The Honorable William E. Smith, District Judge for the U.S. District *

Court for the District of Rhode Island, sitting by designation.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE ALBERTO REGALADOESCOBAR,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 09-72964

Agency No.

A070-451-936

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 9, 2012—San Francisco, California

Filed June 5, 2013

Before: Andrew J. Kleinfeld and Marsha S. Berzon,

Circuit Judges, and William E. Smith, District Judge.*

Opinion by Judge Smith;

Dissent by Judge Kleinfeld
2 REGALADO-ESCOBAR V. HOLDER

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Immigration

The panel granted in part and denied in part a petition for

review of the Board of Immigration Appeals’ denial of

asylum, withholding of removal, and protection under the

Convention Against Torture to a native and citizen of El

Salvador, and remanded for the Board to address in the first

instance whether petitioner’s opposition to violence

constitutes a political opinion and whether he established a

claim for future persecution on that basis.

The panel granted the petition with respect to petitioner’s

applications for asylum and withholding of removal because

the Board failed to address whether petitioner established a

well-founded fear or sufficient likelihood of future

persecution on account of a protected ground. The panel

directed the Board on remand to re-evaluate whether

petitioner’s opposition to the strategy of the National

Liberation Front for Farabundo Marti (“FMLN”) of using

violence constitutes a political opinion.

The panel held that substantial evidence supported the

finding of no past persecution because the record did not

compel the conclusion that petitioner was attacked on account

of any principled opposition to the FMLN or its violence,

rather than on account of his failure to cooperate in the

FMLN’s recruitment efforts, and that substantial evidence
REGALADO-ESCOBAR V. HOLDER 3

supported the Board’s determination that petitioner failed to

establish a clear probability of future torture.

Dissenting, Judge Kleinfeld wrote that after determining

that petitioner failed to establish that his past harm was

connected to his political opinion, there was no reason for the

Board to speculate further about such a possible nexus in the

future, and that there is no need for either this court or the

Board to reach the issue of when, if ever, views on violence

constitute a political opinion.

COUNSEL

Roger Green (argued) and Jenny Tsai, Green & Tsai,

Attorneys at Law, San Francisco, California, for Petitioner.

Tony West, Assistant Attorney General, Civil Division,

Cindy S. Ferrier, Senior Litigation Counsel, and Kimberly A.

Burdge (argued), Trial Attorney, Office of Immigration

Litigation, Civil Division, United States Department of

Justice, Washington, D.C., for Respondent.

OPINION

SMITH, District Judge:

Jorge Alberto Regalado-Escobar petitions for a review of

the decision of the Board of Immigration Appeals (BIA)
4 REGALADO-ESCOBAR V. HOLDER

 8 U.S.C. § 1158. 1

 8 U.S.C. §1231(b)(3). 2

 United Nations Convention Against Torture and Other Cruel, Inhuman 3

or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty

Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R.

§ 1208.18.

 Regalado had previously come to the United States in 1989, also to 4

escape the FMLN, and applied for asylum. To his knowledge, this first

application was never adjudicated. He returned to El Salvador in 2000 to

attend to his sick mother, who died in May 2005.

denying his application for asylum, withholding of removal, 1 2

and relief under the Convention Against Torture. We review 3

questions of law de novo and the BIA’s factual findings,

including whether an applicant was persecuted on account of

his political opinion, under the substantial evidence standard.

See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

Under this standard, this court must uphold the BIA’s

findings unless “the evidence [the applicant] presented was so

compelling that no reasonable factfinder could fail to find the

requisite fear of persecution.” Id. at 483–84. For the reasons

stated below, we deny in part, and grant and remand in part,

the petition.

Background and Procedural History

A

Regalado is a native and citizen of El Salvador who came

to the United States in February 2006 to escape the National

Liberation Front for Farabundo Marti (FMLN). His conflicts 4

with the FMLN began in 2002, when several men showed up
REGALADO-ESCOBAR V. HOLDER 5

at Regalado’s house and asked him to join an FMLN

demonstration that involved burning tires in the street and

breaking windows. Regalado said that he was opposed to

these activities and refused to join the FMLN demonstration.

Before the Immigration Judge (IJ), Regalado stated that he

refused to join because he had “always been a neutral person

[and does not] agree with parties that use violence to resolve

their political problems.” He further testified that he “didn’t

agree with [the FMLN’s] political activities,” or with their

“system” generally, adding that he has “never liked violence”

and “never participated with [the FMLN].” The FMLN

members said they would “settle this later,” and attacked

Regalado on the streets a few days later. They beat Regalado

with sticks and rocks and told him that if he did not

cooperate, “next time would be worse.”

