United States Court of Appeals 

For the First Circuit 

No. 17-1457 

JAVIER ROSALES JUSTO, 

Petitioner, 

v. 

JEFFERSON B. SESSIONS III, 

Attorney General of the United States, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF THE 

BOARD OF IMMIGRATION APPEALS 

Before 

Torruella, Lipez, and Kayatta, 

Circuit Judges. 

Talia Barrales, with whom Law Offices of Talia Barrales was 

on brief, for petitioner. 

Rebekah Nahas, Trial Attorney, Office of Immigration 

Litigation, Civil Division, U.S. Department of Justice, with whom 

Chad A. Readler, Acting Assistant Attorney General, Civil 

Division, and Briena L. Strippoli, Senior Litigation Counsel, 

Office of Immigration Litigation, were on brief, for respondent. 

July 16, 2018 
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LIPEZ, Circuit Judge. Petitioner Javier Rosales Justo 

("Rosales"), a citizen of Mexico, claims that the Board of 

Immigration Appeals ("BIA") erred when it reversed an immigration 

judge's order granting him asylum. The immigration judge ("IJ") 

concluded that Rosales met his burden of proving he was entitled 

to asylum based, inter alia, on a finding that the police in Mexico 

would be unable to protect him from members of organized crime who 

had murdered his son and continued to target him and the rest of 

his nuclear family. The BIA rejected that finding, concluding 

that it was clearly erroneous. 

We agree with Rosales that the BIA's conclusion that the 

IJ's finding was clearly erroneous is unfounded because the BIA 

committed several errors in its review of the IJ's decision. Most 

importantly, the BIA failed to examine separately the evidence of 

the government's willingness to protect Rosales from persecution 

and the evidence of its ability to do so. Instead, the Board cited 

evidence only of the willingness of local authorities to promptly 

investigate the murder of Rosales's son as support for its 

conclusion that the IJ's finding of inability was clearly 

erroneous. Because of the BIA's flawed analysis of the IJ's 

decision, we grant Rosales's petition and remand the case to the 

BIA for reconsideration of Rosales's eligibility for asylum. 
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I. 

A. Factual Background 

Rosales applied for admission to the United States 

immediately upon arriving with his wife and children at the border 

crossing in San Ysidro, California on May 9, 2016. He was 

detained, transferred to a correctional facility in Plymouth, 

Massachusetts, and subsequently served with a notice to appear 

charging him with removability because he lacked a valid entry 

document. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Rosales conceded 

removability, but requested asylum pursuant to section 208 of the 

Immigration and Nationality Act (INA), 8 U.S.C. § 1158, and 

cancellation of removal pursuant to 8 U.S.C. § 1231(b)(3). A 

hearing before an IJ was held on October 21, 2016. Rosales and 

his wife both testified at the hearing, and Rosales also submitted 

extensive documentary evidence, including declarations from 

himself and his family members, reports from the U.S. Department 

of State and international non-governmental organizations 

regarding country conditions in Mexico, and documents and reports 

from the police investigation into his son's murder. In reaching 

his decision, the IJ considered "[a]ll admitted evidence . . . in 

its entirety, regardless of whether [it was] specifically 

mentioned" in the decision. 

Finding the testimony of Rosales and his wife credible, 

the IJ found the following facts. Rosales is a 39-year-old police 
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officer from Acapulco, a city in the state of Guerrero. The tragic 

events that precipitated his move to the United States began on 

January 24, 2016. That afternoon, his wife, Vincenta, and son, 

Tomas, were working at the store that the family ran to supplement 

Rosales's income as a police officer. Two strangers walked into 

the store and demanded that the family pay "rent" to them. When 

Vincenta asked, "what rent?," they told her that the family must 

pay 2,000 pesos every two weeks. Vincenta responded that her 

family could not afford to pay that amount because the store was 

too small to generate enough money. One of the men became upset 

with her and stated that if she did not pay, her family would face 

the consequences. 

Following this threatening encounter, Rosales and his 

wife decided to close the store. Although they did not know the 

identity of the men who had come to the store, they believed they 

were members of organized crime. However, Vincenta testified that 

she did not report the threat to police because she thought it 

would "blow over."1 After a week, Vincenta decided to reopen the 

store because the family needed the income. 

On the evening of February 4, Vincenta heard gunshots 

while she was working at the store. Earlier, her daughter had 

 1 Although the IJ mentioned only Vincenta's testimony on this 

point, Rosales testified that Vincenta did not report the extortion 

attempt because "she was scared." 
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told her that Tomas had stopped at home after school to change 

clothes and then left to go help a friend paint nearby. After 

hearing the gunshots, Vincenta went to look for Tomas and could 

not find him.2 She called Rosales at work to tell him that Tomas 

was missing, and they went to the police station and the ministry 

of police to see if Tomas had been detained by the police in either 

place. Not finding him and fearing the worst, Rosales also checked 

the morgue to no avail. 

