely than not be tortured if he
retu rns to the Philippines. I n Ahmed

, a lthoug h w e reversed the B I A ’s denial of withholding o f r emoval, we found that substantial evidence did s u p port the B I A’s denial of CAT relief. 504 F .3d at 1200–01. W e reasoned that while the four beating s Ahmed s uffered were “certainly f orms o f persecution, it is not clear that these actions w ould rise to the level of torture” under substantial evidence review. I d. at 1201. Similarly

, it is not clear that Vit ug ’s beating s a nd economic deprivation r ise to the level of t o r ture. Thus, we deny Vitug ’ s petition for review of the B I A’s denial of CAT relief.

IV. CONCLUSION

F or the reasons set forth above, we g rant the p etition for review as to Vitug ’s application for withholding of removal, deny the petition as to Vitug ’s application for CAT relief, a nd remand with instruction that the B I A enter an order g ranting withholding of removal.

P E T I T I O N G R

A N T E D I N P A R T, D E N I E D I N P A R T , AND REMANDED.