Regalado was attacked a second time in early 2003. He

was waiting for a bus when two men began to beat him with

sticks. They identified themselves as members of the FMLN

and they told Regalado that if he did not join them, he and his

family “would regret it.” After this incident, Regalado went

to live with his father in another town but returned to his

home in Bosque del Rio periodically to visit his wife and

kids.

Regalado was attacked a third time in 2005. As he was

exiting a bus, two men approached Regalado, identified

themselves as FMLN members and began beating him.

Regalado testified to the IJ that he almost died from this

beating and one of his attackers told him that next time they

would kill him.
6 REGALADO-ESCOBAR V. HOLDER

B

The FMLN is a recognized political party in El Salvador

that has significant representation in both national and local

governments. The reports of the U.S. Department of State

submitted by both Regalado and the Government describe

incidents of violence perpetrated by members of the FMLN.

C

The IJ denied Regalado’s application for asylum, stating

that he failed to demonstrate that he was attacked on account

of a protected ground under asylum law. Rather, the IJ found

that Regalado was “either the victim of recruitment by what

appears to be, essentially, a guerilla operation, or simply the

victim of criminal activity.” In the alternative, the IJ denied

Regalado’s asylum application because Regalado failed to

demonstrate that the government of El Salvador is either

unable or unwilling to prevent the harm he suffered and the

future persecution he fears. The IJ noted that Regalado did

not report the attacks to the police and, during his second

attack, fear of the police is the only reason his attackers fled

as soon as they did. Lastly, the IJ found that Regalado failed

to show that he could not safely relocate within El Salvador.

The IJ also stated that, as Regalado failed to satisfy the

burden required for asylum eligibility, he necessarily failed

to meet the higher burden required for withholding of

removal. Moreover, the IJ held that Regalado failed to

demonstrate that he was more likely than not to be tortured if

he returned to El Salvador, so he was not eligible for relief

under the Convention Against Torture.
REGALADO-ESCOBAR V. HOLDER 7

D

The BIA upheld the IJ’s conclusions that Regalado is

ineligible for asylum, withholding of removal and relief under

the Convention Against Torture. The BIA held that Regalado

did not have a political opinion that could serve as the basis

for an asylum claim because he was not “politically or

ideologically opposed to the ideals espoused by the FMLN.”

Rather, Regalado merely showed that he was opposed to the

FMLN’s violent activities for which he was being recruited,

including demonstrations involving the burning of tires and

breaking of windows. Further, the BIA held that Regalado

did not show that he was persecuted on account of a political

opinion. The BIA concluded that Regalado “failed to

establish that at least one central reason for the FMLN

members’ conduct toward him was tied to his actual or

imputed political opinions, rather than to his mere refusal to

join their ranks and assist them in their violent activities.”

Finally, the BIA found that Regalado was ineligible for relief

under the Convention Against Torture because he did not

show that he was more likely than not to be tortured if

returned to El Salvador or that any torture would be inflicted

at the instigation of or with the consent of public officials.

Discussion

To be eligible for asylum, Regalado must prove that he is

a refugee; that is, that he is an alien “who is unable or

unwilling to return to, and is unable or unwilling to avail

himself . . . of the protection of, [a] country because of

persecution or a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42)(A). In order to establish past persecution, an
8 REGALADO-ESCOBAR V. HOLDER

applicant must show that he or she suffered harm that rises to

the level of persecution “on account of” a statutorily

protected ground. “To demonstrate a nexus between the harm

[an asylum applicant] suffered and his political opinion, [the

applicant] must show (1) that he held, or his persecutors

believed that he held, a political opinion; and (2) that he was

harmed because of that political opinion.” Zhiqiang Hu v.

Holder, 652 F.3d 1011, 1017 (9th Cir. 2011) (quoting

Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.

2010)). Even without having suffered past persecution, an

applicant may establish eligibility for asylum based on a wellfounded fear of future persecution. See Lopez-Galarza v.

I.N.S., 99 F.3d 954, 958 (9th Cir. 1996) (“Past persecution

and a well-founded fear of future persecution provide

separate avenues for establishing eligibility for asylum.”).

We grant Regalado’s petition and remand with respect to

his applications for asylum and withholding of removal.

With respect to asylum eligibility, the BIA failed to address

whether Regalado established a well-founded fear of future

persecution on account of a protected ground, and with

respect to withholding of removal, the BIA also neglected to

address the likelihood of future persecution on such ground.

This court’s review of a BIA decision is limited to the

decision itself, and does not include the IJ’s decision, except

to the extent that the BIA expressly adopted the IJ’s opinion.