The next day, having still not found Tomas, Rosales was 

informed by friends that a body had been found on the side of a 

nearby highway, and Rosales and Vincenta went there. After 

speaking with the federal police who were at the scene and being 

shown a photo of the body, they identified the victim as Tomas. 

He had been shot five times, and there was evidence that he was 

tortured before his death. A forensic team was called to examine 

the body, and the police took statements from Rosales and his wife 

and opened a criminal investigation. Rosales also hired a lawyer 

to conduct a separate investigation into the murder. 

Fearing for his family's safety following Tomas's death, 

Rosales moved with Vincenta and their two daughters to Pueblo 

 2 Although not specifically mentioned by the IJ, Vincenta 

testified that the shooting occurred in the area where Tomas was 

painting. When she went to that area after the shooting stopped, 

someone told her that a person who looked like Tomas had been taken 

away by unknown people in a truck. 
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Viejo, a town several hours from Acapulco where Rosales has 

extended family. Approximately eleven days after the murder, their 

neighbors from Acapulco reported to Rosales that they had seen 

suspicious cars near Rosales's old house and several unknown men 

with guns "from organized crime" had asked a neighbor whether 

Rosales and his family still lived there. Two months later, in 

April, several unknown men came to their neighborhood in Pueblo 

Viejo and asked for the location of the Rosales family. Rosales 

did not report these incidents to the police because he was afraid 

members of organized crime would find him and kill him. Fearing 

that he and his family were at risk of being murdered if they 

stayed in Mexico, Rosales decided to move with Vincenta and his 

daughters to the United States in May 2016. 

Because he had been detained until the day of the 

hearing, Rosales had not recently spoken to the police in Acapulco 

about the status of the investigation into his son's murder. He 

was therefore unable to say for certain at the hearing that no one 

had been arrested for the murder. Similarly, although Rosales 

believed that his extended family in Pueblo Viejo had not been 

contacted or harmed by organized crime in the time that he was 

living in the United States, "he was not sure" due to the limited 

contact he had with his extended family during his detention. 
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B. The IJ's Decision 

Based on the above factual findings, the IJ concluded 

that Rosales had a well-founded fear of future persecution because 

of his membership in his nuclear family.3 In particular, the IJ 

found that the credible testimony of Rosales and his wife 

established that individuals "presumably associated with organized 

crime[] wanted to extort money from [Rosales]" and that "the minute 

[Rosales]'s wife refused, or did not pay the demand," they targeted 

his family for "a retaliatory hit, not just because the money was 

not paid, but because at this juncture, the unknown assailants 

wanted to inflict the consequences that they promised." Thus, the 

IJ found that Tomas's murder was "directed at [Rosales]'s nuclear 

family because of the failure to pay the rent." 

Further, the IJ noted that "armed men" who "were not 

members of the Mexican police" were "patrolling [Rosales]'s home 

in Acapulco, and specifically asked about [Rosales]'s and his 

family's whereabouts," and that "other unknown individuals were 

looking for [Rosales] and his family in Pueblo Viejo." The IJ 

 3 Family membership "can be a sufficiently permanent and 

distinct characteristic to serve as the linchpin for a protected 

social group within the purview of asylum laws," so long as the 

applicant's "family membership itself brings about" the feared 

persecution. Ruiz v. Mukasey, 526 F.3d 31, 38 (1st Cir. 2008). 

The finding by the IJ that there was a sufficient nexus between 

the persecution suffered by Rosales and his membership in his 

nuclear family was not challenged by the government on appeal to 

the BIA. 
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concluded that "[t]his tracking and directing and looking for 

[Rosales]'s family, combined with the initial threats," provided 

an objective basis for Rosales's fear that he would be targeted by 

organized crime if he returned to Mexico. 

In addition to the testimony of Rosales and his wife, 

the IJ relied on the Department of State report on country 

conditions in Mexico to support the conclusion that someone in 

Rosales's "particularized situation would fear harm in Mexico." 

The IJ noted both the report's general statements that "[o]rganized 

criminal groups killed, kidnapped, and intimidated citizens, 

migrants, journalists, and human rights defenders" throughout 

Mexico, and its specific descriptions of crime in Rosales's home 

state of Guerrero, including the kidnapping of a journalist and 

the disappearances and murders of students, and the general 

"impunity of organized crime and drug traffickers in Guerrero."4

After finding that Rosales reasonably feared persecution 

if he returned to Mexico, the IJ concluded that Rosales had met 

 4 The IJ also found that Rosales had proved by a preponderance 

of the evidence that he would be unable to avoid persecution by 

relocating within Mexico. See 8 C.F.R. § 1208.13(b)(1)(i)(B) 

(permitting the IJ to deny an asylum application where "[t]he 

applicant could avoid future persecution by relocating to another 

part of the applicant's country of nationality"). The IJ relied 

on the evidence that members of organized crime looked for Rosales 

in Pueblo Viejo, as well as country reports stating that organized 

crime is a problem throughout Mexico and that Mexico has "a 

significant problem with internally displaced persons" due to 

organized crime-related violence. The conclusion that Rosales 

could not relocate within Mexico is not at issue in this appeal. 
- 9 - 

his burden of proving a government nexus for that persecution by 

showing that the government was unable or unwilling to control the 

members of organized crime who had threatened to harm him and his 

family. The IJ recognized that "police took an immediate and 

active interest in the respondent's son's murder," noting that 

Rosales observed seven officers and a forensic team at the scene 

where Tomas's body was recovered, the police took statements from 

Rosales and his wife, and an autopsy was performed. However, the 

IJ ultimately concluded that these investigative steps showed only 

that the police were "willing to take on organized crime," not 

that "the government is able to protect its citizens from organized 

crime." 

To determine whether the government was able to protect 

Rosales from organized crime, the IJ, "[l]ooking at the specific 

facts of this record," found that the country condition reports 

submitted by Rosales demonstrated that there was corruption among 

police in Guerrero, and that they were unable to control organized 

crime. In particular, the IJ referred to a report written by the 

International Crisis Group (ICG), stating that "violence remains 

an intense problem in states such as Guerrero, which, in 2014, had 

the highest homicide rate, where bloodshed is rising." Moreover, 

the report stated that, "[d]espite deployment of more federal 

police," the homicide rate in Guerrero had risen by more than 20 

percent in the first half of 2015. Indeed, it noted that "some 94 
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percent of all crimes go unreported" in Guerrero, implying both 

that the real homicide numbers may be higher and that citizens of 

Guerrero lack faith in the ability of police to bring criminals to 

justice. Quoting the article, the IJ emphasized that "[i]mpunity, 

even for homicide, is the norm." 

Additionally, the IJ pointed to the Department of State 

country condition report, which described "numerous reports of 

government corruption throughout [2015]." Specifically, "there 

were reports that police, particularly at the state and local 

level, were involved in kidnapping, extortion, and providing 

protection for or directly acting on behalf of organized crime and 

drug traffickers." The IJ concluded that, "[u]nder these country 

conditions, as articulated in this specific case, I do find that 

while the Mexican government made some efforts to investigate the 

crime, such action does not show that the government is going to 

be able to protect the respondent." The IJ therefore granted 

Rosales's application for asylum. 

C. The BIA's Decision 

The government appealed, and the BIA reversed. The Board 

deemed clearly erroneous the IJ's finding that the government of 

Mexico was "unable or unwilling" to protect Rosales. Unlike the 

IJ, however, the BIA did not separately assess the Mexican 

government's ability to protect Rosales after it discussed the 

evidence of the government's willingness to investigate his son's 
- 11 - 

murder. Listing the steps the police had taken to investigate the 

murder, the BIA observed that Rosales had not reported to the 

police the extortion attempts before the murder or efforts by 

organized crime to find his family after the murder. The BIA 

faulted the IJ for giving weight to the country condition reports 

and articles about crime in Guerrero instead of the individualized 

evidence regarding the police response to Tomas's murder, stating 

that "[t]he immigration judge appears to have deferred to the 

background evidence, and essentially discounted the actual, 

individualized evidence of record in this case showing that the 

police in Mexico initiated an investigation of the respondent's 

son's murder." 

The BIA concluded that "the Immigration Judge's finding 

that the police would be unable or unwilling to control the persons 

the respondent fears (assuming they are not already imprisoned) is 

impermissibly speculative, and is clearly erroneous." To bolster 

this conclusion, the BIA added that "the First Circuit . . . has 

held that where a government is 'making every effort to combat' 

violence by private actors, and 'its inability to stop the problem' 

is not distinguishable 'from any other government struggles,' the 

private violence has no government nexus and does not constitute 

persecution." 

One Board member dissented from the decision, stating 

her view as follows: 
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Although the majority correctly concludes that 

some evidence in the record does not support 

the Immigration Judge's determination that the 

respondent demonstrated that the Mexican 

government would be unable or unwilling to 

control the persecutors whom he fears, other 

evidence does support that determination. See 

Exh. 4 at 65, 109.5 Consequently, the 

Immigration Judge cannot be said to have 

clearly erred in that regard. 

Rosales timely filed this petition for review challenging the BIA's 

reversal of the IJ's inability finding, primarily arguing that the 

BIA committed a legal error by failing to differentiate between 

the Mexican government's willingness and ability to protect him. 

II. 