See Zhiqiang Hu, 652 F.3d at 1016. “In reviewing the

decision of the BIA, we consider only the grounds relied

upon by that agency. If we conclude that the BIA’s decision

cannot be sustained upon its reasoning, we must remand to

allow the agency to decide any issues remaining in the case.”

Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004).
REGALADO-ESCOBAR V. HOLDER 9

Regalado argued before both the BIA and this court that

he has a well-founded fear of future persecution on a

protected ground, independent of his alleged past

persecution. The BIA rejected this contention without

explanation. There is no indication, for example, that the BIA

considered the FMLN’s transition from a guerilla group to a

recognized political party with seats in government when

evaluating the objective basis for Regalado’s fear of future

persecution. Absent any reasoning from the BIA, we cannot

find that substantial evidence supports the conclusion that

Regalado has not established a well-founded fear of future

persecution or that he is more likely than not to be persecuted

if he returnsto El Salvador. Therefore, we remand to the BIA

to determine whether Regalado is eligible for asylum or

withholding of removal in view of his avowed fear. See

Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 870 (9th Cir.

2003) (“[I]t is not for us to determine in the first instance

whether [the applicant] has shown a well-founded fear of

persecution.”).

Upon remand, when the BIA determines whether

Regalado has a well-founded fear of future persecution on the

basis of a protected ground, the BIA must re-evaluate whether

Regalado’s opposition to the violent activities of the FMLN

constitutes a political opinion. In its prior decision, the BIA

erred as a matter of law in holding that opposition to the

FMLN’s violence could not be a political opinion.

When a political organization has a pattern of committing

violent acts in furtherance of, or to promote, its politics, such

strategy is political in nature; it advances a political goal

through certain means rather than others. Therefore,

opposition to the strategy of using violence can constitute a

political opinion that is a protected ground for asylum
10 REGALADO-ESCOBAR V. HOLDER

 In cases decided after Elias-Zacarias, this court has held beliefs about 5

the use of violence to be political opinions. See Borja v. INS, 175 F.3d

732, 736 (9th Cir. 1999) (en banc) (construing an asylum applicant’s

revulsion at an armed group’s violence against women and children as a

political opinion), superseded by statute on other grounds as stated by

Parussimova v. Mukasey, 555 F.3d 734, 739 (9th Cir. 2009); Lazo-Majano

v. INS, 813 F.2d 1432, 1435 (9th Cir. 1987) (holding that a belief that the

armed forces are responsible for lawlessness, rape, torture, and murder

constitutes a political opinion), overruled on other grounds by Fisher v.

INS, 79 F.3d 955 (9th Cir.1996). Like this court, the Second Circuit has

rejected an “impoverished” view of what may constitute a political

opinion. See e.g., Zhang v. Gonzales, 426 F.3d 540, 546–49 (2d Cir. 2005)

(citing Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994)); accord Manzur v.

purposes. Cf. Grava v. I.N.S., 205 F.3d 1177, 1181 (9th Cir.

2000) (“When the alleged corruption is inextricably

intertwined with governmental operation, the exposure and

prosecution of such an abuse of public trust is necessarily

political.”); Reyes-Guerrero v. I.N.S., 192 F.3d 1241, 1245

(9th Cir. 1999) (finding that death threats against a prosecutor

who was pursuing an embezzlement case against members of

an opposing political party amounted to persecution on the

basis of a political opinion because it was difficult to

differentiate political from non-political crimes involving

government officials in the applicant’s home country). In

Grava and Reyes-Guerrero, this court found that where

corruption was endemic to a political organization, opposition

to the corruption amounted to opposition to the political

organization, even though the point of contention was not

purely political. Grava, 205 F.3d at 1181. Similarly,

opposition to a political party’s violent activities may amount

to opposition to the political party itself, if the violence is

integral to the party and inextricably linked to its political

activities, rather than constituting mere unrelated acts of

violence perpetrated by individuals who happen to be part of

a political group.5
REGALADO-ESCOBAR V. HOLDER 11

U.S. Dept. of Homeland Sec., 494 F.3d 281, 294 (2d Cir. 2007).

Because the BIA erred as a matter of law, it did not

conduct the necessary factual inquiry as to whether Regalado

had a protected political opinion. Namely, because it did not

recognize that opposition to the FMLN’s violent activities

could amount to a political opinion, the BIA did not examine

whether those violent activities were in furtherance of the

FMLN’s politics or merely apolitical acts of violence.

Additionally, the BIA did not determine the extent to which

violence is characteristic of the FMLN’s political activities.

These factual issues are not for us to determine here. See

Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.

2007) (holding that this court may not decide a claim unless

the BIA has done so in the first instance (citing I.N.S. v.