A. Standard of Review 

"Where, as here, 'the BIA has conducted an independent 

evaluation of the record and rested its decision on a selfgenerated rationale,' we focus our review on the decision of the 

BIA, rather than the decision of the IJ." Gonzalez v. Holder, 673 

F.3d 35, 38 (1st Cir. 2012) (quoting Zhou Zheng v. Holder, 570 

F.3d 438, 440 (1st Cir. 2009)). Specifically, we review de novo 

the determination by the BIA that the immigration judge's finding 

that the police would be unable or unwilling to protect Rosales 

was clearly erroneous. See Alimbaev v. Att'y General, 872 F.3d 

 5 This citation is a reference to the country condition 

reports submitted by Rosales. 
- 13 - 

188, 194 (3d Cir. 2017); Wu Lin v. Lynch, 813 F.3d 122, 129 (2d 

Cir. 2016). 

In an effort to avoid de novo review of the decision of 

the BIA, the government tries to transform the BIA's decision into 

something it is not -- a factual finding by the BIA that Rosales 

failed to show that the Mexican government was either unwilling or 

unable to protect him, and therefore a finding that we must review 

under the deferential substantial evidence standard. See OrtizAraniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007). Pursuant to 

that standard, "administrative findings of fact are conclusive 

unless any reasonable adjudicator would be compelled to conclude 

to the contrary." 8 U.S.C. § 1252(b)(4)(B); Limani v. Mukasey, 

538 F.3d 25, 30 (1st Cir. 2008). Without acknowledging Rosales's 

argument that the BIA committed a legal error, the government 

contends that we must therefore affirm the BIA's decision unless 

the evidence in the record compels a contrary conclusion. 

That approach reflects a profound misunderstanding of 

the law. Most fundamentally, the BIA's regulations prohibit it 

from engaging in fact-finding. See 8 C.F.R. § 1003.1(d)(3)(iv) 

(stating that "the Board will not engage in factfinding in the 

course of deciding appeals"). Instead, it is limited to making 

legal conclusions and evaluating the IJ's findings of fact for 

clear error. See id. §1003.1(d)(3)(i)-(ii); see also Rotinsulu v. 

Mukasey, 515 F.3d 68, 72 (1st Cir. 2008). The BIA observed that 
- 14 - 

limitation here, concluding that the central factual finding by 

the IJ -- that the Mexican government was unable to protect Rosales 

-- was clearly erroneous.6 That determination is not, as the 

government contends, an "administrative finding of fact" subject 

to the substantial evidence standard, 8 U.S.C. § 1252(b)(4)(B), 

but a legal determination that the evidence in the record was 

insufficient as a matter of law to support the IJ's factual 

finding. See Wu Lin, 813 F.3d at 129 ("The BIA's application of 

'clear error' review is the application of a legal standard to 

findings of fact and as such is a ruling of law."). 

To be sure, in the usual case where the BIA has adopted 

or affirmed the IJ's findings, the factual findings at issue before 

us on appeal from the BIA's decision remain the factual findings 

of the IJ. Thus, we do not draw a distinction between the two for 

the purposes of the standard of review, and we review the factual 

findings -- which were originally made by the IJ but affirmed by 

the BIA -- under the substantial evidence standard, rejecting them 

only if the evidence in the record compels a contrary result. See 

8 U.S.C. § 1252(b)(4)(B). At times while conducting such a review, 

we have referred to the findings we are reviewing as the "BIA's 

factual findings," when it would be more precise to describe them 

 6 Whether a government is unwilling or unable to protect an 

asylum applicant from persecution "is a question of fact." OrtizAraniba, 505 F.3d at 42. 
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as the findings of the IJ that have been adopted or affirmed by 

the BIA. See, e.g., Ortiz-Araniba, 505 F.3d at 42 (reviewing under 

the substantial evidence standard the BIA's determination that the 

asylum applicant had not proved that the government was unwilling 

or unable to protect her where the BIA had affirmed an IJ's finding 

on that point). Cf. Pan v. Gonzales, 489 F.3d 80, 85 (1st Cir. 

2007) (applying a deferential standard only to the "IJ's findings 

of fact"). 

This appeal is not the usual case because the BIA 

rejected the crucial factual finding of the IJ. Indeed, we have 

never had occasion to squarely address the standard of review when 

the BIA concludes that a factual finding of the IJ is clearly 

erroneous. However, we have applied de novo review to the similar 

inquiry of whether the BIA appropriately applied the clear error 

standard or instead engaged in improper fact-finding, see Liu Jin 

Lin v. Holder, 723 F.3d 300, 305 (1st Cir. 2013), and our sister 

circuits have held that de novo review is the appropriate standard 

when the BIA rejects a factual finding of the IJ as clearly 

erroneous, see, e.g., Wu Lin, 813 F.3d at 129; Alimbaev, 872 F.3d 

at 194, 197. We agree that, because the BIA's holding that the IJ 

committed clear error is legal in nature, our review of that 

conclusion is de novo. 

As in other cases where we review the BIA's conclusions 

de novo, we are limited by the well-established principle that an 
- 16 - 

appellate court "should judge the action of [the BIA] based only 

on the reasoning provided by the agency, not based on grounds 

constructed by the reviewing court." Mejia v. Holder, 756 F.3d 

64, 69 (1st Cir. 2014) (quoting Mihaylov v. Ashcroft, 379 F.3d 15, 

21 (1st Cir. 2004)) (alteration in original). As a result, we do 

not look at the entire record and determine anew whether, in our 

judgment, the IJ committed clear error in finding that the Mexican 

government was unable to protect Rosales. Instead, we conduct de 

novo review only of the justifications provided by the BIA for 

concluding that the IJ's finding that the Mexican government was 

unable to protect Rosales was clearly erroneous. See Wu Lin, 813 

F.3d at 129.7 

B. The BIA's Misapplication of the Unwilling or Unable Standard 

To qualify for asylum, an applicant must "demonstrate 

either past persecution or a well-founded fear of future 

persecution on account of her race, religion, nationality, 

political opinion, or membership in a particular social group." 

Ortiz-Araniba, 505 F.3d at 41; see 8 U.S.C. § 1101(a)(42)(A); id. 

§ 1158(b)(1)(B)(i). Where a private actor, rather than the 

government itself, is alleged to be the persecutor, the applicant 

must demonstrate "some connection" between the actions of the 

 7 In that particular sense, de novo review of BIA decisions 

is different from de novo review of district court decisions, where 

we can affirm for any reason supported by the record. See P.R. 

Ports Auth. v. Umpierre-Solares, 456 F.3d 220, 224 (1st Cir. 2006). 
- 17 - 

private actor and "governmental action or inaction." OrtizAraniba, 505 F.3d at 41. To demonstrate such a link, Rosales had 

the burden of proving that the government was either "unwilling or 

unable" to protect him from persecution. Burbiene v. Holder, 568 

F.3d 251, 255 (1st Cir. 2009). Rosales contends that the BIA, in 

determining that the IJ's finding of inability to protect Rosales 

was clearly erroneous, misapplied the unwilling or unable standard 

by treating it as one element, rather than separately examining 

the government's unwillingness and its inability. We agree. 

The BIA's application of the "unwilling or unable" 

standard is a legal question that we review de novo. See Madrigal 

v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (holding that 

misapplication of "unwilling or unable" standard was legal error). 

We have consistently stated that an applicant must prove either 

unwillingness or inability. See, e.g., Khan v. Holder, 727 F.3d 

1, 7 (1st Cir. 2013) (stating that there must be proof that "the 

government is unwilling or unable to address" private violence 

(emphasis added) (quoting Butt v. Keisler, 506 F.3d 86, 92 (1st 

Cir. 2007))); Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir. 2008) 

(requiring a showing "that the persecution is due to the 

government's unwillingness or inability" to control the conduct of 

private actors (emphasis added)); Ortiz-Araniba, 505 F.3d at 41 

(requiring a showing of the "government's unwillingness or 
- 18 - 

inability to control private conduct" (emphasis added)(quoting 

Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir. 2006))). 

In Khattak v. Holder, 704 F.3d 197, 206 (1st Cir. 2013), 

we demonstrated that unwillingness and inability are distinct 

issues, and that an applicant may be able to prove inability 

without proving unwillingness where the government's willing 

efforts to protect its citizens fall short. There, we held that 

the BIA erred when it concluded that the Pakistani military's 

actions in fighting the Taliban showed both willingness and ability 

to protect Khattak, an anti-Taliban politician. Id. We explained 

that "although such military action indicates that the Pakistani 

government is willing to take on the Taliban, such action does not 

show that the Pakistani government is able to protect its citizens 

from Taliban attacks." Id. Accordingly, we remanded the case to 

the BIA for reconsideration of its conclusion that the government 

was neither unwilling nor unable to protect Khattak. 

The BIA here missed the distinction drawn by the IJ 

between the Mexican government's willingness to investigate 

Tomas's murder and its ability to protect Rosales in the future. 

It therefore incorrectly described the IJ's decision as finding 

"that the general background country evidence showed that the 

police would be unable or unwilling to protect the respondent." 

(Emphasis added.) Elaborating on that description, as noted 

earlier, the BIA stated that "[t]he Immigration Judge appears to 
- 19 - 

have deferred to the background evidence, and essentially 

discounted the actual, individualized evidence of record in this 

case showing that the police in Mexico initiated an investigation 

of the respondent's son's murder." 