Ventura, 537 U.S. 12, 16 (2002) (per curiam))). The BIA

must make this determination upon remand as part of its

evaluation of whether Regalado has a well-founded fear of

future persecution on the basis of a political opinion.

The BIA further held that Regalado was not in the past

persecuted “on account of” his opposition to the FMLN’s

violence. Substantial evidence supports this conclusion

because, even if the BIA had correctly held that opposition to

a political organization’s violent activities can constitute a

political opinion, the record does not compel us to hold that

Regalado was attacked on account of any principled

opposition to the FMLN or its violence, rather than on

account of his failure to cooperate in the FMLN’s recruitment

efforts. Under the REAL ID Act of 2005, an asylum

applicant must show that the protected activity was “at least

one central reason” in the minds of the persecutors for

attacking the applicant. 8 U.S.C. § 1158(b)(1)(B)(i); see also

Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009).
12 REGALADO-ESCOBAR V. HOLDER

Regalado presented little evidence that his attackers were

motivated by anything other than his refusal to join them,

increase their ranks, and participate in their violent activities.

To have successfully demonstrated past persecution on the

basis of a political opinion, Regalado must have shown that

he was attacked because of his opposition to the FMLN’s

ideology or their violent methods of promoting that ideology.

Regalado offered no evidence to show that his attackers were

even aware of his political beliefs. See Sangha v. I.N.S.,

103 F.3d 1482, 1488 (9th Cir. 1997) (“[T]he applicant must

. . . show that this opinion was articulated sufficiently for it to

be the basis of his past or anticipated persecution.” (quoting

Ramos-Vasquez v. I.N.S., 57 F.3d 857, 863 (9th Cir. 1995)

(internal quotation marks omitted))).

With respect to Regalado’s claim for relief under the

Convention Against Torture, substantial evidence supports

the BIA’s conclusion that Regalado failed to show that he is

more likely than not to be tortured “by or at the instigation of

or with the consent or acquiescence of a public official or

other person acting in an official capacity” if he returns to El

Salvador. 8 C.F.R. § 1208.18(a)(1). Regalado has not shown

that public officials were aware of the attacks by the FMLN

or that public officials would cause or acquiesce in FMLN

attacks on Regalado in the future. See Ornelas-Chavez v.

Gonzales, 458 F.3d 1052, 1060 (9th Cir. 2006) (holding that

public officials acquiesce in torture if they “could have

inferred the alleged torture was taking place, remained

willfully blind to it, or simply stood by because of their

inability or unwillingness to oppose it”). Therefore, we deny

Regalado’s petition with respect to his claim for relief under

the Convention Against Torture.
REGALADO-ESCOBAR V. HOLDER 13

Conclusion

We reverse the BIA’s denial of Regalado’s applications

for asylum and withholding of removal, and remand for the

BIA to determine whether Regalado has a well-founded fear

of persecution on account of a political opinion or whether he

is more likely than not to be persecuted on account of a

political opinion. We deny the petition with regards to

Regalado’s claims for relief under the Convention Against

Torture.

Each party shall bear its own costs on appeal.

Petition GRANTED AND REMANDED in part;

DENIED in part.

KLEINFELD, Senior Circuit Judge, dissenting:

I respectfully dissent.

The majority concludes correctly that despite the vicious

beatings Regalado-Escobar suffered, substantial evidence

supported the BIA’s conclusion that he was beaten for

declining to join up, not because of his political opinion,

toward which the FMLN was evidently indifferent. As the

majority correctly points out, “the record does not compel us

to hold that Regalado was attacked on account of any

principled opposition to the FMLN or its violence, rather than
14 REGALADO-ESCOBAR V. HOLDER

 Maj. Op. at 11. 1

 Maj. Op. at 12. 2

 Zhiqiang Hu v. Holder, 652 F.3d 1011, 1020 (9th Cir. 2011). 3

8 U.S.C. § 1101(a)(42) (“The term ‘refugee’ means . . . any person 4

who is outside any country of such person’s nationality . . . and who is

unable or unwilling to return to . . . that country because of persecution or

on account of his failure to cooperate in the FMLN’s

recruitment efforts.”1

The majority nevertheless remands for findings on future

persecution. This makes no sense, since “Regalado offered

no evidence to show that his attackers were even aware of his

political beliefs.” The majority concludes that the BIA has 2

failed to understand that opposition to violence may itself be

a political opinion for which someone might be persecuted.

That would be an irrelevant inquiry on this record, which

doubtless explains why the BIA articulated no philosophical

views on the question. Neither they nor we need reach the

issue of when, if ever, views on violence constitute a political

opinion. Once absence of a factual nexus connecting the

beatings to Regalado-Escobar’s political opinion was

established by substantial evidence on the record taken as a

whole, there was no good reason for the BIA to speculate

further about such a possible nexus in general or in the future.

As we held in Zhiqiang Hu v. Holder, “the nexus inquiry

and the persecution inquiry are distinct.” If alleged 3

persecution – whether suffered in the past or feared in the

future – is not “on account of” one of the five protected

grounds, it cannot form the basis of a successful asylum

claim. Under the REAL ID Act, the applicant bears the 4
REGALADO-ESCOBAR V. HOLDER 15

a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion

. . . .”). Likewise, to be eligible for withholding of removal, an applicant

must demonstrate that his “life or freedom would be threatened in [his

home] country because of [his] race, religion, nationality, membership in

a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3); 8

C.F.R. § 1208.16(b)(2); Zetino v. Holder, 622 F.3d 1007, 1015 (9th Cir.

2010).

 8 U.S.C. § 1158(b)(1)(B)(i) (“The burden of proof is on the applicant 5

to establish that the applicant is a refugee, within the meaning of section

1101(a)(42)(A) of this title. To establish that the applicant is a refugee

within the meaning of such section, the applicant must establish that race,

religion, nationality, membership in a particular social group, or political

opinion was or will be at least one central reason for persecuting the

applicant.”); see also Parussimova v. Mukasey, 555 F.3d 734, 740–41 (9th

Cir. 2009).

burden to show nexus by showing that a protected ground

was “one central reason” for his persecution. Regalad- 5

Escobar did not show that the FMLN knew of his political

opinion, let alone that it was “one central reason” for their

beating and threatening him. And he presented no evidence

whatsoever implying that the FMLN would likely become

aware of his political opinion in the future. His argument in

his brief is that his “Past Persecution Also Amounts to a

Well-Founded Fear of Future Persecution Based Upon His

Political Opinion.” Because he has not met his burden to

show a nexus connecting his political opinion to his past

beatings, Regalado-Escobar has no argument regarding future

persecution that the BIA needed to address.

It is hard to see why we are publishing an opinion in this

case at all, except to wade into ideological speculation about

whether a “strategy” of favoring or opposing violence “can

constitute a political opinion that is a protected ground,”
16 REGALADO-ESCOBAR V. HOLDER

 Maj. Op. at 9–10. 6

 See Edmund Wilson, To the Finland Station: A Study in the Writing 7

and Acting of History 265–288 (1940); Gerald Runkle, Anarchism: Old

and New 27, 96–98 (1972).

independently of the political goals meant to be advanced by

the “strategy.” The record does not require this speculation. 6

Although Regalado-Escobar did not want to join the FMLN

at least partly because he did not want “to burn tires in the

street, also to break windows in the city,” substantial

evidence, as the majority concedes, supported the BIA’s view

that the FMLN did not care what his opinions were, and beat

him “[b]ecause [he] didn’t join their party.” This record does

not require that the BIA do the case over to address whether

Regalado-Escobar’s opinions about the use of violence to

achieve political ends may themselves be a protected ground,

because his opinions were not the reason for the beatings.

The question whether a political opinion about the use of

violence in politics, independently of the political goal to be

achieved, is a protected ground, will be difficult, when and if

we ever have to address it. Congress just said “political

opinion,” and did not specify what kind of opinion in its

definition of “refugee.” If any political opinion suffices, then

persecution on account of favoring violence would entitle a

person to refugee status as much as persecution on account of

opposing violence. Favoring violence was a popular theme

in old anarchist advocacy by Johann Most and Michael

Bakunin, who supported “propaganda by the deed,” and 7

remains a theme in the more modern advocacy of Frantz

Fanon and perhaps Edward Abbey. There has long been a

romantic notion floating around in many radical movements,

favoring all sorts of ends, that violence “liberates creative
REGALADO-ESCOBAR V. HOLDER 17

 Fascism: An Anthology 139–140 (Nathanael Greene ed., 1968). 8

moral forces in human society which lead to social and

national renewal.” Did Congress intend to define persecuted 8

advocates of violence as refugees?

There is no need in this case to answer that question.

Without knowing that Regalado-Escobar had a political

opinion, the FMLN could not and cannot engage in

persecution – past or future – on account of his political

opinion. We can decide whether an advocate of terror

bombings persecuted for his opinion favoring violence, for

example, is entitled to refugee status, when we get the case.

We should deny the petition, not remand for examination

of the unnecessary and potentially thorny issue of whether

refugee status on account of persecution for political opinion

applies, where the opinion is not about some political end, but

about violence as such.