To the contrary, as described above, the IJ thoroughly 

discussed the police investigation in assessing the government's 

willingness to protect Rosales, but concluded, based on the country 

condition reports and other evidence in the record, that the 

government would nonetheless be unable to protect him. Therefore, 

as a result of conflating unwillingness and inability, the BIA 

erroneously concluded that the IJ should have found that evidence 

of willingness (the police investigation) contradicted evidence of 

inability (Rosales's testimony and the country condition reports 

regarding impunity for organized crime and police corruption), 

when in fact the IJ appropriately discussed evidence of 

unwillingness and evidence of inability separately. 

In support of the BIA's decision, the government cites 

two of our cases that it says stand for the proposition that a 

police response to persecution, such as the investigation here of 

Tomas's murder, is sufficient to demonstrate that the government 

is both willing and able to protect an asylum applicant, and that 

therefore the BIA did not need to consider more than the police 

investigation to conclude that the IJ's inability finding was 

clearly erroneous. See Khan, 727 F.3d at 7-8; Ortiz-Araniba, 505 
- 20 - 

F.3d at 42. The government misreads our precedent.8 In Khan, we 

not only noted that the Pakistani government had investigated 

Khan's reports of persecution by the Taliban and had "actively 

sought to protect [him]," 727 F.3d at 8, but we also described his 

testimony that the government had "arrest[ed] Taliban members and 

call[ed] on the Pakistani army to secure the area" where he lived, 

which Khan acknowledged had "improve[d] the situation," id. at 7 

(alteration in original). There, unlike the circumstances here, 

the investigative efforts by the government had proved fruitful, 

demonstrating the ability of the police to protect Khan from 

persecution. 

Likewise, in Ortiz-Araniba, there was evidence that the 

police not only responded to the applicant's complaint about 

persecution, but also arrested the perpetrator, who was convicted 

of the crime and served four years in prison. 505 F.3d at 42. 

Given that scenario, we concluded that the successful prosecution 

was evidence of both willingness and ability to protect the asylum 

applicant, and that such evidence could serve to rebut the country 

condition evidence relied on by the applicant to show inability. 

Id. at 42-43; see also Harutyunyan v. Gonzales, 421 F.3d 64, 68 

 8 To the extent that our combined discussion of "unwillingness 

or inability" in some cases has obscured the distinction between 

the two -- despite our consistent use of the disjunctive "or" -- 

we clarify now that the inquiry into whether there is a government 

nexus must include separate consideration of the evidence of 

unwillingness and the evidence of inability. 
- 21 - 

(1st Cir. 2005) (finding no inability where "the local authorities 

responded immediately to each incident," and "the police succeeded 

in tracking down the malefactors and initiated criminal 

proceedings against them"); Matter of A-B-, 27 I. & N. Dec. 316, 

343 (Att'y Gen. 2018) (finding that the BIA erred in overturning 

the IJ's finding that the police were able to protect the 

petitioner where she "not only reached out to police, but received 

various restraining orders and had [the persecutor] arrested on at 

least one occasion"). Here, on the other hand, the evidence in 

the record showed only that the police made efforts to investigate 

Tomas's murder. The evidence showed nothing about the quality of 

this investigation or its likelihood of catching the perpetrators. 

Indeed, evidence about law enforcement in Guerrero generally 

suggested that the investigation was unlikely to make Rosales's 

family any safer. Therefore, unlike Khan and Ortiz-Araniba, the 

evidence of the investigation here was insufficient to justify the 

BIA's conclusion that the IJ clearly erred in finding that the 

Mexican police were willing but unable to protect Rosales. 

C. Country Condition Reports 

As a result of treating unwillingness and inability as 

one element, the BIA erroneously dismissed the country condition 

reports that were the basis for the IJ's finding of inability as 

mere "background evidence" that was too general to support a 

finding of inability in light of the more specific -- and in its 
- 22 - 

view, contradictory -- evidence of the police investigation. See 

Amouri v. Holder, 572 F.3d 29, 35 (1st Cir. 2009) (stating that, 

while "country conditions reports are deemed generally 

authoritative in immigration proceedings, the contents of such 

reports do not necessarily override petitioner-specific facts").

Focusing only on the willingness of the police to investigate 

Tomas's murder, the BIA did not recognize the value of the country 

condition reports as support for the IJ's finding that the Mexican 

police were unable to protect Rosales under the specific facts of 

his case. 

Although in some cases country condition reports can be 

too generalized to support a finding of inability, see, e.g., 

Mendez-Barrera v. Holder, 602 F.3d 21, 28 (1st Cir. 2010); Amouri, 

572 F.3d at 35, the country condition reports cited by the IJ here 

were particularly probative because they closely mirrored the 

specific circumstances described by Rosales, and thus were 

corroborative of his testimony. For example, the International 

Crisis Group report described a skyrocketing homicide rate in 

Guerrero "[d]espite deployment of more federal police," and stated 

that, in Guerrero specifically, "impunity, even for homicide, is 

the norm." Those statements are consistent with the testimony of 

Rosales, a police officer himself, that organized crime kills 

"three or four people a day" in Acapulco and that arrests are 

rarely made for such crimes. 
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Also singling out Guerrero as a state where violence was 

rampant, the State Department country condition report 

specifically described one incident in which local police in 

Guerrero arrested 43 students and then handed them over to drug 

traffickers. Only the remains of two of the students have been 

found. The ICG report described the same incident, as well as 

another kidnapping of "more than a dozen people" that occurred in 

Guerrero in May 2015, less than a year before Tomas's murder. The 

report concluded that the second kidnapping "shows that months 

after the students disappeared authorities remained unwilling or 

unable to act decisively to prevent and resolve such crimes." 

Similarly, Rosales characterized the police in Acapulco as being 

overwhelmed by organized crime, and the testimony of Rosales and 

his wife that they hired a private civil attorney to investigate 

Tomas's murder suggests that they shared this view of the inability 

of the police to bring criminals to justice. 

Thus, while country condition reports generally have 

"high probative value . . . regarding a foreign country's 

conditions," Hang Chen v. Holder, 675 F.3d 100, 108 (1st Cir. 

2012), and "may constitute 'substantial evidence' for the purposes 

of reviewing immigration decisions," id. (quoting Ambartsoumian v. 

Ashcroft, 388 F.3d 85, 89 (3d Cir. 2004)), the country condition 

reports here were particularly probative because they specifically 

addressed the failure of the police in Rosales's home state of 
- 24 - 

Guerrero to protect citizens from targeted kidnappings and murders 

committed by organized crime, and they corroborated Rosales's 

testimony regarding his first-hand experience with organized crime 

as a police officer. These reports supported the IJ's conclusion 

that the police were unable to protect Rosales from persecution, 

and the BIA erred by discounting them as too general. 

D. Rosales's Failure to Report Threats to the Police 

In addition to conflating unwillingness and inability, 

the BIA made an additional error in its clearly erroneous analysis 

when it relied on the IJ's finding that Rosales did not report to 

the police the efforts of organized crime to find him in Acapulco 

and Pueblo Viejo as another basis for rejecting the IJ's inability 

finding. In so doing, the BIA ignored the proposition in our case 

law that "the failure by a petitioner to make [a police] report is 

not necessarily fatal to a petitioner's case [of persecution] if 

the petitioner can demonstrate that reporting private abuse to 

government authorities would have been futile." Morales-Morales 

v. Sessions, 857 F.3d 130, 135 (1st Cir. 2017). The BIA then 

compounded that error by failing to take into account the 

significant documentary evidence cited by the IJ showing police 

corruption and police complicity in organized crime in Guerrero. 

Rosales corroborated that evidence with his testimony that, in his 

experience as a police officer, the Acapulco police usually conduct 

an initial investigation when there is a crime but, "after that, 
- 25 - 

all that, it gets archived. They don't really follow up with the 

cases." Rosales also testified that, although the police find ten 

or eleven bodies every week in Acapulco, arrests are rarely made 

in those cases because "the organized crime is overwhelmingly more 

than the police." The IJ's finding that Rosales sought assistance 

from an attorney outside the police department to investigate 

Tomas's murder further corroborated this testimony and the country 

condition reports. 

Moreover, although he was a police officer, Rosales 

testified that he was "afraid" to speak to the police about his 

son's murder, and that he did not report the attempts to locate 

him by organized crime because he was "afraid they were going to 

kill us." He also stated that "that's why the lawyer helped us to 

get all the paperwork . . . [for the asylum application], because 

we were afraid" to speak to the police. Therefore, reviewing the 

entire record before the IJ, we conclude that the BIA erred when 

it decided that the IJ's inability finding was undermined by 

Rosales's failure to report the attempts to find him to the police. 

In citing that failure, the BIA did not address other evidence in 

the record demonstrating that such a report would be futile or 

even dangerous. Such a selective reading of the record by the BIA 

is a misapplication of the clearly erroneous standard. 
- 26 - 

E. Indistinguishable from Other Governments' Struggles 

The BIA also supported its clear error determination by 

concluding that any failure by the Mexican government to protect 

Rosales from organized crime "is [in]distinguishable from any 

other government's struggles to combat a criminal element," 

Burbiene, 568 F.3d at 255. Again, this selective reading of the 

record by the BIA reflects a misapplication of the clearly 

erroneous standard. 

Drawing on the testimony of Rosales and country 

condition reports, the IJ found that most homicides and kidnappings 

in Guerrero go unsolved by police, and that at least some police 

officers in Guerrero are themselves involved with assisting 

organized crime in carrying out extortion, homicides, and even 

mass kidnappings. That evidence of police complicity in organized 

crime in the particular place where Rosales lived contrasts sharply 

with the evidence in Burbiene, where the country condition reports 

showed that the country had been largely successful in combatting 

human trafficking but had merely failed to eradicate the crime 

completely.9 See id. 

 9 The government draws our attention to the Attorney General's 

recent decision in Matter of A-B-, 27 I. & N. Dec. at 320, which 

reiterated that "[t]he mere fact that a country may have problems 

effectively policing certain crimes . . . cannot itself establish 

an asylum claim." This description of the government nexus 

requirement is consistent with our precedent, discussed above, 

holding that a government's inability to protect a petitioner from 
- 27 - 

The government points out that there was some good news 

in the country condition reports, including Mexico's enactment of 

laws to facilitate the investigation of disappearances and 

torture. However, in light of the BIA's dismissal of the country 

condition reports altogether as too general, the government's 

attempt to now use them as support for the BIA's decision is 

unpersuasive. See Mejia, 756 F.3d at 69 (limiting appellate courts 

to review of "the reasoning provided by the agency"). As much as 

it might like to do so, the government cannot rewrite the BIA's 

decision. 

Moreover, the examples provided by the government of the 

steps Mexico has taken to combat violence and police corruption 

through legislation show only the willingness of the government to 

enact laws, not the ability of the police to enforce the law. 

Indeed, the government concedes that the results of these efforts 

"have been 'limited.'" C.f. Burbiene, 568 F.3d at 255 (finding no 

showing of inability where, in addition to legislative changes, 

 

persecution must be "distinguishable from any other government's 

struggles to combat a criminal element." Burbiene, 568 F.3d at 

255; see also Ortiz-Araniba, 505 F.3d at 41 (stating that a 

petitioner must show "more than 'difficulty . . . controlling 

private behavior'" (quoting Menjivar v. Gonzales, 416 F.3d 918, 

921 (8th Cir. 2005))). As we explain, Rosales has produced 

competent and sufficient evidence that the failures by the police 

in Guerrero went well beyond a government's failure to protect its 

citizens from all crime. 
- 28 - 

the government had "opened 24 criminal cases against alleged 

traffickers"). 

Even if the reforms cited by the government could be 

considered evidence of ability, we agree with the dissenting member 

of the BIA panel that the existence of some evidence in the record 

that could support a finding of ability does not render the IJ's 

finding of inability clearly erroneous, especially given the 

significant country condition evidence that supported the IJ's 

decision. See Ridore v. Holder, 696 F.3d 907, 917 (9th Cir. 2012) 

("The BIA cannot, under a clear error standard of review, override 

or disregard evidence in the record and substitute its own version 

of reality."); see also Anderson v. City of Bessemer City, N.C., 

470 U.S. 564, 573 (1985) (stating that the clear error "standard 

plainly does not entitle a reviewing court to reverse the finding 

of the trier of fact simply because it is convinced that it would 

have decided the case differently"). 

III. 

In sum, the BIA's justifications for its holding that it 

was clearly erroneous for the IJ to find that the Mexican 

government is unable to protect Rosales reflect multiple errors. 

The BIA failed to consider evidence of the Mexican government's 

inability to protect Rosales and his nuclear family, as distinct 

from evidence of the willingness of the police to investigate the 

murder of Rosales's son. That error in conflating unwillingness 
- 29 - 

and inability was compounded when the BIA discounted country 

condition reports which, when combined with Rosales's testimony 

about the particular circumstances of his case, were sufficient to 

support the IJ's finding that the police in Guerrero would be 

unable to protect Rosales from persecution by organized crime. 

The BIA committed further error by concluding that the 

IJ's finding that Rosales did not report threats by organized crime 

to the police refuted the IJ's ultimate finding of inability. The 

BIA both ignored our precedent stating that a failure to report a 

crime does not undermine an assertion of inability if a report 

would have been futile, and failed to consider evidence in the 

record that would support a finding of futility, thereby 

misapplying the clear error standard. Moreover, in another 

misapplication of the clear error standard, the BIA incorrectly 

concluded that the IJ's inability finding was clearly erroneous 

because the Mexican government's failure to protect Rosales was 

indistinguishable from the struggles of any government to combat 

crime, when the record before the IJ supported a finding that it 

was distinguishable. 

Because of these errors, we grant Rosales's petition and 

remand to the BIA for further proceedings consistent with this 

opinion. See I.N.S. v. Ventura, 537 U.S. 12, 16-17 (2002) (per 

curiam) (holding that remand to the BIA is generally the 

appropriate remedy when the BIA commits a legal error). 

So ordered.